2008 PLP 2829 (YLR)

HASNAT AHMAD KHAN, J.--Through this application, Sikandar petitioner has sought post-arrest bail in the case F.I.R. No.3 of 2008, dated 4-1-2008, registered at the Police Station, Langrana, Tehsil Chiniot, District Jhang, in respect of offences under sections 302/109/34, P.P.C.

2. Precise allegation against the petitioner, as per F.I.R., is that of causing abetment for the murder of Umar Hayat deceased, at the hands of principal accused, namely, Shah Muhammad and Tanvir.

3. In support of this petition, the learned counsel for the petitioner has contended that the prosecution's story is nothing but a cooked book; that, admittedly, the petitioner was not present at the time of occurrence and he has been involved in this case on the allegation of hatching a conspiracy, due to which Umar Hayat (deceased) was gunned down; that the prosecution fabricated some evidence against the petitioner after the registration of the case, therefore, his case requires further enquiry, entitling him to the concession of post-arrest bail.

4. Conversely, the learned D.P.G., assisted by the learned counsel for the complainant, has opposed the bail application tooth and nail by contending that the petitioner is specifically named' in the F.I.R., that, though, at the time of registration of case, no evidence regarding the conspiracy, allegedly, hatched by the petitioner, was mentioned in the F.I.R., however, just on the day of occurrence, two witnesses, namely, Allah Ditta and Abdul appeared before the Investigating Officer had made statements under sec tion 161, Cr. P. C., wherein the detail of the conspiracy, hatched by the accused, was given; that the petitioner is a hardened criminal; that the main co-accused, out of whom one is real son of the petitioner, have become fugitive from law and that the offence, allegedly, committed by the petitioner, falls within the prohibitory clause, therefore, he is not entitled to bail. To augment his contentions, the learned counsel for the complainant has relied on the cases of Qadir Bakhsh alias Qadira v. The State 2003 PCr.LJ 1364 and Raja Muhammad Irshad v. Muhammad Bashir Goraya and others 2006 SCMR 1292.

5. After giving an ardent hearing to the learned counsel for either of the parties and going through the relevant record, I have straightaway noticed that, admittedly, I no overt act has been attributed to the petitioner. It is also an admitted fact that he was not present at the time of occurrence, rather, he was implicated in this case with the allegation of instigating his co-accused, to wipe out Umar Hayat (deceased). A perusal of the contents of the F.I.R. reveals that at the time of lodging the same, no evidence regarding the commission of offence of instigation, was referred to by the complainant. However, after registration of case, he made a supplementary statement, wherein he claimed that on the fateful day at 7-00 p.m., Allah Ditta and Abdul, prosecution's witnesses, contacted him and narrated the story of the instigation, allegedly, caused by the petitioner to his co-accused. It would be interesting to point out here that the said information was laid before him after the registration of the case. Therefore, it does not appeal to reason as to how that at time of lodging the F.I.R., could he know regarding the alleged abetment/instigation caused by the petitioner to bump off Umar Hayat deceased.

6. A perusal of the statements of Allah Ditta and Abdul, the two witnesses of abetment, who are closely related to the complainant, reveals that in their presence, while sitting in his shop, the petitioner, allegedly, instigated Shah Muhammad and Tanvir, co-accused, to eliminate Umar Hayat-deceased. The said witnesses further claimed that the main accused, in their (P.Ws') presence, made a commitment with the petitioner to accomplish his desire. Both the witnesses further went on to state that after a short while, both the main co-accused returned and informed the petitioner regarding the accomplishment of the design, on which, both the said accused were, allegedly, appreciated by the petitioner. Tentatively speaking, it does not appeal to reason that one would instigate his co-accused so openly and in presence of the close relatives of the person, intended to be wiped out surprisingly enough, the said witnesses, after hearing the said conversation, which, according to their statements, did not move from the said place to intimate Umar Hayat-deceased regarding the ill-motives of the main co-accused. So much so, they did not opt to follow the said main co-accused, who in their presence, had left to lynch Umar Hayat. It would be relevant to point out here that according to the contents of the F.I.R., itself, Shah Muhammad/co-accused had a direct motive to shorten the life of Umar Hayat deceased.

7. Be that as it may, without giving any positive and conclusive finding in this regard, lest it may prejudice case of either of the parties, suffice it to observe that at least a case of further enquiry into the allegations levelled by the complainant, has been made out in favour of the petitioner. ( While holding so, I am pinning my faith on the cases of Abdullah Khan v. Abdul Qayyum and another 1997 PSC (Crl.) 99), Syed Amanullah Shah v. State and another (PLD 1996 SC 241). Zahoor Ahmad v. The State KLR 2006 Criminal Cases 445 and Muhammad Arshad and another v. Muhammad Mushtaq and 5 others 2004 PCr.LJ 167.

8. After making out a case of further enquiry, the petitioner cannot be denied bail simply on the ground that his co-accused have become fugitive from law. The, petitioner cannot be punished for the inefficiency of the police, who have failed to perform their duty of arresting the main co-accused. Similarly, the petitioner cannot be made a hostage for the arrest of his co-accused. Moreover, possibility of throwing the net very wide to implicate the petitioner, whose real son has been involved in this case as main co-accused, cannot be ruled out.

9. Insofar as involvement of the petitioner in some other cases is concerned, nothing has been placed on the record in support of the said contention. Be that as it may, admittedly, the petitioner has never been convicted in any case. Insofar as the apprehension of the complainant that after grant of bail, the petitioner is likely to abscond, is concerned, suffice it to observe that after making out a case of further enquiry, the same cannot be made a ground for refusal of bail. At the most, to obviate the said chance, heavy surety amount can be demanded from the petitioner. As regards the case-law cited by the learned counsel for the complainant is concerned, suffice it to observe that the same, being distinguishable, cannot help the complainant.

10. For all that has been observed above, the application, in hand, is accepted and the petitioner is granted the concession of post-arrest bail, subject to his furnishing bail bonds in the sum of Rs.200,000 (rupees two , hundred thousand) with two sureties, each in the like amount to the satisfaction of the learned trial Court.

11. Before parting with this order, I would like to direct D.P.O, Jhang as well as the Superintendent of Police (Investigation) to make all out efforts for getting the main co-accused of this case arrested, as soon as possible. The compliance report be submitted within a month, through D.R.(Judl.) of this Court, after receiving the copy of this order,, which shall be dispatched to them by the office immediately. H.B.T/S-64/L Bail granted.