' JAVED IQBAL, J.--- This petition for leave to appeal is directed against the order dated 23-6-2008 passed by Islamabad High, Court, Islamabad whereby petition for bail preferred on behalf of petitioner has been rejected against whom a case was registered by means of F.I.R. No,30 dated 21-1-2007 under sections 448/427/452/ 506/147/149, P.P.C. Read with sections 6/7 of the Anti- Terrorism Act, 1997 at Police Station Abpara, Islamabad.
2. Precisely stated the facts of the case as enumerated in the order impugned are to the effect that "Muhammad Ehsan, Chowkidar of Model Children Library, made a complaint before the Police, wherein he stated regarding, the entering of various girls students of Jamia Saeeda Hafiza armed with Dandas, after breaking the window pane and taking over possession of the Library by ousting him therefrom. He also got recorded his supplementary statement on the same day, wherein he implicated the present petitioner and his brother Maulana Abdur Rasheed Ghazi.
3. Mr. Shaukat Aziz Siddiqui, learned Advocate Supreme Court entered appearance on behalf of petitioner and urged with vehemence that sufficient incriminating material connecting the petitioner with the commission of alleged offence is lacking which aspect of the matter has been ignored by the learned High Court which resulted in serious, miscarriage of justice as no prima facie case is made out against the petitioner. It is next contended that the case falls within the ambit of the provisions as enumerated in section 497(2), Cr.P.C. And being a case of further inquiry, the relief prayed for on behalf of petitioner could not have been declined because the petitioner has been implicated through supplementary statement of the complainant got recorded under section 161, Cr.P.C. And admittedly no nomination was made in the F.I.R. Got registered by complainant namely Muhammad Ehsan on 21-1-2007 at Police Station, Abpara, Islamabad. It is contended firmly that the alleged offences do not fall within the prohibitory clause of section 497, Cr.P.C. And as such the concession of bail can be extended to the petitioner as a matter of right. It is argued that the provisions as enumerated in section 21-C(4) of the Anti-Terrorism Act, 1997 cannot be made applicable as no evidence worth the name is available. It is also mentioned that out of 27 cases got registered against the petitioner, concession of bail has been extended by the various Courts which were more heinous in nature as compared to the present one. It is argued that no challan could be submitted for about eight months after registration of the case which itself speaks a volume about the conduct of the prosecution and lack of evidence.
4. Mr. Muhammad Ilyas Siddiqui, learned Special Prosecutor-General entered appearance on behalf of State and seriously controverter the view point as canvassed at bar by Mr. Shaukat Aziz, learned Advocate Supreme Court for the petitioner with the submission that sufficient incriminating material connecting the petitioner with the commission of alleged offences is available which has rightly been scrutinized tentatively and the order impugned being free from any ambiguity does not call for interference. In order to substantiate the said contention, the supplementary statement of Muhammad Ehsan, who is Chowkidar of the Library, has been referred. It is also contended that the matter does not fall within the ambit of further inquiry, in view of the sufficient incriminating material which has come on record. The learned Special Prosecutor-General also referred the provisions as enumerated in section 21-C(4) of the Anti-Terrorism Act, 1997 with the submission that facility of bail cannot be extended in favour of the petitioner in view of the restriction as imposed by the Anti-Terrorism Act, 1997 itself.
5. We have carefully examined the respective contentions as agitated on behalf of the petitioner and for the State in the light of the relevant provisions of law and record of the case. Let we mention here at the outset that sufficient incriminating material is lacking prima facie connecting the petitioner with the commission of alleged offences. There is no denying the fact that the alleged offences are heinous in nature but the question is as to whether sufficient incriminating material connecting the petitioner with the commission of alleged offences is available or otherwise? It may be kept in view that presumption of innocence of accused is always paramount irrespective of the heinousness of the alleged offences. The learned Special Prosecutor General could not point out any incriminating material on the basis whereof it could be opined that a prima facie case is made out against the petitioner. The learned Special Prosecutor General has referred the supplementary statement of Muhammad Ehsan, Chowkidar of the Library who implicated the petitioner but failed to nominate him in the F.I.R. Got lodged by him and no plausible justification could be given for it. In so far as the statement of Farasat Ali Khan, City Magistrate, Islamabad is concerned it hardly renders any assistance to the case of the prosecution for the simple reason that he has only mentioned about the negotiations with Maulana Abdul Aziz and Maulana Abdur Rasheed. The statement of Kamran Adil, A.S.P. City Islamabad is also not helpful to the prosecution who accompanied Farasat Ali Khan, City Magistrate and participated in the negotiation.
6. The above discussed evidence was relied upon by the learned Special Prosecutor-General who was asked time and again if any other incriminating material was available against the petitioner or otherwise but no satisfactory answer could be given. As a result of tentative but careful examination of the above collected incriminating material, we are inclined to hold that no prima facie case is made out against the petitioner.
7. We have also adverted to the main contention of learned Special Prosecutor General that the case does not fall within the ambit of the provision as enumerated in section 497(2), Cr.P.C. Which being without substance cannot be taken into consideration. We are conscious of the fact that "it is not the practice of the Supreme Court to unduly intervene in bail matters, which should ordinarily be left to the discretion of the Courts inquiring into the guilt of the accused persons. The discretion has, of course, to be exercised on sound judicial principles," Abdul Haq v. The State 1979 SCMR 254, Ghulam Nabi v. The State NLR 1978 Cri 328, Sultan Khan v. Amir Khan PLD 1977 SC 642, Haq Nawaz v.
The State 1969 SCMR 174. As mentioned hereinabove "the grant of bail is a matter purely in the discretion of the courts below and ordinarily the D Supreme Court does not interfere with the discretionary powers unless it is satisfied that the order is perverse or has been made in clear disregard of settled norms of justice and principles of law? Mst. Zaro v. The State 197 SCMR 11. On the touchstone of the criterion as mentioned hereinabove, we are of the considered view that the order impugned E being laconic cannot be kept intact as admittedly the case falls within the ambit of further inquiry. It is well-settled by now that "where there is no prima facie case against the petitioner and evidence on the record is vague and sketchy and the Court considers it necessary that further inquiry may be held in the matter it may enlarge the petitioner on bail". F Muhammad Sadiq v. Sadiq PLD 1985 SC.
182. It is worth-mentioning here that where prosecution version leaves much to be inquired into the bail can be granted by invoking the provisions as enumerated in section 497(2), Cr.P.C. And concept of further inquiry can be pressed into service. In this regard reference can be made to the case of Falak Sher v. The State 1979 SCMR 103. We want to-make it clear that provisions as contained in section 497(2), Cr.P.C. And concept of further inquiry has been discussed time and again by this Court and it has been held that "where the Court finds that there are reasonable grounds to believe that the petitioner is not guilty of the offences charged and in such a case he G can claim admission of bail as a right". Najeeb Gul v. Khalid Khan 1989 SCMR 899. We have no hesitation in our mind while holding that the case falls within the ambit of further inquiry as at the moment sufficient incriminating material is lacking connecting the petitioner with the commission of alleged offences and moreso it is not known how alleged H offences were abetted or facilitated by the petitioner. It is also shrouded in mystery that what prevented Muhammad Ehsan, Chowkidar, who is complainant in this case to nominate the petitioner in the F.I.R. Got registered by him.
8. We have also adverted to the provisions as contained in section 21-C(4) of the Anti-Terrorism Act, 1997 which is reproduced herein below for ready reference:--- "21-C (4) A child commits an offence if he provides, without valid authorization from the competent authority, any instruction or training, or if .He receives such unauthorized instruction of training or invites another, specifically or generally, to receive such unauthorized instruction or training in the making or use of (a) fire-arms; (b) explosives; or (b) chemical, biological, and other weapons".
9. A careful analysis of the above reproduced section would reveal that it is free from any ambiguity and accordingly learned Special Prosecutor General was asked as to how it can be made applicable to the petitioner but no answer could be given except that the petitioner was responsible for abetment and instigation, but no evidence could be pointed out to substantiate the said allegation. A careful scrutiny of record would reveal that no evidence has come on record showing the instigation, abetment or facilitation on the basis whereof the above reproduced provisions could be made applicable in the case of petitioner.
10. It has been noted with grave concern that the case against the petitioner was registered on 21- 1-2007 and challan was submitted after a lapse of eight months and on this score alone the facility of bail can be extended in favour of petitioner. In our considered view it is not proper to depend on ipsi dixit of police regarding guilt or innocence of accused which is to be determined on the basis of evidence which is yet to be collected but prima facie sufficient incriminating material is lacking connecting the petitioner with the commission of alleged offences. It is well settled by now that "where evidence with regard to the allegation of abetment or instigation is lacking the concession of bail can be extended in favour of petitioner". In this regard reference can be made to the case of Syed Amanullah Shah v. The State PLD 1996 SC 241, Arbad Ali v. Khamiso 1985 SCMR 195, Tariq Bashir v. State PLD 1995. SC 34, Shabbir Ahmad v. The State PLD 1977 Lah. 201, Nisar Ahmad v. The State PLD 1971 SC 174, Mian Mehraj Din and others v. The State 1985 PCr.LJ.2987, Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182.
11. In the light of what has been discussed hereinabove we are inclined to convert this petition into appeal, which is accepted and the order dated 23-6-2008 passed by the Islamabad High Court is set aside.
12. By our short order dated 15-4-2009 we have ordered release of petitioner on bail and these are the reasons therefor. The observations made hereinabove are tentative in nature and shall not affect the merits of the case.