' TASSADUQ HUSSAIN JILLANI, J.---Petitioner's post arrest bail petition (in case registered vide F.I.R.
No,756 dated 25-10-2011 under sections 302, 324, 337-A(iii), 337-F(iii), 148, 149, P.P.C. And section 13 of Pakistan Arms Ordinance No,XX of 1965 at Police Station Haveli Lakha, District Okara) stands dismissed by the learned High Court vide the impugned judgment dated 25-9-2012. Leave to appeal is sought against the said judgment.
2. The prosecution story as given in the F.I.R. Briefly stated is that the complainant along with his brother in law (sister's husband) Qamar Hayat, Niaz Ahmad (gunman) Muhammad Yasin, Mian Maqsood Ahmad were going in Mehran Car (FSH 1088) towards his agricultural land situated at Bonga Saleh when they were ambushed by petitioner and 18 others, all of whom were armed (out of which two unnamed). They started firing at the complainant party. Petitioner allegedly fired a burst of Kalashnikov which hit Qamar Hayat on his chest and face. Muhammad Ahmed fired with his rifle which too hit Qamar Hayat on his head. Hasan's fire hit complainant's gunman Niaz.
Petitioner made yet another fire which hit Niaz Ahmed on his face. Javed Ahmed alias Jedi's fire also hit Niaz gunman. Shehzad Bhatti's fire hit Qamar Hayat. Ghulam Ahmed Bodla also fired with his rifle which landed on the chest of Muhammad Yasin. Khurshid fired which too hit Qamar Hayat.
Humayun Saeed's fire also hit Qamar Hayat. Muhammad Ahmed alias Phumni, Munir Ahmed and Shakir's fire also hit Qamar Hayat. Zubair's rifle fire also hit Qamar Hayat. Accused Bashir, Tahir, Ilyas Kharal, Ghulam Ahmed Chishti continued firing and their fires hit the victims on different parts of the body. The car was also badly damaged. Thereafter the accused decamped from the spot. The motive alleged in the F.I.R. Was that petitioner Ghulam Ahmed Chishti had litigation with the complainant party and he in conspiracy with others planned and executed the attack. Two persons from the complainant's side died in the incident namely Qamar Hayat, Niaz Ahmed and one from the accused side namely Javed alias Jedi died as per investigation on account of complainant's two fires made in defence. There are three injured witnesses namely Muhammad Yasin, Muhammad Amin and Muhammad Tahir complainant.
3. Learned counsel for the petitioner seeks bail on the ground that the prosecution case has partly been found to be false during investigation as 12 out of 19 accused were declared innocent; that out of the seven involved, four have been found privy to the conspiracy and petitioner is one of them; that tenable material was placed before the investigating officer to indicate that petitioner was not in the country when the occurrence took place as he left Pakistan on 20th of October and came back on 26th of October, 2012 whereas occurrence took place on 25th of October, 2012; that petitioner has been falsely roped in on account of previous enmity and the question of petitioner's guilt requires further inquiry. In support of his submissions, learned counsel relied on Zeeshan Akhter Zaidi v. State (1989 PCr.LJ 380), Muhammad Fayyaz Ahmad v. State (1976 SCMR 183), Hamid Ullah v. State (1987 PCr.LJ 342) and Naseebullah Khan 'v. The State (PLD 1986 Karachi 417). It would be pertinent to mention that three co accused of the petitioner (Muhammad Hassan, Muhammad Ahmad and Muhammad Ahmed alias Phumni) also raised plea of alibi as they were shown to have been arrested at P.S. Mochi Gate Lahore on the charge of possessing illicit arms. Criminal cases were registered against them and interestingly they did not get themselves released on bail till 26- 10-2011 i,e, the day of occurrence.
4. The learned Prosecutor-General, Punjab, Mr. Sadaqat All Khan opposed the petition by submitting that sufficient material has been collected during investigation to conclude that petitioner is fully involved in the occurrence; that the statement by one Shehzad whose car (bearing No,LEK 415 Toyota Corolla) was used by the accused party during the alleged occurrence was recorded by the investigating officer which is to the effect that he received a call from petitioner to handover the car to Javed alias Jedi who is one of the accused and killed during the occurrence; that the plea of alibi is more or less an opinion and in absence of cogent evidence to raise doubt petitioner is prima-facie connected with a triple murder case and that there is criminal litigation between the parties which furnishes a strong motive. In support of the submissions, learned law officer relied on Raja Muhammad Irshad v. Muhammad Bashir Goraya (2006 SCMR 1292), Mamaras v. The State (PLD 2009 SC 385 at page 386), Muhammad Afzal v. The State (2012 SCMR 707) and Khalida Bibi v.
Nadeem Baig (PLD 2009 SC 440).
5. Learned counsel for the complainant Raja Aamir opposed the petition by submitting that the petitioner not only had a definite motive but he planned and participated in the occurrence; that during investigation, the investigating officer recorded dying declaration of Niaz, gunman of the petitioner, who fully implicated the petitioner; that the car used in the alleged offence was arranged by the petitioner and was being driven by his driver Javed alias Jedi; that the charge has been framed and no case for bail is made out. In support of his submissions, he relied on Iqbal ur Rehman v. The State (PLD 1974 SC 83).
6. We have given anxious consideration to the submissions made and have gone through the record.
7. It's a triple murder case and three persons received injuries including the complainant. Petitioner is specifically named in the F.I.R. And motive is also attributed to him. During investigation the plea of petitioner that he was out of the country when the occurrence took place has partly been accepted but he has been involved to have abetted and conspired the alleged offence.
Circumstantial evidence has been collected which inter alia includes the recovery of car (bearing No, LEK-415) which was allegedly used and abandoned by the accused after the occurrence. The said car during the occurrence was being driven by Javed alias Jedi and he received two bullet fire injuries at the hands of complainant who fired in self defense; that since he was grievously injured, one of the remaining accused attempted to drive the car but he was not very proficient in driving and the car hit a tree whereafter the accused abandoned it and fled. The articles recovered from the said car included 214 live bullets of Kalashnikov, 44 empty bullets of Kalashnikov, 2 bullets of 44 bore, 12 kalashnikov empties and a bag to carry those bullets. The investigating officer also recorded the statement of one Shehzad owner of the afore-mentioned car. According to him, he had close relations with petitioner's family because latter's brother Maqbool Ahmed was his class fellow; that on account of close ties the families used to exchange little favouRs, On the fateful day at about 8-00 a.m., he was sitting in his house along with his relation Mustafa Amin when Javed alias Jedi (killed during the occurrence) who was petitioner's driver came to him and asked for the car as according to him he had to take petitioner's children to Lahore. On his refusal, the said Javed alias Jedi made him talk to Ghulam Ahmed petitioner on telephone and the latter confirmed that the driver had been sent by him and the car was required to take his children to Lahore and requested that the car be given to him and that on account of mutual trust, he handed over the car to the said Javed alias Jedi.
8. The statement of Shehzad ex facie is an incriminating piece of evidence. The statement of a person who was initially a co-accused alone may not be sufficient to convict someone but in terms of Article 43 of the Qanun-e-Shahadat Order, it can be used as a circumstantial piece of evidence even at bail stage to form a prima facie view about the involvement of a person. In Raja Muhammad Irshad v. Muhammad Bashir Goraya (2006 SCMR 1292), this Court canceled the bail allowed by the High Court of such an accused against whom there were depositions by co- accused though he was not present at the spot at the time of occurrence. The Court observed as under:-- "As now the confession of a co-accused can be used as circumstance and not as an exclusive evidence for the purpose of recording of the conviction. Besides, the judgment which has been referred to hereinabove also pertains to final determination of the case for the purpose of considering the same as material confession of co-accused cannot be used, but for cancellation of bail, such statement, implicating the accused, can be validly taken into consideration."
18. It may be noted that there is distinction between the 'abetment' and 'conspiracy'. As far as 'abetment' is concerned, it is punishable as provided for the original offence, charged against the principal accused, falling within the mischief of section 109, P.P.C.; whereas conspiracy' itself is an offence and person can be separately charged with regard to 'conspiracy'. In this behalf in State of Andhra Pradesh v. Kandimalla Subbaiah and another AIR 1961 SC 1241 it has been held that "there may be an element of abetment in conspiracy; it is something more than an abetment".
Whereas 'criminal conspiracy' has been defined in Halsbery Laws 4th Edition, Vol.I1, para.58, page 44 as 'conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment of which is imprisonment or fine or both in the discretion of the Court". Likewise, in the case of Noor Muhammad Muhammad Yusuf Momin v. The State of Maharashtra 1971 SCJ 43, Indian Supreme Court observed as follows:- "Like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other facts constitute relevant material."
Similarly in Bhagwandas Keshwani and others v. State of Rajasthan AIR 1974 SC 898, it is held that "in cases of conspiracy better evidence than the acts and statements of conspirators in pursuance of the conspiracy is hardly ever available."
9. The ratio laid down above is reiteration of an earlier view of this Court in Naseem Malik v. The State (2004 SCMR 283) in which this Court cancelled the bail on similar grounds granted by the Special Court inter alia on the ground that the co-accused had named him as one of the conspiratoRs, The Court observed as follows:- "Naseem Malik accused stands specifically named and not just named but in fact comprehensively described in the F.I.R. As one of the conspirators and preparators of the crime in question. It was Rehman accused who, after his arrest from the bank had mentioned the said accused, amongst others, as his collaboratoRs, Needless to mention here that the statement of an accused can be validly taken into consideration while deciding the fate of such-like matteRs,"
10. We would not like to comment at this stage about the merits of petitioner's plea of alibi or his involvement in the alleged conspiracy. It would be for the learned trial Court to consider the plea in the light of the evidence led by prosecution and defense inter alia the passport entries, the air tickets, airport entries as also with regard to conspiracy. The learned High Court having considered petitioner's plea and the material placed before it by the prosecution has dismissed the bail petition in exercise of its discretionary jurisdiction holding that "prima facie the petitioner appears to be connected with the commission of offence in terms as alleged against him". The said exercise of discretion has not been found by us to be arbitrary, capricious or against the law declared.
11. For what has been discussed above, we do not find any merit in this petition, which is dismissed and leave refused.