1996 P Cr (PLP)

Khurshid Ahmad Sodhi for Petitioner. Mazhar Ali Naqvi for Respondents. Respondents in Criminal Miscellaneous No.2422/CB of 1995 were allowed bail by Additional Sessions Judge, Gujranwala on 17‑5‑1995 in case F.I.R. No.190/95 registered at Police Station Cantt., Gujranwala on 26‑4‑1995 under sections 302, 324, 109/134, P.P.C. Zahid Hussain respondent in Criminal Miscellaneous No.2744/CB of 1995 was released in the same case by Additional Sessions Judge, Gujranwala on 28‑5‑1995. Both the petitions shall be disposed of vide this order.

2. The respondents were named as accused persons and were alleged to have abetted the offence of Qatl‑i‑Amd and attempted to commit Qatl‑i‑Amd.

3. The learned counsel for the complainant has submitted that the investigating agency had collected sufficient evidence against the respondents to connect them with the commission of the crime and report under section 173, Cr.P.C. was filed against them and that the police had added section 114, P.P.C. in place of section 109, P.P.C. which has been struck down being against Injunctions of Holy Qura'n and Sunnah by Shariat Appellate Court. It was further contended that the offence alleged against the respondents fell within the prohibitory clause and the respondents were not entitled to the concession of pre‑arrest bail and the Additional Sessions Judge committed illegality in enlarging the respondents on bail before arrest.

4. Learned counsel for the respondents has submitted that section 114, P.P.C. was added with mala fides and police had colluded with the complainant and the mala fide was correctly held to be, apparent by the Additional Sessions Judge as the said section was added after the ground was taken by the respondents in the application for bail filed on 4‑6‑1995. Relying on section 338‑F, P.P.C. the learned counsel submitted that this Court, while interpreting and applying the provisions of Chapter XXVI, P.P.C. in respect of matters ancillary or akin thereto was under an obligation to seek guidance of the Injunctions of Islam as laid down in the Holy Qura'n and Sunnah. He further argued that the principles applicable to the cancellation of bail under section 497(5), Cr.P.C. were entirely different from those applicable to the grant of bail. He placed reliance on Falak Sher alias Sheru v. The State 1995 SEMR 1350, Sakina Bibi v. Federation of Pakistan PLD 1992 Lah. 99 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34.

5. One Hukam Din son of Imam Din, a prosecution witness regarding abetment by the respondents, appeared in Court and offered to state that he had neither seen the present accused conspiring nor he was a witness of abetment. He was directed to file an affidavit which he had filed in Court and he has controverted the story of the prosecution to the extent of allegation of abetment against the respondents.

6. Chapter V of Pakistan Penal Code (XLV of 1860) relates to abetment. Sections 107, 108 and section 108‑A, P.P.C. related to the definition of abetment, abettor and abetment in Pakistan of offences outside Pakistan respectively. Section 109, P.P.C. was held to be repugnant to Injunctions of Islam. In so far as it makes an abettor in case of murder and other offences against human body liable to some punishment as is prescribed for the murder or for such offences regardless of the various degrees of abetment (PLD 1989 SC 633) and thereafter proviso to section 109, P.P.C. was added by Criminal Law (Second Amendment) Ordinance (XII of 1993). Section 114, P.P.C. provided punishment for abetment in case where the abettor was present at the time of the commission of the offence. In the present case the respondents are not alleged to be present at the time of occurrence and prima facie section 114, P.P.C. was not applicable. Whether section 109, P.P.C., as amended by Act XII of 1993, was applicable in the present case is a question of further inquiry.

7. In view of what has been submitted above there are no grounds for cancellation of bail. Reliance is placed on Tariq Bashir and 5 others v. The State C PLD 1995 SC

34. The petition is accordingly dismissed. N.H.Q./M‑2601/L Petition dismissed,