Raja Muhammad Ikram petitioner seeks bail after-arrest in a case registered vide F.I.R. No. 38, dated 15-6-2002 under sections 324/302/34/109, P.P.C. At Police Station, Jalalpur Sharif, District Jhelum.
2. The prosecution story as per F.I.R., concisely stated, is that on 15-6-2002 at about 1-30 p.m.
Muhammad Shafique and Misal Khan, driver and gunman of the petitioner, respectively, fired rifle shots and caused injuries to Muhammad Yamin, complainant (deceased) and Muhammad Aslam, partner of the complainant, as a result whereof Muhammad Yamin, complainant, died in the hospital next day. The precise allegation against the petitioner is that the occurrence of murder and murderous assault has been committed at the behest of the petitioner.
3. The learned counsel for the petitioner contends that the case is false, concocted, result of political rivalry and grudge of Abdul Rehman's, S.-I./S.H.O., Police Station, Jalalpur Sharif (I.O.) against the petitioner; that at the time of the alleged occurrence the petitioner was not present at the scene of occurrence and that there is no mention in the F.I.R. Of any threat of murder or abetment extended by the petitioner; that the evidence of abetment of murder was fabricated at much a later stage. Further contends that provisions of sections 34 and 109, P.P.C. Are not attracted in the facts and circumstances of the case. Further that the statement of the complainant deceased, namely, Muhammad Yamin cannot be considered as a dying declaration. Reliance has been placed on the case reported as Abdul Majid alias Maja v. The State (1976 PCr.LJ 545). Further contends that absconsion of the main accused in the case under sections 302/109, P.P.C. Cannot disentitle the petitioner or other accused from grant of bail. To substantiate his argument the learned counsel has relied on the case of Allah Bakhsh v. The State (1989 PCr.LJ 2384). The learned counsel has also relied on the case from Peshawar jurisdiction reported as Malik Muhammad Iqbal v. Syed Abid Hussain Shah and 2 others (2000 PCr.LJ 1171) which yeas subsequently decided by the Hon'ble Supreme Court reported as Syed Amanullah Shah v. The State (PLD 1996 SC 241).
4. Sardar Muhammad Ishaq Khan, Advocate assisted by the learned counsel for the State, conversely argued that the deceased Haji Muhammad Yamin himself promptly lodged the F.I.R.
With Police Station, Jalalpur Sharif in which the petitioner has been nominated and specific role has been attributed to him. Contends that the occurrence took place at 1-30 p.m. On 15-6-2002 and the report was lodged the same day within 35 minutes on the day of occurrence and there was no chance for the prosecution to falsely implicate the petitioner. Further contends that the offence is punishable with death, therefore, the petitioner is not entitled for the concession of bail.Further contends that the petitioner is involved in number of other criminal cases and his previous conduct is relevant for the purposes of deciding the bail petition. He further contends that the motive to commit the murder was with the petitioner. He has relied on the case of Mst. Hanifan Bibi v. Zulfiqar (PLD 2001 Lah. 123) to substantiate that a person who is guilty of abetment is not entitled for bail.
According to the learned counsel, data is available in the shape of dying declaration/the F.I.R., statements of witnesses, medical evidence, motive, and that the petitioner was extending threat, as alleged in the F.I.R., through his gunman Misal Khan and driver Muhammad Shafique and that though there was statement of the witnesses of abetment recorded on 18-6-2002, yet that cannot be appreciated at the time of bail.
5. In the F.I.R., it is alleged that Muhammad Shafique alias Zaklami and Misal Khan, who are absconder, fired, in which Haji Muhammad Yamin and Muhammad Aslam sustained injuries.
Muhammad Yamin died subsequently. The date of occurrence is 15-6-2002 and the time is 1-30 p.m. Promptly lodged F.I.R. Is there on the complaint of Muhammad Yamin himself at 2-40 p.m. Just after 35 minutes of the occurrence. The F.I.R. Is signed by Muhammad Yamin. Whether the F.I.R. Is a dying declaration or not is a question to be decided at the trial. There is an objection on behalf of the learned counsel for the petitioner that the evidence of abetment has been introduced after two days by recording the statements of the witnesses, namely, Muhammad Yamin, Salamat and Muhammad Hanif, which cannot be taken as evidence of abetment is also a question which needs deeper appreciation of evidence.
6. It is in the F.I.R. That the petitioner extended threats to the complainant through his driver Muhammad Shafique and gunman Misal Khan for closing the Bus-Adda. In this view of the matter, the motive was available to the petitioner. A tentative assessment of the evidence, which is in the shape of F.I.R. Signed by the complainant/deceased Muhammad Yamin, statements under section 161, Cr.P.C. Of Muhammad Yamin and Muhammad Amin, medical evidence and the motive, there are reasonable grounds to believe that the petitioner has committed the offence for which he has been charged.
7. Now I come to the case-law cited by the learned counsel of both the parties. First case is of Abdul Majid alias Maja (1976 PCr.LJ 545). Statement of the deceased was not considered as dying declaration in the said case as the same was not recorded in the presence of the doctor nor cared to be recorded through a Magistrate or any other independent official and in that eventuality it was held that it was a mere statement under section 161, Cr.P.C. And could not be used as dying declaration. To my mind, this judgment cannot be relied upon for the reasons that it was passed in Criminal Appeal No. 10 of 1971, decided on 11-6-1973 and not in bail application. Secondly, the statement of Haji Muhammad Yamin, complainant, has been signed by him which was submitted before the Police Officer. Whether that statement can be treated as dying declaration or a statement under section 161, Cr.P.C. Is a matter to be decided by the trial Court.
8. Admitted position in this case is that the other two accused, namely, Muhammad Shafique and Misal Khan, who were armed with rifles, are still absconding. In the case of Allah Bakhsh v. The State (1989 PCr.LJ 2384) sister of Yara accused had married with Khizar Hayat son of complainant against the wishes of Yara, therefore, to avenge the said marriage Yara had murdered Mst.
Rasoolan Bibi and there was no evidence of conspiracy in that case. To my mind, the case of Allah Bakhsh (supra) is distinguishable. In the case of Syed Amanullah Shah (PLD 1996 SC 241) from Peshawar jurisdiction, the bail was granted to the accused who allegedly raised Lalkaras for instigating their companions to commit crime while being present at the spot, and their Lordships were of the opinion that:-- "Then called a person who was not present at the spot, but allegedly instigated the accused to kill the deceased, should be deprived to give such a concession before trial of the case. "
9. Admittedly, there are number of cases pending against the petitioner. In the case of Mst. Hanifan Bibi (PLD 2001 Lah. 123) this Court cancelled the bail granted to the person, against whom the allegation of abetment and instigation was levelled in the F.I.R. While observing:-- "S.109. Abetment in the offence of murder was as much a serious offence as that of murder itself and it could not be lightly treated 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--- Absence of direct evidence of abetment or conspiracy was not a factor to consider a person accused of abetment to be innocent as a rule---Evidence of conspiracy or statement could be indirect or circumstantial and each case had to be examined in the light of peculiar facts of that case in that context. "
10. From the discussion of the above---stated facts, material available on the record and the case- law mentioned above, I am of the firm opinion that it depends on facts of each case and on the basis of evidence it is to be concluded whether there, are reasonable grounds to believe against a person that he is to be charged for an offence under sections 109/34, P.P.C. Or there are grounds for further inquiry into the case. Every case of criminal nature is to be decided at bail stage keeping in view the attending circumstances of that particular case.
For what has been discussed above, there is no merit in this petition. Resultantly, the same is dismissed.