Syed IBN-E-HASSAN vs THE STATE
This matter concerns a petition for post-arrest bail filed by the petitioner, who was implicated in a criminal case. The core legal question was whether the petitioner, who was not present at the scene of the crime and whose involvement was alleged based on statements under Section 161 of the Code of Criminal Procedure 1898, satisfied the criteria for bail under the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The State argued that the petitioner was named in the F.I.R. and had expressed a motive, constituting abetment. The Court held that the prosecution failed to provide evidence of abetment as defined under Section 107 of the Pakistan Penal Code 1860, noting the absence of specific details regarding the alleged instigation in the F.I.R. Consequently, the Court determined that the petitioner's case fell within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The bail petition was accepted, establishing the principle that in the absence of prima facie evidence of abetment, the case warrants further inquiry, entitling the accused to bail.
- Does the mere naming of an accused in an F.I.R. without specific evidence of instigation constitute abetment under Section 107 of the Pakistan Penal Code 1860?
- When does a criminal case qualify for 'further inquiry' under Section 497(2) of the Code of Criminal Procedure 1898?
- Is an accused entitled to bail if the prosecution fails to establish a prima facie case of abetment despite the offence falling within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Section 13, Arms Ordinance 1965
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
- Section 107, Pakistan Penal Code 1860
ORDER
' I had already granted bail to co-accused of the petitioner through Criminal Miscellaneous No,3856/B of 2003, so the facts need not be reiterated here again.
2. In support of this petition, learned counsel submits that petitioner has been falsely implicated in this case; he was not present at the spot; he was in jail on the day of occurrence and that there is no independent evidence to connect the petitioner with the commission of offence.
3. Learned counsel for the State assisted by learned counsel for the complainant submits that petitioner is named in the F.I.R.; he is connected with motive of the case because he is brother of Abu Talib who was fired at by some unknown person; the petitioner was arrested in case F.I.R. No,39 of 2003 under section 13 of Arms Ordinance XX of 1965 with Police Station Shandara, Lahore and was produced before the Area Magistrate on 24-1-2003, allowed bail as the offence was bailable, did not file the bail bond till 28-1-2003 when the present occurrence had taken place on 27-1-2003 and that two witnesses namely Rehmat and Farzand in their statements under section 161. Cr.P.C.
Have stated that the petitioner had told them that they should ask their near relatives who are deceased in this case to be careful because he had a programme to murder them. Lastly submits that offence falls within the prohibitory clause of section 497(1), Cr.P.C.
4. Definition of abetment has been given in section 107, P.P.C. The same is reproduced:- "107. Abetment of a thing.--- A person abets the doing of a thing, who- First: instigates any person to do that thing; or Secondly ...............................................................................................................
Thirdly ...................................................................................................................
' The first clause says that unless some abets or instigates other person to commit the murder of other person, he is only then stated to have abeted. I have repeatedly asked learned counsel for the State as well as learned counsel for the complainant to point out any evidence against the petitioner as has been defined in section 107, P.P.C. But they failed to do so. Even otherwise, name of the witnesses, time, date and place has not been mentioned in whole of the F.I.R. Reliance is placed on PLD 1996 SC 241.
' Resultantly, from tentative assessm ent of the material available on record I am of the view that case of the petitioner is one of further inquiry within the meaning of subsection (2) to section 497, Cr.P.C. This petition is thus, accepted and petitioner shall be released on bail provided he furnishes bail bond in the sum of Rs,one lac with two sureties each in the like amount to the satisfaction of D.R. (Judicial) of this Court.