MUHAMMAD ASGHAR vs THE STATE and anothers

ORDER

' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Apprehending his arrest at the hands of police, by way of instant petition, the petitioner seeks his pre-arrest bail in case F.I.R. No,42 of 2012, dated 9-3-2012, offence under sections 302, 324, 34, 109, P.P.C., registered at Police Station Yakki Gate, Lahore.

2. Allegation against the petitioner, in brief, as per contents of the crime report is that on the conspiracy hatched by the petitioner along with his co-accused, three unknown accused persons resorted to indiscriminate firing upon the complainant, his bhanja and son. The complainant and his bhanja remained safe, however due to the fire shots, son of the complainant namely Muhammad Jamshed, succumbed to the injuries at the spot. Hence, the instant case.

3. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been roped in the instant case against the actual facts and circumstances with mala fides. It is argued that as per contents of, the crime report, there is allegation of hatching conspiracy against the petitioner. It is argued that no overt act is attributed to the petitioner. Learned counsel for the petitioner 'submits that no specific date, time and place has been mentioned in the crime report qua conspiracy It is argued that bare reading of the crime report. Reflects that the complainant has stated that about one month prior to the alleged occurrence, Imran Butt and Shahbaz Hassan, P.Ws. Told him that the petitioner along with his six co-accused, has hatched conspiracy qua commission of murder of the complainant and his sons and they have over heard the same, but the complainant kept mum for such a long time i,e, till the occurrence has taken place and as such this conduct of the complainant speaks volume qua authenticity of his stance taken in the crime report. It is further contended that as the wife of the petitioner has already got registered a criminal case against Jamshed alias Pappu, co-accused of the conspiracy, and as such- it is out of question that the petitioner would join him to hatch conspiracy qua the occurrence in the house of said Jamshed alias Pappu. It is submitted that from the contents of the crime report, provisions of section 107, P.P.C., are not made out. It is next submitted that the accused of conspiracy namely Tariq. Mehmood has got registered case F.I.R. No,439 of 2011, dated 8-5-2011, offence under sections 302 365-A, 363, 34, P.P.C., with Police Station, Misri Shah, Lahore, qua abduction of his son namely Hamza, against Aamir Shahzad son of the complainant and others, which is still pending adjudication before the learned Anti-Terrorism Court at Lahore. Learned counsel for the petitioner submits that keeping in view the previous litigation between the parties, possibility of false implication of the petitioner at the instance of the complainant in the instant case cannot be ruled out. It is argued that nothing is to be recovered from the petitioner and as such no useful purpose would be served by sending the petitioner behind the bars and as such the petitioner. Has made out a good case for grant of pre-arrest bail.

4. Contrarily, learned Deputy Prosecutor-General assisted by learned counsel for the complainant has vehemently opposed this petition. It is contended that the petitioner is well nominated in the promptly lodged crime report. It is argued 'that two P.Ws. Were there who had overheard the hatching of conspiracy by the petitioner and his co-accused. It is argued that ample material is available on the record against the petitioner to connect him with, the commission of the offence alleged against him. It is next argued that the petitioner has been found guilty during the course of investigation. It is contended that the petitioner is involved in a case of capital punishment; therefore, he in no way is entitled to the extra ordinary relief of pre-'arrest bail.

5. Arguments advanced from all corners have been heard. I have also gone through the record available on file.

6. There is no denial to this factum that the petitioner is named in the promptly lodged F.I.R., but I am afraid this Court has to see from the facts and circumstances whether case against the petitioner to the extent of grant of relief prayed for is made out or not. No overt act is ascribed to the petitioner. Only allegation against the petitioner is hatching of conspiracy/abetment. Bare reading of the crime report reflects that the complainant has failed to mention any specific time, date and place of hatching conspiracy by the petitioner and his co-accused. Even otherwise the prerequisites of provisions of section 107, P.P.C. To constitute the offence of abetment are not made out from the bare reading of the crime report. It would be advantageous to go through the provisions of section 107, P.P.C., which are reproduced as under: "Abetment of a thing---A person abets the doing of a thing, who: First. Instigates any person to do that thing; or Secondly. Engages with one or more other person or persons in any conspiracy for the doing of the thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing; or Thirdly. Intentionally aids, by any act or illegal omission, the doing of that thing".

Though the complainant has stated in the crime report that about one month prior to the alleged occurrence, Imran Butt and Shahbaz Hassan, P. Ws. Told him that the petitioner, along with his six no-accused, has hatched conspiracy qua commission of murder of the complainant and his sons, but the complainant kept mum for such a long time i,e, till the occurrence has taken place and as such this conduct of the complainant speaks volume qua authenticity of his stance taken in the crime report. The co-accused of the petitioner qua hatching conspiracy are already involved in criminal litigation against each other and in such circumstances hatching of conspiracy qua the commission of the offence alleged while joining hands together seems to be not only superstitious rather it is sufficient to discard the same on the face of it.

7. Keeping in view the dictum, of law laid down in the cases of Syed Amanullah Shah v. The State (PLD .1996 Supreme Court 241), the petitioner has made out a good case for grant of relief prayed for by means of instant petition. The relevant portion of the case law is reproduced as under:- "Case of a conspirator or abettor not present on the spot stands at a lower footing than that of the accused instigating his companion to commit the crime being himself present on the spot--- Accusation, of abetment/ instigation/conspiracy can very easily be set up when parties are inimically dispersed as possibility of false implication of the opponent is very much there----".

' Similar view was affirmed by the august Supreme Court of Pakistan in the case of Malik Muhammad Ishaq v. The State and others (2011 SCM R 1350). It is a settled principle of law that the Court can even look into and evaluate the mala fides from the facts and circumstances of the case, which apparently is oozing in this case from the facts and circumstances discussed above.

Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Ajmal Khan v. Liaqat Hayat and another (PLD 1998 SC 97) and Syed Muhammad Firdaus and others v. The State (2005 SCM R 784) Moreover, keeping in view the dictum of law laid down by the august Supreme Court of Pakistan in a reported case Meeran Bux v. The State and 4 others (PLD 1989 SC 347), the Court while deciding the pre-arrest bail can touch upon the merits of the case..

7. For the foregoing reasons, this Court is left with no option except to allow this petition and confirm ad interim pre-arrest bail already granted to the petitioner in terms of order dated 29-3- 2012 subject to his furnishing fresh bail bonds in the sum of Rs,1,00,000 with one surety in the like amount, to the satisfaction .Of learned trial Court.

8. It is, however, made clear that the findings made hereinabove are tentative in nature and are meant only for disposal of the instant petition. These shall have no bar to any body's case at trial stage.