2023 LHC 20
It is discernable from record that on 23.08.2022 at about 5:45 pm, one Majid Satti was assassinated in a commercial area by two unknown motorcyclists through successive pistol s hots. The information of crime was intimated to police by Haji Arshad Mehmood and in the crime report nobody was named either as accused or suspect. It will not be out of place to mention here that the motive behind the crime was described in the F.I.R as of adversaries stemming out of the grudge the acquittal of Abdul Rehman from a criminal case, which materialized through the assistance of Majid Satti (deceased).
Before inching any further, it is considered appropriate to mention here that the concessi on of bail extended in favour of an accused can be recalled on various grounds, foremost out of which is the perversity of impugned order. The term ‘perverse’ stands for a decision passed the wake of fo contrary to the judicial and statutory directions. In regoing observation, a pressing need is felt to have a look upon the nature of incriminating material collected by the police for connecting Farrukh Imtiaz Khokhar ( commission of crime
Farrukh Imtiaz Khokhar, as is evident from re ) with the cord, is not ascribed the role of actively participating in the murder incident but is saddled with the allegation of having abetted the crime. It is observed from record that shortly after the registration of FIR one Nasir Hussain contractor got recorded statement under Section 161 Cr.P.C. and stated therein that around the eventful time vehicle having registration certificate No. ALCan imported 968 was seen roaming around the crime scene in suspicious circumstances. On 09.09.2022 one Kashif (coaccused) w as arrested by officials of Police Station New Town in connection with some other case and he through a disclosure lifted veil from the details of the murder incident. Kashif (coaccused) disclosed vehicle having registration No. ALCbefore the police that the 968 belongs to Jabran (coaccused), who along with him, Basharat and Waseem remained at the spot. Not only this, Kashif further disclosed that the motorcycle used for the murder was being drive n at the relevant time by Ameer Hamza and the shooter Farhan was occupying its rear seat. The most important aspect, which divulged from the statement of Kashif (coaccused) was to the effect that Majid Satti was done to death in pursuance of a conspiracy hatched and masterminded by none other than Farrukh Imtiaz Khokhar (respondent No.1). The record of the Excise Office further unveiled that the vehicle ALC registered in the name of Jabran (co 9.accused). During police probe it further transpired that Farhan, the one who fired fatal shots upon the deceased, previously remained associated with Farrukh Imtiaz Khokhar (respondent No.1) as gunman. In this regard, copy of FIR No.216/2021 of Police Station Airport is found annexed with the police file, from the contents of which it manifests that Farhan (coaccused) had ties with the Farrukh Imtiaz (respondent). It further unearthed in police investigation that subsequent to the commission of crime in question Farrukh Imtiaz (respondent No.1) and Farhan went to Karachi through same flight and both of them later in the night boarded a Dubai bound flight. While travelling from Islamabad to Karachi and even during onward journey to Dubai Farrukh Imtiaz (respondent) and Farhan (PO) were having seats adjacent to each other. Though, the above facts were termed a sheer coincidence by the learned counsel for the respondent but it is not so because as it further divulged that the airtickets for the aforementioned travelling were obtained from a single travel agent , the payment of which was made by Ch. Habib Ullah. It is also noteworthy that from the Call Data Record of the mobile phones, presence of Basharat and Farhan was prima facie proved at the crime scene. Not only this, the CDR further revealed that Basharat and Farhan remained in telephonic contact with a mobile phone Number 0321 8888333, which according to police, was, in the use of Farrukh Imtiaz (respondent). Though, during arguments, it was vociferously denied that the aforementioned SIM was under the use of Farrukh Imtiaz (respondent) but the frailty of such stance stands exposed from the documentary evidence. Farrukh Imtiaz (respondent) was maintaining an account in Mezan Bank and the perusal of account opening form reveals that the same SIM number was g iven therein as contact source. Likewise, in the FBR and SECP record, the same mobile number of Farrukh Imtiaz (respondent) is mentioned.
The material collected by the police and so referred above, prima facie, connects Farrukh Imtiaz (respondent) wit h the commission of crime for the limited purposes of instant petition for cancellation of bail. The impugned order, upon its perusal, is found to be in eternal silence regarding the existence of some mala fide or sinister design behind the implication of Farukh Imtiaz (respondent) in the case which is sine qua non for extending the extra ordinary concession of pre-arrest bail to an accused, more importantly if some material to connect him with the commission of crime is available on record. The existence of mala fide for falsely implicating an innocent person in the case can be gathered from circumstances and even by the documentary evidence. Pre-existing rivalry or enmity of a long or short duration, personal vengeance or grudge out of some financial, political or severe family rift give clue about the possible mala fide or sinister design behind the false implication of an innocent person in the case. After having perused the record with utmost circumspection, nothing as such is found emerging, which may give traces of some mala fide against the respondent. Even otherwise, if at all the family of deceased had some personal axe to grind with respondent No.1, he would have been named in the crime report at the very inception of the case.
It seems that the learned Additional Sessions Judge took lightly the accusation of abetment pointed towards the respondent. Offences of abetment and criminal conspiracy hail from the genesis of the crime, wherein collection of direct evidence is nothing less than a hard nut to crack. The abetment is always corelated with the main crime, whereas criminal conspiracy is an independent offence under Section 120-A PPC and in both of them the delinquents make sure to maintain secrecy. In the given circumstances, the culpability of an accused in reference to the charge of abetment and criminal conspiracy is to be assessed from the attending circumstances through a pragmatic and dynamic approach.
There is yet another factor which persuaded this court to interfere with the bail granting order and it pertains to the expected recovery of SIM which statedly was used by the petitioner for remaining in contact with the actual participants of the murder incident. It is stoutly argued by the learned counsel for the complainant/petitioner that grant of pre-arrest bail to respondent has brought the case of prosecution to a halt which is likely to further suffer due to non-recovery of incriminating material and failure of police to probe various facts.
It was also urged on behalf of respondent No.1 that he hails from wellplaced financial stratum of the society, thus if arrested, he will be vulnerable to humiliation and harassment. Suffice it say in this regard that respondent has criminal antecedents of involvement in fourteen other cases of various nature including homicide, terrorism etc. In such circumstances, it will be a fallacious approach to maintain the bail granted to respondent No.1 by putting a deaf ear response to the facts of the case and settled law laid down on the subject of pre-arrest bail.
In view of what has been discussed above, the impugned order dated 28.11.2022 is found to be suffering from perversity, thus calls for indulgence of this Court. Resultantly, the instant petition is accepted and in consequence thereof the impugned order dated 28.11.2022 is set-aside and the pre-arrest bail granted to respondent No.1 is cancelled.
Writ Petition
82603/22
Ch. Pervaiz Ellahi Vs Governor Punjab etc Mr. Justice Abid Aziz Sheikh 12-01-2023 2023 LHC 8
Tag Line: 2
Crl. Misc-Cancellation of Bail
2759-B-22
HAJI ARSHAD MEHMOOD VS FARRUKH IMTIAZ KHOKHAR ETC
Mr. Justice Ch. Abdul Aziz
11-01-2023
2023 LHC 20
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