1. ' The petitioner Muhammad Bashir Guraya son of Chaudhry Taj Din seeks bail in case F.I.R. No,353, dated 18-9-2004 registered at Police Station, Khanpur, Haripur under sections 302, 324, 109, 120-B and 34, P.P.C. He has been refused bail by the learned Judicial Magistrate vide her order, dated 20- 11-2004 and also by the learned Sessions Judge, Haripur vide order, dated 7-12-2004.
2. ' Brief facts of the case are that Complainant, Raja Muhammad Irshad reported to police in DHQ Hospital, Haripur that he has been working as driver with Raja Shiraz Kiani, Rector of AlKhayr University, Islamabad for the last one year. He, along with Raja Shiraz, was proceeding to Abbottabad in motor car No,4503-IDK, Raja Shiraz was sitting on the rear seat of the car. When he reached near Padni on Khanpur Taxila Road, a motor car No,7489-IDG being driven by Muhammad Amin, the petitioner's driver came, in which one Saeed was sitting on the front while Ehsan on the rear seat. The said motor car started overtaking their car. Saeed and Ehsan opened fire at Raja Shiraz and me. I escaped by lying in the car while Raja Shiraz got hit due to their firing and succumbed to his injuries. He has brought the dead body of the deceased to the Hospital. He charged the accused for occurrence.
3. ' It transpires from the record that the said motor car No,IDG-7489 while fleeing away from spot, struck against a Suzuki near Mang Pul due to which its driver Muhammad Amin died on the spot, while Ehsan and Saeed got injured. Both being injured were arrested on the same day i. e . 18-9- 2004.
4. ' The investigation in pursuance of the said occurrence was carried out. The Investigating Officer recovered five empties (5) of 8-MM from the spot, a white colour bullet ridden motor car bearing No,IDK4503, parked in the compound of DHQ Hospital, the rear seat being stained with blood, an accidented white colour motor car bearing No,IDG 7489 from which the I.D. Card and Driving Licence of Amin were recovered and another accidented car bearing No,LDG 748, both parked at a distance of 2.5 km away from the spot. The Investigating Officer also received the deceased blood- stained clothes with corresponding bullet marks with one piece of bullet recovered from the dead body at the time of post-mortem examination of the deceased. According to the medicolegal report, the deceased had received five entry wounds on his body.
5. ' On the following day the legal heirs of deceased namely, Mawajid Ali Kiani (son) and Raja Iltaf Hussain (brother) in their police statement recorded on 19-9-2004 charged the petitioner for abetting the murder of deceased and advanced motive that the petitioner, Pro-Chancellor of Al- Khayr University was involved in embezzlement of funds to the extent of lacs of rupees and deceased had made complaint to NAB and was in the process of collecting proof of said misappropriation which annoyed petitioner, who hatched conspiracy of killing the deceased and got it executed through his driver/security guard Amin and his relatives Ehsan and Saeed by giving huge amount to them. Similarly, the wife of the deceased also recorded her police statement on 28-4-2004 and on the basis of same alleged motive charged petitioner for abetting the murder of her husband.
6. ' Ehsan, who was arrested on 18-9-2004 and again on 24-9-2004, made extra judicial confession to police after eight (8) days of arrest. He, while in custody, led the police to the place where he had thrown the rifle after the occurrence. The police, on 26-9-2004, at his pointation recovered 8 MM rifle. The police sent the empties recovered from the spot and the rifle at the pointation of Ehsan to the FSL and received its report in the positive. The piece of bullet recovered from the dead body of the deceased was not sent to the FSL. Ehsan on 27-9-2004 made exculpatory judicial confession in which he attributed the role of firing at the deceased to Amin (dead). He also disclosed that Amin had told him that he had been killing deceased at the instance of petitioner.
7. ' The learned counsel for the petitioner submits that the petitioner is not charged in the F.I.R. And no motive has been attributed to him in the F.I.R. The deceased's son and brother on the following day alleged motive against the petitioner and involved him in the offence of conspiracy/abetment and so did the deceased's wife on 28-9-2004. The only evidence against the petitioner is of retracted exculpatory judicial confession of Ehsan and the motive alleged on the second day of occurrence.
8. The confession of the co-accused contradicts the version given by the complainant deceased driver in the F.I.R. And not a single word has been uttered in the confessional statement that the petitioner had conspired or had any liaison whatever with him.
9. ' On the other hand, the learned counsel for State assisted by the learned counsel for complainant argued that except the evidence of abetment/conspiracy and motive against the petitioner, no other evidence is available on record. It can safely be inferred that Amin, being the employee of petitioner and Saeed and Ehsan being close relatives of Amin, the petitioner had achieved his designs through Amin. Much emphasis was placed on the motive and the deceased complainant against the petitioner to NAB, the sole cause for killing deceased.
10. ' I have heard the learned counsel for petitioner and learned counsel for State assisted by the learned counsel for complainant and have gone through the record with their able assistance.
11. ' As evident from record that the petitioner is not charged in the F.I.R. Even motive as alleged later was not mentioned in the F.I.R. Except the complainant, there is no eye-witness of the occurrence.
12. The complainant charged three persons by name in the F.I.R. And attributed role of firing to Amin and Ehsan. Saeed was not attributed any role except his presence in the car at the time murder Amin had died soon after the occurrence, while fleeing. Ehsan had made exculpatory confession and had attributed the role of firing to Amin alone and not to himself. He, in the confession, did not state that the petitioner hatched any conspiracy in his presence for the murder of deceased.
13. ' The deceased's son had identified the dead body of his father on the day of occurrence but did not allege or charged any person for the killing of his father. He and his uncle on the second day of occurrence alleged motive and made petitioner responsible for abetment/ conspiracy for the murder of deceased. They did not allege that the petitioner at the time of occurrence was present at the spot.
14. ' They had alleged that deceased had alarmed his family about his apprehensions of life from petitioner but he, being a person having rich legal back ground, had not informed to the concerned quarters either for his own protection/safety or for initiating appropriate action against the petitioner or engaging guards for himself.
15. ' From the perusal of site plan it was observed that the car from which the assailants fired at the deceased and the place wherefrom the empties were recovered do not tally with the prosecution story. Further, no fire-arm was recovered from the possession of injured Saeed and Ehsan at the time of arrest or from the side of the dead body of Amin.
16. ' From the reading of record, the confession of Ehsan appears to contradict with the ocular account furnished by the complainant in the F.I.R. In which the effective role of firing at the deceased was attributed to Amin and Ehsan whereas in the confession of Ehsan, the role of firing was attributed to Amin alone. It was further observed, while going through the confession, that Ehsan had uttered not a single word that petitioner had any meeting or liaison with him, Saeed and Amin for hatching conspiracy for the murder of deceased. Ehsan stated in the confession that Amin had told him that he had been committing the murder of deceased at the instance of the petitioner. Ehsan provided that second hand version (hearsay) of conspiracy. It is interesting to observe from record that Ehsan had already retracted confession through an application, dated 8-10-2004 to the learned Sessions Judge, Haripur.
17. ' Except motive, retracted exculpatory judicial confession of Ehsan and charge of abetment/conspiracy levelled by the legal heirs of deceased on the second day of occurrence, there is no other evidence against the petitioner.
18. ' Now the question, while considering the petitioner's plea for bail, would be whether the petitioner, charged for the offence of abetment/conspiracy in the supplementary statements of legal heirs of deceased recorded on the second day of occurrence based on alleged motive, extra judicial confession though retracted of co-accused contradicting ocular account, is entitled for the concession of bail and further could he, at this stage, be made vicariously liable for the acts of his alleged employee and the employees' relatives.
19. ' The consistent view of the superior Courts is that the statement under section 161, Cr.P.C. Is not substantial evidence and is not admissible. It can be used for limited purpose of contradicting a D witness at the trial. The credibility of a witness whose statement is recorded after delay of one day should not be affected.
20. ' However, this Court in Malik Muhammad Iqbal v. Syed Abid Hussain Shah 2000 PCr.LJ 1171 on basis of the judgments of august Supreme Court, has settled that credibility of evidence is looked with serious suspicion if the statement under section 161, Cr.P.C. Is recorded with delay without offering any plausible explanation; Muhammad Khan v. Maula Bakhsh 1998 SCM R 570 and Iftikhar Ali v. The State 1998 PCr.LJ 2002.
21. ' Similar is the view of the Hon'ble Lahore High Court in the case of Muhammad Jamil v. State 2004 YLR 2843 the only allegation against the accused was that he was party to a criminal conspiracy to do away with the deceased. The name of the accused was not mentioned in the F.I.R. As conspirator or abettor, but his name had figured in supplementary statement of complainant recorded subsequently and in statements made under section 161, Cr.P.C. By two prosecution witnesses. The Court held that the question of evidentiary value of supplementary statement of complainant was open to serious consideration and thus released the accused on bail.
22. ' Regarding motive, suffice it to say that it can be a sufficient reason for commission of offence but equally it can be a reason for false implication in the crime. This Court has held that motives may be apparently strong but cannot be substituted for substantive evidence and cannot be made a ground for refusal of bail because at time it is mere speculation based on apprehension and imagination; Mst. Riaz Bibi v. Sardar 1999 PCr.LJ 1323 person against whom said confession is made but only when they are being tried jointly. But the confession of the accused against the co- accused cannot be considered without further proof against him and cannot be punished on the said confession at bail stage. Arif Nawaz v. State PLD 1991 FSC 53 as its evidentiary value is yet to be determined at the trial. Khaqan v. State 1999 PCr.LJ 935.
23. ' This Court has held that the accused persons implicated on basis of confession of their co- accused would be entitled to be released on bail; Malik Muhammad Younis etc. v. Umar Hayat 1998 M LD 1195 but where the confession is exculpatory in nature which, being not a confession in the true sense, not affecting the person making it, the same cannot be taken into consideration as circumstantial evidence against others Zahid Latif v, State 1999 PCr.LJ 30.
24. ' Both deceased and his legal heirs had the apprehension of deceased life but no precaution was taken. This Court, while considering the plea of bail, has ruled in Malik Muhammad Iqbal's case (supra) that the persons had the knowledge of conspiracy being hatched but it is ununderstandable as to why they kept mum and failed to report the matter to police in order to avoid the occurrence. The bail was allowed when after having information of the conspiracy the authorities were not informed.
25. 'The retracted exculpatory judicial confession of Ehsan cannot be considered at all against the petitioner at bail stage in view of the law.
26. 'The Superior Courts at bail stage had already dealt with cases of abettor/conspirator, who was not present at the time of occurrence. In the case of Allama Syed Sajid Ali Naqvi v. State PLJ 2004 Cr.C.
27. (Lah.) 50, it was held in Syed Amanullah Shah v. State PLD 1996 SC 241 that the conspirator/abettor not present on the spot stands at a lower footing than that of the accused present at the spot instigating his companions to commit crime and the bail was allowed. In Abdullah Khan v. Abdul Qayyum and another 1996 SCM R 493, it was held that the bail should not be withheld simply on the basis of statement supporting allegation of abetment made at the very belated stage. Similar observation was made by the Hon'ble Supreme Court of Pakistan in Abdul Khaliq v. The State 1996 SCM R 1553 and Syed Saeed Muhammad Shah and another v. The State 1993 SCM R 550.
28. ' This Court also in Malik Muhammad Iqbal's case (supra) has held that the accused-respondents have been charged for the abetment of offence only. Their involvement in the said conspiracy has to be proved at the trial. In view of law laid down in Federation of Pakistan v. Gul Hassan Khan PLD 1989 SC 633, Muratab Ali v. State 1997 PCr.LJ 1183 and Kabeer v. The State 1998 PCr.LJ 1311, the accused alleged to have indulged only in abetment of offence of murder, is held entitled to bail and the case being rendered as that of further inquiry.
29. ' Similar is the legal position regarding the question of vicarious liability that can be looked into while considering bail application. Vicarious liability cannot be attributed to accused who was not present at time of occurrence 1999 PCr.LJ 1524.
30. ' Without dilating deeper upon the merits and evaluating the pieces of evidence collected by the Investigating Officer, as the same may prejudice the case of either party, but only on tentative assessm ent of facts for what has been observed above, prima facie there exist no reasonable grounds for believing that the petitioner has committed the offence charged, but there are sufficient grounds for holding further inquiry into his guilt. Therefore, I am of the considered opinion that the petitioner is entitled to the concession of bail and it shall not be withheld as punishment.
31. 'For the foregoing reasons, this petition is accepted. The petitioner is allowed bail provided he furnishes a bail bond in the sum of Rs,5,00,000 with two sureties each in the like amount to the satisfaction of the trial Court, who shall ensure that the sureties are local, reliable and men of means.
32. ' The above are the reasons for my short order dated 211-2-2005.
33. Bail .