2017 PLP 284 (YLRN)

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.403, dated 09.12.2014, offence under Sections 324, 148, 149, 109, 302, P.P.C., registered with Police Station, Bhera, District Sargodha.

2. Prosecution story, in brief, as per contents of the crime report is that on 09.12.2014 at 12:00 a.m. (noon), Ghulam Sajjad, Waseem Abbas, Aqib Javed, Naeem Abbad and Imran, co-accused of the petitioner committed murder of Nasir Abbas, nephew of the complainant, while causing firearm injuries on different parts of his body. It is stated that the instant occurrence was committed by the accused persons at the abetment/conspiracy of the petitioner which was heard on 07.12.2014 by the PWs.

3. Learned counsel for the petitioner submits that the petitioner has falsely been roped in the instant case by the complainant against the actual facts and circumstances with mala fides. It is contended that wider net has been thrown by the prosecution as all the six real brothers have been implicated in this case. It is contended that the allegation against the petitioner is only that he abetted his co-accused (real brothers) to commit the murder. It is added that the provisions of offence under section 107, Cr.P.C. are not made out from the facts and circumstances of the instant case. Learned counsel submits that the story contained in the crime report that the conspiracy was hatched two days prior to the occurrence and it was informed to the complainant by the PWs does not sound sense. Contends that if the complainant was having knowledge in this regard, the matter should have been reported immediately when he was informed in this regard. It is contended that Imran, co-accused, who has been ascribed specific firearm injury to Nasir Abbas (deceased) has been granted post arrest bail by a learned Single Bench of this Court through Crl. Misc. No.769-B/2015 in terms of order dated 02.07.2015, but the said order has not been challenged by the prosecution before any forum. In such backdrop, learned counsel submits that the petitioner is entitled to the relief sought for by means of instant petition.

4. Contrarily, learned Deputy Prosecutor General assisted by learned counsel for the complainant has vehemently opposed this petition. It is argued that the petitioner is named in the crime report as an abettor. It is contended that the petitioner remained proclaimed offender for a period of seven months. It is submitted that there are two prosecution witnesses who have overheard the conversation when the petitioner was asking his co-accused to commit the murder of the deceased. It is contended that the PWs have fully implicated the petitioner with the crime alleged. It is next argued that the petitioner has been found guilty during the course of investigation. It is contended that the petitioner is involved in a case of capital punishment; therefore, he in no way is entitled to the extra ordinary relief of pre-arrest bail.

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 named in the promptly lodged FIR with the allegation of hatching conspiracy, but I am afraid 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. Admittedly six real brothers have been implicated in this case by the complainant which reflects that a wider net has been thrown by the prosecution. As far as the allegation of conspiracy is concerned 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.

7. As far as the merits of the case are concerned, it is an admitted fact that the case of the petitioner is on better footings as compared to the case of Imran, co-accused, who has been granted post arrest bail by a learned Single Bench of this Court through Crl. Misc. No.769-B/2015 in terms of order dated 02.07.2015, but the said order has not been challenged by the prosecution before any forum and as such the same has attained finality. If for the sake of arguments considering the instant petition as a pre-arrest bail, the same is refused, the petitioner would be entitled for the relief sought for soon after the order would be pronounced as Imran, co-accused, with specific firearm injury to the deceased has been granted post arrest bail. Reliance in this regard is placed upon the dictum of law laid down in the case of Muhammad Ramzan v. Zafar Ullah and another (1986 SCMR 1380).

8. Moreover, the scope of pre-arrest bail has already been widened by the august Supreme Court of Pakistan while rendering salutary judgment in a reported case Meeran Bux v. The State and another PLD 1989 SC 347 and as such merits of the case can also be touched upon while dealing with pre-arrest bail. Apart from this, 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:-- "The allegation of Lalkara usually levelled against an accused instigating his companions to kill someone is frequently made in our country, but the Courts on the tentative assessment of the evidence about the allegation of Lalkara, grant bail to the accused allegedly raising Lalkara or instigating their companions to commit the crime, with almost equal frequency. If bail can be granted to a person present at the spot at the time of occurrence instigating his companions to kill someone present there, then why a person who was not present on the spot but allegedly instigated the accused to kill the deceased should be deprived of such concession during the trial. There can be no two opinions that the 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. Furthermore, it is very easy to set up accusation of abetment/instigation/conspiracy/ Iema; needless to say when parties are inimically dispressed, the possibility of false implication of 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). 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 from the facts and circumstances discussed above. 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 Firdaus and others v. The State (2005 SCMR 784).

9. As far as abscondence of the petitioner is concerned, bail could be granted if the accused has good case for grant of bail on merits and his absconsion would not come in the way while granting him bail. Reliance is placed upon the cases of "Rasool Muhammad v. Asal Muhammad and another" (1995 SCMR 1373) Mitho Pitafi v. The State (2009 SCMR 299). This view was further affirmed by the august Supreme Court of Pakistan in the case of "Ehsan Ullah v. The State" (2012 SCMR 1137), wherein august Supreme Court of Pakistan has observed as under:-- "

S.497(2)

Bail

Abscondence

Further inquiry

In a case calling for further inquiry into the guilt of accused, bail is to be allowed him as of right and not by way of grace or concession

Mere abscondence of accused person may not be sufficient to refuse bail to him".

10. In the instant case, Imran, co-accused who was assigned the role of causing firearm injury to the deceased has already been granted bail and as such the case of the petitioner is at higher pedestal, therefore, keeping in view the facts and circumstances of the case in hand, this Court is persuaded to accept this petition. Resultantly, the petition in hand is allowed and as a consequence whereof ad interim pre-arrest bail already granted to the petitioner in terms of order dated 03.09.2015 is 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. HBT/G-41/L Bail confirmed.