MEHMOOD KHAN vs THE STATE

ORDER

' FAZAL-E-MIRAN CHAUHAN, J.--- The petitioner has sought pre-arrest bail in case F.I.R. No,492, registered with Police Station City Burewala on 15-12-2005 for an offence under sections 302/109/34, P.P.C.

2. The instant F.I.R. Was registered on the complaint of Muhammad Riaz Aslam, an owner of a rice factory alleging therein that Zulfiqar armed with pistol, Muhammad Amjad armed with pistol, and Muhammad Ishaq alias Papu armed with pistol along with one unknown person armed with pistol riding on two different motorcycles launched a murderous assault with their respective fire-arm weapons upon Shahid Bashir hitting on various parts of his body who succumbed to the injuries.

The role attributed to the petitioner was that of abetment. The motive behind the instant occurrence, as alleged in the F.I.R. Was that of criminal litigation already pending between the parties.

3. Learned counsel for the petitioner argued that it is an admitted fact that; the petitioner is not an assailant of the F.I.R.; he was not present at the spot to abet and instigate the actual accused; the alleged abetment was of 53 days before the alleged occurrence; there is no evidence of the so- called abetment; no evidence that the petitioner abetted the actual accused to commit the murder of Shahid Bashir; that no time of abetment was given in the F.I.R.; only a generally word "Raat" was used. Further argued that if the version of the abetment is correct no report to this effect was made to the police, particularly, when there was an enmity of murder is subsisting between the parties. None of the four accused-assailants were present on the night of conspiracy; nothing is to be recovered from the petitioner; all nominated accused are absconding; the petitioner is brother-in-law of accused Zulfiqar. Further argued that mala fide reflects from the fact of the case.

The petitioner being close relation of Zulfiqar is involved in the instant case. Relying on Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCM R 68 and Malik Noor Ahmad and another v. The State PLD 1993 Lah. 500 argued that the Court shall not keep the co-accused in jail in order to compel the absconding accused to surrender. The petitioner cannot be kept as hostage of the absconding co-accused and every case is to be treated on its merits. The petitioner being not present at the spot the bail was confirmed in Muhammad Ismail v. Ghaus Bakhsh and another 1990 PCr.LJ 2013. Finally argued that in view of all facts mentioned above case of the petitioner is that of further inquiry. Reliance is placed on Muhammad Ramzan v. Zafar Ullah and another 1986 SCM R 1380.

4. Conversely, learned counsel for the complainant argued that while deciding the application of bail deeper appreciation of facts is not approved; further submits that Zulfiqar, brother-in-law of the petitioner is desperate criminal and is involved in many criminal cases and had been declared absconder in all cases. The petitioner and his, co-accused were arrested by Cantt. Police, Multan and F.I.Rs, Nos.77, 110 and 140 of 2005 were registered at Police Station Multan Cantt. It is not a case of simpliciter of abetments. The witness deposed before the police that, abetment was made but the law enforcing agencies are not apprehending the main accused. All grounds raised are grounds for bail after arrest.

5. Learned counsel appearing on behalf of the State has also opposed the bail petition.

6. I have heard learned counsel for the parties and have gone through the record of the case.

Admittedly the petitioner is attributed the role of abetting the murder of Shahid Bashir 53 days prior to the date of occurrence. Only general allegation levelled by the complainant. Admittedly criminal litigation was pending between the parties and having come to know of the above abetment no complaint in the shape of F.I.R. Or report was lodged with the police from the complainant side.

None of the nominated accused were present in the meeting where the conspiracy regarding abetment was made by the petitioner. It is not denied that the petitioner is brother-in-law of co- accused Zulfiqar but he was not present on the spot. No specific role at the spot is attributed to him. It is yet to be established that any abetment was made by the petitioner. Since no role is attributed to him and mala fide of the complainant to implicate the petitioner due to previous enmity is not ruled out. Reference is made to Muhammad Ashraf v. The State 1994 PCr.LJ 1082. No recovery is to be effected from him. The petitioner cannot be allowed to keep as hostage to ensure the arrest of co-accused. Reference can be made to Roshan Din and others v. The State 2002 Cr.LJ

26. In order to avail the remedy of post-arrest bail, the concession of pre-arrest bail cannot be curtailed on the ground that first he shall surrender himself and thereafter he apply for bail after arrest. It is established principle that if the case of the petitioner falls within the scope of further inquiry he cannot be deprived of the concession of pre-arrest bail. In this respect reliance is placed on Muhammad Ramzan (supra).

7. For what has been discussed above, the bail before arrest already granted to the petitioner vide order dated 24-2-2006 passed by this Court is confirmed subject to his furnishing bail bonds in the sum of Rs,2,00,000 (Rupees two hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court. However, the petitioner shall join the investigation as and when required by the police.