PLJ 2024 Cr.C. (Note) 168
[Lahore High Court, Multan Bench]
Present: Sardar Muhammad Sarfraz Dogar, J.
versus
STATE, etc.--Respondents
Crl. Misc. No. 522-B of 2024, decided on 12.3.2024.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 302/34/109--Abetment--No overt act--Facilitating the principal accused--Post Arrest Bail--grant of--At bail state deeper appreciation of evidence couldn’t be made out--Petitioner is admittedly nominated in the FIR and according to site plan, he was present at the distance of 147 feet away from the place of occurrence--Petitioner was burdened with the responsibility of facilitating the principal accused to slip from the place of occurrence on his motorcycle--Neither any over act towards the deceased is attributed to the petitioner nor he was connected with the motive of the prosecution story--All the three ingredients of section 107 PPC are prima facie missing in this case--Petitioner has been declared guilty during investigation--Ipse dixit of police is no binding upon the court--Even for the purpose of bail, law is not to be stretched in favour of the prosecution--No tangible evidence or incriminating material has been found or collected by the I.O against the petitioner--Petition is accepted and the petitioner is allowed port-arrest bail.
[Para 4, 5, 6, 7] A, B, C, D & E
2012 SCMR 662; 2023 SCMR 308 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 107--Section 107, PPC reveals that three ingredients are essential to dub any person as conspirator i.e.--
(i) instigation,
(ii) engagement with co-accused, and
(iii) intentional aid qua the act or omission for the purpose of completion of abetment. [Para 6] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Post Arrest Bail--Ipse dixit of police is no binding upon the Court. [Para 7] E
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Post Arrest Bail--Benefit of bail--Even for the purpose of bail, law is not to be stretched in favour of the prosecution.
[Para 7] F
Kh. Qaiser Butt, Advocate for Petitioner.
Mr. Hassan Mehmood Khan Tareen, Deputy Prosecutor General for State.
Mr. Muhammad Afzal Bhatti, Advocate for Complainant.
Date of hearing: 12.3.2024.
Order
Waheed Akhtar, the petitioner being accused in FIR No. 294/2023, dated 13.09.2023, registered at Police Station Jandanwala, District Bhakkar in respect of offences under Sections 302, 34/109 PPC has sought post-arrest bail under Section 497 Cr.P.C.
2. As per contents of crime report, the complainant alleges that on 13.09.2023, at about 06:30 a.m., the accused Intezar @ Kala and Nadeem came on motorbike at the diesel agency of his son Aamir Sohail while the petitioner alongwith Muhammad Qaiser Iqbal/Qaiser Maqsood (co-accused) also came on motorbike while armed with pistols and they stayed at Noora Chowk. The accused Nadeem fired pistol shot at the flank of Aamir Sohail. Thereafter, accused Intezar fired pistol shot on his left arm. Then accused Nadeem again made fire shot at his chest. When he attempted to escape, the accused Intezar made fire shot on the backside of his head. He fell down as a result of receiving fire shots. Thereafter, both the accused persons made indiscriminate firing hitting on different parts of his body. The occurrence was witnessed by Muhammad Zia-ul-Haq and Tanveer Javed. Motive behind the occurrence is that there was inheritance dispute between the parties and the sons of Maqsood Ahmad sent threatening messages for which the case FIR was registered against them.
3. I have heard the arguments and perused the record.
4. It is well settled exposition of law that at bail stage deeper appreciation of evidence couldn’t be made out but the Court has to get the picture through tentative assessment of prosecution story, however in order to reach even a tentative assessment, whether the petitioner has made out a case of further inquiry or not, the Court has to glean and congregate the composite effect of incriminating material brought on record by the prosecution, inconsistency or contradiction if any in the statement made in the FIR vis-à-vis postmortem report and or the situation where ocular evidence is not supported by the medical evidence.
5. Record reflects that the petitioner is admittedly nominated in the FIR and according to site plan, he was present at the distance of 147 feet away from the place of occurrence. The petitioner was burdened with the responsibility of facilitating the principal accused to slip from the place of occurrence on his motorcycle. Except that, neither any overt act towards the deceased is attributed to the petitioner nor he was connected with the motive of the prosecution story. Reliance is placed upon the case titled Ghulam Mujtaba Qadri vs. The State and others (2012 SCMR 662).
6. Besides above, collective role of abetment has been levelled upon the petitioner and co-accused Muhammad Qaiser Iqbal. Perusal of Section 107 PPC reveals that three ingredients are essential to dub any person as conspirator i.e. (i) instigation, (ii) engagement with co-accused, and (iii) intentional aid qua the act or omission for the purpose of completion of abetment. All the three ingredients of Section 107 PPC are prima facie missing in this case. Moreover, culpability of the petitioner qua abetment or instigation would be better adjudged by the learned trial Court after having recourse to the evidence. Nothing has been recovered from the petitioner.
7. As regards contention of learned Law Officer that the petitioner has been declared guilty during investigation, suffice to say that it is well settled that ipse dixit of police is no binding upon the Court and even for the purpose of bail, law is not to be stretched in favour of the prosecution. Guidance is sought from “Resham Khan and another v. The State through Prosecutor General Punjab, Lahore and another” (2023 SCMR 308). Taking into consideration all the facts and circumstances stated above, I am of the view that the case of the petitioner squarely falls within the ambit of Section 497(2) Cr.P.C. establishing for further inquiry into his guilt.
8. The investigation is complete. The fact remains that at this stage, no tangible evidence or incriminating material has been found or collected by the I.O against the petitioner, hence, there shall be no useful purpose achieved or attained to keep him behind bars. In the State case, it is for the prosecution to prove the guilt of accused beyond reasonable doubts but at present no incriminating material has been produced by the prosecution against the petitioner.
9. Therefore, without further commenting upon the merits of the case, this petition is accepted and the petitioner is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs.2,00,000/-with one surety in the like amount to the satisfaction of the learned trial Court.
10. Before parting with this order, I deem necessary to observe that the observations made hereinabove are tentative in nature and shall have no bearing effect on any of the other proceeding connected to this case.
(K.Q.B.) Petition accepted
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