Full Judgment Text & Judicial Ruling

2009 P Cr

2009 P Cr. L J 1130

[Islamabad]

Before Syed Intikhab Hussain Shah, J

MUSHTAQ ARMED----Petitioner

Versus

Syed FAISAL MAHMOOD SHAH and another----Respondents

Criminal Miscellaneous No.172/B/C of 2009, decided on 27th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/109/34/201---Cancellation of bail, petition for---Bail granting order could be recalled, if same was absurd, fanciful, illegal and arbitrary---Petitioner seeking cancellation of bail granted to respondent/accused had failed to point out any such defect in the impugned order---Accused was not nominated in the F.I.R., but was implicated in the supplementary statement---Involvement of accused in the case, in circumstances, required further inquiry---Conversation between accused persons on the telephone, did not, ipso facto, establish that conspiracy was hatched between the two---Allegation of tampering with prosecution case or issuance of threats by accused, could be agitated before the court; who enlarged accused on bail---Impugned order passed by the Trial Court was based on genuine and legal reasons, which had not erred in exercise of its discretion in allowing the bail to accused---Bail granted to accused could not be cancelled, in circumstances.

Malik Tahir Mahmood for Petitioner.

Muhammad Asif Khan, Federal Counsel for the State.

Raja Inam Amin Minhas and Khalid Naveed Bhatti for Respondent No.1.

Abdul Waheed, S,-I. Police Station Sihala District Islamabad with record.

ORDER

SYED INTIKHAB HUSSAIN SHAH, J.--- Mushtaq Ahmed son of Imam Sadiq, the petitioner, who is complainant/father of deceased of case F.I.R No.10 dated 25-1-2009, registered at Police Station Sihala District Islamabad for offences under sections 302/109/34/201, P.P.C. by filing the instant petition seeks cancellation of post-arrest bail, allowed to respondent No.1 by the learned Additional Sessions Judge, Islamabad vide order dated 14-4-2009.

2. Succinctly, the facts of the case, as per available record are that Mushtaq Ahmed, the petitioner/complainant got lodged the present F.I.R by contending that his son namely Kabir Ahmed got religious education for about 12 years from Madrissa Jamia Muhammadia Ghausia Anwar- ul-Qur'an Mohallah Saddar, Rawalpindi. On 1-1-2009 he got appointed as Khateeb Jamia Masjid Bilal Ghausia New Rajwal, Islamabad while Abdul Wakeel was appointed as Imam Masjid and Muhammad Tariq as Moazan. All the three used to live in the Hujra of Mosque. In the morning of day of occurrence, Abdul Wakeel and Muhammad Tariq went to Jamia Masjid Ghausia Saddar, Rawalpindi. He added that his son was present in the Hujra where Wali Muhammad was also with him since last night. At about 11-30 a.m. accused Sohail and Faisal Shehzad who were also students of Jamia Muhammadia Ghausia Mohallah. Saddar also came in the Hujra and started talking with each other. According to Faisal Shahzad, Sohail co-accused fired with pistol .32 bore on Kabir Ahmed which landed on his chest. After fire Sohail decamped, from the spot. Faisal and Wali Muhammad tried to apprehend him but he escaped. On information complainant reached at the spot and case was got registered by him. Thereafter, the complainant made his supplementary statement, therefore the respondent No.1 was booked in this case.

3. After dismissal of pre-arrest bail, the respondents No.1 was arrested. Thereafter, he applied for the grant of post-arrest bail, which was granted by the learned Additional Sessions Judge, Islamabad, vide the impugned order dated 14-4-2009.

4. Learned counsel for the petitioner has argued that upon the advise and instigation of respondent No.1, the main accused Sohail committed the murder of deceased. Record of mobile phone was collected during the course of investigation which proves that both the .accused were in contact with each other before and after the occurrence, therefore conspiracy hatched by the two is apparent from the record; that although the offence under section 109, P.P.C. is attracted against the respondent No.1 but the fact remains that the same has to be read with the main offence i.e. 302, P.P.C., for which capital punishment has been. provided; that the respondent No.1 has been duly implicated in the supplementary statement of the complainant; that on one hand the learned Additional Sessions Judge while dealing with the pre-arrest bail of respondent No.1 held that there is sufficient material against the respondent No.1, but he held otherwise while passing the impugned order, therefore, the bail granting order is perverse, capricious and ill found; that sufficient incriminating evidence is available against the respondent No.1 to connect him with his heinous crime; that after release on bail, the respondent No.1, who is an influential person is trying to destroy the prosecution case and he has also won over' one of the. prosecution witness.

5. On the other hand, learned counsel appearing on behalf of respondent No.1 defended the impugned order by contending that there is no evidence regarding the conspiracy allegedly hatched by the accused persons, therefore, it is a matter of evidence that whether offence under section 109, P.P.C. is attracted or not; that there is no material on record to the effect that the respondent No.1 has ever misused the concession of bail or trying to destroy the prosecution case and even otherwise this plea cannot be taken before this Court; that neither the respondent No.1 is nominated in the F.I.R nor any role has been attributed to him and the supplementary statement has no evidentiary value in the eye of law, rather it is too week piece of evidence; that after grant of post-arrest bail, strong and extraordinary grounds are required to cancel the same which are not present in the case in hand; that neither the respondent No.1 was present at the place of occurrence nor played any active rule in the commission of offence and therefore, it is not a fit case at all for cancellation of bail.,

6. Heard arguments anxiously and studied the record minutely.

7. It is settled law that for a bail granting order to be eligible to be recalled, the same has to be absurd, fanciful, illegal and arbitrary. The learned counsel for the petitioner has failed to point out any such defect in the impugned order. The respondent No.1 is not nominated in the F.I.R, rather he was implicated in the supplementary statement, therefore, the involvement of respondent No.1 in this case is a question which requires further inquiry. Conversation between the accused persons on telephone does not ipso facto establish that conspiracy was hatched between the two. As far as the allegation of tampering with prosecution case or issuance of threats by the respondent No.1 is concerned, the same can be agitated before the Court, who enlarged the respondent/accused on bail. The impugned order passed by the learned Additional Sessions Judge, Islamabad is based on genuine and logical reasons and thus he had not erred in exercise of its discretion in allowing the bail to the respondent No.1/accused.

8. For all these reasons, I am not inclined to cancel the bail already granted to respondent No.1 in accordance with law and circumstances of the case, therefore, this petition being without any merits is hereby dismissed.

9. The observations made hereinabove are tentative in nature and shall not affect the case of either party on merits.

H.B.T./M-366/Isl. Petition dismissed.

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