2017 PLP 349 (MLD)

Apprehending his arrest at the hands of police, through the instant petition filed in terms of Section 498, Cr.P.C., Muhammad Azam Khan, petitioner seeks his pre-arrest bail in case FIR No.246/2016, dated 12.05.2016, offence under Sections, 302, 324, 148, 149, 109, P.P.C., registered with Police Station, City T.T. Singh.

2. Allegation against the petitioner, in brief as per contents of the crime report is that on 12.05.2016, on the abetment of present petitioner, his co-accused committed murder of three persons Muhammad Naeem, Imran and Sajjad.

3. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the instant case by the complainant against the actual facts and circumstances with mala fides. It is argued that the story narrated in the crime report by the complainant is highly improbable. It is contended that Muhammad Amjad, co-accused of the petitioner, who is also alleged the role of abetment, has already been granted post arrest bail by this Court in terms of order dated 27.09.2016, therefore, case of the petitioner is at par with that of his co-accused and applying the rule of consistency the petitioner is also entitled for the relief prayed for.

4. Conversely, learned Deputy Prosecutor general assisted by the learned counsel for the complainant has vehemently opposed this petition. It is contended that the petitioner is nominated in the FIR with specific allegation of abetment due to which three innocent persons have lost their lives. The offence alleged against the petitioner falls within the prohibitory clause of Section 497, Cr.P.C. Moreover, pre-arrest bail is an extra ordinary relief, which can be granted sparingly.

5. Arguments advanced from all corners 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 nominated in the crime report with an allegation of abetment. From the facts and circumstances when evaluated a question arises whether the petitioner has abetted the co-accused for committing such offence as per spirit of Section 107, P.P.C. which is reproduced for ready reference:-- "

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 any act or illegal omission, the doing of that thing." It has been observed by this Court that prima facie the ingredients of Section 107, P.P.C. punishable under Section 109, P.P.C. are not made out. Apart from this, the petitioner is a respectable person, who is aged about 75 years physically feeble and walks with a support. He is an educated person and as per the statement of learned counsel for the petitioner is a retired Principal of Educational Institution.

7. As far as the facts narrated in the crime report are concerned, there is no denial to this fact that the factum of abetment was conveyed to the complainant in the morning much earlier to the occurrence and as such the complainant has not taken any precautionary measures. Even otherwise, the story advanced by the prosecution seems to be improbable and does not sound sense. In such like cases, where there is previous enmity between the parties, conspiracies are not hatched in public at a place which is easily accessible for every one. Further co-accused of the petitioner namely Muhammad Amjad has already been granted post arrest bail by this Court vide order dated 27.09.2016 and as such the petitioner is also entitled to the same relief keeping in view the dictum laid down in Muhammad Fazal alias Bodi v. The State (1979 SCMR 9), which is reproduced as under:-- Ss. 497/498

Bail

Principle of consistency

Co-accused attributed same role as that of petitioner released on bail-Petitioner, held, should also be released on bail on principle of requirement of consistency in same case."

8. If for the sake of arguments, it is presumed that there is marked difference between pre-arrest bail and after arrest bail, in such like situation guidance is sought from a salutary judgment of the august Supreme Court of Pakistan reported as Muhammad Ramzan v. Zafar Ullah and another (1986 SCMR 1380), relevant portion of which is reproduced as under:-- "S. 497(5)

Penal Code (XLV of 1860), S. 302

Bail, cancellation of-In a case of murder accused (respondent, was granted bail before arrest) while other accused were granted bail after arrest--Petitioner choosing to challenge bail granted to accused (respondent) before arrest and not challenging bail granted to other accused after arrest although latter were falling in same category to which accused (respondent) belonged

Prima facie case of petitioner not distinguishable from that of others to whom bail had been allowed

Held, no useful purpose was likely to be served if bail of accused (respondent) was cancelled on any technical ground because after arrest he could again be allowed bail on the ground that similarly placed other accused were already on bail

Interference declined by Supreme Court".

9. If at all it is assumed that grant of pre-arrest bail is an extraordinary relief and for the sake of arguments if the petition in hand is dismissed on this technical ground, the petitioner would be entitled to post arrest bail on the principle of rule of consistency soon after the pronouncement of the order by this Court. Basic law is bail and not Jail, hence, by sending the petitioner behind the bars no useful purpose would be served.

10. Resultantly, by allowing this petition ad-interim bail already granted to the petitioner in terms of order dated 10.06.2016 is hereby confirmed 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. JK/M-191/L Petition allowed.