ORDER CH. KHURSHID AHMAD, J.- Respondents in Cr. Misc. No. 2422-CB/95 were allowed bail by Addl. Sessions Judge Gujranwala on 17.5.1995 in case F.I.R. No.190/95 registered at P.S. Cantt. (Gujranwala on 26.4.1995 under sections 302, 324, 109/34, PPC. Zahid Hussan respondent in Cr. Misc. No. 2744-CB/95 was released in the same case by Addl. Sessions Judge, Gujranwala on 28.5.1995. Both the petitions shall be disposed of vide this order.
2. The respondents were named as accused persons and were alleged to have abetted the offence of qatl-i-and and attempted to commit qatl-i-amd.
3. The learned counsel for the complainant has submitted that the investigating agency had collected sufficient evidence against the respondents to connect them with the commission of the crime and report under section 173, Cr.P.C, was filed against them and that the police had added Section 114, PPC in place of Section 109, PPC which has been struck down being against Injunctions of Holy Quran and Sunnah by Shariah Appellate Court. It was further contended that the offence alleged against the respondents fell within the prohibitory clause and the respondents were not entitled to the concession of pre-arrest bail and the Addl. Sessions Judge committed illegality in enlarging the respondents on bail before arrest.
4. Learned counsel for the respondents has submitted that Section 114, PPC added with mala fides and police' had colluded with the complainant and the mala fide was correctly held to be apparent by the Addl. Sessions Judge as the said Section was added after the ground was taken by the respondents in the application for bail filed on 4.5.1995. Relying on Section 338-F, PPC the learned counsel submitted that this Court, while interpreting and applying the Provisions of Chapter XXVI, PPC in respect of matters ancillary or akin thereto was under an obligation to seek guidance of the Injunctions of Islam as laid down in the Holy Quran and Sunnah. He further argued that the principles applicable to the cancellation of bail under section 497(5), Cr.P.C, were entirely different from those applicable to the grant of bail. He placed reliance on Falak Sher alias Sheru v.
The Stale (1995 SCM R 1350), Sakina Bibi v. Federation of Pakistan (P.L.D.1992 Lahore 99) and Tariq Bashir and 5 others v. The State (P.L.D. 1995 S.C. 34).
5. On Hukam Din son of Imam Din, a prosecution witness regarding abetment by the respondents, appeared in Court and offered to state that he had neither seen the present accused conspiring nor he was a witness of abetment. He was directed to file an affidavit which he has filed in Court and he has controverted the story of the prosecution to the extent of allegation of abetment against the respondents.
6. Chapter V of Pakistan Penal Code (XLV of I860) relates to abetment. Sections 107, 108 and Section 108-A, PPC related to the definition of abetment, abettor and abetment in Pakistan of offences outside Pakistan respectively. Section 109, PPC was held to be repugnant to Injunctions of Islam.
Insofar as it makes an abettor in case of murder and other offences against human body liable to some punishment as is prescribed for the murder or for such offences regardless of the various degrees of abetment (P.L.D. 1989 S.C. 633) and thereafter Proviso to section 109,. PPC was added by Criminal Law (Second Amendment) Ordinance (XII of 1993). Section 114, PPC provided punishment for abetment in case where the abettor was present at the time of the commission of the offence.
In the present case the respondents arc not alleged to be present at the time of occurrence and prima fade Section 114, PPC was not applicable. Whether Section 109, PPC as amended by Act XII of 1993, was applicable in the present case is a question of further inquiry.
7. In view of what has been submitted .Above there are no grounds for cancellation of bail. Reliance is placed on Tariq Bashir and five others v. The State (P.L.D. 1995 S.C. 34). The petition is accordingly dismissed.