MUSHTAQ ARMED Versus Syed FAISAL MAHMOOD SHAH
This petition was filed by the complainant seeking the cancellation of post-arrest bail granted to the respondent in a murder case registered under sections 302, 109, 34, and 201 of the Pakistan Penal Code 1860. The core legal question was whether the bail order passed by the Additional Sessions Judge was perverse, capricious, or illegal, warranting interference by the High Court. The petitioner argued that the respondent was involved in a conspiracy, evidenced by mobile phone records and a supplementary statement. The Court held that the bail order was based on sound reasoning and that the respondent's involvement required further inquiry, as he was not named in the initial FIR and the alleged conspiracy was not established by mere telephone contact. The Court affirmed that for bail cancellation, the original order must be shown to be absurd, fanciful, or illegal, and that allegations of witness tampering should be addressed by the trial court. Consequently, the petition for bail cancellation was dismissed, maintaining the tentative nature of the findings.
- What is the standard for cancelling a post-arrest bail order already granted by a lower court?
- Does the mere existence of telephonic contact between accused persons ipso facto establish a criminal conspiracy?
- Can a supplementary statement implicating an accused who was not named in the FIR justify the cancellation of bail?
- Should allegations of witness tampering or destruction of evidence be agitated before the High Court in a bail cancellation petition?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 201, Pakistan Penal Code 1860
ORDER
SYED INTIKHAB HUSSAIN SHAH, J.--- Mushtaq Ahmed son of Imam Sadiq, the petitioner, who is complainant/father of deceased of case F.I.R No.10 dated 25-1-2009, registered at Police Station Sihala District Islamabad for offences under sections 302/109/34/201, P.P.C. by filing the instant petition seeks cancellation of post-arrest bail, allowed to respondent No.1 by the learned Additional Sessions Judge, Islamabad vide order dated 14-4-2009.
2. Succinctly, the facts of the case, as per available record are that Mushtaq Ahmed, the petitioner/complainant got lodged the present F.I.R by contending that his son namely Kabir Ahmed got religious education for about 12 years from Madrissa Jamia Muhammadia Ghausia Anwar- ul-Qur'an Mohallah Saddar, Rawalpindi. On 1-1-2009 he got appointed as Khateeb Jamia Masjid Bilal Ghausia New Rajwal, Islamabad while Abdul Wakeel was appointed as Imam Masjid and Muhammad Tariq as Moazan. All the three used to live in the Hujra of Mosque. In the morning of day of occurrence, Abdul Wakeel and Muhammad Tariq went to Jamia Masjid Ghausia Saddar, Rawalpindi. He added that his son was present in the Hujra where Wali Muhammad was also with him since last night. At about 11-30 a.m. accused Sohail and Faisal Shehzad who were also students of Jamia Muhammadia Ghausia Mohallah. Saddar also came in the Hujra and started talking with each other. According to Faisal Shahzad, Sohail co-accused fired with pistol .32 bore on Kabir Ahmed which landed on his chest. After fire Sohail decamped, from the spot. Faisal and Wali Muhammad tried to apprehend him but he escaped. On information complainant reached at the spot and case was got registered by him. Thereafter, the complainant made his supplementary statement, therefore the respondent No.1 was booked in this case.
3. After dismissal of pre-arrest bail, the respondents No.1 was arrested. Thereafter, he applied for the grant of post-arrest bail, which was granted by the learned Additional Sessions Judge, Islamabad, vide the impugned order dated 14-4-2009.
4. Learned counsel for the petitioner has argued that upon the advise and instigation of respondent No.1, the main accused Sohail committed the murder of deceased. Record of mobile phone was collected during the course of investigation which proves that both the .accused were in contact with each other before and after the occurrence, therefore conspiracy hatched by the two is apparent from the record; that although the offence under section 109, P.P.C. is attracted against the respondent No.1 but the fact remains that the same has to be read with the main offence i.e. 302, P.P.C., for which capital punishment has been. provided; that the respondent No.1 has been duly implicated in the supplementary statement of the complainant; that on one hand the learned Additional Sessions Judge while dealing with the pre-arrest bail of respondent No.1 held that there is sufficient material against the respondent No.1, but he held otherwise while passing the impugned order, therefore, the bail granting order is perverse, capricious and ill found; that sufficient incriminating evidence is available against the respondent No.1 to connect him with his heinous crime; that after release on bail, the respondent No.1, who is an influential person is trying to destroy the prosecution case and he has also won over' one of the. prosecution witness.
5. On the other hand, learned counsel appearing on behalf of respondent No.1 defended the impugned order by contending that there is no evidence regarding the conspiracy allegedly hatched by the accused persons, therefore, it is a matter of evidence that whether offence under section 109, P.P.C. is attracted or not; that there is no material on record to the effect that the respondent No.1 has ever misused the concession of bail or trying to destroy the prosecution case and even otherwise this plea cannot be taken before this Court; that neither the respondent No.1 is nominated in the F.I.R nor any role has been attributed to him and the supplementary statement has no evidentiary value in the eye of law, rather it is too week piece of evidence; that after grant of post-arrest bail, strong and extraordinary grounds are required to cancel the same which are not present in the case in hand; that neither the respondent No.1 was present at the place of occurrence nor played any active rule in the commission of offence and therefore, it is not a fit case at all for cancellation of bail.,
6. Heard arguments anxiously and studied the record minutely.
7. It is settled law that for a bail granting order to be eligible to be recalled, the same has to be absurd, fanciful, illegal and arbitrary. The learned counsel for the petitioner has failed to point out any such defect in the impugned order. The respondent No.1 is not nominated in the F.I.R, rather he was implicated in the supplementary statement, therefore, the involvement of respondent No.1 in this case is a question which requires further inquiry. Conversation between the accused persons on telephone does not ipso facto establish that conspiracy was hatched between the two. As far as the allegation of tampering with prosecution case or issuance of threats by the respondent No.1 is concerned, the same can be agitated before the Court, who enlarged the respondent/accused on bail. The impugned order passed by the learned Additional Sessions Judge, Islamabad is based on genuine and logical reasons and thus he had not erred in exercise of its discretion in allowing the bail to the respondent No.1/accused.
8. For all these reasons, I am not inclined to cancel the bail already granted to respondent No.1 in accordance with law and circumstances of the case, therefore, this petition being without any merits is hereby dismissed.
9. The observations made hereinabove are tentative in nature and shall not affect the case of either party on merits.
H.B.T./M-366/Isl. Petition dismissed.