PLJ 2009 SC 678
[Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramday & Sarmad Jalal Osmany, JJ.
MAMARAS--Petitioner
versus
STATE & others--Respondents
Crl. Petition No. 388 of 2008, decided on 25.3.2009.
(On appeal from the order judgment dated 9.10.2008 of the Peshawar High Court, Abbottabad Bench passed in Crl. Misc. No. 186/08).
----S. 109--Indiscriminate firing--Murders of nine persons--Abetting the commission of an offence--Punishable--An offence u/S. 109, PPC, is a rather serious affair as the person abetting the commission of an offence is liable to the punishment which is prescribed for person committing i.e. sentence of death in present case. [P. 680] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Pakistan Penal Code, (XLV of 1860), S. 109--Commission of offence punishable u/S. 109, P.P.C.--Further inquiry--Entitlement to grant of bail--Grounds of--Satisfaction of conditions prescribed--Abetting the commission--Held: Law permits grant of bail only on satisfaction of the conditions of S. 497(2) of Cr.P.C.--If there were reasonable grounds for believing that the person seeking bail was not guilty of offence alleged against him and instead there were grounds warranting further inquiry into his guilt. [P. 680] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Pakistan Penal Code, (XLV of 1860)--S. 109--Abetting the commission of an offence--Entitlement to grant of bail--Further inquiry--Every person accused of the commission of an offence punishable u/S. 109, PPC was entitled to grant of bail irrespectivable of merits of the case without demanding satisfaction of the conditions prescribed by S. 497(2) of Cr.P.C. and only because the allegation against him was one of abetting the commission of an offence.
[P. 681] E
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 143--Appreciation of evidence--Judicial confession--Valid piece of evidence--Judicial confessions were the only evidence available against him, he would still not qualify for his release on bail as according to the provisions of Art. 148 of Qanun-e-Shahadat Order, a judicial confession made by a co-accused person was perfectly valid piece of evidence which could be taken into consideration and which could be used as circumstantial evidence against a co-accused of such a confessing accused. [P. 681] C
Judicial Confession--
----Nominating as abettor--Judicial confessions did not deserve any reliance but not even an attempt was made to indicate any reason why co-accused would have falsely and maliciously implicated in such heinous crime by specifically nominating him as one of abettors of the same--Leave refused. [P. 681] D
Sardar Khurram Latif Khan Khosa, ASC and Ch. Akhtar Ali, AOR for Petitioner.
Mr. Zulfiqar Khalid Malooka, ASC for Respondent No. 2.
Date of hearing: 25.3.2009.
Judgment
Khalil-ur-Rehman Ramday, J.--In an occurrence which had taken place on 21.9.2006 at about 8.00 a.m. in the area of Police Station Kot Najibullah of Haripur, a Suzuki pick-up carrying some passengers was ambushed by the then unknown assailants who had come in a motor car and as a result of the indiscriminate firing made by whom, nine persons had lost their lives while five others had received serious injuries. Pursuant to the investigation, it transpired that two real brothers, namely, Ahmed Nawaz and Akhtar Nawaz were facing trial on a murder charge; that they had asked their third brother, namely, Haq Nawaz, who was an absconding accused of that very case, to eliminate the witnesses of the said murder case who were to come to the Court for giving evidence on 21.9.2006. The said Haq Nawaz collected some of his friends and relatives and launched the above-mentioned attack on the said Suzuki pick-up which, however, turned out to be a case of mistaken identity as the passengers of this vehicle, including the above-mentioned poor victims of the said assault, had nothing to do with the said murder case. Mamaras petitioner is one of the accused persons of the said crime.
2. Sardar Khurram Latif Khan Khosa, the learned ASC for the said accused-petitioner canvassed bail for him only on the ground--
(a) that Mamaras petitioner was not amongst those accused persons who had made the fatal indiscriminate firing but was burdened with liability only account of Section 109 of the Pakistan Penal Code; and
(b) that the only material available against him were the judicial confessions made by some of his co-accused persons which had been recorded under Section 164 of the Cr.P.C.
3. We have considered the matter at some length and do not find it possible for us to take an offence punishable under Section 109 P.P.C. as lightly as the learned A.S.C. expects us to take. The said is a rather serious affair as the person abetting the commission of an offence is liable to the same punishment which is prescribed for person committing the same i.e. a sentence of death in the present case. Needless to add that in such-like cases, the law permits grant of bail only on satisfaction of the conditions laid down in sub-section (2) of Section 497 of the Cr.P.C. i.e. if there were reasonable grounds for believing that the person seeking bail was not guilty of the offence alleged against him and instead there were grounds warranting further inquiry into his guilt.
4. Even if it be presumed, for the benefit of Mamaras petitioner, that the above-noticed judicial confessions were the only evidence available against him, he would still not qualify for his release on bail as according to the provisions of Article 143 of the Qanun-e-Shahadat Order of 1984, a judicial confession made by a co-accused person was a perfectly valid piece of evidence which could be taken into consideration and which could be used as circumstantial evidence against a co-accused of such a confessing accused. Needless to say that circumstantial evidence, even by itself, has never ever been considered not to be a valid basis for founding a conviction thereon. It was of course open to the petitioner to show that the said judicial confessions did not deserve any reliance but not even an attempt was made to indicate any reason why the said co-accused persons would have falsely and maliciously implicated Mamaras petitioner in such a heinous crime by specifically nominating him as one of the abettors of the same.
5. Thus, nothing exists on record which could permit us to hold that the case of the petitioner was one of further inquiry. Nor is it possible for us to declare that every person accused of the commission of an offence punishable under Section 109 P.P.C. was entitled to the grant of bail irrespective of the merits of the case; without demanding satisfaction of the conditions prescribed by Section 497(2) of the Cr.P.C. and only because the allegation against him was one of abetting the commission of an offence.
6. Consequently, this petition is dismissed. Leave refused.
(R.A.) Leave refused.