2003 PLP 986 (YLR)

Khadim Hussain, Abdul Karim and Ghulam Abbas‑petitioners alongwith others have been booked through Crime Report No. 133, dated 8‑7‑2002, under sections 324/337‑A(i)/337‑L(2) read with section 109, P.P.C. registered with Police Station 18‑Hazari, District Jhang, at the behest of one Haji Pehlwan Ali. Subsequently, police after perusal of medico- legal report added sections 334/34, P.P.C. Allegation of abetment has been levelled against them.

2. Petitioners could be arrested by the police on 23‑8‑2002 during course of investigation and their post‑arrest bail was declined by a learned Additional Sessions Judge at Jhang, through order, dated 1‑10‑2002 assigning a variety of reasons for refusal thereof. Now they have approached this Court by moving the instant petition seeking same relief.

3. The way, in which, learned counsel for the petitioners in his attractive arguments to this Court has put' the matter is like this:‑‑ (i) That the petitioners are behind the bars for the last about two months and only allegation against them is that they incited their co‑accused, namely, Azhar Hussain and War Hussain to commit crime imputed to them. This charge is wholly false and groundless. (ii) That there is a colossal delay of six days in reporting the matter to the police, which renders prosecution version doubtful. The complainant side consumed this time to enter into deliberations and counselling with each other to involve them falsely in this case. (iii) That the petitioners were not physically present at the place of occurrence and there was no direct evidence to prove the factum of abetment. (iv) That statements of Riaz Hussain Shahid and Mumtaz Hussain were fabricated by the police after a lapse of about fifteen days, which also makes the story of abetment extremely doubtful.

4. Conversely, learned counsel for the State assisted by learned counsel for the complainant forcefully argues that charge of abetment has been brought against the accused and statements of Riaz Hussain Shahid and Mumtaz Hussain, besides the complainant are available on record, which are sufficient to make out a case of abetment. He vehemently opposes grant of bail to the petitioners.

5. I have consciously heard and soberly considered arguments addressed by learned counsel for both the sides. First of all, I would like to comment upon relationship of the accused inter se and also with the complainant side. It would definitely help in tracing out background of the crime. Mukhtar Hussain, victim of murderous assault, is son of Haji Pehlwan Ali complainant. Mukhtar Hussain happens to be husband of Mst. Tahira Bibi, real sister of Azhar Hussain and Zafar Hussain co‑accused. Khadim Hussain petitioner is father of Mst. Tahira Bibi, whereas Abdul Karim is her real uncle. Ghulam Abbas is her maternal uncle. Motive leading to the occurrence as stated in the F.I.R. is that Mst. Tahira Bibi was not leading a chaste life. In the month of February, 2002, a big sex scandal of Mst. Tahira Bibi became talk of the locality. Respectable of the area intervened and settled the matter amicably. Mukhtar Hussain severed off his relations with Mst. Tahira Bibi. On 2‑7‑2002 exchange of hot words took place between the spouses. Mst. Tahira Bibi left for her parents' house in the company of Azhar Hussain and Zafar Hussain. Mst. Tahira Bibi must have been gravely offended over this situation. She instigated the accused. Petitioners assumed the role of inciters on the instigation of Mst. Tahira Bibi, who was bound to narrate the story of her sufferings at the hands of Mukhtar Hussain. From all these facts, it is inferable that the petitioners must have incited Azhar Hussain and Zafar Hussain co‑accused, so they are to be designated as inciters. They were by all means capable of performing this act by virtue of their relationship with the incitees and their commanding positions in the family. Statements of Mumtaz Hussain and Riaz Hussain Shahid P. Ws. recorded during course of investigation also reveal that all the incitors had openly pronounced earlier that they will get right hand of Mukhtar Hussain chopped off because with this hand he used to exact physical violence upon Mst, Tahira Bibi. In this way, their participation through inactivity becomes self‑evident. It may also be observed here that instigation and encouragement provided by Mst. Tahira Bibi involved a positive step, "aimed at inciting the accused to commit the crime". Incitement can be employed as well as express. It is also more probable that the incitees may have committed the crime at the incitement of incitors. I have also gone through contents of the medico‑legal report of Mukhtar Hussain injured. His right arm has been amputated by the Surgeon at Mayo Hospital, Lahore because of severe complications of injury caused by Azhar Hussain by means of a Churri. This injury necessitated surgical intervention on more than two occasions. Prima facie, there is sufficient material to link the petitioners with the commission of crime imputed to them.

6. As regards contention of the learned counsel that the F.I.R. is delayed one, the complainant side remained busy in making necessary arrangements in different hospitals, so some delay in loding the F. I. R. was bound to occur. Delay in reporting the matter to the police in such‑like situation is of no consequence.

7. For all these reasons, I am not inclined to allow bail to the petitioners at this stage. Accordingly, this petition is dismissed being devoid of force. N.H.Q./K‑189/L Bail refused.