2018 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Apprehending his arrest at the hands of police by way of instant petition, the petitioner seeks his pre-arrest bail in case FIR No. 604, dated 02.12.2017, offence under sections 302. 324, 109, P.P.C., registered with Police Station, Millat Park, Lahore.

2. Prosecution story, in brief, as per contents of the crime report is that on 02.12.2017 at 7:30 a.m. Meer Abdullah, Abid Boxer and Afzaal alias Khatton accused persons got committed murder of brother of the complainant namely Jawad Aslam Fardousi by two unknown accused persons at the abetment of the petitioner and Nabi Bakhsh, Inspector.

3. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been roped in the instant case against the actual facts and circumstances with mala fides. It is argued that as per contents of the crime report allegation against the petitioner is that he abetted Nabi Bakhsh, Inspector, who further arranged three persons to hatch conspiracy and as a consequence where Jawad Aslam Fardousi (deceased) was done to death. It contended that the time, date and place/the most important aspects of establishing the element of abetment are totally missing in the instant case. Adds that even not a single witness has been cited in the crime report who can claim that he has overheard the conspiracy. In such backdrop, it is argued that provisions of section 107, P.P.C., are not made out against the petitioner. Learned counsel submits that the statements of two prosecution witnesses of conspiracy/abetment were recorded as a belated stage on 08.12.2017, therefore, the same has no value in the eyes of law. In such circumstances, learned counsel submits that the petitioner has made out a good case for grant of pre-arrest bail.

4. Contrarily, learned Deputy Prosecutor General assisted by learned counsel for the complainant has opposed this petition with vehemence. It is contended that the petitioner is nominated in the promptly lodged crime report. Learned counsel for the complainant submits that conspiracy was overheard by Shahid Hameed, PW, on 27.09.2017 within the premises of Bahria Town. Lahore, however frankly concedes that the matter was reported to the police on 04.12.2017. It is submitted that the petitioner is the mainstay of the whole occurrence as he was the driving force behind the scene and the conspiracy was hatched by the petitioner because he was seeking access to a lady namely Adeena Israr Zaidi. It is contended that sufficient incriminating material is available on the record to connect the petitioner with the crime alleged. Adds that it is a pre-arrest bail and the same can be granted sparingly.

5. Arguments advanced pro and contra have been heard. I have also gone through the record available on file.

6. There is no denial to this fact that the petitioner is named in the FIR, but this Court has to see from the facts and circumstances whether case against the petitioner to the extent of grant of relief prayed for is made out or not. No overt act is ascribed to the petitioner. Only allegation against the petitioner is hatching of conspiracy/abetment. It is version of the complainant that the petitioner hatched conspiracy with Nabi Bakhsh, Inspector, who has close ties with top-ten accused persons. Two unknown accused persons mentioned in the crime report are still unknown to the prosecution. Bare reading of the crime report reflects that the complainant has failed to mention any specific time, date and place of hatching conspiracy by the petitioner. Moreover, the complainant has not cited any witness in the crime report who has allegedly overheard the conspiracy. Even otherwise the pre-requisites of provisions of section 107, P.P.C. to constitute the offence of abetment are not made out from the bare reading of the crime report. It would be advantageous to go through the provisions of section 107, P.P.C., which are reproduced as under:- "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 the 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 any act or illegal omission, the doing of that thing". Though it is version of the prosecution that the conspiracy was overheard by Shahid Hameed, PW, on 27.09.2017 within the premises of Bahria Town, Lahore, however it is an admitted fact that the matter was reported to the police on 04.12.2017, meaning thereby that he kept mum for such a long period consisting of more than two months i.e. till the occurrence has taken place and as such this conduct of the said PW speaks volumes qua authenticity of his stance. Even otherwise the statements under section 161, Cr.P.C. of the prosecution witnesses of conspiracy/abetment were recorded by the Investigating Officer at a belated stage on 08.12.2017. The delay in this regard has reduces its value to nill. Reliance in this regard is placed upon the dictum law laid down by the august Supreme Court of Pakistan in reported case titled "Abdul Khaliq v. The State" (1996 SCMR 1553), wherein it has been held as under:- "

S. 161

Penal Code (XLV of 1860), S. 302/34

Late recording of statement under S. 161, Cr.P.C.

Validity

Late recording of a statement of a prosecution witness under S. 161, Cr.P.C. reduces its value to nil unless delay is plausibly explained".

7. Keeping in view the dictum of law laid down in the cases of Syed Amanullah Shah v. The State (PLD 1996 Supreme Court 241), the petitioner has made out a good case for grant of relief prayed for by means of instant petition. The relevant portion of the case law is reproduced as under:- "Case of a conspirator or abettor not present on the spot stands at a lower footing than that of the accused instigating his companion to commit the crime being himself present on the spot

Accusation of abetment/instigation/conspiracy can very easily be set up when parties are inimically dispressed as possibility of false implication of the opponent is very much there

". Similar view was affirmed by the august Supreme Court of Pakistan in the case of Malik Muhammad Ishaq v. The State and others (2011 SCMR 1350).

8. Moreover, the scope of pre-arrest bail has been widened by the august Supreme Court of Pakistan while rendering judgment in a reported case Meeran Bux v. The State and another (PLD 1989 SC 347) comprising of five Hon'ble Judges and has granted pre-arrest bail to a person who was ascribed the role of causing firearm injury to the deceased while touching upon the merits of the case. In view of the facts and circumstances stated above, the case of the petitioner do fall within the ambit of section 497(2), Cr.P.C. Liberty of a person is a precious right which has been guaranteed by the Constitution of Islamic Republic of Pakistan, 1973 which cannot be curtailed until and unless compelling circumstances are brought on record, which are squarely missing in the case in hand. It is a settled principle of law that the Court can even look into and evaluate the mala fides from the facts and circumstances of the case, which apparently is oozing in this case. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Ajmal Khan v. Liaqat Hayat and another (PLD 1998 SC 97) and Syed Muhammad Firdous and others v. The State (2005 SCMR 784).

9. For the foregoing reasons, this Court is left with no option except to allow this petition and confirm ad interim pre-arrest bail already granted to the petitioner in terms of order dated 30.03.2018 subject to his furnishing fresh bail bonds in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of learned trial court. MQ/I-6/L Bail confirmed.