MUHAMMAD MUSHTAQ vs MUHAMMAD SIKANDAR and anothers
This appeal arises from a criminal matter where the appellant challenged the Shariat Court's decision to maintain a bail order granted to the respondent, who was accused of abetment in an offence registered under section 458 of the Azad Penal Code and section 17(1) of the Offence of Zina (Enforcement of Hudood) Act (referred to as E.H.A.). The core legal question was whether the respondent, charged with abetment, was entitled to bail despite previous refusals and the gravity of the offence. The Supreme Court of Azad Jammu and Kashmir dismissed the appeal, holding that while an abettor is legally responsible for the offence, abetment must be strictly proven through cogent evidence of instigation, conspiracy, or intentional aid. The Court established that a mere allegation of abetment is insufficient to deny bail, and until such evidence is presented, the case against an alleged abettor remains one of further inquiry. Furthermore, the Court noted that since the respondent had not tampered with evidence or violated bail conditions, there was no justification to cancel the bail previously granted by the lower courts.
- Is a mere allegation of abetment sufficient to deny an accused the concession of bail?
- Does the case of a person charged with abetment fall under the category of further inquiry until cogent evidence is produced?
- Can bail be cancelled in the absence of evidence regarding tampering with prosecution witnesses or violation of bail terms?
- Section 458, Azad Penal Code
- Section 17(1), Offence of Zina (Enforcement of Hudood) Act
- Section 109, Azad Penal Code
' KH. MUHAMMAD SAEED, C.J.--- This appeal is directed against the judgment of the Shariat Court dated 15-6-2005, whereby the order of bail passed in favor of respondent No,1 was maintained.
2. Facts culminating into present appeal briefly stated are that on the report lodged by the appellant, a case for offences under section 458, A.P.C. Read with section 17(1) E.H.A. Was registered at Police Station Nar. The police initially arrested Khalid Mehmood and Saifullah. From Khalid Mehmood the police recovered a pistol of .30 bore along with 12 live rounds. These two persons disclosed to police that they committed offences with the connivance of accused respondent. The police thereafter booked him under section 109 and arrested him. In the first round of litigation he was declined bail. During the investigation of case, respondent moved an application for his release on bail which was dismissed. Subsequently, a challan was presented in the Court and he was made answerable for abetment along with other two accused persons who had actually taken part in the incident. He moved an application for his release on bail. Second time his application for release on bail, in the light of material brought on record during the investigation was allowed. The order of bail was maintained by the District Court of Criminal Jurisdiction Kotli. A revision petition was filed before the Shariat Court seeking rejection of his bail order but the same was dismissed and bail order passed in favor of accused-respondent was maintained.
3. The learned counsel for the appellant argued that the accused-respondent had abetted the offence therefore, he was equally responsible for the offence which was committed by the other co-accused persons. He argued that the bail was previously refused to accused persons therefore, there was no justification for the Courts below to release the respondent on bail subsequently.
4. On the other hand the learned counsel for the accused-respondent defended the judgment under challenge.
5. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. No doubt under law the person blamed for abetting an offence is deemed to have committed the offence himself though he does not do so himself. However, abetment is to be proved strictly by leading cogent evidence. Mere allegation that any offence has been committed which is the result of abetment is not sufficient to deprive a person from the concession of bail. For the purpose of proving abetment, prosecution is bound to prove conduct of accused person, the blame for it that through his instigation, conspiracy or intentional aid, the offence was committed by the other accused persons. Till that time the case of person charged for abetment is one of further inquiry. In this case in the light of material placed on challan filed, the Courts below have held that the case of accused-respondent is one of further inquiry, therefore, have extended concession of bail to him. In this case the prosecution has produced so many witnesses. Therefore, it will not serve any purpose to cancel the bail of accused-respondent particularly when he has not been blamed for tampering with the evidence of prosecution or for violating the terms of bail.
6. In the circumstances mentioned above, the bail order passed in favor of accused-respondent by the Courts below is maintained. This appeal, therefore, stands dismissed.