' On 17-9-2004, an F.I.R. No.217 of 2004 was got registered by one Sabir Khan through a written application, with regard to an occurrence, having taken place at about 11-00 p.m. On 11-8-2004 under section 365-A of the P.P.C. The petitioner who has been arrested in the above mentioned case, after failure to get the concession of bail from the Court of learned Additional Sessions Judge, Alipur, on 23-10-2004, has filed the instant petition for grant of bail.
2. Allegations contained in the aforesaid F.I.R. Against the petitioner are that upon his consent, command and direction (4 ), the informant along with his brothers Abdul Ghaffar and Abdul Sattar were forcibly abducted on 11-8-2004, for the purpose of exorting ransom because the petitioner is an old accomplice of Bosan Gang. The F.I.R. Has contained a detailed account of the occurrence, therefore, need not be repeated in this order as the relevant above noted incrimination against the petitioner has been shown.
3. Learned counsel appearing on behalf of the petitioner submits that the F.I.R. Was lodged with a delay of 36 days. Even from the alleged freedom of the informant on 20-8-2004, the 27 days were allowed to be passed by the informant. It has further been argued by the learned counsel that the F.I.R. Got registered by Sabir Khan through a written application was the result of premeditation.
Even then it had not contained the addition of section 109 of the P.P.C. The petitioner who is an old person of more than 66 years has been implicated due to the involvement of his son namely, Ghulam Hussan who had allegedly got illicit relations with the daughter of Khuda Bakhsh, the cousin of the informant. As per learned counsel, there is no direct evidence against the petitioner and he was never involved in any occurrence previous to this report.
4. On the other hand, learned counsel appearing on behalf of the informant has opposed the grant of bail on the grounds that the petitioner is nominated in the F.I.R. And the offence had fallen within domain of prohibitory clause of section 497 of the Cr.P.C. He was the person who had the commanding role and according to the investigation, he was found guilty. He has also relied upon ruling reported in PLD 2001 Lahore 123 (Mst. Hanifan Bibi and others v. Zulfiqar and others) to contend that abetment is a serious offence which has not to be taken lightly because the abetment cannot be brought to book through a direct evidence. Circumstantial evidence has to be kept in view. He has also relied upon 2000 MLD 1172 (Wajid Ali v. Mumtaz Ali Khan and others) by stating that abetter's offence is like that of a main accused to whom, the sentence of death can be imposed in a heinous offence, so the petitioner was not entitled for the grant of bail concession.
5. Replying to the arguments of the learned counsel for the informant, it has been stated by the petitioner's learned counsel that the evidence to involve the petitioner, which has been brought on the record, consists of four persons whose evidence on its own face value proves to be a concocted one. So, the case requires further probe into the guilt of the petitioner. Mere allegations in the F.I.R. Cannot be considered as a circumstance disentitling the petitioner for the grant of bail.
He has referred to 2002 PCr.LJ 400 (Anwar Khan v. The State) and states that a person involved in an occurrence upon the supplementary statement after 34 days of the alleged occurrence was not sufficient to link the accused with the commission of crime/charge of abduction. For that proposition, he has referred to 2005 YLR 659 (Qurban Ali v. The State).
6. Learned Sate counsel has also supported the arguments of learned counsel for the informant.
7. After perusal of the record and from hearing the arguments of the learned counsel, I have come to the conclusion that the case of the petitioner requires further probe into his alleged guilt through the competent Court i.e. Trial Court on the following grounds:--
(i) the petitioner is not sufficient to conclude prime facie that the petitioner whose name has been entered into the F.I.R. Is guilty of the offence. There must be some evidence on the record to keep a person behind the bars. I have examined the police record and the statement of the persons namely Malik Elahi Bakhsh, Hussain Bakhsh, Hashim and Abdul Sattar, recorded under section 161 of the Cr.P.C. These statements were recorded on 18-9-2004 after about 37 days of the alleged occurrence. In those statements, a new story has been brought forward by those witnesses, through which they have displayed the participation of the petitioner at the time of delivery of amount of ransom to Fakhari son of Nazar Hussain Bosan. It is also pertinent to point out that the victim who is also the informant of the F.I.R. Had not attributed such role in the F.I.R. To the petitioner, which has been ascribed by the above noted witnesses in their statements, although the F.I.R., was lodged after the delay of 36 days. Informant has not shown the presence in the F.I.R. Of the petitioner at the time of delivery of the amount paid for their liberation. From the narration contained in the F.I.R., the role attributed to the petitioner was that of a person upon whose direction, the abduction was allegedly made while from the statementes of the above mentioned witnesses, the petitioner was being shown to have participated in the actual commission of the offence of payment of ransom of the occurrence. This improvement prima facie needs a thorough probe and appreciation from a competent Court of law or the trial Court. At present, these above noted facts bring the case of the petitioner within the encompassment of further inquiry.
(ii) The delay of 36 days after the alleged occurrence has not been explained in the F.I.R., why the period of 27 days were permitted to pass even after the release of the victim on 20-8-2004, would require clarification through evidence.
(iii) The F.I.R. Was lodged through a written application but it had not contained any active participation of the petitioner. The only allegations that the informant and his brothers were abducted upon the wish/will of the petitioner is not sufficient to keep the petitioner in jail for an indefinite period, until he has been found guilty from a competent Court.
(iv) There is also a counter version of the petitioner regarding his involvement which requires consideration through the trial of the case by a competent Court.
(v) It may be pointed out here that mere allegations of involvement of a person in a heinuous offence, cannot be considered as a sole ground to decline the bail vide PLD 1975 Lahore 210 (Ghulam Jilani v Station House Officer, Police Station Gulberg, Lahore and 2 others), PLD 1962 SC 495 (Khalid Saigol v. The State) 1968 PCr.LJ 192 (Haji Wali Muhammad v. The State), 1981 PCr.LJ 446 (Haji Sain v. The State). The petition for bail has to be decided after taking into consideration the tentative G assessm ent of the material brought on the record during investigation against a person. It has been admitted that the petitioner was not involved in any criminal case previously to in this one. He is stated to be of more than 66 years of age, whose case requires further inquiry and thorough probe. So, the petitioner is granted bail subject to his furnishing bail bonds of Rs.1,00,000 (one lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.