PLJ 2023 Cr.C. 397
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 497(5)/498--Pakistan Penal Code, (XLV of 1860), Ss. 302/109/148/ 149/114--Cancellation of bail--Pre-Arrest bail--The premium of pre-arrest bail was extended to Respondent No. 1--The term ‘perverse’ stands for a decision passed contrary to the judicial and statutory directions--From the call Data record of the mobile phones, presence of Basharat and Farhan was prima facie proved at the crime scene--The material collected by the police and so referred above, prima facie, connects respondent with the commission of crime--The existence of malafide for falsely implicating an innocent person in the case can be gathered from circumstances and even by the documentary evidence--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. [Pp. 399, 401 & 403] A, B, C, D, E, F
2020 SCMR 168; 2015 SCMR 1394; PLD 2009 SC 427; NLR 2000 Criminal 48; PLJ 2001 Cr.C (Lahore) 168; PLJ 2004 Cr.C (Lahore) 727; PLD 1994 SC 133 ref.
M/s. Fakhar Hayat Awan, Abrar Ahmed and Salah-ud-Din, Advocates for Petitioner.
Malik Waheed Anjum, Advocate with Respondent No. 1.
Malik Muhammad Latif, Additional Prosecutor General for State.
Dates of hearing: 11.1.2023.
PLJ 2023 Cr.C. 397
[Lahore High Court, Rawalpindi Bench]
Present: Ch. Abdul Aziz, J.
Haji ARSHAD MEHMOOD--Petitioner
versus
FARRUKH IMTIAZ KHOKHAR, etc.--Respondents
Crl. Misc. No. 2759-CB of 2022, decided on 11.1.2023.
Order
Through the instant petition, Haji Arshad Mehmood (petitioner) has called in question the vires of order dated 28.11.2022 passed by learned ASJ, Rawalpindi, whereby the premium of pre-arrest bail was extended to Farrukh Imtiaz Khokhar (Respondent No. 1) in case FIR No. 2349 dated 23.08.2022 offence under Sections 302, 109, 148, 149 & 114, PPC registered with Police Station Sadiqabad, Rawalpindi.
2. Precisely the case of prosecution as it gleans from the crime report is to the effect that Haji Arshad Mehmood (complainant) was constructing a commercial building in a vicinity known as Satellite Town, Rawalpindi; that on the evening of 23.08.2022 the complainant was about to leave his office along with brother Nasir Mehmood, nephew Majid and servant Alam Zeb; that meanwhile, Majid received a call of Qasim Shah on his mobile and went out of the office; that shortly thereafter, the witnesses also left the office and saw Majid Satti sitting on the front seat of the vehicle of Qasim Shah; that an unknown motorcyclist collided with the vehicle of Qasim Shah and immediately thereafter proceeded ahead; that Majid Satti alighted from the vehicle and immediately thereafter two unknown persons seated on a Honda 125 motorcycle having no registration plate emerged on the scene and the one sitting on the rear seat fired successive shots upon Majid hitting on his back; that some of the shots also hit on a nearby parked SUV vehicle; that after the commission of crime, the perpetrators successfully made good their escape from the spot; that though Majid Satti was rushed to hospital but took his last breath after reaching there.
3. It is contended by learned counsel for the petitioner that admittedly Respondent No. 1 Farrukh Imtiaz was not named in the FIR but during investigation he was found involved in the crime; that co-accused Kashif was arrested and he made the disclosure about the manner in which the crime was committed in pursuance of a conspiracy hatched by Respondent No. 1 Farrukh Imtiaz; that sufficient material was collected by the police from which it evinces that after the murder incident, Respondent No. 1 Farrukh Imtiaz along with co-accused Farhan proceeded to Dubai in the same flight; that Respondent No. 1 Farrukh Imtiaz remained in telephonic contact with his co-accused; that the pre-arrest bail is an extra ordinary relief meant to be extended to innocent persons implicated in a case with mala fide and more importantly when nothing is to be recovered from them and that the impugned order since does not fit into the criteria laid down for the grant of pre-arrest bail thus is to be set aside.
4. On the other hand, learned counsel for Respondent No. 1 Farrukh Imtiaz came forward with the submissions that his client is innocent and is grilled in the case with mala fide; that neither he is named in the FIR, nor is alleged to have physically participated in the murder incident; that he was having no previous enmity with the deceased thus there was no question of abetting the commission of crime in question; that though period of more than 3½ months has elapsed but no legally admissible material to connect Respondent No. 1 with the commission of crime has been collected and that once bail is granted by the Court of competent jurisdiction, it is not to be cancelled as a matter of routine. With these submissions, it was urged that the instant petition merits no acceptance thus is to be dismissed.
5. Arguments heard. Record perused.
6. 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 shots. 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 the grudge of adversaries stemming out of the acquittal of Abdul Rehman from a criminal case, which materialized through the assistance of Majid Satti (deceased).
7. Before inching any further, it is considered appropriate to mention here that the concession 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 contrary to the judicial and statutory directions. In the wake of foregoing 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 (respondent) with the commission of crime.
8. Farrukh Imtiaz Khokhar, as is evident from record, 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 an imported vehicle having registration Certificate No. ALC-968 was seen roaming around the crime scene in suspicious circumstances. On 09.09.2022 one Kashif (co-accused) was 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 (co-accused) disclosed before the police that the vehicle having Registration No. ALC-968 belongs to Jabran (co-accused), 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 driven 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 (co-accused) 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-968 was registered in the name of Jabran (co-accused).
9. 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 (co-accused) 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 air-tickets 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 given therein as contact source. Likewise, in the FBR and SECP record, the same mobile number of Farrukh Imtiaz (respondent) is mentioned.
10. The material collected by the police and so referred above, prima facie, connects Farrukh Imtiaz (respondent) with 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. Reference in this context may be made to the case reported as Mir Muhammad and others v. National Accountability Bureau through Chairman and others (2020 SCMR 168) wherein the Hon’ble Supreme Court held as under:
“Grant of pre-arrest bail is an extraordinary remedy, essentially rooted into equity, a judicial power to be cautiously exercised with a view to protect the innocent from the horrors of abuse of process of law, in prosecutions initiated by considerations and for purposes stained with the taints of mala fide; this judicial protection is not to be extended in every run of the mill criminal case, with pleas structured on bald denials and parallel stories.”
If any further reference in this regard is needed that can be made to the cases reported as Muhammad Sadiq and others v. The State and another (2015 SCMR 1394) and Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 Supreme Court 427).
11. 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. In the case reported as Wajid Ali v. Mumtaz Ali Khan etc. (NLR 2000 Criminal 48) the pre-arrest bail granted to an abettor was cancelled with the following observation:
“In the case in hand the prosecution had sufficient material in its possession which showed that the accused respondent had preplanned the occurrence had declared his intention and had taken steps for accomplishment of his designs. This was not a case in which the complainant had made a simple and bald statement that the offence was committed at the behest of the accused. In the under-consideration case the complainant had provided necessary information to police at the time of making first information report which manifested full involvement of the accused-respondent in the commission of offence. The aspect of the case and the material brought on record was ignored by the learned lower Court.”
In another case reported as Mst. Hanifan Bibi and another v. Zulfiqar and another [PLJ 2001 Cr.C (Lahore) 168], the bail granted to an accused burdened with the allegation of abetment was recalled and a relevant observation is being referred hereunder:
“An indiscriminate grant of anticipatory bail is disapproved by the Courts (Sadiq Ali versus The State PLD 1966 SC 589). And in serious cases such as those relating to murder, such concession is rarely conferred on the accused. Abetment in the offence of murder is as such a serious offence as that of murder itself and it would be wrong to treat this offence lightly or to take it for granted that the allegation of abetment was made against the accused just for the sake of making such sort of accusation against him. There might of absence of evidence of abetment or conspiracy, (in most cases it is so) but that is not a factor to consider a person accused of abetment to be innocent as a rule.”
Similarly, the pre-arrest bail to an accused charged with abetment was held contrary to law in the case reported as Nazeer Ahmad v. Abdul Rashid Chatha and another [PLJ 2004 Cr.C (Lahore) 727].
12. 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. The aforementioned aspect was considered by the Hon’ble Supreme Court of Pakistan in the case reported as Sarwar Sultan v. The State and another (PLD 1994 Supreme Court 133) with the following observation:
“Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution case may suffer for want of recovery of incriminating articles and other material, which may be necessary to connect him with the commission of alleged crime. The Court has to keep in view all these factors in order to maintain balance between both parties and would be cautious not to give undue advantage to one party over the other at the stage of investigation. of Court there is no cavil about the proposition that the Court has power to grant bail before arrest in an appropriate case, if the Court is satisfied that it is fit case for grant of such relief within the limits of law as stated above.”
It was also urged on behalf of Respondent No. 1 that he hails from well-placed 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.
13. 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.
(K.Q.B.) Petition accepted
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