The allegation against the petitioner, Muhammad Aslam, who is a Sub-Inspector in Elite Force, is that he having a Kalashnikov with him, joined by his fifteen (15) armed companions, recklessly fired at a vehicle, and murdered all those sitting therein, namely, Masood Ahmad Bhatti, Babar Sarfraz, Khalid Bashir, Ameer Ali and Zia Ullah besides they injured Muhammad Yaqoob alias Sahib and a passerby Rashid Masih; the motive behind the occurrence pertains to a previous incident, wherein two persons were murdered.
2. Learned counsel for the petitioner submits that the petitioner's involvement in this case could not be verified by the Investigating Officer, who declared him innocent and also prepared discharge report about him but it, was not agreed to by the learned trial court; the petitioner underwent physical remand for fourteen (14) days but nothing was recovered at his instance; the petitioner has been burdened with a collective liability and it cannot be ascertained at this stage if, firing allegedly made by him hit anyone or not; the petitioner has been implicated under a conspiracy by the complainant so as to. Ruin his career.
3. On the other hand, learned counsel for the complainant opposes with the submission that the opinion of the Investigating Officer qua plea of alibi of the petitioner is not based on any plausible material and he formulated it gratuitously being in league with him; the petitioner absconded after the occurrence and he was proceeded against 'under section 87, Cr.P.C., on 3-2-2014 followed by submission of report under section 512, Cr.P.C. Against him on 9-2-2014; the Investigating Officer collected more than seven hundred (700) crime empties from the place of occurrence during inspection thereof; the plea of alibi raised by the petitioner may better be analyzed by the learned trial court during the course of the trial; the petitioner and his co-accused committed the crime with community of intention during the course of which they murdered an upcoming practicing lawyer Zia Ullah as well. Relies on Muhammad Din v. The State (1998 SCM R 1), Muhammad Afzzal v.
The State (2012 SCM R 707) and Muhammad Hussain alias Muhammada v. The State (1994 SCM R 999).
4. After hearing learned counsel for the parties and perusing the record, it is observed that allegation against the petitioner is precise and simple. He was allegedly armed with Kalashnikov, which he along with his armed co-accused effectively used during the occurrence and committed the crime barbarously. As many as five persons, Masood Ahmad Bhatti, Babar Sarfraz, Khalid Bashir, Ameer Ali and Zia Ullah were done to death and Muhammad Yaqoob alias Sahib survived the calamity merely by a dint of luck. The other injured of this case is Rashid Masih, who was a passerby, and caught on the wrong foot unluckily. The ferociousness of the crime may be assessed from a single circumstance, which relates to recovery of 700 crime empties of Kalashnikov and 25 crime empties of .223-bore by the Investigating Officer, during spot inspection. This is such a case wherein argument of the learned counsel that the petitioner has not been assigned any specific role may not be of any significance as he joined by his co-accused, all armed with lethal weaponry, murdered all but one by spraying volleys of bullets on them. The postmortem examination reports reveal dozens of firearm injuries on each and every dead body of the deceased. The case of the injured P.W. Muhammad Yaqoob is not much different either as his medico-legal report entails eight firearm injuries. The injured passerby, however, as per his medico-legal report sustained two firearm injuries during the occurrence. The petitioner absconded after the occurrence and he was duly proceeded against under section 87, Cr.P.C.
Followed by submission of report under section 512, Cr.P.C. Against him, on 9-2-2014. He was taken into custody more than thirty days after issuance of the proclamation against him i,e, on 31-3-2014.
Interestingly he did not raise plea of alibi in his first version, recorded by the Investigating Officer on 31-3-2014. He frankly admitted the story of F.I.R as correct on the following day of his arrest, which fact is evident B from case-diary dated 1-4-2014. His co-accused, eight in number, were arrested on the same day when petitioner was apprehended and they all, in presence of each other, stated before the Investigating Officer that they all had murdered Masood Ahmad Bhatti and others in the backdrop of previous enmity. The self-implicating statement of an accused against his co- accused may be a relevant factor, worth consideration, not only during investigation but also during trial. A reference in this regard may advantageously be made to "Raja Muhammad Irshad v.
Muhammad Bashir Goraya" reported as 2006 SCM R 1292, wherein the apex court observed that the statement of an accused about the culpability of his co-accused can be taken into consideration while deciding the fate of a matter, akin to the one in hand. The Hon'ble Supreme Court of Pakistan recorded crucial findings qua the said proposition of law in the above-noted judgment while recalling the bail granting order passed in favour of Muhammad Bashir Goraya, which are reproduced here 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 herein above 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 conspiraty' has been defined in Halsbery Laws 4th Edition, Vol.11, 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."
' In yet another case, titled Naseem Malik v. The State (2004 SCM R 283), the apex court cancelled the bail of an accused on similar grounds, allowed by the Special Court by observing that:- "Naseem Malik accused stands specifically named and not just named but in fact comprehensively described in the F.L R. As one of the conspirators and preparatory 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."
' The Hon'ble Supreme Court of Pakistan in fact reproduced the above-quoted excerpts in Ghulam Ahmed Chishti's case, reported as 2013 SCM R 385, while considering question of bail to the accused and held that "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 forma prima facie view about the involvement of a person." Needless to add, Ghulam Ahmed Chishti's case, on facts, has a startling resemblance with the case of the accused-petitioner, so far as opinion of the Investigating Officer is concerned.
5. The opinion of the Investigating Officer does not look much impressive at this stage, as petitioner raised the plea of alibi at a belated stage and he failed to furnish any documentary evidence, regarding his presence at Police Lines Kasur, at the relevant time of occurrence, during the course of investigation. The belatedly raised plea of alibi by the petitioner may better be taken care of by the learned trial court during the course of the trial and so has been the view-point of the Hon'ble Supreme Court of Pakistan, as we learn from Ghulam Ahmad Chishti's case (supra), wherein the apex court while rejecting bail plea of the accused observed that plea of alibi raised by him could be considered by the trial court in the light of evidence led by the parties at trial. This is what the petitioner's case is all about. He does not appear to have been falsely stitched up with this case by the complainant, for a variety of reasons/facts vis-a-vis, promptly lodged F.I.R., specific role of inflicting firearm injuries to as many as five deceased and two injured persons, corroboratory medical evidence, overwhelmingly consistent eye-witness account, the barbarous nature of the crime and other incriminating circumstances, which accumulatively dwindle the efficacy of argument of the learned counsel that the petitioner's case is open to further probe, within the scope of section 497(2), Cr.P.C. The judgments relied on by the learned counsel for the complainant certainly add strength to his concluding argument that the petitioner may not be allowed the relief prayed for.
6. For the foregoing reasons, we are not inclined to accept this application, which is accordingly dismissed.