' SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---By filing a petition in hand, Sardar Khan, petitioner seeks his release on post-arrest bail in case F.I.R. No,1 dated 1-1-2012 registered at Police Station Phalia District Mandi Baha-ud-Din under sections 302, 148, 149, 109, P.P.C.
2. A charge of murder has been reported in the above said F.I.R. And the role attributed to the present petitioner is that he hatched a conspiracy for the murder of Pervaiz Iqbal and Asad Ullah Khan who was seen and heard the petitioner as well as co-accused Khizar Hayat and Salmon, planning for the murder while sitting in the house of one Tariq.
3. Earlier Criminal Miscellaneous Petition No,5158-B of 2012 filed by the present petitioner along with Khizar Hayat was withdrawn whereafter second post-arrest bail petition bearing Criminal Miscellaneous No,7436-B of 2012 was filed which was dismissed on 23-8-2012. The second petition was dismissed after discussing merits of the case. Admittedly, the petitioner never approached the apex Court for his release on bail and has filed the petition in hand with the prayer of his release.
4. Learned counsel for the petitioner argued. That by virtue of case titled "Federation of Pakistan through Secretary, Ministry of Law and another v. Gui Hasan Khan" reported as PLD 1989 Supreme Court 633, the Shariat Appellate Bench of apex Court had declared that section 109, P.P.C. Is repugnant to the Injunctions of Islam so far as it makes an abettor in the case of murder and other offences against human body liable to the same punishment as is prescribed for the murder or for such offences regardless of the various degrees of abetment. He further referred another judgment of Shariat Appellate Bench recorded in "Federation of Pakistan and another v. N.-W.F.P. Government and others" reported as PLD 1990 Supreme Court 1172, whereby the view taken in the earlier case ibid was affirmed and it was further observed that the above said provisions of law as contained in section 109, P.P.C. Shall cease to have effect w.e.f, 12th day of Rabi-ul-Awwal 1411 A.H. In this connection, learned counsel for the petitioner has further referred to the case titled "Manzoor Ahmad and another v. State" reported as 1997 PCr.LJ 850 whereby pre-arrest bail was confirmed by this court on the ground that provisions of section 109, P.P.C. Have been declared repugnant to the Injunctions of Islam. By referring these cases, learned counsel argued that the provisions of section 109, P.P.C. Are no more effective, therefore, the same cannot be charged against the petitioner. The learned counsel has also attempted to touch merits of the case by asserting that offence under section 109, P.P.C. Is not made out from the bare reading of the statement of P.W.8 and that the petitioner is 85-years old man who is also suffering from heart diseases. It is further maintained that treatment of diseases suffered by the petitioner is not possible within the jail premises, thus, on this ground also, he prayed for grant of bail.
5. The request of petitioner has vehemently been controverted by learned Deputy Prosecutor- General assisted by learned counsel for the complainant and it is argued that in the case of "Wajid Ali v. Mumtaz Ali Khan and another" (2000 M LD 1172) the Division Bench of this Court had observed with concern that the judgment rendered by Shariat Appellate Bench of the Apex Court has been misunderstood and misinterpreted to say that the provisions of section 109, P.P.C. Are no more available. It is argued that after the decision in the case of Federation of Pakistan ibid, section 109, P.P.C. Has been amended by virtue of Criminal Law (Third Amendment) Ordinance, X of 1992 and proviso has been added to the section, thus the order of Shariat Appellate Bench has been complied with and now a person accused of hatching conspiracy can be charged under section 109, P.P.C. It is further submitted by the learned counsel that as per the case of "The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others" (PLD 1986 Supreme Court 173) the ground alleged by the petitioner for seeking bail is not available as the said ground was available at the time of institution of earlier two bail petitions and it would be deemed that those grounds were asserted but could not find favour with the court. He has seriously opposed maintainability of this third petition on the basis of said case.
6. I have considered the submissions made by learned counsel for the parties and thoroughly examined the record.
7. Admittedly, it is third petition filed by Sardar Khan seeking his release on bail. The ground taken by the petitioner for his release is that the provisions of section 109, P.P.C. Have been declared repugnant to the Injunctions of Islam, therefore, treating it a legal argument, the relief as prayed may be granted. The proposition placed by learned counsel for the petitioner before the court has no substance for the reasons firstly that this ground was available to the petitioner at the time of filing of earlier two bail applications but it was not alleged or pressed in the court, therefore, according to ratio of Zubair's case, it would be deemed that the ground was asserted by learned counsel for the petitioner at the time of arguing the first two petitions which was considered by the court and repelled the same. The second reason for not entertaining the instant petition is that the Legislature in the light of decision of Shariat Appellate Bench had added a proviso to section 109, P.P.C., thus compliance as required in the afore-noted two cases, has been made and the provisions of section 109, P.P.C. Are the part and parcel of the codified law. Further, the case of Wajid Ali supra has further clarified the proposition with the observation that an abettor is liable to same punishment just as the main accused including that of death but not as Qisas but as Ta'zir. It was further observed by this court in Wajid Ali's case that the learned lower court (where the respondent of that case was admitted to bail on the similar ground alleged by learned counsel for the petitioner) had misappreciated and misinterpreted the judgments of apex Court to say that the provisions of section 109, P.P.C. Have become obsolete. Thus on both these accounts, prayer made in the instant petition cannot be allowed.
8. Needless to say that the ground of age is also not available to the petitioner at present in view of Zubair's case. The crux of the afore-noted discussion is that the ground of obsoletion of section 109, P.P.C. And urging the said ground as a fresh one are not available to the present petitioner, therefore, he is not entitled for concession of bail.
9. For the foregoing reasons, the petition bereft of merits is dismissed.