GUSHER alias GUNAIR Versus State
ORDER
MALIK HAQ NAWAZ, J.--- The petitioner by filing the instant petition, seeks post arrest bail in the case FIR No. 23/2016 dated 28-09-2016 registered at Police Station Thore District Diamer at the instance of Mst. Basika wife of deceased Abdul Ghafoor for offences under sections 302/109/34, P.P.C.
2. Briefly the facts narrated in the FIR by the complainant were, that on the date of occurrence at about 15:30 hours, three co-accused opened fire-shots on deceased Abdul Ghafoor who died at the spot. The complainant alleged that the occurrence took place on the abetment of present petitioner. The co-accused are still at large and could not be arrested.
3. The petitioner filed post arrest bail application in the trial Court which was declined and being aggrieved from the order of learned trial Court dated 22.12-2016, he decided to try his luck before this Court by filing the instant petition.
4. The learned counsel for the petitioner submitted that the petitioner was not present at the time of occurrence as evident from the contents of FIR and charged only for abetment. The learned counsel further added that the petitioner has been involved being head of the family with a view to make the whole family incapacitated as no one is left to pursue the case of the accused nominated in the FIR, the learned counsel vehemently argued that there is trend to involve all the members of family in such like cases just to add miseries and hardships for the family of the assailants and the case of the petitioner requires further inquiry as there is no worth reliance evidence to connect the petitioner with the alleged offence and his detention will not advance the cause of justice.
5. On the other hand learned Addl. Advocate General argued that the petitioner is directly charged for conspiracy/abetment and his co-accused, who committed this brutal murder, are at large and there are sure chances of his absconcion if he is released on bail. The learned Addl. Advocate General further contended that the learned counsel for petitioner failed to point out any mala fides on the point of complainant to involve him in a case of murder.
6. I have heard the learned counsel for the parties at length and also perused the record.
7. The FIR in the instant case has promptly been lodged by the widow of deceased, who was allegedly accompanying the deceased at the time of occurrence. The name of two eye-witnesses namely Javed, who is son of deceased and one Nasir are also mentioned in FIR, who allegedly saw the occurrence. They as per their version accompanied the widow to the Police Station Thore, where after lodging the FIR, their statements were recorded by the Police under section 161, Cr.P.C. on the same day. Their statements are quite in line with the story narrated in the FIR, wherein they have stated that 3/4 days prior to the present occurrence, petitioner in categoric terms asked his nephews and son to eliminate the deceased. Abetment has been defined in section 107, P.P.C., which is reproduced as under:
107. 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 that 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 an act or illegal omission, the doing of that thing.
Section 108, P.P.C. defines the "abettor" which is as under:
108. Abettor.- A person abets an offence, who abets either the commission of an offence or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of abettor.
As evident from the plain reading of section 107, P.P.C., a person can be said to have abetted the offence if he instigates any person to do a wrong act, which is an offence under the law of the land, secondly engage himself with one or more persons to do a thing and thirdly aid or assist any one or more person to accomplish the task and section 109, P.P.C. provides that whoever abets any offence, if the act abetted and committed in consequence of the abetment and no express provision is made by the code, for punishment of such abetment, be punished with the punishment provided for the offence.
8. As discussed above the accused, the murder of deceased Abdul Ghafoor was committed by one son and two nephews of the petitioner and they are still at large. The petitioner cannot be granted bail at this stage for his contributory assistance in absconcion of his kith and kin and specific allegations of abetment in promptly lodged FIR and the statement of eye-witness. The offence entails capital punishment, which falls within prohibitory clauses of section 497, Cr.P.C. and he does not deserve the concession of bail.
9. The result of above discussion is that the petition is dismissed being meritless.
JK/11/GB Bail refused.