' IFTIKHAR HUSSAIN CHAUDHRY, J.---Criminal Case F.I.R. No,52, dated 1-3-1998 under section 302/427/324/148/149/109, P.P.C. Was registered at Police Station Garh Maharaja District Jhang at the instance of Wajid Ali Khan. The complainant is a Cultivator and according to him he alongwith Waryam, Ch. Mangta riding on one vehicle and Haji Amjad Ali Khan, Safdar, Faiz Khan alias Mumtaz Khan and Ghazanfar Abbas riding in another vehicle-Pajero bearing No,GAE-5116 which was being driven by Amjad Ali Khan were proceedings from Garh City via Sharifiabad to Chah Akanwala. At about 4-30 p.m. When they reached in Munir Abad, they found a vehicle bearing No,SGB-3414 parked on right side of the road. Muhammad Ali son of Mumtaz Ali Khan, Hubdar son of Ghulam Qasim. Talib Raza son of Sadiq Hussain armed with klashrikovs and Altaf Hussain driver emerged from the car. Muhammad Ali Khan fired with kalshinkov which hit Amjad Ali Khan as well as Safdar Ali Khan. Hubdar fired from left side of Pajero which hit Ahmad Ali Khan on left shoulder. Talib Raza fired with kalashnikov hitting Faiz Khan alias Mumtaz Khan on left arm and other parts of his body.
Ghazanfar was injured by Ala-ud-Din Pathan. Accused thereafter decamped from the spot while firing and went towards. Adda Sharifabad, Haji Amjad Ali, Safdar Ali and Mumtaz Khan died at the spot while Ghazanfar Abbas was grievously injured.
2. According to complainant 4/5 days prior to the occurrence, Mumtaz Ali Khan had summoned Sultan Khan to his Dera and called upon him that he should call back his son Mumtaz who was working as gunman of Haji Amjad Ali otherwise he would be murdered alongwith Amjad Ali Khan.
According to complainant a short while before the occurrence Mumtaz Ali Khan had alighted from Vehicle No,SGB-3414 alongwith other accused near Munir Abad and had informed Muhammad Ali Khan and others accused in presence of Allah Ditta and Muhammad Ismail that Haji Amjad Ali Khan was to arrive from Garh Town and that they should waylay him in Abadi of Munir Abad and to kill them, Mumtaz Ali Khan according to complainant remained in the Abadi of Munirabad and had supervised the commission of offence.
3. Motive for the incident was stated to be that Ahmad Nawaz son of Pehlwan was first cousin of Haji Amjad Ali Khan. Ahmad Nawaz since dead, in his lifetime had promised to give hand of his only daughter who owned 4/5 squares of land of Muhammad Abbas son of Haji Amjad Ali Khan After death of Ahmad Nawaz, Mumtaz Ali Khan wanted to marry the daughter of Ahmad Nawaz with his son Muhammad Ali Khan. Due to that, bad blood existed between Haji Amjad Ali Khan and Mumtaz Ali Khan and several cases were also registered. It was alleged that the accused had committed the offence at the behest of Mumtaz Ali Khan.
4. Mumtaz Ali Khan was arrested in the case on 17-3-1998 and thereafter, he applied for grant of post-arrest bail which concession was conferred on him by order, dated 2-10-1998 passed by Judge Special Court, Suppression of Terrorist Activities, and Faisalabad. Aggrieved of the aforesaid order, present petition was submitted in which notice to respondents was issued by order, dated 27-10-1998.
5. During pendency of the petition Criminal Miscellaneous No,784-M of 1999 was filed by the respondents for dismissal of the application on the ground of offensive and vexatious pleadigns which application was directed to be heard alongwith the main petition.
6. Learned counsel for the petitioner contended that offence was committed at the instance of Mumtaz Ali Khan who had called upon his co-accused to do awe% with Haji Amjad Ali Khan and that he had come to Munirabad shortly before the occurrence and had supervised the entire proceedings. It was submitted that Mumtaz Ali Khan had strong motive to do away with the deceased and he was the master-mind and the driving force behind the whole incident. Learned counsel submitted that just three days before the occurrence father of Faiz deceased gave an application to Senior Superintendent of Police, Jhang whereby he brought to his notice that Mumtaz Ali Khan had summoned him and had called upon him that his son should not remain with Wajid Ali Khan deceased or else he, too, would be murdered with him and this application was remitted by the Senior Superintendent of Police to Station House Officer for necessary action. It was submitted that the evidence on record did not consist of bald assertion only but it sufficiently highlighted the involvement of the accused-respondent in the commission of offence in which three persons lost their lives and learned lower Court by misinterpreting the law on the subject allowed bail to the accused. It was submitted that accused was involved in a large number of cases since the year 1959 and was hardened criminal and on the count did not deserve the concession and his criminal record was also ignored by the lower Court. Reliance was paced on 1979 SCM R 567, PLD 1988 SC 621 and 1985 SCM R 382.
7. Learned counsel for the State supported the prayer made by the petitioners.
8. Learned counsel for the respondent-accused on the other hand submitted that petition deserved dismissal on the short ground that it contained false accusations against the respondent which could not be substantiated by the petitioner. It was further argued that petitioner had not moved the learned lower Court for cancellation of bail allowed to respondent and that practice to be followed in this regard was that first Court has to be moved for relief in the first instance and that the petition, therefore, was not competent on this ground also. It was submitted that respondent-accused was accused of conspiracy and abetment only and normally in such-like case, case of accused is considered to be that of further inquiry and he is allowed bail. It was submitted that lower Court followed the correct law on the subject and had justifiably granted bail to the accused-respondent. It was submitted that respondent-accused was being hounded by his opponents for the past many years and false criminal cases were registered against him and that he was never convicted and, therefore, he could not be said to be a desperate or hardened criminal. It was also submitted that bail allowed to an accused of conspiracy was never cancelled for the reason that his case is ordinarily that of further inquiry. Learned counsel placed reliance on Zia-ul-Hassan v. The State PLD 1984 SC 192, Syed Amanullah Shah v. The State and another PLD 1996 SC 241, Mazhar Mehmood v. Basit and another 1997 SCM R 915, Nazir v. Amir Din and another 1971 SCM R 637, Muhammad Khalid v. Haji Muhammad Akram 1997 PCr.LJ. 269, Mirza Khan v. Lal Khan, etc. 1976 PCr.LJ 324, Muhammad Nazir Butt v. The State 1991 PCr.LJ 13; Ashiq Hussain v. The State 1993 SCM R 417; Mehr Ghulam Nabi v. Muhammad Shafiq and another 1979 SCM R 479 and Moula Bux v. Shadan and others 1997 PCr.LJ 1573.
9. Dismissal of the petition has been urged on behalf of respondent on the ground that it contained foul language. No doubt strong adjectives, expletives or innuendos have no place in the pleadings.
The petition to be submitted before a Court of law has to be appropriately and decently worded and scandalous accusation, allegations or oblique references and unnecessary embellishments are to be avoided but at the same time, we are of the view, that the portals of a Court of law should not close down on an uncivil and uncouth litigant. Strong words have been used by the petitioner in the application submitted by him, particularly with regard to pedigree of the respondent but since we are influenced by the reference made by the petitioner to the illustrious or not so illustrious pedigree of the respondent, we consider the prayer made by accused-respondent for rejection of the petition on the ground that it contained foul accusation, as being untenable.
10. It was next contended by learned counsel for respondent that petitioner should knock at the door of the learned lower Court in the first instance and present application was not competent.
The Supreme Court of Pakistan in Ziaul Hassan v. The State PLD 1984 SC 192 was pleased to observe as under: ' Similarly it was not in all cases that the Court granting bail is to be approached in the first instance for cancellation under section 497(5), Cr.P.C. The learned Judge in the High Court has after taking due note of the case-law cited before him, correctly understood, applied and distinguished the relevant rulings. It may be observed that in some cases further wastage of time in moving the lower Court (when time factor is prima face involved) would be an additional reason for not making direction for moving the lower Court in the first instance".
' The observations of the apex Court of the country do not support the contention on behalf of respondent for rejection of the petition on the ground that lower Court was not moved in the first instance for cancellation of bail. In this case cancellation of bail is being sought for not on any additional ground but on the ground that law as misappreciated by the learned lower Court.
Calling upon the petitioner to go back to the lower Court in this situation in our view, would not be a well-advised direction.
11. The allegations against the accused respondent are to the effect that he planned the murder of Wajid Ali Khan and others and had executed the plan and had not only conspired with his co- accused but had also abetted the offence. Learned lower Court allowed bail to respondent on the ground that by virtue of PLD 1989 SC 633, the provisions of section 109, P.P.C. Were declared as being repugnant to Injunctions of Islam, that ed to an accused of conspiracy was not cancelled by Supreme Court vide PLD 1996 SC 241 and an accused of conspiracy was admitted to post-arrest bail by High Court vide 1996 M LD 1361. The decision of the Hon'ble Supreme Court/Shariat Appellant Bench reported as PLD 1989 SC 633 is misinterpreted by certain Courts and is being read out of context. Provisos of section 109, P.P.C. Were declared repugnant to Injunction of Islam in certain aspects and thereafter, proviso was added to section 109, P.P.C. By Criminal Law (Second Amendment). Ordinance, XII of 1993 keeping in view the directions of the Hon'ble Supreme Court.
The proviso reads as under:-- "Provided that, in case of Ikrah-e-Tam the abettor of an offence referred to in Chapter XVI shall be liable to punishment of Ta'zir specified for such offence including death."
Section 109, P.P.C. Was duly amended in accordance with the directions of the Honourable Supreme Court and an abettor is liable to same punishment just as the main accused, including that of death but not as Qisas but as Ta'zir. The abettor, thus, for, all practical purposes, has to face the consequences of the criminal act just like the accused who commits the actual offence. The law on the subject obviously was misappreciated by the lower Court whose view appears to be that section 109, P.P.C. Was no longer part of the Statute.
12. In the present case the master-mind of the incident, according to prosecution, was Mumtaz Ali Khan respondent. He had the motive and he made his intentions known to everybody before the incident. Sultan Khan father of Mumtaz Khan deceased submitted an application to Senior Superintendent of Police Jhang on 26-2-1998. According to Sultan Khan his son Faiz alias Mumtaz Khan (deceased) lived with Amjad Ali Khan and that on 24-2-1996 Mumtaz Ali summoned him to his Dera in presence of Murid Abbas and told him that he wanted to marry his son Muhammad Ali Khan to daughter of Ahmad Nawaz deceased but Haji Amjad Ali stood in his way and that they are going to murder Amjad Ali Khan at any time. According to sultan he was asked by accused to call back his son or else he would be murdered alongwith Haji Amjad Ali Khan. Sultan Khan prayed for protection to be provided. The application was marked by Senior Superintendent of Police, Jhang to S.H.O. Concerned on 26-2-1998. Just three days later Amjad Ali Khan, Faiz Khan and Safdar Ali were murdered at the hands of son of respondent and others. That application is on record now and is a strong piece of evidence to show that the respondent had conspired with his accused in the commission of offence and the everything was done at his instance. It is further disclosed in the F.I.R. That accused-respondent, had come to Munirabad alongwith other accused, had alighted from vehicle bearing No,SGB-3414 and had called upon his co-accused in presence of witnesses that they should waylay Amjad Ali Khan and to murder them. Evidence on record showed abundantly that accused-respondent had confederated, conspired with and abetted his co- accused in the commission of offence of murder of three persons. There were reasonable grounds to believe that Mumtaz Ali Khan was guilty of a non-bailable offence and could not have been allowed bail.
13. The learned lower Court while allowing bail to accused had made reference to certain precedents. Bail in a criminal case has to be granted (or refused) keeping in view the facts and circumstances of each case. In the case in hand the prosecution had sufficient material in its possession which showed that the accused respondent had pre-planned the occurrence, had declared his intention and had taken steps for accomplishment of his designs. This was not a case in which the complainant had made a simple and bald statement that the offence was committed at the behest of the accused. In the under-consideration case the complainant had provided necessary information to police at the time of making first information report which manifested full involvement of the accused-respondent in the commission of offence. That aspect of the case and material brought on record were ignored by the learned lower Court. The accused respondent was involved in as many as 14 cases. His criminal history started from February, 1959. He was convicted in a case of murder and was acquitted on appeal and his criminal antecedents were also wrongly overlooked by learned lower Court. The ing order has been found to be militating against law and facts and same was based on misappreciation of law on the subject as well, and has been found to be unsustainable.
14. The prosecution has sufficient evidence in its hands to show that the respondent accused had not only community of purpose with other accused but had also actively abetted the same and the concession of bail could not have been conferred on him. He was the person who had the motive to commit the offence and stood duly connected with the commission of murder of three persons as well. Bail was allowed to Mumtaz Ali Khan respondent by the learned lower Court unjustifiably and consequently the same is cancelled.
' The present order should be viewed in the context of under consideration application only.
Bail cancelled.