' ZUBDA-TUL-HUSSAIN, J.- Though not originally nominated as an accused in the case F.I.R. No, 30 dated 17-1-2008 registered under sections 302 and 109 read with section 34, P.P.C. At Police Station Taxila, District, Rawalpindi, the petitioner Taj Muhammad has subsequently been implicated in this case on the basis of supplementary statement of Muhammad Khalid complainant recorded on 19- 1-2008. This supplementary statement was based upon the information allegedly provided to the complainant by two persons namely Chan Zeb and Muhammad Pervaiz residents of Tehsil & District Mansera to the effect that immediately before the occurrence, both of them, who are acquainted with the accused persons because of commonality of the place of their origin, found Taj Muhammad petitioner, Muhammad Arif, Safeer, Muhammad Khalid son of Taj Muhammad, Muhammad Tariq and Muhammad Adil in New Akora Hotel, where they were talking about their cases and Taj Muhammad petitioner was persuading the others to assassinate Muhammad Asif deceased, who at that time was present in the hotel run by him. According to the said Chan Zeb and Muhammad Pervaiz, 2/3 days thereafter, they came to know that Muhammad Asif had been murdered in his hotel on the same night.
2. What follows from the above, is that Taj Muhammad petitioner was accused of abetment and conspiracy, but was not personally present at the time and place of murder of Muhammad Asif.
3. Seeking post-arrest bail for Taj Muhammad petitioner, learned counsel has argued that he being not directly nominated in the F.I.R, not there being any overt act on his part, the allegation of abetment and conspiracy, which also is not natural or confidence inspiring, the case against the petitioner is that of further inquiry and he is entitled to concession of bail, especially, when, the previous litigation between the parties is also admitted. He also contended that the aforesaid Chan Zeb and Muhammad Pervaiz, who are reported to be witnesses of the alleged conspiracy, also are inimical with the petitioner, because of civil and criminal litigation already going on between them.
Learned counsel thus stated, that it would be an absolutely un-natural and un-believable that the petitioner and his co-accused, would be hatching the conspiracy to the hearing and notice of their enemies namely Chan Zeb and Muhammad Pervaiz. Learned counsel concluded that the alleged conspiracy and abetment, constitute the questions of fact, which, shall be determined at the trial, and as such, the case against the petitioner is that of further inquiry, especially, when the existing evidence does not connect him with the commission of the offence.
4. Learned D.P.G. Assisted by learned counsel for the complainant, maintained that in the wake of the direct evidence of Chan Zeb and Muhammad Pervaiz, the petitioner has become one of the main accused, and it was on his instigation that the murder of Muhammad Asif was committed.
According to the learned counsel, in view of this situation, the absence of name of Taj Muhammad in the original F.I.R. And his absence from the place of occurrence is irrelevant, because he was the master mind of the illicit plan of murder of Muhammad Asif. It has been asserted that the statements of Chen Zeb and Muhammad Pervaiz instead of being supplementary statements, in fact formulate the main and direct evidence against Taj Muhammad and his co-accused regarding the abetment and conspiracy alleged against them. In this behalf, learned counsel for the complainant relied upon 2005 PCr.LJ 768 and argued that the F.I.R., which is not a detailed document is meant only for setting the law into motion and it is lawful for the complainant and the prosecution to collect and add any evidence in furtherance of investigation of the case, the validity whereof cannot be destroyed only because such information has been disclosed or come on surface subsequent to the lodging of the F.I.R.
5. It is true that the F.I.R. Is only a primary document, which provides legal .Basis to the police for proceeding further in accordance with law and for the determination of the relevant facts. In this perspective, it is also correct that any material coming to the knowledge of the complainant in so far it is relevant to the alleged offence may be placed before the police during the investigation. All the same, it cannot be denied that in this process, artificial improvements in this case are not to be allowed and generally for these reasons, the Courts have been deprecating the tendency of police to add something in the form of supplementary statement, which, originally was not a part of the complaint. Such matters are left to be determined by the Court during the trial of the case.
Statements of Chan Zeb and Muhammad Pervaiz have, therefore, to be carefully dealt with, especially for the reason that the petitioner-accused had certain reservations against the veracity of both of them. What I mean to say is that the statements of Chan Zeb and Muhammad Pervaiz cannot be taken for granted regarding the allegation of abetment and conspiracy levelled against the petitioner.
6. It need not be emphasized that the allegation of abetment and conspiracy involves the determination of questions of fact, and as such, the involvement of the petitioner in the case would be determined by means of evidence at the trial of the case. From the facts and circumstances available on record, it transpires that the material relied upon against the petitioner as abettor or conspirator, requires further consideration, as to whether he had in fact, committed the abetment of the murder of Muhammad Asif, especially when he was neither present at the spot of occurrence, nor any overt act was attributed to him. By virtue of all these circumstances, the part of the case relatable to the petitioner, is subject of further inquiry bringing his case within the purview of subsection (2) of section 497, Cr.P.C. The judgment in the case of Haji Muzaffar Khan'v. The State (1998 PCr.LJ 179) and Muhammad Ali v. The State (1998 PCr.LJ 899) can safely be relied upon in this behalf.
7. It has also been vehemently argued on behalf of the complainant that the co accused of the petitioner are at large, who have also attempted to fly abroad just to avoid their arrest and enlargement of the petitioner on bail, while being a source of help and encouragement to those coaccused, by itself involves the apprehension, that the petitioner may also proceed abroad. It has been told during the hearing of this petition, that the police has already moved the concerned authorities to be watchful against any attempt of the culprits to escape from Pakistan. It has also been verbally told that names of the accused persons are on the exit control list as well. The petitioner if allowed bail, can be bound by heavy surety to ensure his availability during the trial of the case.
8. Almost all legal systems, all enlightened philosophies of life including the prevalent social systems, the religions and the sociologies manifestly behold a liability on an individual only for the acts and omission for which he is personally responsible. The concept of substitution of accountability or substitution of convict is absolutely alien to criminal jurisprudence. Except for a criminal act or omission of p common object, or common intention, an accused person cannot be roped for joint liability and a person is to face the music and to suffer punishment or undergo the rigours of trial only for the delinquency or the offence committed by himself. He can never be substituted or punished or even arrested for the fault of some other person even if it be his co- accused. The punishment or reward in the world hereafter is also only personal. Similarly the concession of bail if otherwise admissible to an accused, cannot be denied to him only for the reason that his co- g accused are absconders unless he owes a direct or indirect contribution to their abscondence. By now there is no available material to show that the petitioner has acted in aid of the abscondence of the coaccused or is likely to act so if he is released on bail.
9. It is well settled also in law that no accused person can be kept in jail as a hostage for the arrest of another co-accused in the absence of any solid material to show that such accused person has in any manner contributed towards the abscondence of the co-accused, and his release on bail, would perpetuate such abscondence. Reference in this behalf may be had to the case of Roshan Din and another v. The State and another reported as 2001 M LD 1890. It may also be added that as held in the case of Abdul Razzaq v. The State (1998 PCr.LJ 1802), the mere fact that the co-accused, who had played main role, had not since been arrested would not dis-entitle an accused to the concession of bail, particularly, when no active role was attributed to him qua his coaccused.
10. The accumulative effect of the above circumstances is that there are sufficient grounds for further inquiry into the guilt of the petitioner Taj Muhammad in relation to the abetment and conspiracy allegedly caused by him for the murder of Muhammad Asif deceased.
11. The bail petition is, therefore, allowed. The petitioner shall be released on bail provided he submits bail bonds in the amount of Rs,200,000 with two local sureties each in the like amount to the satisfaction of learned Sessions Judge, Rawalpindi.