JAHANGIR ALI vs THE STATE and another
The petitioner, Jahangir Ali, sought post-arrest bail in a case registered under sections 302, 109, 148, and 149 of the Pakistan Penal Code 1860 at Police Station Naushehra, District Khushab, involving allegations of abetment to qatl-i-amd. The core legal question was whether the petitioner made out a case for further inquiry under section 497(2) of the Code of Criminal Procedure 1898 given that he was attributed only with abetment, was not present at the occurrence, had prior enmity with the witnesses of abetment, and a co-accused had been declared innocent during the investigation, alongside considerations of his advanced age of seventy-two years. The Lahore High Court held that the petitioner's case fell within the scope of further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure 1898 and admitted him to post-arrest bail. The key principle laid down is that where an accused is charged only with abetment, was not present at the crime scene, is connected with the crime via inimical witnesses, and a co-accused sharing the alleged conspiracy is declared innocent during police investigation, reasonable grounds appear for further inquiry into his guilt, warranting the grant of bail.
- Does an allegation of abetment alone, coupled with the absence of the accused at the crime scene and previous enmity with witnesses, make a case one of further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- Whether post-arrest bail can be granted when a co-accused allegedly involved in the same conspiracy has been declared innocent during the police investigation?
- Does the age of seventy-two years, alongside other merits, support the grant of bail in a murder case?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' MANZOOR AHMAD MALIK, J. ---Jhangeer Ali petitioner seeks bail after arrest in case F.I.R. No,164 of 2009, dated 15-12-2009 offence under sections 302, 109, 148 and 149, P.P.C. Registered at Police Station Naushehra District Khushab. Allegation against the petitioner is that at the abetment of petitioner, his son Muhammad Iqbal and brother Naubat Ali, their co-accused while- armed with their respective weapons in prosecution of their common object committed qatl-i-amd of Malik Javed Akhtar brother of the complainant.
2. Learned counsel for the petitioner, in support of this petition contends that the only allegation against the petitioner is of abetment and in the F.I.R. It is mentioned that the petitioner abetted the commission of this offence along with his real son Muhammad Iqbal and real brother Naubat Ali; that according to the witnesses of the abetment they heard the conspiracy at about 3-00 p.m. On 11-12-2009 when the abettors were sitting near a mountain; that co-accused of the petitioner with whom the petitioner allegedly abetted the crime are his close relatives, therefore, there was no occasion for them to go out of their house for hatching the conspiracy; that the alleged abetment took place on 11-12-2009 whereas the occurrence took place on 15-12-2009 and the witnesses remained mum for four days; that witnesses of abetment namely Mazhar Qayyum and Muhammad Riaz are inimical towards the petitioner because both the witnesses were accused in a case which was registered regarding the murder of the son of the petitioner that in another case petitioner was injured and he got a criminal case registered against these two persons; that Naubat with whom the petitioner was alleged to have abetted the commission of this offence has been declared innocent during the investigation; that the petitioner even as per Police record and the report of the Medical Board is seventy two years of age and as such he is entitled to the concession of bail on medical grounds as well as on merits; that petitioner is a sick person and he is suffering from coronary artery disease. Learned counsel for the petitioner further submits that the petitioner was medically examined and in the report it was stated that petitioner should have medically consultation for subclavian steal syndrome and such facility is not available within the jail premises; In support of his submissions learned counsel relied on "Abdullah Khan v. Abdul Qayyum and another" (1997 PSC (Crl.) 99). "Syed Amanullah Shah v. The State and another" (PLD 1996 SC 241) and "Zahoor Ahmad v. The State" (KLR 2006 Crl. Cases 445).
3. Learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes this petition on the grounds that the petitioner is nominated in the F.I.R. And even the details of abetment are mentioned in the F.I.R. Learned counsel for the complainant states that though it is a fact that the petitioner got registered cases against Mazhar Qayyum and Muhammad Riaz but the matter was patched up between the petitioner and those persons. Learned counsel for the complainant in support of his submissions relied upon "Raja Muhammad Irshad v. Muhammad Bashir Goraya and others" (2006 SCM R 1292).
4. I have heard learned counsel for both the sides. Petitioner though is nominated in the F.I.R. But the allegation against him is of abetment only. Admittedly there is enmity between the parties and criminal cases in past were registered against each other. Petitioner is accused of abetting the murder of brother of the complainant and the abetment was between the petitioner, his real son and his real brother, which was outside their house. I will not comment much upon this aspect of the case as it is for the learned trial Court to see evidentiary value of this evidence but the fact remains that the petitioner was not present at the time of occurrence. Case-law relied upon by learned counsel for the complainant is distinguishable on facts as every criminal case has to be decided on the basis of its own facts and circumstances. Even his co-accused namely Naubat Ali with whom he allegedly abetted the commission of this offence has been declared innocent by the Police. Therefore, all these points made the petitioner's case one of further inquiry within the ambit of subsection (2) of section 497, Code of Criminal Procedure.
5. There is another aspect of the case. Bail was also sought on the medical ground and in this respect Medical Superintendent District Headquarters Sargodha was directed to constitute a Medical Board for examination of the petitioner. The Board referred the petitioner to Punjab Institute of Cardiology and after receipt of the report of the said Institute filed a report wherein at the end it is mentioned as under:-- "In the light of Angiography report of Punjab Institute of Cardiology Lahore Board of this Hospital examined the report and concluded that:-- ' DM, HTN Angiography done on 8-3-2010 showed distal vessel coronary artery disease which required medical treatment. Patient can be treated in jail."
Petitioner, in the circumstances was not entitled to the concession of bail on the medical ground as the Medical Board has opined that the patient can be treated in jail but the fact remains that at the time of examination of the petitioner at the Punjab Institute of Cardiology his age is mentioned as seventy two years and even as per Police record he is seventy two years of age. Therefore, this application is allowed and the petitioner is admitted to bail after arrest subject to his furnishing bail bond in sum of Rs,2,00,000 (rupees two lac only) with two sureties each in the like amount to the satisfaction of learned trial Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.