' The petitioners are involved in case F.I.R. No,199, dated 2-7-1998 for the offences under section 302/109/34/148/149, P.P.C. Registered at Police Station Cantt., Sargodha on the statement of complainant Riasat Ali, alleging that he is an ex-army man. On the eye of 2-7-1998 Karamat Ali and Salim had come to their real brother Niamat All in connection with some domestic problem. At about 6-30 p.m. Karamat Ali and Tariq Salim who are brothers went out for consultation in the street. Meanwhile, there was noise outside. The complainant along with his brother Karamat All carne out and saw that Shabbir Ahmad, armed with .12 bore gun, Ansar Mehmood (nephew of complainant) armed with 30 bore pistol came raising Lalkara and Ansar Mehmood issued 4 fires of his pistol on Niamat Ali which hit on his left cheek, right and left eye and forehead. Shabbir Ahmad issued his .12 bore gun fires which hit Niamat All on his left side of Wakhi. Salim Tariq brother of the complainant ran to save his life and when reached near the land of Rafiq Saroch, Shabbir Ahmad issued fire of .12 bore gun which hit Salim on his head and left .Ansar Mahmood also issued 3 or 4 fires by his .30 bore pistol which hit Salim Tariq on his back and right Patt. They fell on the ground.
Lhsanullah, who was present on the flour mill of Ch. Faiz Ahmad saw the ' incident with his own eyes besides the complainant. They could not go forward fearing death and the accused Ansar Mahmood and Shabbir Ahmad ran from the spot when the complainant saw the, injured Niamat Ali and Salim Tariq they both had succumbed to the injuries. The motive as alleged in the F.I.R. Was that about 2-3/4 years prior to the incident the sister of accused Shabbir Ahmad who was the wife of Niamat Ali (the brother of the complainant) had been murdered and case was registered against Tariq Salim. She was mother of accused Ansar Mahmood. Tariq Salim was challaned to Court and was acquitted. Shabbir Ahmad and Ansar Mahmood had grudge and they murdered Niamat Ali and Tariq Salim (the brothers of the complainant) and that this murder has been committed in furtherance of their common intention by Ansar Mahmood, Shabbir Ahmad, Nazir Ahmad, Muhammad Rafiq, Kaloo and Muhammad Ashraf.
2. Earlier the bail before arrest was moved vide Criminal Miscellaneous No,3816/B of 1998 by Muhammad Rafiq, Nazir Ahmad and Kaloo. They were directed to approach the Court in the first instance after granting them protective bail vide order, dated 24-7-1998 within 7 days. Thereafter, the petitioners (Muhammad Ashraf and Nazir Ahmad) and three others co-accused made two separate application for grant of bail after arrest before the learned Sessions Judge, Sargodha, which was dismissed on 28-10-1998 with the following observations:-- "After hearing the learned counsel for the parties at length prima facie conspiracy on the part of the petitioners can be inferred. They are the close relative of the actual culprits namely Shabbir and Ansar Mehmood who are still absconders. During the course of investigation the present petitioners were not found innocent by the police. The points raised by the learned counsel appearing on behalf of the petitioners requires deeper appreciation of evidence. The Court has to take the tentative assessm ent while dealting with the bail matter. The petitioners are very much named in the F.I.R. Which was promptly lodged. Their offence falls within the prohibitory clause of section 497, Cr.P.C."
3. The bail is now pressed on the grounds that the petitioners have been falsely implicated and they have nothing to do with the commission of the offence and that bald allegations have been levelled against the petitioners in the F.I.R. And names of the witnesses are not even mentioned in the F.I.R. In whose presence the present petitioners allegedly abetted or conspired. It is further submitted that it is a question of consideration as to whether the petitioners were so fool enough to declare their intention of killing the deceased persons in presence of someone related to the complainant party and that there is no cogent evidence of worth consideration to connect the petitioners with the commission of offence and the evidence with regard to the allegations of consultation/abetment does not furnish reasonable ground for believing that the petitioners are guilty of abetment of offence of murder. It is further submitted that there can be no two opinions that the case of a conspirator or abettor not present on the spot stands at lower footing than the case of the accused instigating his companion to commit the crime being himself present on the spot. It is further submitted that it is very Easy to set up accusation of abetment/ instigation/conspiracy, needless to say when parties are inimically dispersed, the possibility of false implication of accused is very much there.
4. Learned counsel for the petitioners has relied upon Syed Amanullah Shah v. The State (PLD 1996 SC 241) in support of his contentions.
5. On the other hand the learned counsel for the State has submitted that the real sister of Nazir Ahmad accused was murdered prior to the present murder and the deceased Tariq Mehmood was accused in that case. Tariq and Niamat are real brothers. After his acquittal the grudge was so much that they hatched the present conspiracy. Both the witnesses are impartial witnesses, namely, Muhammad Ashraf and Shahzad and that both the petitioners are named in the F.I.R. Is very much clear that the offence falls under the prohibitory clause of section 497, Cr.P.C. It is further submitted that the accused Muhammad Ashraf is a hardened, desperate or dangerous criminal.
F.I.R. No,117 of 1996, dated 23-1-1996 under section 324, P.P.C. Is under trial. Similarly, there are two criminal cases pending against F.I.R. No,52, dated 5-3-1996 under section 454, P.P.C. It is further submitted that both the petitioners had issued threats to the P.Ws. On 20-8-1998 which was registered at Police Station Cantt., Sargodha, and that had only six months passed their detention in the jail, and that they are responsible for the alleged consultation. Learned counsel for the complainant and the learned counsel for the State have relied upon PLD 1979 SC 741.
6, I have given due consideration to the valuable arguments on both sides and perused the record.
7. Admittedly, the earlier application was for the grant of bail before arrest while the present application is for the grant of bail after arrest. The names of the witnesses are not mentioned in the F.I.R. In whose A presence the conspiracy was hatched. There is no cavil with the proposition laid down in the case of Mr. Zulfikar Ali Bhutto v. The State (PLD 1979 SC 741). But the judgment in the case of Syed Amanullah Shah v. The State and another (PLD 1996 Supreme Court 241) is at par with the facts and circumstances of the present case, in which case also the plea was that the petitioner was present at the time of occurrence, so had caused injuries to the deceased and the petitioner was ordered to be released on bail with the following observations: - ".... There can be no two opinions that the case of a conspirator or abettor not present on the spot stands at lower footing than the case, of the accused instigating his companion to conunit the crime being himself 8 present on the spot. Furthermore, it is very easy to set up accusation of abetment/ instigation/ conspiracy/ Iema; needless to say when parties are inimically disposed of, the possibility of false implication of opponent is very much there So, we are of the view that where post arrest bail is granted in such cases, . Then it should not be cancelled as a matter of course or in routine. Once ball is granted by a Court of competent jurisdiction, then very strong and have and grounds would be reef for cancelling the same. Provision of section 497(5), .P.C. Are not punitive.
There is no legal compulsion for cancelling in cases punishable with death, imprisonment for life or imprisonment for ten years. To deprive a person of his freedom is most serious. It is judiciously recognized that unfortunately there is a tendency to involve the innocent with a guilty. Once an innocent is put under arrest, then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial in a murder case.
' Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So, whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probahlity of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not 'cc deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail then in the jail, during the trial. Freedom of an individual is a precious right. Person liberty granted by a Court of competent jurisdiction should not be snatched away from accused unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt of the accused."
8. For the above reasons, the present petition merits to be allowed and the same is allowed, and the petitioners are granted bail provided they furnish bail bonds in the sum of Rs,50,000 (Rupees fifty thousand) each with two sureties each in the like amount to the satisfaction of the trial Court.