MUHAMMAD ANWAR KHAN KASI, J.---The cancellation of bail of respondent No,1 has been sought on the grounds that he is specifically nominated by the P.Ws Yasir Mehmood Qamar Shahzad with a specific role of conspiracy and the impugned order dated 16-10-2010 has been passed without appreciating the material on record.
2. Learned counsel for the petitioner contends that the abetment of the accused for the commission of offence is established and he has also misused the concession of bail by advancing threats after his release on bail and in this regard a proper report was lodged on 14-11- 2010 at Police Station Sehala, Islamabad. It is further contended that the transcript of cell-phone record confirms the fact that the accused had been in contact with the main accused Nasir Mehmood, who is brother in law of the present accused from midnight till 7-00 a.m. while the occurrence took place at 6-30 a.m., which shows that he is also involved in the commission of offence and since the main accused Nasir Mehmood is at large, the respondent No,1 was not entitled to the concession of bail. In support of his contentions, the learned counsel relied upon case-law reported in PLD 2001 Lahore 123, which is on the point of abetment and hold that abetment in the offence of murder is as much serious as that of murder and it cannot be treated lightly.
3. Learned Standing Counsel supported the petition by adopting the arguments of learned counsel for the petitioner. It was his contention that the evidence of conspiracy and abetment can be indirect or circumstantial and each case is to be examined in the light of its peculiar circumstances.
4.On the other hand, learned counsel for respondent No,1/accused relying upon case-laws reported in 2010 SCMR 580, 2004 SCMR 1160, 2007 SCMR 482, 2008 PCr.LJ 1565 and 2004 SCMR 231 controverted the arguments by stating that there is no direct evidence against the accused/respondent No,1. Neither he is nominated in the F.I.R. nor did any recovery was effected from him. Cell-phone record in the absence of taped voices can be of no legal value in absence of any expert opinion. He further submitted that the alleged eye-witnesses Yasir Mehmood and Qamar Shehzad are known to the parties and, therefore, they should have mentioned the name of respondent No,1 in the very beginning, thus their statements are not credible. According to him, the only fault of the respondent is that he is brother-in-law of the main accused, who is absconding and for this very reason he has been roped in this case just to exert pressure.
5. Heard and record perused.
6. According to the allegation, the petitioner's cousin namely Raja Zahoor Inspector, was brutally murdered by Nasir Mehmood and Tehsin, while the complainant was also fired at, but was saved on 17-8-2010 at 8-20 a.m. at Japan Road, Islamabad. It is further alleged that the murder was committed on the abetment of Fayyaz Ahmad.
7. At a later stage, the charge of abetment was also levelled against the respondent No,1 through the statements of P.W.; Qamar Shahzad and Yasir Mehmood.
8. Admittedly, there is no mention of any name or role of present respondent No,1 in the F.I.R. of the incident. It is also evident from record that nothing was recovered from him and the learned Additional Sessions Judge, Islamabad, has rightly exercised discretion by granting the concession of bail to him as none can be deprived of liberty without sound reasoning and justification.
9. It has been held time and again that a bail granted wrongly, can be cured by punishing the accused after the trial if his guilt is proved but there cannot be any compensation if a bail is wrongly refused. It is also a principle laid down by the superior courts that the courts should be reluctant to cancel the bail as the discretion exercised in favour of the accused cannot be interfered with unless there are strong and exceptional grounds warranting interference because considerations for cancellation of bail and grant of bail are altogether different.
10.Be that as it may, the conclusion of trial would establish the guilt of the respondent No, 1 and at this stage the sifting of chaff from the grain would not be legally justified as this discussion may prejudice the trial of the case.
11.Viewing the above, the instant petition stands dismissed.