Allama Syed Sajid Ali Naqvi, the petitioner seeks his post arrest bail in a case registered against him under sections 302/324/109/ 427/148/149, P.P.C., read with sections 6/7, A.T.A., registered vide F.I.R No,199 dated, 6-10-2003 at Police Station, GoIra Sharif, Islamabad.
2. On the statement of Muhammad Alam Tariq, complaining murder of his real brother Maulana Muhammad Azam Tariq, Member National Assembly, at about 4.15 p.m. On 6-10-2003, while on his way to Islamabad at GoIra Sharif Chowk, Toll Plaza, riding in his vehicle No,ADV.333. According to the complainant, he was informed on telephone by the deceased at 2.00 p.m., on the fateful day that he will reach at 4.30 p.m., at Islamabad. He was required at Toll Plaza with a car. The complainant alongwith Rashad Mehmood Farooqi and Muhammad Nazakat Qureshi reached the Toll Plaza at 4.00 p.m. As soon as the vehicle carrying Maulana Muhammad Azam Tariq reached near Toll Plaza, a white colour Land-Cruiser came in front of the car and the persons present in the car started firing at Maulana Muhammad Azam Tariq. All the occupants in the car received injuries.
The Land-Cruiser was stopped in front of Vehicle No,ADV.333. Three persons armed with kalashnikovs came out of the Land-Cruiser and raised slogans that they will not leave alive the opponent of Shia sect. They opened burst of firing at Maulana Muhammad Azam Tariq, the driver and gunmen. Another magazine of bullets was provided to the assailants by driver of the Land- Cruiser. They again fired, in result of which all the occupants of the car expired. All the assailants left towards Islamabad side. He and his companions can identify them.
3. He stated that Maulana Muhammad Azam Tariq was informed about the incident four days prior to the occurrence by Imran Sheikh, that the petitioner who is head of Tehrik-e-Jafria, Sibtain Kazmi, Ex. Provincial President and Ex-M.N.A Aman Ullah Siyal have hatched conspiracy to murder him. On learning, the deceased MaulanaMuhammad Azam Tariq had conveyed this information to the Punjab Government.
4. The learned counsel for the petitioner contends that the prosecution story is not plausible; the ingredients of section-109, P.P.C., are lacking; evidence of conspiracy is not believable. He relies on the cases of Syed Amanullah Shah v. The State and another (PLD 1996 SC 241), Manzoor and 4 others v. The State (PLD 1972 SC-81); Abdullah Khan v. Abdul Qayyum and another (1996 SCM R 493); Syed Saeed Muhammad Shah and another v. The State (1993 SCM R 550); Abdul Khaliq v. The State (1996 SCM R 1553); Malik Muhammad Iqbal v. Syed Abid Hussain Shah and 9 others (2000 P.Cr.L.J 1171 Peshawar) and Muhammad Ismail v. Muhammad Refique and another (PLD 1989 SC 585).
5. Conversely, Raja Muhammad Saeed Akram, the learned Assistant Advocate-General assisted by Messrs Sardar MasoodKhan, and Basharat Ullah Khan, Advocates for the complainant controverting the contentions of the learned counsel for the petitioner submitted that the F.I.R was promptly lodged, the names of the witnesses are mentioned in the F.I.R. The offence is punishable with death; deeper appreciation of evidence cannot be made at this stage and that trial is likely to commence shortly. Therefore, the petition merited dismissal.
6. I have considered the respective contortions of the learned counsel for the parties, examined available material on the record.
7. In Syed Amanullah Shah v. The State and another (PLD 1996 SC 241) the case of the conspirator/abettor not present on the spot stands at a lower footing than that of the accused present at the spot instigating his companions to commit crime. Bail was, thus, allowed. In Abdullah Khan v. Abdul Qayyum and another (1996 SCM R 493),it was held that the bail should not be withheld simply on the basis of statement supporting allegation of abetment made at the very belated stage. Similar observation was made by the Hob'ble Supreme Court of Pakistan in Abdul Khaliq v. The State (1996 SCM R 1553) and Syed Saeed Muhammad Shah and another v. The State (1993 SCM R 550).
8. In Manzoor and 4 others v. The State (PLD 1972 SC-81), the Hon'ble Supreme Court of Pakistan held that the bail shall not be withheld as punishment. In Malik Muhammad Iqbal v. Syed Abid Hussain Shah and 9 others (2000 PCr.LJ 1171 Peshawar) the bail was allowed when after having information of the conspiracy the authorities were not informed. In Muhammad Ismail v.
Muhammad Rafique and another (PLD 1989 SC 585), the Honoruable Supreme Court of Pakistan observed that normally bail is not granted if the trial is likely to commence shortly, but, in case calling for further inquiry the bail cannot be denied. Deeper appreciation is not permissible. Only tentative assessm ent can be made.
9. After analyzing the above case-law, I now proceed to examine the petitioner's case.
10. The allegation against the petitioner admittedly is of hatching conspiracy to cause murder of Maulana Muhammad Azam Tariq, M.N.A. The witnesses are Sheikh Muhammad Imran and Imtiaz Hussain. According to them, on 1-9-2003 they had gone to the residence of Qazi Hussain Ahmad, Ameer Jamayat Islami, located at Islamabad for private work and found that the meeting is in progress inside the house. They were asked to wait. In the meantime, they saw Aman Ullah Siyal, Ex-M.N.A., Sibtain Kazmi, Provincial President, present there. After a short while, the petitioner came out of the meeting and took Aman Ullah Siyal and Sibtain Kazmi to a corner. They heard the petitioner directing his two companions aforementioned to do away with Maulana Muhammad Azam Tariq, as early as possible, as he is the main hurdle/obstruction in the way of Tehrik-e-Jafria.
He further told them that whatever amount is needed will be provided to them and the assailants will also be provided shelter, and, it will be his responsibility to arrange their escape. Sibtain Kazmi undertook to provide manpower while Aman Ullah Siyal assured to provide arms for the purpose.
All the three resolved that this should be done as early as possible. After this, the petitioner went inside, while Aman Ullah Siyal and Sibtain Kazmi left the place: He brought this factum of conspiracy to the knowledge of Maulana Muhammad Azam Tariq.
11. The Investigating Officer has not recorded the statement of Qazi Hussain Ahmad. Statements of the two witnesses were recorded under section 161, Cr.P.C. By the police on 25-10-2003. No explanation has been given by the prosecution for recording of the statements, after a considerable delay. No evidence is available on the record at present that the deceased Maulana Muhammad Azam Tariq had brought to the notice of the Punjab Government about hatching of conspiracy. No report was lodged in respect of this incident. The Police Officer has also not inquired from Sheikh Muhammad Imran as to what was the nature of his work with Qazi Hussain Ahmad and whether after hearing the conversation between the petitioner and his companions he brought this fact to the notice of Qazi Hussain Ahmad. Record is completely silent.
12. Agreeing with the learned counsel for the complainant, deeper appreciation of the matter is not undertaken. On tentative assessm ent, evidence of conspiracy furnished by Sheikh, Muhammad Imran and Muhammad Imtiaz, P.Ws. In their statements under section 161, Cr.P.C. As to their reasonableness and relatable to the charge of conspiracy/ abetment needs further inquiry.
Whether their claim of hearing the petitioner directing his co-accused to do away with the deceased and he will bear the expenses as well as facilitate their escape to abroad could have been discussed at that juncture of time. The deceased Maulana Muhammad Azam Tariq was an eminent figure and religious scholar of the country. The petitioner, too, being an head of Tehrik would not have undertaken the exercise to hatch conspiracy in presence of other persons A and that too in the house of Qazi Hussain Ahmad to murder Maulana Muhammad Azam Tariq.
Apparently, conspirator/abettor do not discuss such-like matter in an open public assembly and take utmost care to keep such like matter secret to the maximum extent. The statements were admittedly recorded after the delay finding no explanation on the record, which too make the case of the petitioner open for further inquiry. As settled principle of law the bail is not to be withheld as punishment. The case is being fixed shortly for trial. In presence of the material available on the record his case is one of further inquiry and the bail cannot be denied to him only on this count.
13. The F.I.R. Does find mention that the deceased was informed of the alleged conspiracy but this fact was not brought to the notice of the Government or any report was made to this effect. The petitioner cannot B be kept as hostage to secure the arrest of some of the accused, who are still at large.
14. Ultimate conviction and incarceration of a guilty person can repair wrong if the bail is granted to him on misconception/misconstruction of the material available on the record at bail stage.
Damage caused to an innocent person kept in confinement, if acquitted on trial later on, is beyond repair and compensation in terms of money to the maximum may not be an adequate one.
15. In view of the above discussion, the case of the petitioner for grant of bail has been made out.
Resultantly, this petition is accepted and petitioner is admitted to bail provided he furnishes bail bond in the sum of Rs,2 millions with two sureties in the like amount to the satisfaction of the learned trial Court.
16. Needless to say that the learned trial Court will proceed with the trial and decide the matter un- influenced by any of the observations made hereinbefore, which are. Tentative in nature and meant for the disposal of the bail application. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.