Muhammad Sharif, a cobbler of Chak No,90-JB, situate in the area of Police Station, Saddar, Gojra, District Toba Tek Singh reported to Saddar Police on 15-5-1999 that he alongwith Shah Din and Muhammad Siddique were to proceed to Wagon-Stand of the village. His nephew Muhammad Anwar son of Taj Din was returning home from the 'Dera' and when he reached near house of Chaudhry Bashir Ahmad, Muhammad Tariq son of Khair Din and Abad Ali son of Ali Muhammad, co-villagers, emerged. Abad Ali shouted that Anwar be taught a lesson for pursuing the murder case of his companions. Tariq fired thrice at Muhammad Anwar who fell down. Muhammad Sharif and his companions raised alarm and tried to apprehend the accused when Abad Ali also took out a pistol from the fold of his 'Shalwar' and threatened them with life, and thereafter fled towards house of Zulfiqar son of Saleem. Muhammad Anwar died while being removed to Civil Hospital. Muhammad Sharif alleged Tariq and Abad were bodyguards of Zulfiqar and murdered Muhammad Anwar at the behest and abetment of Zulfiqar. Motive for the murder was stated to be that two real brothers of Zulfiqar had murdered Abdul Khaliq and Muhammad Sarwar real brothers of Anwar and criminal case: F.I.R. No,140/97 under sections 302/34 was registered against them. The case was under trial in a Court at Faisalabad and Zulfiqar had got him murdered in order to keep him away from pursuing that case. As a consequence criminal case: F.I.R. No,178 dated 15-5-1999 was registered at Police Station Saddar, Gojra, District Toba Tek Singh.
2. Zulfiqar submitted an application on 31-5-1999 for grant of anticipatory bail in the case. An Additional Sessions Judge, Gojra, Toba Tek Singh allowed anticipatory bail to Zulfiqar which was later confirmed by order dated 28-6-1999.
3. Muhammad Sharif submitted an application under section 497(5), Cr.P.C. For cancellation of to Zulfiqar. The application was turned down by the Additional Sessions Judge, Gojra by order dated 24-1-2000.
4. Under-consideration petition was submitted for cancellation of to Zulfiqar. Notice of the petition was issued to the respondents.
5. It was argued on behalf of Muhammad Sharif that Tariq and Abad were employed as gunmen by Zulfiqar and they did not have motive of their own to have murdered Muhammad Anwar and offence was committed by them at the instance of and with the abetment of Zulfiqar who wanted to eliminate Muhammad Anwar so that he could not pursue the case against two brothers of Zulfiqar, who had earlier murdered two real brothers of Muhammad Anwar. It was argued that only Zulfiqar had the motive to commit the offence and Tariq and Abad were used as tools by him to achieve his goal and later he was also found guilty of offence under section 109, P.P.C. It was submitted that Zulfiqar and his companions had fired at Muhammad Anwar and criminal case: F.I.R. No,324/3-10-1999 was registered at Police Station Saddar, Gojra against Zulfiqar and others.
Learned counsel further submitted that Zulfiqar extended threats of life to Mst. Hanifan widow of Taj Din and also tried to abduct Liaqat Ali, brother of Anwar deceased and criminal case: F.I.R. No,38/11- 3-2000 was registered against the accused and they were also challaned to Court. It was argued that anticipatory bail was allowed to the accused who was involved in a case of murder on erroneous grounds as provisions of section 109, P.P.C. Were misappreciated by the Additional Sessions Judge and factual aspects of the case were not at all viewed in proper perspective by the lower Court. It was also submitted that two real brothers of Zulfiqar, who had murdered two brothers of Anwar deceased, stood convicted and sentenced to death which had incensed Zulfiqar and he had become a constant threat to cobblers' family and in these circumstances, anticipatory unjustifiably to Zulfiqar should be cancelled. The State has joined the prayer.
6. Learned counsel for Zulfior-respondent, on the other hand submitted that the complainant party was quite head strong and had many enemies in the area and Tariq, one of the accused in the case, had submitted an application from Jail for re-investigation of the case by claiming that offence was committed by gunmen of Ch. Bashir Ahmad and he was wrongly involved in the case.
It was submitted that Abad Ali was also declared innocent by the police and Zulfiqar was involved in the case on account of enmity and he was also declared innocent by police and the lower Court had rightly allowed bail to him. It was argued that false cases were being made against Zulfiqar only in order to get his bail cancelled and the complainant had no case to urge.
7. Muhammad Anwar, deceased was allegedly got eliminated from this world by Zulfiqar through his henchmen--Tariq and Abad Ali, who had no motive of their own to commit his murder, so that Anwar be not able to pursue criminal case registered at his instance against Rum-e-Azam and Jaafer Saleem real brothers of Zulfiqar. Rum-e-Azam and Jaafer Saleem had murdered two real brothers of Muhammad Anwar, and were facing trial in those days. The case was registered on 15- 5-1999 and 15 days thereafter, Zulfiqar submitted an application under section 498, Cr.P.C. For grant of anticipatory bail on the grounds that he was accused of abetment only but he had no concern with Tariq etc., that provisions of section 109, P.P.C. Stood declared repugnant to Injunctions of Islam, and that the complainant had failed, in the course of investigation to provide any proof of abetment. Bail in anticipation of arrest was allowed to Zulfiqar which was later confirmed on 28-6-1999. The grounds given by the Additional Sessions Judge, Gojra while allowing anticipatory bail to Zulfiqar were that provisions of section 109, P.P.C. Were declared repugnant to Injunctions of Islam and the accused was declared innocent in the course of investigation. The order was founded on erroneous grounds.
8. The first ground given by the Additional Sessions Judge was that provisions of section, 109 Pakistan Penal Code, 1860 stood declared repugnant to Injunctions of Islam. This view is totally incorrect. In an earlier judgment Wajid Ali v. Mumtaz Ali and another 2000 M LD 1172, a Division Bench of this Court had stated that provisions of section 109, P.P.C. Were no longer repugnant to Injunctions of Islam as these provisions were brought in line with the Islamic injunctions as directed by the Shariat Appellate Bench of the Supreme Court of Pakistan. But, this Court has come across a number of cases where this erroneous view that provisions of section 109, P.P.C. Were un-Islamic was still being religiously followed by lower criminal Courts. Though there is no ambiguity in the law yet position of law is being clarified.
9. Section 109, Pakistan Penal Code, 1860, prior to its amendment in the year 1990 read as follows: "Section 109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for the punishment.--Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and where no express provision is made by this Code for punishment of such abetment, be punished with the punishment for the offence. Explanation:.. ..." The Shariat Appellate Bench of Supreme Court of Pakistan in Federation of Pakistan v. Gul Hassan etc. PLD 1989 SC 633 declared a number of provisions of criminal law to be repugnant to Injunctions of Islam and directed the Government to suitably amend the law by 23rd March, 1990. The date was moved further to 12 Rabi-ul-Awal, 1411 AH by judgment reported as PLD 1990 SC 1172. . Following order was made by the Shariat Appellate Bench in respect of provisions of section 109, P.P.C.: "Section 109 of the Pakistan Penal Code, 1860 is repugnant to Injunctions of Islam in so far as it makes an abettor in case of murder and other offences against human body liable to the same punishment as is prescribed -for the murder or for such offence regardless of the various degrees of abetment." It would be seen that provisions of section 109, Pakistan Penal Code were declared repugnant to Injunctions of Islam in terms only, and not as a whole and moreover repugnancy was confined to abetment for offences against human body only. Pursuant to directions of the Shariat Appellate Bench of the Supreme Court of Pakistan, criminal law was amended vide Criminal Law Amendment Ordinance (VII of 1990) promulgated on 5th September, 1990. The Ordinance came into force on 12th Rabi-ul-Awal, 1411 AH which corresponded to 12th October, 1990. Section 109, Pakistan Penal Code, 1860 was also amended and following proviso was added to the section: "Provided that, except in case of Ikrah-i-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." The provisions of section 109, Pakistan Penal Code, 1860, thus, were brought in conformity with the Injunctions of Islam and are no longer repugnant to such injunctions. The effect of the amendment is that in case of commission of offences enumerated in Chapter XVI of the Pakistan Penal Code, where the punishment provided for the offence is Qisas for the accused who actually commits the offence, the abettor would be liable to punishment of Ta'zir. For example, in a case of Qatl-e-Amd the accused who actually commits the offence (commonly called the principal or main accused) would be liable to sentence of death as Qisas but the abettor would be liable to death as Ta'zir and not as Qisas. The actual sentence, practically is the same for both-the main accused and the abettor. This position has also been highlighted in Wajid Ali's case (supra). It may also be pointed out that 1997 PCr.LJ 850 was result of ineffective counsel assistance and was not a good law.
10. The grant of bail in anticipation of arrest to a person accused of criminal offence is an extraordinary concession and this concession is granted in cases where the case, prima facie, is false; the involvement of the accused is actuated by malice; the aim of the complainant is to humiliate the otherwise respectable accused and to cause irreparable injury to his reputation and liberty or the case is politically motivated. (Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 87). An indiscriminate grant of anticipatory bail is disapproved by the Courts (Sadiq Ali v. The State PLD 1966 SC 589). And in serious cases such as those relating to murder, such concession is rarely conferred on the accused. Abetment in the offence of murder is as much a serious offence as that of murder itself and it would be wrong to treat this offence lightly or to take it for granted that the allegation of abetment was made against the accused just for the sake of making some sort of accusation against him. There might be absence of direct evidence of abetment or conspiracy, (in most cases it is so) but that is not a factor to consider a person accused of abetment to be innocent as a rule. Evidence of conspiracy or abetment can be indirect or circumstantial and each criminal case has to be examined in the light of peculiar facts of that case, in that context.
11. In the under-consideration case, Muhammad Anwar, deceased, was shot to death by Tariq, statingly a gunman of Zulfiqar. He did not have any motive to commit the murder of Muhammad Anwar. He had no enmity with the complainant party and it has not been shown as to why Tariq had murdered Anwar. Two real brothers of Zulfiqar had murdered two real brothers of Anwar who was prosecuting criminal case against them. Zulfiqar had launched murderous assault on Anwar earlier, and was challaned to Court as well. Zulfiqar prima facie,. Had strong motive to stop Anwar from going after necks of his real brothers. The circumstantial evidence strongly pointed towards Zulfiqar having some fingers in the pie. He was allowed anticipatory bail by the lower Court by taking an incorrect and clouded view of the law on the subject and the facts of the case were also misappreciated. Result of an early investigation when the accused was at large was also given undue weight. The accused has now been found as guilty in the case, as well.
12. Anticipatory to Zulfiqar-respondent is, therefore, cancelled. Observations made in the preceding paragraph are tentative in nature only.
13. The provisions of section 109, Pakistan Penal Code, 1860, are valid law and there is no ambiguity of any sort in the provisions, either. Lower Criminal Courts, however, have been found as misappreciating these provisions. The office shall remit copies of this order to all the Sessions Judges of the Province for information of the Lower Criminal Courts as to true scope and sweep of the provisions of section 109, Pakistan Penal Code, 1860.