1999 PLP 1206 (MLD)

Khurshid Ahmad Sodhi, Malik Waseem Mumtaz and Miss Samina Zareen for Petitioner. Ashfaq Ahmad Ghuman for the State.

2. Upon instigation/abetment of his father Muhammad Sadiq and his brother Mahmood Akhtar petitioner, Ghulam Mustafa, is alleged to have caused Qatl-e-Amd of his real uncle namely Muhammad Ibrahim, by inflicting four blows in his abdomen, chest and flank with iron Sua at about 10-30 a.m. on 4-9-1997. Accordingly a case under section 302/109, P.P.C. stands registered against them at Police Station Sadar Kamoke vide F.I.R. No.636 dated 16-9-1997 lodged by Ijaz Ahmad son of deceased.

2. Refusal of deceased to give the hand of his daughter to Mahmood Akhtar petitioner is stated to have furnished motive for the occurrence.

3. Muhammad Saidq father and co-accused of petitioner, with similar allegation of abetment was enlarged on bail on 19-12-1997 by learned Additional Sessions Judge, Gujranwala.

4. Accordingly concession, asked for, has been claimed on the 'rule of consistency' as also on various pleas enumerated in the petition. With reference to Federation of Pakistan and another v. N.-W.F.P. Government and others (PLD 1990 SC 1172) and Manzoor Ahmad and another v. The State (1977 PCr.LJ 850), learned Counsel representing the petitioner has remarked that the provisions of section 109, P.P.C. stand declared repugnant to the Injunctions of Islam. Also it has been impressed that the petitioner has no nexus or connection with the commission of crime; there is serious and inordinate delay of not less than 12 days in reporting the matter to police, F.I.R. is devoid and bereft of mention of evidence/material of hatching up of so-called conspiracy, statements under section 161, Cr.P.C. of such witnesses namely, Muhammad Nazir and Sarwar sons of Fazal Din and Shams Din were taken down recorded more than one month after the occurrence; this aspect renders the so-called abetment as to be an afterthought affair and figment of imagination of complainant, prosecution story is rendered to be highly improbable and doubtful thereby and that the petitioner is no more required in connection with investigation or otherwise by petitioner.

5. It has been opposed and resisted with the assertion that the petitioner is, not only, the cause of murder but also instrumental in the whole affair inasmuch as he is mainly concerned in the occurrence, as abettor. Reliance has been placed upon Abbas and 3 others v. The State (1993 PCr.LJ 2410) to contend, with vehemence that the circumstances warranted refusal of bail to petitioner, particularly, when the case undoubtedly, falls within prohibitory clause of section 497(1),. Cr.P.C.

6. There can be no cavil with the settled proposition that even in a case falling within the prohibitory clause an accused is entitled to the concession of bail, if his case comes within purview of 'further inquiry' as envisaged by relevant provisions of law. Shah Zaman v. The State (PLD 1994 SC 65) enjoins:-- "Now what will constitute as sufficient ground for further inquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for the purpose. Every hypothetical question which can be imagined would not make it a case of further inquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of section 497, Cr.P.C. is that there are sufficient grounds for further inquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged."

6. Admittedly, the petitioner was not present at the spot. Claim of such I accused to bail as compared to a person present at the time of occurrence and raising Lalkara is on better footing as expounded in plethora of authorities and galaxy of rulings on the point. In any event, rule of consistency is attracted and entailed with full force in the light of illuminating observation made in Muhammad Afzal alias Bodi v. The State (1979 SCMR 9).

8. Be that as it may, even commencement, what to speak of conclusion of trial, is not in sight. In these circumstances, incarceration of petitioner for an indefinite period, cannot be allowed under any canon of law.

9. Taking all these aspects into consideration and 'rule of consistency' in particular, application is allowed and the petitioner is admitted to bail in the sum of Rs.1,00,000 with the sureties in the like amount to the satisfaction of learned trial Court. N.H.Q./M-745/L Bail allowed