AMANULLAH SHAH Versus THE STATE

MUHAMMAD MUNIR KHAN, j.‑‑‑This petition is directed against order dated 29‑10‑1995 of Lahore High court, Lahore whereby bail granted to Syed Amanullah Shah petitioner by Additional Sessions Judge, Sialkot On 21‑9‑1995 in case under section 302/109, P.P.C. registered at Police Station Mugha1pura, District Sialkot, vide F.I.R. No.124 dated 25‑7‑1995, was cancelled, arises from the facts that in the occurrence which took place on 25‑7‑1995 at 4‑100 p.m., Irshad Ahmad accused allegedly caused the death of Siraj Din by fire‑arm near Darbar Peer Amanat Shah in the area of Katra Gillanwala, on the instigation of the petitioner. It has been stated in the F.I.R. that the petitioner, within, the hearing of Muhammad Rafiqi and Noor Hussain P.Ws. had instigated Isrshad Ahmed to eliminate the deceased.

2. After registration of the case, the petitioner was arrested on the same day by the Police. He applied for bail which was allowed by the Additional Sessions Judge, Sialkot on the grounds that the prosecution case that the petitioner had instigated Irshad Ahmad to kill the deceased in the presence of Muhammad Rafique and Noor Hussain of the Brother of the deceased, was highly improbable requirement further inquiry. Feeling aggrieved thereby, Muhammad Sadiq complainant moved application under section 497(5) Cr.P.C. for the cancellation of bail in the, Lahore High Court, Lahore. The High Court relied on Arbab Ali v. Khamiso reported as 1985 SCMR 195 to cancel the bail, on the ground that unless there was a definite conclusion that there. are. no reasonable grounds for believing that the accused had committed a non‑bailable offence, bail could not be granted under subsection (2) of section 497, Cr.P.C. merely because there were sufficient grounds for further inquiry, more particularly when the F.I.R. was lodged promptly; statements of the witnesses were recorded without delay and also there existed motive in the shape of criminal cases got registered against the accused by the complainant party.

3. Mr. S.M. Zafar, learned Senior Advocate of this Court appearing for the petitioner relied on Tariq Bashir V. State (PLD 1995 SC 34) to argue that since bail granted to the petitioner by a court of competent jurisdiction has been cancelled by the High Court without any legal and factual justification, therefore, bail granting order be restored. Conversely, Khawaja Muhammad Sharif, learned counsel for the complainant vigorously opposed the grant of bail on the ground that names of both the witnesses of conspiracy/abetment are mentioned in the promptly lodged F.I.R. who claimed to have heard the petitioner instigating Irshad Ahmed to eliminate the deceased. He relied on Shabbir Ahmad v. The State (PLD 1977 Lahore 201), Nisar Ahmad v. The State (PLD 1971 SC 174), Mian Mehraj Din and others v. The State 1985 PCr.1J 2987 Lahore) and Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182) in aid of his contentions.

4. Being conscious of the principle that considerations for cancellation of bail granted by a Court of competent jurisdiction are quite different, we carefully attended to the arguments addressed by the learned counsel for the parties. In the instant case the petitioner was not present at the time of occurrence, so had caused no injury to the deceased. The ‑allegations against him are that one hour before the occurrence he, in the presence of Muhammad Rafique and Noor Hussain P.Ws. instigated Irshad Ahmad to eliminate the deceased. In the F.I.R. it has been stated:‑‑

Learned Additional Sessions Judge, in the bail granting order, has observed that "it is a question of consideration as to whether the petitioner was so foolish enough to declare his intention of killing of a person in presence of someone related to the deceased", which means that the evidence with regard to the allegations of conspiracy/abetment did not furnish reasonable ground for believing that the petitioner was guilty of abetment of offence of murder. The Additional Sessions Judge also observed that no other evidence was available: connecting accused with the crime and as such his case required further, inquiry. In this view of the matter it was not possible to hold that the Additional Sessions Judge granted bail without coming to the conclusion that there were no reasonable grounds for believing that the petitioner was guilty of the offence of abetment/conspiracy of the murder of the deceased. The High Court has not held that the view expressed by the Additional Sessions Judge about the reasonableness of the prosecution evidence relatable to the charge of conspiracy/abetment was not reasonable in face of the evidence of abetment collected by the Police vide statements of Noor Hussain and Muhammad Rafique that while passing nearby they happened to hear the petitioner instigating Irshad Ahmad to do away with the deceased. The High Court has not even attended to the reasons given by Additional Sessions Judge for 113 granting bail to the petitioner, muchless to have found then as unfounded or fallacious.

5. The allegation of Lalkara usually levelled against an accused instigating his companions to kill someone is frequently made in our country, but the Courts on the tentative assessment of the evidence about the allegation of Lalkara, grant bail to the accused allegedly raising Lalkara or instigating their companions to commit the crime, with almost equal frequency. If bail can be granted to a person present at the spot at the time of occurrence instigating his companions to kill-some-one present there, then why a person who was not present on the spot but allegedly instigated the accused to kill the deceased should be deprived of such concession during the trial. There can be no two opinions that the case of a conspirator or abettor not present on the spot stands at lower footing than the case of the accused instigating his companion to commit the crime being himself present on the spot. Furthermore, it is very easy to set up accusation of abetment/instigation/conspiracy/Iema; needless to say when parties are inimically dispressed, the possibility of false implication of opponent is very much there. So, we are of the view that where post arrest bail is granted in such cases, then it should not be cancelled as a matter of course or in routine. Once bail is granted by a Court of competent jurisdiction, then very strong and exceptional grounds would be required for cancelling the same. Provisions of section 497(5), Cr.P.C. are not punitive. There is no legal compulsion for cancelling 'bail granted in cases punishable with death, imprisonment for life or imprisonment for ten years. To deprive a person of his freedom is most serious. It is judiciously recognized that unfortunately there is a tendency to involve the innocents with a guilty. Once an innocent is put under arrest, then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial in a murder case. Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim bail granted to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail then in the jail, during the trial. Freedom of an individual is a precious right. Personal liberty granted by a Court of competent jurisdiction should not be snatched away from accused unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt of the accused.

6. In these circumstances, the impugned order cannot be upheld. The action of Additional Sessions Judge in granting bail to, the petitioner was intra vires and on the facts completely justifiable. We therefore, convert this petition into appeal and allow the same. While setting aside the impugned order of the High Court, we direct that the petitioner shall be released on furnishing bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of the trial Court.

By our short order dated 6‑12‑1995, we had ordered release of petitioner on bail and these are the reasons therefor.

N.H.Q./A‑1W/S Bail Allowed