1997 PLP 1629 (MLD)

Syed Fazal Hussain Jaffri for the State. The petitioner is involved in the case F.I.R. No.458, dated 7‑9‑1996, registered at the instance of Mumtaz Ali son of Muhammad Shafi of People's Colony, Faisalabad, under sections 324/109/148/149, P.P.C. section 13 of the Arms Ordinance, 1965 and section 5 of the Explosive Substances Act, 1908. The allegations in the F.I.R. are that the alleged occurrence took place at 8‑45 p.m. on 6‑9‑1996, in which 13 persons including the petitioner are involved as accused persons. The petitioner was arrested on 8‑9‑1996 and is in judicial lock up. The petitioner applied for bail but the same was refused by the learned Judge, Special Court Suppression of Terrorist Activities, Faisalabad, vide order, dated 22‑9‑1996.

2. According to the F.I.R. when the complainant alongwith Sadaqat Ali and his nephew Muhammad Moaaz and Muhammad Zikria were, in a car, going to their house from the office, the accused persons, namely, Zohaib armed with Klashnikov, Dilshad Butt empty‑handed, Hammad armed with hand grenade and one unknown accused person armed with pistol came there on two motor‑cycles and that in a car, the accused Sohail, Dilshad Butt armed with Klashnikovs and two unknown persons armed with pistols, also came there. Sohail handed over a rocket launcher to Dilshad Butt who fired two shots from the same towards the complainant and his companions. Hammad accused threw a hand‑grenade on them but the same did not explode. The other accused started indiscriminate firing. As a result of the rocket‑launcher blast the complainant and Sadaqat Ali sustained two injuries each.

3. We have perused the record produced by Hakim Ali, Sub‑Inspector and heard Syed Fazal Hussain Jaffri, learned counsel for the State. According to the medical report Mumtaz Ali and Sadaqat Ali have received injuries by blunt weapon.

4. It is alleged in the F.I.R. that the accused have committed this offence at the instigation of Zubair Butt, Khawaja Ghulam Hussain, Khawaja Ramzan and Khawaja Ahmad Hassan. It is not the case of the prosecution that the petitioner was himself present at the spot and in any manner participated in the alleged offence himself. On the contrary the F.I.R. contains the following allegation against the petitioner:‑‑

5. The petitioner has allegedly abetted the offence. However, the case of the alleged abettor/conspirator falls on different footings and accordingly the considerations for grant of bail to abettor/conspirator are also somewhat different. In this view we are fortified by the following observations of the Honourable Supreme Court of Pakistan in Syed Amanullah Shah v. The State PLD 11996 SC 241:‑‑ "There can be no two opinions that the case of a conspirator or abettor not present on the spot stands at lower footing than the case 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 depressed, the possibility of false implication of opponent is very much there."

6. On the basis of the allegations made in the F.I.R. the involvement of the petitioner as an abettor in commission of offence is yet to be established, therefore, the petitioner's case is at least of further inquiry. In such circumstances, we again get the benefit from the following passage of the aforesaid judgment of the Honourable Supreme Court:‑‑‑ "So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail than in the jail, during the trial."

7. In the light of the above discussion, we think that the case against the petitioner is that of further inquiry and, therefore, the petitioner against whom allegation of abetment alone has been made is entitled to the concession of bail. We, therefore, allow him bail subject to his furnishing bail bonds in the sum of Rupees One Lac (Rs.1,00,000) with one surety in the like amount to the satisfaction of the learned trial Court. This petition stands disposed of. N.H.Q./G-26/L Bail allowed.