1997 P Cr (PLP)

S. 498

Penal Code (XLV of 1860), S.302/324/148/149/109

Pre-arrest bail, grant of

Accused admittedly were not present at the place and time of, occurrence and allegation against them was only that of abetment under S.109, P.P.C.

Provisions of S.109, P.P.C. having been declared repugnant to the Injunctions of Islam, their application against accused was not lawful-- Reasonable grounds, thus, were available to believe that the accused were not guilty of the alleged offence and sufficient grounds were present for further inquiry into their guilt

Interim pre-arrest bail allowed to accused was confirmed in circumstances. Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hasan Khan PLD 1989 SC 633 and Federation of Pakistan and another v. N.-W.F.P. Government and others PLD 1990 SC 1172 ref. Muhammad Zakariya Sheikh for Petitioner. Sh. Muhammad Raheem for the State. Sarwar Javaid Chaudhry for the Complainant. The petitioners were nominated as accused persons in case F.I.R. No.148/96 registered at Police Station Saddar, Chichawatni on 9-5-1996 under sections 148, 302/149, 324/149 and 109, P.P.C. on the-basis of statement made by Abdul Ghani son of Fateh Muhammad to Shafique Ahmad, S.-I./S.H.O. of the police station.

2. The allegation against the petitioner as contained in the F.I.R. was that over a dispute regarding allotment of land situated in Chak No. 111/12-L under Horse Breeding Scheme, a Punchayat had taken place in which the petitioner and Zahoor Ahmad their co-accused, had extended open threats that in case they were not given the share in the said land the complainant and his children shall be reduced into pieces. During the night between 8/9-5-1996 Zahoor Ahmad and four others while armed with deadly weapons formed an unlawful assembly and committed Qatl-i-Amd of Abdul Ghaffar and made murderous assault on the P.Ws. Admittedly the petitioners were not present at the time of occurrence. Allegation against the petitioners was that of abetment under section 109, P.P.C. Shariat Appellate Bench of the Supreme Court of Pakistan in Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hassan khan and other appeals PLD 1989 SC 633 has held the provisions of section 109, P.P.C. to be repugnant to the Injunction of Islam. This judgment was approved by their Lordships of the Supreme Court in Shariat Review Petition. Federation of Pakistan and another v. N.-W.F.P. Government and others PLD 1990 SC 1172 and it was held to take effect on 12th day of Rabi-ul-Awwal, 1411 A.H. do which date the said provision to the extent they had been declared repugnant to the Injunctions of Islam ceased to have effect and it was held that:-- "Accordingly, it is ordered that the decision of this Court, dated 5th July, 1989, whereby the provisions declared and held therein as repugnant to the Injunctions of Islam, and which was to take effect on 23rd March, 1990, would now, on the disposal of this review petition, shall take effect on 12th day of Rabi-ul-Awwal 1411 A.H.; on which day the said provisions to the extent they have been declared and held to be repugnant to the Injunctions of Islam, shall cease to have effect." Section 109, P.P.C. having been declared to be repugnant to the Injunctions of Islam; the application thereof as against the petitioners was against the provision of law for the time being in force and there are reasonable grounds to believe that the petitioners are not guilty of the offence alleged against them but that there are sufficient grounds for further inquiry into their guilt. The application is, therefore, allowed and the interim pre-arrest bail allowed to the petitioners on 20-5-1996 is confirmed. They shall, however, file fresh bail bonds in the sum of Rs. one lac each with two sureties each in the like amount to the satisfaction of A.C./City Magistrate, Chichawatni. N.H.Q./M-109/L Pre-arrest bail allowed.