1. MUHAMMAD ALI MAZHAR J.---This bail application is brought by the applicant under section 497, Cr.P.C. In Crime No.79 of 2010, Police Station Pir-jo-Goth registered under sections 302, 452, 324, 148, 149 and 120-B, P.P.C.
2. Brief facts of the prosecution case as narrated in the F.I.R. Are that the complainant Sartaj Ahmed Ansari reported on 20-7-2010, at 0430 hours that the persons of Liaquat Rind had committed the murders of fellows of complainant party and such cases are pending in the court of law. On 18-7- 2010, he along with his brother namely Muhammad Siddique alias Naseer Ahmed and Sajid was at home in evening time. Imtiaz and Ihsan, both sons of Ghulam Rasool Ansari came at his house and informed that they had gone to village Gogi Mangneja and when they were returning back at about 02:00 p.m. And reached at poultry farm of Kousar Mangnejo, they felt thirsty and went to drink water. They saw that Liaquat son of Jahan Alam Rind, Muhammad Aslam son of Hameed Rindh, Qabil son of Qadir Bux Mangnejo (applicant), Nafees alias Papu Rind and Anwar Rind were hatching conspiracy that if Sartaj Ansari and others will not withdraw the cases then family of Sartaj will be murdered. On 19-7-2010, the complainant was at his home with his brother namely Muhammad Siddique alias Naseer Ahmed, Sajid, his wife Mst. Kousar Parveen alias Hajani and Salma. After having night meal they went to sleep in the courtyard of the house, locked the outer door. On 20-7-2010 at 04:00 hours, all the family members awakened on rattling sound and saw and identified accused Nafees alias Papu, Amir, Shareef, Imran alias Mast, Anwar all by caste Sindh with Kalashnikovs present in the courtyard. Accused Nafees alias Papu opened direct fire with intent to murder complainant's wife Mst. Kausar Parveen and she fell down and accused Amir and Shareef opened direct fire with intent to murder complainant's daughter Mst. Naila; who fell down.
3. Accused Imran alias Mast made direct fire with intent to murder complainant's daughter Salma who also fell down and accused Anwar made direct fire with intent to murder the complainant. His brothers hid themselves in the house. On fire shots, Imtiaz, Ehsan and neighbors came there, who also saw the accused when accused were running towards southern side. The complainant's wife Mst. Kousar Parveen and daughter Naila died and his daughter Salma injured, thereafter, the complainant alone with his brother left behind the witnesses to guard over the dead bodies, took his injured daughter for medical treatment and thereafter appeared at PS and lodged the F.I.R.
4. Heard learned counsel for the applicant and learned A.P.-G. The learned counsel for the applicant Syed Sardar Ali Shah argued that the applicant is innocent person and he has been falsely involved in the case. Neither the applicant was present at the time of incident nor he was involved in any such murder. He has been assigned only a role of alleged conspiracy which is not sufficient to link the applicant with the crime, hence he is entitled to the concession of bail as the alleged role of the applicant needs further enquiry in the matter. He further argued that while dismissing the bail application, the learned trial court has not considered the actual fact and the role assigned to the applicant but dismissed the bail application in a slipshod manner without appreciating the law in relation to the role assigned to the applicant in the F.I.R. He also pointed out from the F.I.R. That the complainant has asserted that there is old enmity between the compliant party and Liaquat Rind and others and murder cases are pending in the court of law. He concluded that the applicant has been implicated in the false case with mala fide intention and ulterior motives. In support of his arguments, the learned counsel relied upon following judgments:--
(1) PLD 1996 Supreme Court 241 (Syed Amanullah Shah v. State). In this matter, an application was filed for the cancellation of bail under section 497(5), Cr.P.C. Before the Lahore High Court, which was allowed and the bail was cancelled. The applicant moved bail application in the honorable Supreme Court, in which it was held that case of a conspirator or abettor not present on the spot stands at a lower footing than that of the accused instigating his companion to commit the crime being himself present on the spot. Accusation of abetment or conspiracy can very easily be set up when parties are inimically depressed as possibility of false implication of the opponent is very much there. It was further held that whenever reasonable doubt arises with regard to the participation of an accused persons in the crime or about the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail and in such a situation it would be better to keep him on bail than in the jail during the trial. Finally in this matter the honorable Supreme Court granted bail to the applicant.
(2) 2001 YLR 2619 (Muhammad Sharif v. State). In this case, the learned Single Judge of the Lahore High Court has held that the record had shown that the accused was not present at the place of occurrence at the relevant time and he had not been attributed any injury to any person. Only allegation levelled against the accused was in respect of hatching a conspiracy/abetting the co- accused for commission of the alleged offence. Accused though had been nominated in the F.I.R.
5. As an abettor but the details disclosed in the F.I.R. Did not mention any source of said information.
6. Prosecution was not possessed of any other material to support the allegation against the accused. Witnesses of conspiracy who overhead hatching conspiracy two days prior to the incident they kept quiet for the next two days till the occurrence in question and had come into the picture for the first time one day after the incident disclosing their overhearing of the alleged conspiracy hatched by the petitioner. The worth and evidentiary value of such a piece of evidence shall be considered by the trial Court at the time of trial. Finally, it was held that the case against the petitioner calls for further enquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. And the applicant was admitted to bail.
(3) PLD 2004 Lahore 549 (Allama Syed Sajid Ali Naqvi v. State). In this matter, the learned Single Judge has held that allegation against the accused admittedly was of hatching conspiracy to cause murder of the deceased. Evidence of conspiracy furnished by the prosecution witnesses in their statements recorded under section 161, Cr.P.C. Needed further enquiry as it was yet to be determined whether their claim of hearing the accused directing his co-accused to do away with the deceased and that he would bear the expenses as well as facilitate their escape abroad could have been discussed at that juncture of time. In this case also the bail was granted.
(4) 2004 YLR 2298 (Tariq v. State). In this case, the learned Single Judge has held that accused involved in a murder case on allegation of hatching up conspiracy to murder the deceased would be entitled to enlargement on bail when question whether any one could hatch up conspiracy openly to be heard by others needs serious consideration within meaning of section 497(2).
7. In rebuttal, Mr. Shyam Lal, learned Assistant Prosecutor-General, argued that the allegation of hatching conspiracy by the applicant is very much reflected in the F.I.R. And the applicant being the conspirator is fully involved in the murder case, therefore, he is not entitled to the concession of bail, even if his name is only mentioned in the F.I.R. As conspirator.
8. After hearing the arguments of the learned counsel, I have reached to the conclusion that in the F.I.R. The applicant was attributed to a role of conspirator only but it is nowhere mentioned that he was present at site at the time of incident. I have also gone through the order of learned Sessions Judge Khairpur passed in Criminal Bail Application No. 1292 of 2010, whereby, the bail application of the applicant was dismissed vide order dated 14-10-2010. It is clearly transpiring from the order that while dismissing the bail application, the findings of the learned trial court was only based on the commission of conspiracy but the learned Sessions Judge did not consider whether the allegation of conspiracy against a person require further evidence at the trial but the application was simply dismissed on the finding that applicant is prima facie involved in the commission of conspiracy of murder case and on his conspiracy two innocent ladies have been murdered and one lady sustained fire shot injury. It is further stated in the order that the applicant is prima facie involved in the heinous offence of murder of two ladies and causing injuries to complainant and his daughter.
9. The definition of Criminal Conspiracy is provided under section 120-A of P.P.C., which reads as under:-- "When two or more persons agree to do, or cause' o be done,
(1) an illegal act, or
(2) and act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
10. Explanation. It is immaterial whether the illegal act is, ultimate object of such agreement, or is merely incidental to that object".
11. The most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act or a secret and surreptitious act. A conspiracy consists not merely in the intention of two or more, but in an agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means.
12. In my view whether the applicant is involved as a conspirator or not this can only be decided after the trial of the case and so far as the role of applicant is concerned, it is a matter of further enquiry.
13. The judgments relied upon by the learned counsel for the applicant so far as related to the role of conspirator are quite applicable to the facts and circumstances of the instant case. According to the own assertion of the complainant that he came to know about the alleged criminal conspiracy on 18th July, 2009 but nothing is mentioned in the F.I.R. That he lodged any report for protection or what preventive measures he took after knowing the alleged conspiracy. Since in the present matter reasonable doubt arises with regard to the participation of applicant in the crime and about the truth or probability of the prosecution case, therefore, in my view the applicant should not be deprived of benefit of bail and in the present situation, it would be better to keep him on bail than in jail during the trial. The honorable Supreme Court has held supra that the case of a conspirator or abettor not present on the spot stands at a lower footing than that of the accused instigating his companion to commit the crime being himself present on the spot. The accusation of conspiracy can easily be set up when parties are inimically depressed as possibility of false implication of opponent is very much there and where the story of prosecution does not appear to be probable,' bail may be granted so that further enquiry may be made into the guilt of the accused. Once an innocent is put under arrest, then he has to remain in jail for considerable time.
14. Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of bail granted to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail than in the jail during the trial.
15. As a result of above discussion, the bail application is allowed. Applicant is granted bail subject to furnishing solvent surety in the sum of Rs.1,00,000 (Rupees one lac) with P.R. Bond in the like amount to the satisfaction of the trial Court.