' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- This petition has been filed against the judgment, dated 21st February, 2005 passed by Peshawar High Court; Peshawar whereby concession of bail has been granted to respondent-accused for offences under sections 302, 324, 109, 120-B and 34, P.P.C., in a case registered vide F.I.R. No,353 of 2004, dated 18th September, 2004 at Police Station Khanpur (Haripur).
2. Precisely stating facts of the case are that on the fateful day P.W. Raja Muhammad Irshad reported to police in DHQ Hospital, Haripur that he has been working as driver with Raja Shiraz Kiani (deceased) Rector of Al-Khayer University, Islamabad (hereinafter referred to as "the University").
He along with the deceased was travelling in Motor Car No,4503-IDK, proceeding towards Abbottabad from Islamabad. Raja Sheraz Kiani (deceased) was sitting on the rear seat of the car.
When the car reached near Padni on Khanpur-Taxila Road, a motor Car No,748-IDG being driven by Muhammad Amin (since dead), who is driver of the respondent Muhammad Bashir Goraya came, wherein Saeed and Ehsan were sitting on front and rear seats respectively. Said motorcar started overtaking their car. Saeed and Ehsan opened fire at him and Raja Sheraz Kiani (deceased). He escaped by laying in the car while Raja Sheraz Kiani (deceased) got hit due to their firing and succumbed to his injuries.
3. It is important to note that in F.I.R. He got mentioned that further details of the motive can only be disclosed by the heirs of the Raja Sheraz Kiani (deceased). Subsequently, P. Ws. Mawajid Ali Kiani son of Raja Sheraz Kiani (deceased), Raja Iltaf Hussain son of Raja Ghulam Hussain, brother of the deceased and Mg. Samina Kiani widow of Raja Sheraz Kiani (deceased) appeared before the police and disclosed that the respondent Muhammad Bashir Goraya had developed enmity Raja Sheraz Kiani (deceased), who being Rector of the University, where former is working as Rector, objected on his grave financial misappropriation of funds of the University and this tussle was going on between Raja Sheraz Kiani (deceased) and respondent Muhammad Bashir Goraya. Mst.
Samina Kiani widow of deceased categorically stated that her husband had expressed apprehension to his life at the hands of the respondent Muhammad Bashir Goraya, therefore, according to her, the respondent engaged Muhammad Amin (since dead), his driver, Ehsan his brother-in-law and Saeed his nephew against a heavy amount for the purpose of committing the murder of her husband Raja Sheraz Kiani (deceased).
4. It is to be noted that immediately after the incident of firing, the Motorcar No,7489-IDG, which was obtained on rent from a Car Dealer by Muhammad Amin, met with an accident in which driver Muhammad Amin (co-accused) had died, whereas Ehsan sustained injuries. It is equally important to note that Ehsan made statement .Under section 164, Cr.P.C. Wherein he had confessed his guilt and attributed the act of firing upon driver Muhammad Amin and Saeed and had also supported to the version of legal heirs of the deceased Raja Sheraz Kiani, concerning enmity and hatching conspiracy of killing him. The respondent was accordingly arrested and subjected to interrogation.
His request for grant of bail was declined by Judicial Magistrate and Sessions Judge, Haripur on.
29th November, 2004 and 7th December, 2004, respectively. However, the learned High Court vide impugned judgment released the respondent on bail. As such instant petition for leave to appeal has been filed.
5. Before dilating upon the respective contentions of the parties' counsel, we consider it appropriate to reproduce hereinbelow following para. From the judgment of the High Court:--- "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 19th September, 2004 charged the petitioner for abetting the murder of deceased and advanced motive that the petitioner, Pro- Chancellor of Al-Khyar University was involved in embezzlement of funds to the extent of lacs of rupees and deceased had make complaint of 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.
' Ehsan, who was arrested on 19th September, 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 F.S.L. And received its report in the positive. The piece of bullet recovered from the dead body of the deceased was not sent to the F.S.L. 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."
6. The learned High Court observed that except the motive, retracted exculpatory judicial confession of Ehsan and the charge of abetment and conspiracy, levelled by the legal heirs of deceased on the second day of occurrence, there is no other evidence against the respondent.
7. Learned counsel appearing for petitioner contended that:--
(a) Learned High Court while granting bail to the respondent Muhammad Bashir Goraya, had appreciated the facts of the case in depth, contrary to settled principles applicable at the time of considering the application for release of an accused on bail under section 497(1), Cr. P.C.
(b) Inasmuch as, record of the case was misread and important incriminating material available against the respondent has been ignored.
(c) Learned High Court has failed to make distinction between the abetment and conspiracy as it has been defined under the law.
(d) Respondent being an influential person, after his release, is tampering with the evidence, therefore, the concession of bail extended to him deserves to be recalled.
8. Learned Additional Advocate-General supported the counsel for petitioner and added that in given facts and circumstances of the case, respondent was not entitled for grant of bail.
9. Learned counsel appearing for respondent-accused however, stated that:--
(i) Prosecution has failed to procure sufficient incriminating evidence warranting the detention of respondent for an indefinite period, without any justification because ultimately, there is no chance of convicting him for the commission of offence.
(ii) There is no evidence to prima facie prove that respondent has abetted commission of offence.
(iii) This is consistent practice of this Court that once bail is granted to a person, then it is not to be cancelled ordinarily. Learned counsel made a statement at the Bar that during subsequent investigation, the respondent has been found innocent, therefore, his bail may be kept intact.
10. We have heard learned counsel for both the sides and have perused the record so made available. It is an admitted fact that Raja Sheraz Kiani (deceased) was working as Rector of the University at the time of incident whereas respondent Muhammad Bashir Goraya was its Pro- Chancellor. Both of them allegedly have developed differences with each other. Raja Sheraz Kiani (deceased) had submitted representation/ application to NAB for taking action against respondent on account of his financial misappropriation of the funds of the University. This point was argued before the High Court as it is evident from the relevant para., which has been reproduced hereinabove. Learned counsel appearing for petitioner had also referred to copy of the representation, which was submitted by Raja Sheraz Kiani (deceased) to NAB along with certificates.
11. It is to be noted that Muhammad Amin (dead) had hired the Car bearing No,7489-IDG on 17th.
September, 2004 for two days, therefore, was bound to return it on 19th October, 2004. Statedly, co- accused Ehsan and Saeed, are his brother-in-law and nephew, respectively. Muhammad Amin was driver of respondent and was an employee of the University. It is a settled principle of law that while considering the request of the accused for his release on bail, a deep appreciation of evidence is not called for and the Court seized with the matter in terms of section 497(1), Cr.P.C. Is required to make tentative assessm ent of evidence available on record. As per the material so produced on record, P.W. Raja Muhammad Irshad (complainant), who was the driver of the deceased Raja Sheraz Kiani, in F.I.R. Has nominated to Muhammad Amin (dead) Ehsan and Saeed.
The F.I.R. Was lodged promptly i,e, no sooner he reached in DHQ Hospital, Mansehra. Since he had no knowledge about the motive or the enmity of the deceased, therefore, he left this aspect of the case to be explained by the heirs of deceased Raja Sheraz Kiani. Therefore, it could not be said that in the F.I.R., the fact of conspiracy for the commission of murder was withheld by him. The legal heirs of the deceased i,e, P.Ws. Mawajid Ali Kiani, Raja Iltaf Hussain and Mst. Samina Kiani, who are son, brother and widow of deceased respectively, made statement in continuation of the F.I.R. And disclosed conspiracy for the commission of murder by the respondent, within two days from the day of incident.
12. Learned counsel further contended that dead body of the deceased was identified by his son but at that time he had not disclosed the enmity of the deceased with the respondent.
13. In our opinion, this point is not required to be considered at this stage, because might the witness had some plausible explanation to offer in this behalf. Disclosing of conspiracy by these three witnesses in their statements, wherein they involved the respondent in the commission of murder of Raja Sheraz Kiani (deceased), is prima facie, supported by Ehsan, who was arrested on 24th September, 2004 and got recorded his statement on 27th September, 2004, wherein he has, prima facie, involved the respondent in the commission of murder but had attributed the act of firing to Muhammad Amin (dead). The statements of witnesses give rise to two important questions. Firstly; whether at this stage, such evidence can be used against the respondent in view of the provisions of Article 43 of Qanun-e-Shahadat Order. Answer to this proposition lies in the case of Javed Masih v. State PLD 1994 SC 314, just to form a, prima facie, opinion because we are conscious of the fact that Article 43 of the Qanun-e-Shahadat Order is distinct from the provisions of section 27 of the repealed Evidence Act. As now the confession of a co-accused can be used as circumstance and not as an exclusive evidence for the purpose of recording of the conviction.
Besides, the judgment which has been referred to hereinabove also pertains to final determination of the case for the purpose of considering the same as material confession of co-accused cannot be used, but for cancellation of bail, such statement, implicating the accused, can be validly taken into consideration. Reference in this behalf can be made to Naseem Malik v. The State 2004 SCM R
283. We are conscious of the fact that there is a contradiction in F.I.R. And confession but at this stage, this cannot be discarded. Learned High Court, however, had wrongly termed it as `extra- judicial confession', which is incorrect statement of fact. Further it is also stated that the accused has retracted the confession as on 8th October, 2004, he submitted an application before the Sessions Judge retracting the same. Learned counsel appearing for respondent in this behalf explained that no sooner he got opportunity, he filed an application in this behalf before the Sessions Judge. In our considered opinion, even for this reason, the confession which is under section 164, Cr.P.C. Cannot be brushed aside because its voluntariness and truthfulness shall be taken into consideration by the Court at the time of trial. However, confessional statement of Ehsan, prima facie, had connected the respondent with the commission of offence. We failed to understand as to why the learned High Court termed it to be extrajudicial confession, knowing well that it was recorded before the Judicial Magistrate under section 164, Cr.P.C. Be that as it may, learned High Court was not justified in any manner to discard this piece of evidence at the bail stage. We may, however, observe that actually it had happened on account of non-reading of record carefully. In addition to this, there was assertion before the High Court that Raja Sheraz Kiani (deceased) had allegedly filed a complaint with the NAB against the respondent and this fact was disclosed by Mst. Samina Kiani, widow of deceased in her statement which she got recorded under section 161, Cr.P.C. Before the police. If the prosecution evidence, right from the F.I.R. Till the recording of confession, is considered cumulatively, no difficulty can be faced in holding, prima facie, involvement of respondent in the commission of offence.
14. Learned counsel for petitioner also relied upon Gulzar Hassan Shah v. Ghulam Murtaza PLD 1970 SC 335 to contend that while dealing with the application under sections 497 and 498, Cr.P.C. The High Court is not required to enter into the merits of the case or the plea of defence for arriving at the conclusion whether the accused has been guilty of an offence punishable with death or transportation for life; the only requirement is whether reasonable grounds exist tending to connect the accused with crime. According to him if these principles are followed, the bail is liable to be cancelled. Similarly while relying upon the case of Iqbal Hussain v. Abdul Sattar PLD 1990 SC 758, he argued that learned High Court has failed to notice all the relevant circumstances of the case and misread the record, as such fallen into error, therefore, the bail granted to respondent is required to be cancelled. He also relied upon Nazir Ahmad v. Muhammad Ismail 2004 SCM R 1160, wherein a very important principle of law has been highlighted concerning the cancellation of the bail namely; "for cancellation of bail strong and exceptional grounds are required; it is to be seen whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice".
15. Learned counsel appearing for respondent stated that the principles highlighted in the judgments being relied upon by the petitioner's counsel are not attracted because the High Court on having taken into consideration the material available on record had granted bail to respondent and discretion of this Court to cancel the bail under. Section 497(5), Cr.P.C. Is pari materia with the principles, applicable for setting aside the order of acquittal. In support of his contention he relied upon Malik Muhammad Younas v. Umar Hayat 1998 M LD 1195.
16. In our opinion, this judgment perhaps would not help him in view of the fact that this Court had declined to grant leave to appeal and had not announced or pronounced the principle of law in this behalf. So far as the judgment in the case of Malik Muhammad Younas (ibid), relied upon by the learned counsel is concerned, in this judgment learned Division Bench of the Peshawar High Court granted bail to the accused who were implicated on the basis of confession of their co- accused. In our opinion, this judgment needs not to be discussed in presence of the latest law on the subject in the case of Naseem Malik (ibid). Learned counsel also relied upon Mehr Ghulam Nabi v. Muhammad Shafiq and another 1979 SCM R 479 wherein this Court declined to cancel the bail in view of circumstances, leading to misuse of concession of bail by the accused and held that such circumstances cannot be made basis for reversal of impugned order of bail. In our considered opinion, this judgment is not attracted, as her bail has been granted to respondent by misreading the record and ignoring the material, which, prima facie, is sufficient to connect him for the commission of offence. Learned counsel next relied upon Shujat Hussain v. The State 1995 SCM R 1249 and highlighted the principle regarding the grant of bail i,e, term 'reason to believe' can be classified at a higher pedestal than mere suspicion and allegation but not equivalent to proved evidence; even the strongest suspicion cannot transform in 'reason to believe'. As it has been pointed out hereinabove that prima facie, the evidence brought on record does not involve the respondent on the basis of suspicion but had furnished strong reasons to believe that he is involved in the commission of offence, therefore, the judgment relied upon by the learned counsel had not advanced his case.
17. Learned counsel for respondent next contended that admittedly the respondent was not present at the time of commission of offence nor he had instigated the accused persons in presence of prosecution witnesses to kill him, therefore, the cases where the allegation is only of conspiracy, the bail granted to an accused deserved to be maintained by this Court. In this behalf he relied upon Amanullah Shah v. State PLD 1996 SC 241. Relevant para. From the judgment is reproduced herein below:--- "(4) Being conscious of the principle that considerations for cancellation of bail granted by a Court of competent jurisdiction are quite different, we carefully attended to the arguments addressed by the learned counsel for the parties. In the instant case the petitioner was not present at the time of occurrence, so had caused no injury to the deceased. The allegations against him are that one hour before the occurrence he, in the presence of Muhammad Rafique and Noor Hussain P.Ws.
Instigated Irshad Ahmed to eliminate the deceased. In the F.I.R. It has been stated:-- {{URDU TEXT}} ' A perusal of above para. Indicates that the facts noted therein are quite distinct and different from the facts of the case in hand. Without dilating upon the same in depth, it is to be noted that, prima facie, evidence brought on record by the prosecution has established that conspiracy was hatched by the respondent to eliminate Raja Sheraz Kiani (deceased) as relations between both of them have become so strain that if the deceased had succeeded in furnishing before NAB the evidence of financial embezzlement of the funds of the University against the respondent, he would go behind the bars. Thus, for such reason, it was not necessary for him to be present at the time of incident. Reference in this behalf can be made to the statement of Ehsan, who in so many words says that he was hired along with his brother-in-law by the accused to assassinate deceased.
18. It may be noted that there is distinction between the 'abetment' and 'conspiracy'. As far as 'abetment' is concerned, it is punishable as provided for the original offence, charged against the principal accused, falling within the mischief of section 109, P.P.C.; whereas 'conspiracy' itself is an offence and person can be separately charged with regard to `conspiracy'. In this behalf in State of Andhra Pradesh v. Kandimalla Subbaiah and another AIR 1961 SC 1241 it has been held that "there may be an element of abetment in conspiracy; it is something more than an abetment". Whereas 'criminal conspiracy' has been defined in Halsbery Laws 4th Edition, Vol.11, para.58, page 44 as 'conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment of which is imprisonment or fine or both in the discretion of the Court". Likewise, in the case of Noor Muhammad D Muhammad Yusuf Momin v. The State of Maharashtra 1971 SCJ 43, Indian Supreme Court observed as follows:-- "Like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other facts constitute relevant material."
'Similarly in Bhagwandas Keshwani and others v. State of Rajasthan AIR 1974 SC 898, it is held that "in cases of conspiracy better evidence than the acts and statements of conspirators in pursuance of the conspiracy is hardly ever available".
19. Thus, keeping in view this principle, we are of the opinion that learned High Court had not rightly approached to the issue by amalgamating the act of abetment with conspiracy for the commission of offence, therefore, for this reason alone, the impugned judgment deserves to be set aside.
20. Learned counsel then stated that bail of the respondent cannot be cancelled merely for the reason that on the basis of evidence two opinions are possible; one in favor of the State and the others in favor of accused, therefore, accused would be entitled for the benefit of doubt. In this behalf he relied upon Suba Khan v. Muhammad Ajmal 2006 SCM R 66.
21. It is not necessary to discuss this aspect of the case because we are not examining the evidence for the purpose of forming another opinion but it has been taken into consideration with reference to non-reading of the record by. The learned High Court and ignoring of some important pieces of evidence, which were sufficient to hold that, prima facie, respondent is involved in the commission of offence.
22. The cumulative effect of the evidence and the discussion, made hereinabove, leads us to conclude that the respondent was not entitled for grant of bail, as such impugned order is not sustainable under the circumstances of the case.
23. Thus, for the foregoing reasons, impugned judgment, dated 21st February, 2005 passed by the Peshawar High Court, Abbottabad Bench is set aside. Concession of bail granted to respondent Muhammad Bashir Goraya son of Taj Din Goraya is recalled. He is directed to surrender before the Sessions Judge, Haripur, failing which his attendance shall be procured through sureties, if need be.
' Petition is converted into appeal and allowed.