1994 P Cr (PLP)

A.R. Karnai, Asstt. A: G. for the State. The petitioner moved an application on March 26, 1994 for bail pre arrest under the aforesaid sections. It was contended in the application that petitioner was being implicated in a false case or cases by the high ups of police department of Muzaffarabad District and is being harassed with mala fide intention. It was further pleaded that the petitioner was not aware of the particulars of the details of the case or cases in which the police wanted his arrest with motive to humiliate him in the society as till this time, he has not been named as accused in any reports. He further pleaded that the police of Muzaffarabad District had cordoned off the premises of the District Court of Criminal Jurisdiction Muzaffarabad in order to deprive him from seeking legal remedy from the said Court in accordance with law. On these grounds he pleaded that he was compelled to approach this Court directly for the redressal of his grievance.

2. The concept of bail pre-arrest is to prevent humiliation of a citizen at A the hands of police. The petitioner who is a member of Central Bar Association, Muzaffarabad and thus associated with a respectable profession, was allowed ad interim bail in order to prevent him from humiliation and unjustified harassment.

3. A notice was issued to the learned Advocate-General to produce before the Court the record of the case or cases registered against the petitioner and the case was posted for April 2, 1994 for further proceedings. On April 2, 1994 on account of other engagements, arguments could not be heard and the petition was adjourned to April 4, 1994 when the learned Assistant Advocate-General appeared before the Court and produced record of the case registered under sections 307 and 353, A.P.C. vide F.I.R. No.12/94. This case was registered on the initiation of one Muhammad Aslam, Head Constable No.393 Pallatoon No.l of Rangers Police, Muzaffarabad.

4. I have heard the learned counsel for the parties and have perused the record of the case as well as police diary.

5. It is pertinent to mention here that in this case, the petitioner was not B named as assailant. In the light of the F.I.R. the statements of injured policel constables were recorded under section 161, Cr.P.C. None of the police constables had disclosed that petitioner was armed with Klashnikov or he indulged in indiscriminate firing due to which they received injuries. It is an open fact that due to indiscriminate firing with the Klashnikov on January 3, 1994, complainant Muhammad Alam, H.C. and Umar Din, Shah Zaman, Iqbal, Abdul Aziz, Muhammad Sharif, Ashfaq, Rashid, Lal Hussain, Khani Zaman and Abdur Rashid, Police Constables were injured. The relevant portion of the first information report for the convenience of reference is reproduced below:--

6. Muhammad Alam, the injured police constable held Hassan Mahmood responsible in the above-referred report, for the injuries received by the police constables. However, subsequently, on March 24, 1994, one Nadim Iqbal made a statement before the Assistant Commissioner which was recorded under section 164, Cr.P.C. wherein he stated that the petitioner was armed with Klashnikov who opened fire on police party in his presence, resultantly the above-named police constables received injuries. However, on April 4, 1994, when the learned Assistant Advocate-General alongwith investigating Officer was present before the Court, the said Nadim Iqbal presented an affidavit in which he deposed that on March 23, 1994 he was arrested by the police and was taken to the residence of S.S.P., Muzaffarabad where he was compelled to sign the statement which they had already prepared. According to him, he refused to do so, resultantly he was again taken to police station and on March 24, 1994, he was brought before D.S.P., Muzaffarabad. Before that he was beaten by the police in order to extract a statement from him against the petitioner. Thereafter, on March 24, 1994, at 4 p.m. he signed an already prepared statement in the office of D.S.P., Muzaffarabad before a person who disclosed himself to be Assistant Commissioner, Muzaffarabad. He narrated all this story even in the open Court in toe presence of so many persons including the Investigating Officer and the Assistant Advocate-General.

7. In the light of this affidavit, it appears that the statement of this witness purportedly recorded under section 164, Cr.P.C. by the Assistant Commissioner on March 24, 1994 was, prima facie, not a volunteered statement.

8. Prima facie, it appears that false statement was recorded on March 24, 1994 which has not been owned by the person to whom it was ascribed. The affidavit of this witness exonerated the petitioner from the charge and made the case against the petitioner one of further inquiry.

9. The learned Assistant Advocate-General pointed out that one Yasin Malik resident of Barriyan Tehsil Athmuqam has also deposed against the petitioner. I have gone through the statement of this witness which has been recorded by the police under section 161, Cr.P.C. How the police got this information that this witness had seen the petitioner carrying the Klashnikov at the relevant time of the fateful day, is a question which has not been explained. It is undenied fact that the statement of this witness was recorded after two months and five days of the alleged incident. Under section 44 of the Cr.P.C. everybody who is aware of the commission of the offences like the instant one, is liable to furnish the information to the nearest Magistrate or the police station as early as possible. Why this witness kept mum for such a long time, is a point which, prima facie, creates serious doubts and this possibility cannot be E ruled out that the statement might have been made under pressure, inducement and threat of police.

10. The petitioner has pleaded mala fide on the part of police. In my opinion, the allegation was prima facie, not devoid of force.

11. In the light of the above observations, the interim bail granted to the petitioner by this Court vide order passed on March 26, 1994, stands confirmed. N.H.Q./7/Sh.CA. Pre-arrest bail granted.