' MUHAMMAD TASNIM,' J.---Applicant Afaq Ahmed Khan is booked in Crime No,222 of 2009, under section 302/324/109/34, P.P.C., Police Station Nabi Bux. Initially applicant applied for bail before the learned trial Court in Sessions Case No,293 of 2010 and such bail application was disposed of per order dated 9-6-2011. Feeling aggrieved against the aforesaid order, present bail application has been filed by the applicant.
2. The facts of the case, as set out in the F.I.R., are that on 20-6-2009 in the morning complainant Shahzad Ahmed after finishing his duty had come and he along with Junaid, Ateeq-ur-Rehman, Abid were sitting close to the cabin of Junaid at Sehba Milli Road near Ibrahim Manzi, Burma Hotel Ramsawami and had called for tea. It is further claimed that between 1930 and 2000 hours four persons came on two motorcycles, numbers whereof were unknown, from Nishtar Road side and amongst them one was Talat and other one was Asim Hussain Shah Faisal Wala and two unknown persons whom complainant can identify on seeing. It is further stated that just after coming while taking out pistol they said that it is due on them to murder complainant at the instance of Afaq Bhai and made firing on complainant party. Complainant ran in the lane, bullet hit him on left side of back and through and through while bullet hit to Junaid on right side hip and two bullets hit to Ateeq-ur-Rehman on head and abdomen. It is further stated in the F.I.R that all the injured persons were taken to the hospital and culprits ran away.
3. Mr. Muhammad Ilyas Khan, learned counsel for the applicant, in support of the bail application, has submitted that present F.I.R. Was registered on 20-6-2009 and charge-sheet was submitted before the learned trial Court on 1-7-2010, in which for want of evidence the name of the present applicant was shown in Column-2 with blue ink. He further submitted that it appears that some application and section 227, .Cr.P.C. Was filed by the prosecution on 1-2-2011 but no notice of the application was issued to the applicant and said application was granted on the next day.i.e,, 2-2- 2011, thereafter applicant's name was included as accused persons. He further submitted that in the circumstances he filed an application under section 265-K, Cr.P.C. On 2-3-2011, which was dismissed on 14-4-2011 and such order has been challenged by the applicant in Criminal Revision Application No,92 of 2011. He further submitted applicant also applied for bail before the learned trial Court in March, 2011, which was dismissed by the learned trial Court on 9-6-2011. Learned counsel further submitted that there is no evidence, whatsoever, with the prosecution connecting the present applicant with the commission of offence. He further submitted that version in F.I.R. Is not supported by the prosecution witnesses in their statements under section 461, Cr.P.C. Learned counsel submitted that only allegation in the F.I.R against the present applicant is that Talat and Asim Hussain along with two unknown persons while committing offence had said that this crime is being committed at the behest of applicant. He further submitted there is no material available on record to show that any of the accused persons had any meeting in the prison where applicant is lodged. He further submitted that present applicant was convicted in Crime No,102 of 1992, under section 302, P.P.C. And learned trial Court had sentenced the applicant for life imprisonment. The applicant has challenged the aforesaid conviction order through Criminal Appeal No,173 of 2010, which is pending in this Court. He further submitted that applicant had filed an application under section 426, Cr.P.C. In the pending appeal and such application was allowed by the learned Single Judge of this Court, whereby conviction and sentence awarded to the applicant to Crime No,102 of 1992 has been suspended. He further submitted that present applicant is not required in any other case except present one. Learned counsel for the applicant further submitted that provisions of section 109, Cr.P.C. Are not attracted in the circumstances of the case as there is no material available to substantiate as to whether any connivance between the accused persons and present applicant had taken place or there is no evidence to show that at the behest of the present applicant present crime was committed. He further submitted that to attract provision of section 109, Cr.P.C. Two ingredients are necessary, one presence of the applicant at the scene and other conspiracy between abettor and the persons who commits the crime. In support of his contentions, learned counsel for the applicant has relied upon the following case-law:--
(1) TASAWAR HUSSAIN AND OTHERS v. THE STATE AND OTHERS (2008 PCr.LJ 1105),
(2) ALYAPPAN KUTTAN v. THE STATE (AIR 1995 T.C. 266 (V.42 C.107 Dec.),
(3) SHAFIQ ALAM FARUQUI AND ANOTHER v. THE STATE (1986 PCr.LJ 2243),
(4) ARSHAD ALI SHAH v. SAEED AHMAD ASHRAF AND ANOTHER (1996 PCr.LJ 1673),
(5) THE STATE v. MALIK MUKHTAR AHMAD AWAN (1991 SCM R 322),
(6) MUHAMMAD AYUB v. (1) MUHAMMAD YAQUB AND (2) THE STATE (PLD 1966 SC 1003),
(7) Ch. ABDUL MALIK v. THE STATE (PLD 1968 Supreme Court 349),
(8) MUHAMMAD SHAFI v. MUNAWAR HUSSAIN AND OTHERS (1996 PCr.LJ 751),
(9) SYED AMANULLAH SHAH v. THE STATE AND ANOTHER PLD 1996 Supreme Court 241),
(10) MUHAMMAD ASHRAF AND OTHERS v. STATE (1999 YLR 2125),
(11) QABIL v. THE STATE (2011 PCr.LJ 234),
(12) RAIS WAZIR AHMAD v. THE STATE (2004 SCM R 1167), and
(13) ASHIQUE ALI LASHARI v. THE STATE (2000 M LD 1193).
4. Conversely, Mr. Mahmood Yousufi, learned counsel for the complainant has vehemently opposed the grant of bail and has submitted that deeper appreciation of the record cannot be gone into at the bail stage. Learned counsel further submitted that in terms of judgments of the honourable Supreme Court of Pakistan at the bail stage only contents of F.1.R., statements of prosecution witnesses under section .161, Cr.P.C., seizer memos and other incriminating material can be looked into, but evidence cannot be assessed. He further submitted that applicant is fully connected with the commission of offence and as per allegations in the F.I.R. The name of the applicant appears therein and the persons who committed the crime had said that crime is being committed at the behest of the present applicant. He further submitted prosecution witnesses have supported the case of the prosecution in the F.I.R. In support of his contentions, learned counsel for the complainant has relied upon the following case-law:--
(1) ANWAR SHAMIM AND ANOTHER v. THE STATE (2010 SCM R 1791)
(2) SHAHZAD AHMED v. THE STATE(2010 SCM R 1221),
(3) MUHAMMAD IMRAN alias PAPPU V. THE STATE (2010 SCM R 1047),
(4) MUHAMMAD RIAZ v. THE STATE (2002 SCM R 184),
(5) MAMARAS v. THE STATE AND OTHERS (PLD 2009 Supreme Court 385), and
(6) ASIF AYUB v. THE STATE (2010 SCM R 1735).
5. Mr. Zafar Ahmed Khan, learned Additional Prosecution-General Sindh has also opposed the grant of bail vehemently and has adopted the arguments of learned counsel for the complainant.
Additionally, learned Additional P.G. Submitted that present bail application is not maintainable in its present form as the bail application filed by the applicant before the learned trial Court has not been disposed of on merits. He further submitted that even otherwise at the behest of the applicant the crime was committed and prosecution holds ample evidence against the present applicant to prove the allegations in the F.I.R. He further submitted that applicant may not be enlarged on bail. He relied upon the following case-law:--
(1) MUHAMMAD KHAN v. THE STATE (2005 PCr.LJ 1797),
(2) MUHAMMAD RIAZ v. THE STATE (2002 SCM R 184), and
(3) ALI HASSAN v. THE STATE (2001 SCM R 1047).
6. I have heard the learned counsel for the parties and have perused the record so also the case- law cited at the bar.
7. It is settled law that at the bail stage deeper appreciation of the record cannot be gone into, but only a tentative assessm ent is to be made just to find out as to whether present applicant/accused is connected with the commission of offence or not. Applying the above test to the case in hand, it will be noticed that the person who allegedly committed the crime had named the present applicant that crime is being committed at the behest of the present applicant. If the statements under section 161, Cr.P.C., are examined, it will be noticed that P.W. Habib-ur-Rehman has stated that Shahzad Ahmed, who was present at the scene of crime had said that four persons came in a car, who included Talat, Asim and Afaq Ahmed, the present applicant, whereas rest of the prosecution witnesses namely Shahzad Ahmed, Abid Ali, Junaid and Qutub-ud-din have stated that accused persons came on two motorcycles, who included Talat, Asif and two unknown persons. However, while committing alleged offence accused persons have said that they are committing crime at the behest of the present applicant. Admittedly applicant was not challaned initially, but his name was shown in Column-2 with blue ink for want of evidence. It appears that some application under section 227, Cr.P.C. Was filed on 1-2-2011, which was granted by the learned trial Court on 2-2-2011 without notice to the applicant, consequently the name of the applicant was mentioned in the list of accused persons. In these circumstances application under section 265-K, Cr.P.C. Was moved by the present applicant, which has been dismissed by the learned trial Court and the order of the learned trial Court has been quested before this Court through Criminal Revision Application No,92 of 2011. Admitted position is that the present applicant is behind the bars ever since 2004 in Crime No,102 of 1992 and applicant has been convicted and sentenced by the learned trial Court, against which an Appeal No,173 of 2010 is pending before this Court, wherein conviction and sentence has already been suspended -and applicant has been enlarged on bail.
A tentative assessm ent of the record further shows that there is no direct evidence against the present applicant connecting him with the commission of offence. On the last date of hearing i.e, 12-9-2011 I.O. Inspector Najabat of C.I.D. Had appeared and had stated in Court that there is no material with the prosecution against the present applicant. All the above factors have made out a case of further inquiry. The case of prosecution is not free from doubt.
8. In the case of Ashique All Lashari (supra), the learned Single Judge has observed as under:-- "Eventually, the main point for consideration at this stage is based on the version given in the F.I.R.
That though the applicant was not present at the place of occurrence, allegedly a few days back he had instigated the co-accused who as stated in the F.I.R. Caused fire-arm and hatchet injuries to the deceased. In Amanullah's case PLD 1996 SC 241 allegations against the accused were that one hour before the occurrence he in presence of witnesses instigated one of the co-accused to eliminate the deceased, yet he was granted bail and such order was challenged before the honourable Supreme Court where cancellation of bail was declined. The learned counsel on the same analogy relied on Faraz Akram's case 1990 SCMR 1360, wherein although the accused was, allegedly present no overt act was ascribed to him except of ineffective firing and he was allowed bail."
9. In the case of Syed Amanullah Shah (supra), the honourable Supreme Court of Pakistan while dealing with the issue of lalkara' and `investigation' by accused persons to his companions to kill some one has observed as under:- If bail can be granted to a person present at the spot at the time of occurrence instigating his companions to kill someone present there, then why a person who was not present on the spot but allegedly instigated the accused to kill the deceased should be deprived of such concession during the trial. There can be no two opinions that the case of a conspirator or abettor not present on the spot stands at lower footing than the case of the accused instigating his companion to commit the crime being himself present on the spot. Furthermore, it is very easy to set up accusation of abetment/instigation/conspiracy/ lema; needless to say when parties are inimically dispressed, the possibility of false implication of opponent is very much there. So, we are of the view that where post-arrest bail is granted in such cases, then it should not be cancelled as a matter of course or in routine. Once bail is granted by a Court of competent jurisdiction, then very strong and exceptional grounds would be required for cancelling the same. Provisions of section 497(5), Cr. P. C. Are not punitive. There is no legal compulsion for cancelling bail granted in cases punishable with death, imprisonment for life or imprisonment for ten years. To deprive a person of his freedom is most serious. It is judiciously recognized that unfortunately there is a tendency to involve the innocents with a guilty. Once an innocent is put under arrest, then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial in a murder case.
Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim 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 then in the jail, during the trial. Freedom of an individual is a precious right. Personal liberty granted by a Court of competent jurisdiction should not be snatched away from accused unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt of the accused."
10. The prosecution witnesses have not supported the version in F.I.R. It is also admitted position that at the time of occurrence the applicant was in custody and no material was brought to the notice of the Court to substantiate the facts as to whether any of the accused persons had meeting with the applicant to commit the crime, which is subject matter of this case. With regard to abetment by the applicant, this aspect of the matter cannot be effectively dealt with unless the evidence of the prosecution is recorded and some tangible evidence is brought on record to connect the present applicant with the commission of offence.
11. There is no cavil with the rule laid down in the judgments cited , by learned counsel for the complainant, but such judgments are not attracted to the present case for the simple reason that initially applicant was not challaned as an accused and his name was shown in Column-2 with blue ink for want of evidence. Name of the applicant was included amongst the accused persons only after grant of application filed by prosecution's side under section 227, Cr.P.C., which was decided by the Court below without affording the opportunity of hearing to the applicant and that too on the very next date of filing of such application. The I.O. Had appeared before this Court and has categorically stated that there is no evidence available with the prosecution which connects him with the commission of offence.
12. The judgments cited by the learned Additional P.G. Are distinguishable on facts and are not applicable in the circumstances of the case. Even otherwise no material has been brought to the notice of the Court which prima facie connects the present applicant with the commission of offence.
13. In the circumstances of the case the present applicant has made out a case of further enquiry in terms of subsection (2) of section 497, Cr.P.C., accordingly, he was admitted to bail on his furnishing solvent surety in the sum of Rs,10,00,000 (Rupees Ten Lacs) and P.R bond in the like amount to the satisfaction of learned trial Court by short order of even date and these are the reasons for the same.
14. During the course of hearing of Criminal Revision Application No,92 of 2011 learned counsel for the applicant pointed out that this bail application has been coming up on previous dates along with above revision application, but today the bail application was not fixed in Court. He requested that this bail application be called from office and disposed of with the Criminal Revision Application No,92 of 2011. In the circumstances, with the consent of learned counsel for the complainant and learned Additional P.G., file of this bail application was called from the office and after hearing the parties both the matters were disposed of by separate orders.