2016 P Cr (PLP)

SHAHID HAMEED DAR, J.

The complainant, Saulat Nawaz alias Moon Khan has alleged in FIR No.311, dated 01.06.2014, under sections 395, 397, 412, P.P.C., registered at Police Station Basirpur (Okara) that 10/12 armed persons made indiscriminate firing, when they stormed into his house at about 10.00 p.m. on 31.05.2014; the armed bandits looted gold ornaments, each, precious clothes, licensed gun and other accessories at gunpoint from his house; they fired at and injured Mst. Siddiquan Bibi during the occurrence; they escaped from the spot with the looted articles.

2. The complainant, who did not nominate anyone in the FIR, rendered a supplementary statement on 07.08.2014 whereby he contended that Muhammad Ashfaq and Abid Ali, the accused of case-FIR No.438/2014 and FIR No.439/2014, both dated 21.7.2014, registered under section 13 of the Pakistan Arms Ordinance, XX of 1965; at Police Station Basirpur, had made the disclosure that the alleged occurrence of dacoity had been committed by them and their 19/20 co-accused, including Toga alias Togi (petitioner).

3. The petitioner was arrested in this case on 11.08.2014 and he led to the recovery of a licensed Kalashnikov, belonging to the complainant, on 14.08.2014 and Rs.12,000/- cash on 15.08.2014. His test identification was not conducted. His co-accused Muhammad Ashfaq, Abid Ali, Muhammad Altaf and Muhammad Hussain, however went through the said process on 06.08.2014 and 06.09.2014, during the course of which they were correctly picked up by the witnesses.

4. It has been contended by the learned counsel for the petitioner that it is virtually a case of no evidence against the accused/petitioner and he stood incarcerated merely on whimsical estimations of the complainant and the police; the statement of his co-accused cannot be read against the petitioner as the law created a bar in this regard; the supplementary statement of the complainant may not be considered a part of the FIR nor it contained any element of incrimination against the petitioner; a couple of articles have been planted upon the accused by the Investigating Officer, the evidentiary value of which may only be assessed during the course of the trial; the petitioner's brother Maqsood Ahmad filed a Writ Petition (No.20225/2014) against the police for recovery of his brother Toga alias Togi (petitioner) on 10.7.2014 before this court with the contention that the police abducted his brother on 7.7.2014 from his house and confined him in police lock-up, whereafter they demanded Rs.5,00,000/- to release him and since then he continuously remained in illegal custody of the police during the course of which they fabricated supplementary statement of the complainant and other evidence against him. He has lastly submitted that the petitioner's case called for further probe into his guilt, therefore, he may be released on bail.

5. To rebut the arguments made on the petitioner's side learned Deputy Prosecutor General Punjab and the learned counsel for the complainant have submitted in unison that the accused/petitioner joined by his co-accused, all armed with lethal weaponry, committed a heinous offence and deprived the complainant of his valuable property, value whereof ran into lacs of rupees; the hellish act of the accused was spine-chilling and its effects gripped almost everyone living around; the offence committed by the accused is covered by the prohibitory clause of section 497(1), Cr.P.C., therefore, he may not be granted the relief, prayed for.

6. After hearing the learned counsel for the parties and perusing the record, it is observed that the facts of the alleged occurrence are hair-raising. How dreadful would it be when complainant and his family members found an army of the bandits, lodged in their compound, where they fired indiscriminately in all directions to terrorize the inmates. The deafening effect of the incessant firing may have made the complainant's house look like a battlefield. The complainant, however, showed little cowardice at the crucial hour; despite being under heavy gun-fire, as is manifest from the contents of the FIR. He along with his companions returned firing to check advance of the armed intruders, but he could not out-manoeuvre them, as they split themselves in small groups and operated from different positions. Some of the dacoits allegedly got into a room of the complainant s brother, Ali Nawaz, as well as in some other rooms, wherefrom they lifted every costly item; that came their way. The booty included cash, gold ornaments, precious clothes, a licensed Kalashnikov with magazine, a licensed gun with cartridges and some crucial documents, which they all took with them. A lady, Mst. Siddiquan got injured during the occurrence, by the firing of the accused. The argument of the learned counsel that the petitioner was not named in the FIR is a bit out of place, as dacoits do not tell their names nor they introduce themselves or shake hands before they pounce on their prey to devour his goods and chattels.

7. The petitioner's involvement as, accused in this case is linked with the supplementary statement of the complainant, which he rendered on 7.8.2014 with the contention that he searched for the accused day- in, day-out and learnt that two persons, Muhammad Ashfaq and Abid Ali stood arrested in case-FIR No.438/2014 and FIR No.439/2014 (supra) wherein they disclosed before the police that they along with nineteen (19) others, including Toga alias Togi (petitioner) had committed the offence of dacoity in the house of Saulat Nawaz (complainant). The police, in the meanwhile, recorded arrest of Muhammad Ashfaq and Abid Ali accused on the basis of aforesaid disclosure on 21.7.2014 in this case and extensively grilled them. They both disclosed it again that they had committed the crime being in company of nineteen others, which included Toga alias Togi accused (petitioner) as well.

8. Their first versions before the investigating officer were self-implicating as well as implicating others. Their statements ex facie can be considered an incriminating piece of evidence. The statement of a person as to involvement of his co-accused in a crime may not be conclusively sufficient to convict him but in terms of Article 43 of the Qanun-e-Shahadat Order, 1984, it may be used as a circumstantial piece of evidence even at bail stage to formulate a tentative view about his involvement in some offence. The Hon'ble Supreme Court of Pakistan observed in Ghulam Ahmed Chishti s case; reported as 2013 SCMR 385 that the statement of an accused can virtually be considered about involvement of his co-accused for the purpose of deciding bail plea of such nominated accused. It has been held in Muhammad Irshad v. Muhammad Bashir Goraya (2006 SCMR 1292) that statement of a co-accused, implicating the accused can be verily taken into consideration while dealing with the question of bail. On this principle the apex Court cancelled the bail allowed by the High Court of such an accused against whom disclosures had been made by his co-accused, though he was not present at the spot, at the time of occurrence. The observations made are as under:- "As now the confession of a co-accused can be used as circumstance and not as an exclusive evidence for the purpose of recording, of the conviction. Besides, the judgment which has been referred to hereinabove also pertains to final determination of the case for the purpose of considering the same as material confession of co-accused cannot be used, but for cancellation of bail, such statement, implicating the accused, can be validly taken into consideration.

18. It may be noted that there is distinction between the abetment and 'conspiracy'. As far as 'abetment' is concerned, it is punishable as provided for the original offence, charged against the principal accused, falling within the mischief of section 109, P.P.C.; whereas conspiracy itself is an offence and person can be separately charged with regard to conspiracy'. In this behalf in State of Andhra Pradesh v. Kandimalla Subbaian and another AIR 1961 SC 1241 it has been held that "there may be an element of abetment in conspiracy; it is something more than an abetment . Whereas 'criminal conspiracy' has been defined in Halsbery Laws 4th Edition, Vol. 11, parat 58; page 44 as conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment of which is imprisonment or fine or both in the discretion of the Court". Likewise, in the case of Noor Muhammad Yusuf Momin v. The State of Maharashtra 1971 SCJ 43, Indian Supreme Court observed as follows:- "Like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other facts constitute relevant material." Similarly in Bhagwandas Keshwani and others v. State of Rajasthan AIR 1974 SC 898, it is held that "in case of conspiracy better evidence than the acts and statements of conspirators in pursuance of the conspiracy is hardly ever available." In Ghulam Ahmed Chishti's case (supra), another judgment of the apex court, Naseem Malik v. The State (2004 SCMR 283) was also referred to and a paragraph thereof was reproduced therein by reminiscing that the apex court cancelled the bail on similar grounds granted by the special court inter alia on the ground that the co-accused had named him as one of the conspirators. The relevant paragraph is reproduced hereunder:- "Naseem Malik accused stands specifically named and not just named but in fact comprehensively described in the FIR as one of the conspirators and preparators of the crime in question. It was Rehman accused who, after his arrest from the bank had mentioned the said accused, amongst others, as his collaborators. Needless to mention here that the statement of an accused can be validly taken into consideration while deciding the fate of such-like matters." The involvement of the petitioner on the statement of his co-accused, thus cannot be considered dubious nor could it be looked at sceptically. The petitioner got recovered licensed Kalashnikov of the complainant on 14.8.2014 besides cash amount of Rs.12,000/- on 15.8.2014. The investigating officer inserted section 412, P.P.C. in this case, which also catches the prohibition of section 497(1), Cr.P.C. No premium can be awarded to the petitioner of the constitutional/habeas-petition (W.P. No.20225/2014) filed by his brother Maqsood Ahmad before this court for recovery of the alleged detenu, Toga alias Togi (petitioner), as he was found confined in jail, where his test identification parade had been held on 16.7.2014 in some other case of dacoity. His past is spotted with many a heinous crimes. Not a case worth giving a positive nod for grant of bail. Dismissed. ZC/T-16/L Bail refused.