MALIK HAQ NAWAZ, J.---The respondent/accused was booked for the above offences vide FIR No. 6/2016 dated 29-02-2016 registered at Police Station Singul.
2. The details of the occurrence have been exhaustively mentioned in the judgment/order of the trial Court dated 09.05.2016, therefore, these are not being narrated, however suffice to say that the respondent along with one Burush Khan s/o Muzaffar Alam was charged under section 109, P.P.C. for hatching a conspiracy for murder of one Umar son of Dost Muhammad.
3. The respondent and his co-accused Burush Khan after registration of FIR rushed to the Court of learned Sessions. Judge, Ghizer, for pre arrest bail under section 498, Cr.P.C., which was allowed vide order/judgment dated 09.05.2015.
4. The State and complainant being aggrieved from the said order have moved bail cancellation application under section 497(5), Cr.P.C., only up to the extent of present respondent which came for hearing today.
5. The learned Addl. A.G. and counsel for complainant submitted at bar that the respondent/accused is directly charged in the FIR for abetment under section 109, P.P.C., which entails the same punishment, as could be awarded to the principle accused. The learned Addl. A.G. and learned counsel for complainant further contended that bail before arrest is an extra ordinary concession which is not extended in such like cases and more over the respondent has not alleged any mala fide on the part of complainant/police, which may have been the reasons for his false implication. The learned counsel for complainant adopted the arguments of learned Addl. A.G. and further added that the respondent is nominated accused in a heinous offence of murder and the principal accused are real brothers of the respondent and there is evidence on record that the respondent instigated the accused to commit murder of deceased.
6. On the other hand the learned counsel for the respondent submitted that though the respondent has been charged under section 109, P.P.C. in the FIR, yet no role is attributed to him and no worth reliance evidence has been produced to connect the respondent with the alleged crime, and the discretion has been exercised by the trial Court, after thorough consideration and finding the case of respondent as one of further inquiry. The learned counsel further submitted that the powers under section 498, Cr.P.C, are discretionary and Court can exercise these powers in appropriate cases and the case in hand is also a case where the discretion has been properly exercised.
7. I have gone through the evidence and perused the record with the able assistance of counsel for both the parties.
8. The powers under section 498, Cr.P.C, though of extraordinary nature but are exercised, where the Court finds that liberty and honour of a respectable citizen has been put at stake due to some ill design, then it becomes the bounden duty of the Court to protect the citizen who come and knock the door of the Court.
9. It may be noted that refusal of bail before arrest in heinous offences like murder is a rule and grant is an exception and a heavy duty is cast on the accused seeking bail before arrest to bring his case, within the exception, i.e. mala fide, humiliation and ulterior motive on the part of complainant/police.
10. In the case in hand the I.O. recorded statements of PWs Abdullah, Sajjad Hussain, Sadam Hussain, Abdul Rehman, Riaz, Muhammad Khan and Mst. Jaffarah, which reveals that all these statements are stereo-type and parrot like statements and ditto copy of each other, charging the present respondent and one Burush Khan for abetment. As stated supra Burush Khan was also allowed bail before arrest by the same order and with similar B allegations of abetment as against the present respondent but his bail cancellation has not been moved, due to the reasons best known to complainant/State. The liberty of an accused cannot be grudged on the assumption that his name finds mentioned in the FIR. Mere mentioning of name of an accused in the FIR is no ground for cancellation of bail before arrest, when no overt act has been attributed to him and more so, when the evidence to establish a prima facie case is lacking. The object of Section 498, Cr.P.C, is to prevent innocent persons from being unnecessarily harassed by being arrested in cases started by some ill motivated persons as it is now common practice that head of the family or any other C active members of the family are implicated in such like cases to put pressure on the family of accused. The involvement of the respondent and his capability in crime will be adjudged by the trial Court after recording of evidence.
11. As a result of above discussions, I am of the view that the learned trial Court has exercised his discretion in a fair and transparent manner, which does not require indulgence by this Court and the petition for cancellation of bail is dismissed.