Abetment

Record neither established presence of accused at the time of occurrence nor had any specific role been assigned to him in the crime report lodged by investigating officer

Prosecution failed to prove involvement of accused or his nexus with alleged offence

Supreme Court set aside conviction and sentence awarded to accused by the Courts below and he was acquitted of the charge

Appeal was allowed.

First/existing wife filed private complaint not only against her husband but also against second wife, witnesses of Nikah, Nikah Reciter, Registrar and secretary Union Council

Family Court after recording cursory evidence of the complainant, summoned the accused /husband and dismissed the complaint to the extent of remaining accused persons (second wife, witnesses of Nikah, Nikah Reciter, and Secretary/Registrar Union Council)

Appellate Court dismissed the criminal revision preferred by the complainant against the order of the Family Court

Plea of the petitioner (first wife/complainant) was that that sufficient evidence in the shape of second Nikahnama was available to proceed against the remaining respondents being accused of facilitating the offence

Validity

Muslim Family Laws Ordinance, 1961 ('the Ordinance, 1961') is a special statute; in the absence of any specific provision in the Ordinance, 1961 permitting applicability of the Pakistan Penal Code, provisions such as S. 109 of the P.P.C. for the offence of abetment cannot be read into and made applicable to broaden scope of the offence prescribed under S.6(5) of the Ordinance, 1961

Complaint in the present case did not disclose commission of any offence, much less the offence prescribed under S. 6(5) of the Ordinance 1961 allegedly committed by any of the respondents except the husband who, being accused of contracting another marriage without permission of Arbitration Council, had been lawfully summoned by the Court of competent jurisdiction

Petitioner had not been able to point out what offence, if any, disclosed in the complaint filed by the petitioner, was prima facie made out against other respondents

No illegality or jurisdictional error had been noticed in the impugned orders passed by the Courts below warranting interference in exercise of jurisdiction under Article 199 of the Constitution

Constitutional petition was dismissed in limine, in circumstances.

Essence of crime of abetment is that the abettor should substantially assist the principal culprit towards commission of offence

Concurrence in the criminal acts of another without such participation therein does not per se become culpable

Mere negligence in an act also does not bring a person within the purview of the offence of abetment.

During investigation, a laptop was secured containing the record of hundi business but no reference to it was made either in the FIR or in the statements of witnesses recorded under S. 161, Cr.P.C. on the first day of registration of FIR

From the forensic analysis of the laptop some screenshots deciphered, which contained the names of some individuals along with certain amounts of money about which primarily an inference was drawn as proceeds of hundi/hawala

Concession of post arrest bail could not be withheld from an accused merely on the basis of inferences and presumptions, instead the prosecution must collect some confidence inspiring incriminating material reasonably connecting the accused with the commission of crime

Petition for grant of bail was accepted.

Accused persons sought post-arrest bail in an FIR lodged under Ss. 365, 365-A & 109, P.P.C., read with S. 7 of Anti-Terrorism Act, 1997

Allegation against accused persons was that of abduction for ransom

Incident was reported with unexplained delay of more than two hours

Accused persons were nominated in the crime report

Features of accused were not mentioned in the FIR

Statements of abductee recorded under Ss. 161 & 164, Cr.P.C. were at variance regarding mode and manner of the occurrence

Recoveries were effected from the accused persons and their physical custody was not required by the investigating agency

Accused persons were behind the bars since their arrest and their continuous detention for indefinite period would be unfair

Case against accused persons was one of further probe within the meaning of S. 497(2), Cr.P.C.

Petition was allowed and the accused persons were admitted to bail, in circumstances.

Allegation against accused persons was that they received certain amount of sum along with copies of passport, Computerized National Identity Card (CNIC) and driving licence from the complainant to arrange for his job abroad but neither they sent the complainant abroad nor returned the amount

One of the accused, as per prosecution's case, never induced the complainant for payment of any amount in connection with a work visa

Accused persons did not have any previous criminal record

Nothing out of the documents allegedly given by the complainant were recovered from the possession of the accused

Case of accused persons was one of further inquiry into their guilty entitling them to the grant of post-arrest bail

Petition for grant of bail was allowed, in circumstances.

All the accused persons arrested in the case had been released on bail after arrest hence the accused was also entitled for the grant of bail after arrest on the principle of consistency

Entire case depended on documentary evidence which had already been collected by the investigating agency

Prosecution had failed to satisfy the Court that the inordinate delay in conclusion of trial was not partly attributable to it

Writ petition was allowed and the accused was admitted to post-arrest bail, in circumstances.

Investigating Officer of the case was required to have included the owner of the vehicle in investigation as co-accused for allowing the vehicle to be driven by a person who was not holding a valid driving licence or whose licence was not genuine

Owner of the vehicle was an abettor in terms of S.107, P.P.C. and his case fell under S.114, P.P.C.

Investigating Officer was directed to take action against owner of the vehicle and the prosecution was directed to expeditiously complete the trial against the owner as co-accused

Appeal was adjourned pending action against the owner of the vehicle.

No evidence was available against the accused to the extent of abetment or conspiracy for murder and the prosecution failed to collect any evidence against him

Held; accused was charged under S. 109, P.P.C., which was not proved against him as reflected in the impugned judgment

No apparent infirmity was pointed out in the impugned judgment

Appeal against acquittal, being meritless, was dismissed.

Co-accused while empty handed had allegedly raised lalkara to main accused, who with pistol had already come at the place of occurrence, prior to the arrival of co-accused

Question of raising lalkara necessarily required further inquiry within the meaning of S. 497(2), Cr.P.C.

Age of accused was about 12 years at the time of occurrence

Co-accused, as per FIR, was empty handed, although allegedly present at the place of occurrence, yet no specific overt act was alleged against him

General allegation of grappling and beating the deceased was falsified by postmortem examination report which showed no such injury

Exaggeration on the part of complainant by joining hands with police, widening net and roping first accused (being mother) and second accused (being brother) of main accused in the case, with mala fide intention, could not be ruled out

Accused persons had already joined the investigation

Investigating officer had categorically stated that nothing was to be recovered from the accused persons

Application for pre-arrest bail was allowed, ad-interim pre-arrest bail already granted to petitioners was confirmed, in circumstances.

Petitioner/accused was implicated only for the offence of abetment as Investigation Officer had purportedly collected evidence against him during the investigation

Petitioner contended that neither he was directly charged in the FIR nor he was alleged to be present at the place of occurrence at the time of occurrence

Validity

Prosecution had failed to produce, before the High Court, any direct and circumstantial evidence collected by the Investigation Officer during the investigation

Some evidence of overt action or a common design to commit a particular offence was necessary to sustain the charge of abetment of an offence, which was lacking in the present case

Petitioner was in his advanced age being 78 years old as per his CNIC

Petitioner having made out a case for grant of bail was admitted to bail.

Brother of deceased along with eye-witnesses of the occurrence appeared later on before the SHO and nominated the present accused along with principal accused by submitting an application

Brother of deceased and eye-witnesses recorded their statements under S.161, Cr.P.C.

Statements of said witnesses showed that the accused-petitioner was present at the place of occurrence and had abetted the principal accused in committing murder of the deceased

Accused-petitioner having admittedly been seen at the place of occurrence by the eye-witnesses, a prima facie case was made out against him by the prosecution

Prosecution had collected sufficient incriminating material during investigation against the present accused-petitioner

Accused-petitioner was not entitled to concession of bail, which was declined accordingly.

Complainant had failed to mention any specific time, date and place of hatching conspiracy by the accused and could not cite any witness in FIR who had allegedly overheard the conspiracy

Pre-requisites of constituting the offence of "abetment" were not made out

Matter was reported to the police after long period of two months and statements of prosecution witnesses were recorded with further delay of four days which had reduced value of the same

Accused had made out a case of further inquiry into his guilt as envisaged under S. 497(2), Cr.P.C.

Court could evaluate the mala fides of the complainant from the facts and circumstances of the case which was present in the present case

Ad interim pre-arrest bail already granted to the accused was confirmed.

Concession of bail could be extended in favour of accused where evidence with regard to allegation of abetment or instigation lacked.

Concession of bail could be extended to accused if evidence with regard to allegation of abetment or instigation was lacking.

Questions to be considered in case of abetment were whether the accused instigated any person to do a thing; whether accused was engaged with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission taken place in pursuance of that conspiracy and in order to the doing of that thing and whether accused intentionally aided, by any act or illegal omission, the doing of that thing

Circumstances, prima facie showed that ingredients of abetment were not made out

Allegedly factum of abetment was conveyed to the complainant in the morning, much earlier to the occurrence but the complainant had not taken any precautionary measures

Fact remained that previous enmity between the parties existed, in such like cases, conspiracies were not hatched in public at a place, which was easily accessible for every one

Circumstances of the matter bringing the case within the ambit of further inquiry

Ad-interim bail already granted to the accused was confirmed accordingly.

Both offences (abetment and attempt), would become cognizable only when the main offence (attempted or abetted) was cognizable

When there was no mention of any abetted or attempted offence, registration of case under Ss.511/109, P.P.C., was without lawful authority

Offences as alleged in the FIR, were not made out against accused and continuance of the proceedings in the case, would amount to abuse of the process of the court and would be futile exercise and wastage of time

No cognizable offence having been made out, same would constitute non-cognizable offence and in view of S.155(1), Cr.P.C., Police could forward the complaint to the concerned Magistrate, or applicant could file a private complaint against accused persons

If any investigation was required, that could be done by Police under subsection (2) of S.155, Cr.P.C., after obtaining permission of the competent Magistrate

Police had no power to arrest accused

FIR was quashed, in circumstances.

Statements of said witnesses were in line with the story narrated in the FIR, wherein they had stated that 3/4 days prior to the occurrence, accused petitioner categorically asked his nephews and son to eliminate the deceased

Record showed that one son and two nephews of the accused petitioner committed murder of the deceased and they were at large

Validity

Accused petitioner could not be granted bail at that stage for his contributory assistance in absconcion of his kith and kin and specific allegation of abetment in promptly lodged FIR and in the presence of statements of eye-witnesses

Offence entailed capital punishment, which had fallen within prohibitory clause of S. 497, Cr.P.C.

Bail application was dismissed accordingly.

Respondents/accused persons, produced in their defence, defence witness who was Statistical Assistant, whose examination was intercepted twice by the petitioner/complainant by raising couple of objections

Trial Court overruled said objections with direction that the statements of the defence witness be completed

Validity

Document produced by the defence witness, depicted electronically generated evidence, which in terms of Art.73 of Qanun-e-Shahadat, 1984, could be considered primary evidence

Print out or other form of output of an automated information system, could not be denied the status of primary evidence, solely for the reason that it was an output of automated information system

Document in question, was not prepared manually, nor had been marginally signed by the executors or the witnesses thereof

Such was the product of automated system, which was hardly required to be signed by any one

Tendering a document in evidence, was something different from proving same in contents thereof

Admissibility of a document in evidence by itself, would not absolve the party from proving its contents in terms of Art.79 of Qanun-e-Shahadat, 1984

Defence witness, did not fall within any of the categories mentioned in S.510, Cr.P.C.; he had to depose about contents of document in question; and petitioner/complainant, would be within her right to cross-examine him, so as to shake his credibility

Merely by tendering the said document in evidence, without saying a word to the contents thereof by defence witness, it would not be possible for the Trial Court to assess the evidentiary value thereof

Petitioner, appeared to have shown unnecessary haste in raising objections, without anticipating the intricacies and fall out thereof

All said and done by the petitioner, as to her objections, was a circumstance which had been rightly dealt with by the Trial Court, through impugned order/observation at noted stage of the trial

Petition, filed by the petitioner was dismissed, in circumstances.

No person could be summoned to face trial in a complaint unless requisite conditions under S. 204 Cr.P.C. were fulfilled

Only in the presence of sufficient grounds and satisfaction of the Court ascertained from the facts placed before it and the evidence which had come on the record could other persons be summoned and arrayed as aiders and abettors. [Minority view]

If a person had instigated another to perpetrate a particular crime and the other person in pursuance of such instigation, not only perpetrated that crime, but in the course of doing so, committed another crime in furtherance of such instigation, the former was criminally responsible as an abettor in respect of such last mentioned crime, if the person, at the time of the instigation, knew that in the ordinary course of things probably another crime had to be committed in order to carry out original crime.

Abettor was liable to same punishment just as the main accused including that of death but not as Qisas but as Ta'zir.

Case of a conspirator or abettor not present on the spot stands at a lower footing than the case of an accused instigating his companion to commit the crime being himself present on the spot.

Unless the special law itself indicated about the application of certain penal provisions, same could not be applied or set into motion.

Where an abettor or any other person is charged, tried or convicted along with the principal offender, then on the acquittal of the principal offender the same benefit would be extended to the ordinary person, because both sailed in the same boat.

Accusation of abetment must be proved by producing evidence showing prior meeting of minds or act done by an accused during the occurrence

Mere allegation of raising Lalkara, was not sufficient to convict an accused for abetment, particularly when all accused persons belonged to same family

Such type of allegation always needed serious consideration and some material to establish participation of an accused in the occurrence was required.

Appeal to the extent of deceased accused had abated, while non-bailable warrant of arrest of absconding accused had already been issued

Occurrence was unseen as no eye-witness of the occurrence was available and whole case rested upon recovery witnesses, medical evidence, last seen and other incriminating evidence

Accused were alleged to have facilitated, aided and assisted the real offender

No evidence had suggested the instigation, conspiracy or planning of acquitted accused for committing the offence

Complainant had deposed that accused had murdered deceased due to rivalry and he further stated that he was quite sure about the involvement of accused, but he failed to give the reasons for his belief with regard to said involvement, except a previous animosity between the parties

Prosecution witnesses did not even mention the names with their role or any act of instigation or conspiracy on the part of accused

Unless and until some solid proof about the abetment was produced, the court was not obliged to form any opinion on such type of hypothetical versions

Mere presence at thoroughfare or in forest where the villagers usually go for collecting firewood, would .not make out a case of abetment

Abetment had to be proved through independent witnesses having no grudge or enmity with the accused

Trial Court, in circumstances had rightly acquitted accused

Acquitted accused would enjoy double presumption of innocence, one before the Trial Court and the second after his acquittal from competent court on the basis of the principle that every person would be presumed to be innocent till proved guilty.

Liability of an abettor is limited to the extent of the offence abetted and, therefore, the sentence inflicted on him cannot, as a propriety, be greater than that of the principal accused.

When the principal accused is acquitted then it is not proper to make the abettor a scapegoat and convict him on the basis of same evidence.

Judgment of the Trial Court to the extent of conviction of all accused persons and sentences awarded to three out of four accused persons was unexceptionable and called . for no interference

Fourth accused who was alleged to have abetted the offence with his co-conspirator, however, had been awarded sentence of death by the Trial Court which was on the harsher side, particularly as he had not directly participated in the murder of deceased, but had only abetted the offence

Sentence awarded to said accused was reduced to imprisonment for life.

[Sentence].

Penal Code (XLV of 1860), Ss.107 & 109.

Abetment Abetment-Principal offender acquitted-Abettor whether and when can be acquitted.