Malik MUHAMMAD IQBAL vs Syed ABID HUSSAIN SHAH and 9 others

TALAT QAYUM QURESHI, J.--- Having been involved in case registered vide F.I.R. No,979, dated 27- 12-1999 under section 302/324/148/149, P.P.C. In Police Station City Haripur, the accused- respondents Nos.1 to 8 applied for their release on bail. Their application was granted and they were directed to be released on bail vide order, dated 82-2000.

2. Syed Mehmood Hussain Shah, Advocate, accused-respondent No,9 has applied, for pre-arrest ad interim bail in the Court of learned Special Judge, Haripur but his application was rejected vide order, dated 8-2-2000. Thereafter, he moved the same Court for his release on bail and he was granted regular bail vide order., dated 14-2-2000.

3. The complainant has now moved this Court under section 497(5), Cr.P.C. For the cancellation of bail granted to accused-respondents Nos.1 to 9.

4. We have heard Mr. Masoodur Rehman Tanoli, Advocate for the petitioner.

5. The main argument of the learned counsel for the petitioner is that Salamat Shah, Asif Shah and Zakir Shah were enraged for the commission of murder of 12 persons and inflicting injuries to 7 others, whereas the accused-respondents were charged directly for the abetment of the said offence. It was also argued that Messrs Muhammad Bashir, Muhammad Javed, Muhammad Suleman son of Ali Bahadur and Muhammad Suleman son of Ghulam Rasool had in their statements recorded under section 161, Cr.P.C. Charged the accused-respondents for acquitting the main accused. On 26-12-1999 in the evening at the time of Iftari these witnesses had heard the accused-respondents abetting the main accused. On 27th the occurrence took place and their statements under section 161, Cr.P.C. Were recorded on 29-12)999. There was no delay in recording their statements because the said witnesses were busy in burial ceremony of. 12 deceased.

6. We are not inclined to interfere with the bail granting order for the reasons discussed below.

7. Firstly, that the accused-respondents have been charged for the abetment of the offence only.

Their involvement in the said conspiracy has to be proved at the trial. In view of law laid down in Federation of Pakistan through Ministry of Law and another v. Gul Hassan Khan PLD 1989 SC 633, Muratab Ali v. State 1997 PCr.LJ 1183 and Kabeer v. The State 1998 PCr.LJ 1311, the accused alleged to have indulged only in abetment of offence of murder, is held entitled to bail and the case being rendered as that of further inquiry.

8. Secondly, none of them was present on the spot at the time of occurrence. There can be no two opinion that the case of conspirator or abetter not present on spot stands at lower footing than the case of the accused instigating his companion to commit the crime being himself present on the spot. Reliance is placed on judgment of Supreme Court of Pakistan reported in Said Amanullah Shah v. The State and Muhammad Sadiq NLR 1996 Cr. 168 = PLD 1996 SC 241.

9. Thirdly, statements of Muhammad Bashir, Muhammad Suleman son of Ali Bahadur, Muhammad Javed and Muhammad Suleman son of Ghulam Rasool were recorded on 29-12-1999. They were very much present in the village and there is no explanation available on the record as to why their statements were not recorded immediately after the occurrence or on the following day. It is on record that the said persons had the knowledge of conspiracy being hatched on 26-12-1999 but it is ununderstartdable as to why they kept mum and failed to report the matter to police in order to avoid the occurrence. It is settled law that credibility of evidence is looked with serious suspicion if the statement under section 161, Cr.P.C. Is recorded with delay without offering any plausible explanation. Reliance is placed on Muhammad Khan v. Maula Baldish 1998 SCM R 570 and Iftikhar Ali v. The State 1998 PCr.LJ 2022.

10. Fourthly, the order of the learned Additional Sessions Judge/Special Judge is neither perverse, nor arbitrary nor has been obtained through fraud or misrepresentation and the learned Additional Sessions Judge has exercised his discretion properly in accordance with the guidelines provided by superior Courts.

11. Fifthly, the bail was granted by Court of competent jurisdiction after appreciating the material available-on record, facts and circumstances of the case and we do not find any strong and exceptional grounds which would require for cancellation 'of bail. Reliance is placed on Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Government of Sindh through The Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 19941G SCMR 1283. The application in hand is, therefore, dismissed in limine.