' The petitioner seeks bail in a case registered against him and others vide F.I.R. No,360, dated 18-8- 1990, for offence under section 302/364/365/201/120B/109, P.P.C. At Police Station Civil Line, Rawalpindi.
2. According to the allegations made in the F.I.R. Umar Farooq deceased was going to drop the petitioner at his house on a motor-cycle when he was intercepted by a Pjero car bearing A.F.90.
Five/six armed persons got down from the car and gave kick and fist blows to Umar Farooq and forcibly put him in the car. They also gave slaps to the petitioner and threatened him that if he disclosed the incident to any body he as well as his family members, would be killed. In the meanwhile Muhammad Arif P.W. Alongwith his 2/3 friends reached near the place of occurrence.
On seeing them, the accused left the petitioner but took away Umar Farooq deceased in the car.
The motive stated in the F.I.R. Is that Zia Mahmood a younger brother of Khalid Mahmood complainant had contracted marriage with daughter of one Qadir Shah at London against the wishes of his parents and other family members. Hence Umar Farooq was abducted to pressurise Zia Mahmood to return the daughter of Qadir Shah failing which he was threatened with death. The F.I.R. Further discloses that prior to the incident of abduction, Maulvi Muhammad Akbar Incharge Madrissa Dar-ul-Aloom Hanfia Jeelanian and Qazi Abdul Razzaq alognwith some other companions had come duly armed to the complainant and threatened to disclose the correct address of Zia Mahmood. The quarrel was settled through the intervention of one Zahoor Muhammad Khan. They again came in a Pajero car and held Umar Farooq from his neck with intent to abduct him but Sheikh Muhammad Ashraf, Advocate intervened and rescued him. After the abduction of Umar Farooq the complainant was given threats on telephone that he should send a message to Zia Mahmood at London to restore sister of Naqeeb Shah (daughter of Qadir Shah) and thereafter his brother would be freed. The complainant also stated in the F.I.R. That on disappearance of his brother Umar Farooq, he started his search and in his absence, the petitioner sent a telephonic message to him that he should establish contact with him. Accordingly he contacted him and was informed by the petitioner about the whole incident of abduction.
3. The petitioner's learned counsel contends that there is no cogent evidence to connect the petitioner with the commission of the offence. He submits that the petitioner had himself informed the complainant about the incident of abduction and that he was sought to be implicated on basis of the last seen evidence, extra-judicial confession and the recovery of Yamaha Motor-cycle No,RIM-4026. He urged that the petitioner never denied that the deceased was with him when he was abducted by some persons in a Pajero car. As regards the recovery of a Motor-cycle, he submitted that it was already with the police and was not recovered in persuance of disclosure made by the petitioner. Such a recovery was of no consequence. In this connection reliance placed on the cases of Shah Muhammad v. The State 1978 P Cr. L J 529 and Abdul Sattar v. The State PLD 1976 SC 404. As regards the extra-judicial confession he urged that the same was made under police pressure and could not be proved against the petitioner in view of the provisions of Articles 38, 39 and 40 of the Qanun-eShahadat. On the other hand the learned State counsel strenuously opposed the petition and submitted that the petitioner was a party to the whole conspiracy of murder and that he had helped the other accused to abduct the deceased. He further submitted that the material on the record furnished reasonable grounds for believing that the petitioner was guilty of the offence. In this connection he referred to the statements of Muhammad Riaz and Waheed Ahmad, both of whom had stated that deceased had gone on the motor-cycle with the petitioner. Lastly he submitted that 7 of the co-accused were absconding and that if released on bail the petitioner would also abscond. He pointed out that even Allah Dad co-accused was granted bail who became fugitive from law and went to London. In reply the learned counsel for the petitioner stated that the petitioner was prepared to furnish heavy bail bond and surety bond and deposit his passport in the trial Court to obviate the possibility of his abscondence. He added that petitioner had been joining the police investigation and there was no apprehension of his becoming a fugitive from the law.
4. The material on the record shows that the petitioner had himself informed the complainant about the incident of abduction. No doubt, his failure to inform the police about the incident creates doubt about him. However, there is no evidence to show that the petitioner was a party to the conspiracy of murder. He never denied that the deceased was last seen in his company. During the investigation it has also come on the record that it was Umar Farooq deceased who had taken the petitioner alongwith him for dropping him at his residence situated in Gulistan Colony.
Admittedly more than one routes lead up to the Colony and there is nothing to show that the petitioner wanted the deceased to pass through the way from the Ayyub National Park. The F.I.R.
Shows that as soon as the deceased entered the park, the Pajero car came from behind him. Prima facie, it indicates that the accused sitting in the Pajero car were on the track of the deceased and intercepted him in the park and succeeded in abducting him. This conclusion is fortified by the fact that the complainant has himself mentioned in the F.I.R. That on two occasions Maulvi Muhammad Akbar accused alongwith some other persons had come to his house and hurled out threats that in case Zia Mahmood failed to return daughter of Qadir Shah, then the complainant would be killed.
On one occasion the said accused had even held Umar Farooq from his neck but he was rescued due to intervention of Sh. Muhammad Ashraf, Advocate. It is strange that despite these happenings, the complainant never informed the police and allowed Umar Farooq deceased, to move about freely without any precaution. The petitioner's so-called confession before the police cannot be proved against him under the law. The motor-cycle of the deceased was not recovered in pursuance of any disclosure made by the petitioner. It had already been recovered by the police on 13-8-1990 and thereafter on 30-8-1990 the petitioner had allegedly pointed out the place where he had left the motor-cycle. The value of this circumstance coupled with other facts may be determined by the trial Court. Prima facie it is not sufficient to furnish reasonable grounds for believing that the petitioner has committed the offence alleged against him. The petitioner has been joining the police investigation. On 30-8-1990, he was said to have led the police party to the place where he had thrown the motor-cylce but strangely enough he was not arrested on the said date. He was formally arrested only on 26-11-1990. The argument that the intervening time was utilized by the police to pressurise the petitioner to implicate certain named persons in the case and that he was arrested only when he refused to do their biddings, sounds to have some substance. The D.S.P. (Mr. Baidar Zafar) has opined in his Zimni No,83, dated 20-12-1990 that Abdul Qadir Shah, Naqeeb Shah and Allah Dad accused were guilty of the conspiracy of abduction and murder of Umar Farooq deceased and that Tariq Sarwar was a party to the incident of abduction.
In his opinion, the petitioner was not connected with the conspiracy of murder. Hence, at the most, the petitioner may be guilty of an offence under section 365 of the P.P.C. Which does not fall within the prohibition of section 497 of the Cr.P.C. At present there are grounds for further probe and investigation against the petitioner but there are no reasonable grounds for believing that he has committed the offence alleged against him. As regards the apprehension expressed by the State that the petitioner would abscond, the petitioner's learned counsel has offered to furnish bail bond and surety bond in heavy amount and also volunteered to deposit the petitioner's passport in the Court. This in my view can fairly obviate the possibility of the petitioner's abscondence.
5. I, therefore, accept this application and allow bail to the petitioner subject to his furnishing bail bond in the sum of Rs,5,00,000 (Rupees five lacs With two sureties each in the amount of Rs,2,50,000 (rupees two lacs fifty thousand) to the satisfaction of the trial Court. The petitioner, as undertaken by his learned counsel, shall deposit his passport in the trial Court before acceptance of his bail bond and surety bonds.