Apprehending his arrest at the hands of police through the instant petition filed under sections 498/497, Cr.P.C., Muhammad Afzal/petitioner seeks his pre-arrest bail in a case registered vide FIR No,210/201.8, dated 20.02.2018, offence under sections 302, 34, 109, P.P.C., read with Section 7 of the Anti-Terrorism Act, 1997, Police Station Islampura, Lahore.
2. Prosecution story in brief as per contents of the crime report is that the complainant is a professional lawyer. On 20.02.2018 at 10:15 a.m. she along her husband Rana Nadeem Anjum, Advocate was present in Sessions Court, Lahore when accused Muhammad Afzal/petitioner armed with pistol along with Kashif Raj also armed with pistol and two unknown persons emerged there.
The present petitioner raised lalkara to teach lesson to Rana Nadeem Anjum, Advocate upon which Kashif Raj accused made fire shots with his pistol out of which five shots hit Rana Nadeem Anjum Advocate. Other advocates tried to overpower the accused; however, during this process Idrees Awan also received firearm injuries. Subsequently both of them succumbed to the injuries.
3. At the very outset learned counsel for the petitioner contends that the petitioner is innocent, who has falsely been involved in the instant case by the complainant with mala fide intention in connivance with the local police. Main crux of arguments of learned counsel for the petitioner is that the petitioner has no concern whatsoever with the occurrence and even he was not present at the spot at the relevant time, who has been roped by the complainant while spreading wider-net. It is next argued that after obtaining ad-interim bail from the court of first instance, the petitioner joined investigation during the course of which he has been found innocent. Further contends that though the investigation has been transferred but uptill now, no findings have been given by the Investigating Officer qua culpability of the petitioner. Learned counsel vehemently argues that allegation against the petitioner is that he was present at the spot while armed with pistol, however, only role of lalkara has been ascribed to him. It is further argued that two prosecution witnesses have been introduced at a belated stage on 14.05.2018, who made statements under section 161, Cr.P.C. to establish that the petitioner had hatched conspiracy of the instant occurrence. Learned counsel contends that there is no evidence available, which could establish that the petitioner was either present at the spot or had hatched conspiracy qua the occurrence, hence, his case falls within the ambit of section 497(2), Cr.P.C. In the end learned counsel prays for admitting the petitioner to pre-arrest bail.
4. On the other hand while resisting the arguments advanced by learned counsel for the petitioner, learned Law Officer assisted by learned counsel for the complainant contends that the petitioner has direct nexus with the occurrence in which two practicing lawyers were done to death in a brutal manner in front of court of law. Learned counsel for the complainant contends that there is number of criminal and civil hostilities between the parties wherein the petitioner is active participant. Further contends that the petitioner was present at the spot armed with pistol along with his other co-accused. It is next argued that if the petitioner would have not been actively participating, the occurrence ought not to have been committed. Learned counsel contends that pre-arrest bail is an extra-ordinary relief which has to be exercised sparingly and keeping in view heinousness of the occurrence, the petitioner is not entitled to the relief sought for at this stage.
5. We have considered the arguments advanced by learned counsel for the parties and gone through the record available on file.
6. There is no cavil to this proposition that the instant occurrence is one of the unfortunate occurrences in which two innocent lawyers, who had reached Sessions Court in connection with their professional obligations, were done to death and it has also created panic in the society particularly when the occurrence had taken place in front of the court of law. Although it is a pre- arrest bail matter, however, this Court feels itself under bounden duty to ensure that no one is dealt with beyond the scope of safe administration of justice. The parameters of pre-arrest bail have already been widened by the august Supreme Court of Pakistan while elaborating the same in a salutary judgment reported as Meeran Bux v. The State and another (PLD 1989 SC 347); wherein it was held that while dealing with pre-arrest bail matters, even merits of the case I an be touched upon.
7. In the instant case there is no denial to this fact that only allegation of lalkara has been ascribed to the petitioner. As far as allegation of abetment is concerned, when it is alleged by the prosecution that the petitioner was present at the spot, prima facie provisions of section 109, P.P.C., are not applicable and at the most it is a case of section 114, P.P.C., however, there is no material to substantiate this provision of law. As far as the allegation of hatching the conspiracy is, concerned, it is an admitted fact that the statements of the prosecution! witnesses under section 161, Cr.P.C. were recorded on 14.05.2018 with a delay of three months after the occurrence. It is established principle of law that delayed recording of statement under section 161, Cr.P.0 without any legal credence. Therefore, the same is hit by the ratio decidendi of august Supreme Court of Pakistan laid down in the case of 'Abdul Khaliq_. The State" (1996 SCM R 1553) where it was held as under:- "-- --S. 161---Penal Code (XLV of 1860), S. 302/34---Late recording of statement under S. 161, Cr.P.C.---Value---Late recording of a statement of a prosecution witness under S. 161, Cr.P.C. reduces its value to nil unless delay is plausibly explained."
Reference is also placed on the dictum of law laid down in Sahib Gul Ziarat Gul and others (1976 SCM R 236) and Muhammad lqbal v. The State 1984 SCM R 930).
8. Apart from this during the course of investigation allegation of lalkara ascribed to the petitioner was found false and he was declared innocent. Co-accused of the petitioner with the allegation of abetment namely Ashiq Hussain has already been admitted to bail by the learned trial court.
Keeping in view the previous civil/criminal hostility between the parties possibility cannot be ruled out that the petitioner was dragged falsely in this case. Needless to mention that liberty of a person is the constitutional/guaranteed right, which cannot be curtailed on the basis of bald allegations.
9. For the foregoing reasons we have been persuaded to hold that by sending the petitioner behind the bars no useful purpose would be served. Resultantly, while allowing this petition ad interim bail already granted to the petitioner vide order dated 23.05.2018 is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs,1,00,000/- with one surety in the like amount to the satisfaction of learned trial court.