1990 PLP 1085 (SCMR)

M. Nawaz Abbasi, Assistant Advocate‑General (Punjab) for the State. Date of hearing: 18th February, 1990. RUSTAM S. SIDHWA, J.‑‑‑Rab Nawaz petitioner seeks leave to appeal against the order, dated 14th January, 1990 passed by the Lahore High Court, Lahore, refusing to grant him bail. Naveed a nephew of Rab Nawaz petitioner, was required in connection with a case registered under section 382, P.P.C. in respect of a theft of a motorcycle. Muhammad Hussain S.I. alongwith police party, including Muhammad Nawaz and Samandi PWs, conducted a raid at the house of Falak Sher, the brother of the petitioner, on 23rd August, 1989 at 11‑15 p.m. in order to apprehend Naveed. After the police party surrounded the house of Falak Sher, the Sub‑Inspector knocked at the main gate and called out loudly that the police were present and they should open the door. After a few minutes the door opened and Rab Nawaz petitioner, armed with a rifle, accompanied by the four co‑accused, who were empty handed, emerged. On the exhortation of the co -accused, Rab Nawaz petitioner fired at the police party with his rifle, but the bullet missed, and when the police party tried to apprehend him, he gave a butt blow with‑his rifle on the head of lftikhar Constable. Thereafter, the petitioner, alongwith his co‑accused, was apprehended, whilst one co‑accused managed to ‑run away. The rifle containing one missed bullet was also taken into possession by the police, in addition to three live bullets. On behalf of the petitioner it is submitted that actually the petitioner had been arrested on 17th January, 1989, under section 54, Cr.P.C. and had been discharged by the Magistrate on 21st August, 1989 and that when his elder brother Falak Sher and his nephew Naveed had filed a complaint with the higher authorities against Abdul Hameed Bajwa, Inspect or/S.H.O., Police Station Miana Gonda], for having falsely registered a case against them, on which the Additional Superintendent of Police conducted a preliminary inquiry on 23rd August, 1989, in which Rab Nawaz petitioner appeared and made a statement against the said S.H.O., that the present case was thereafter trumped up by the said police officer against him and some others. It is further submitted that the allegation that the petitioner fired at the police party, which shot proved ineffective, because the bullet missed, is also false and that no rifle was with the petitioner or used by him. The injury on the head of Iftikhar Ahmad Constable is simple, whereas the other two injuries on the injured witnesses have not been explained in the F.I.R. The contention that Abdul Hameed Bajwa, Inspector/S.H.O., Police Station Miana Gondal, bore grudge against the petitioner for having made a statement against him before the Additional Superintendent of Police on 23rd August, 1989, is not without significance. 1n this background and in view of the absence of any bullet injury, the fact whether the petitioner did intentionally fire at the police party, but was unsuccessful to hit anybody, because the bullet missed, or the case has been padded by the inclusion of this false firing, assumes prominence and since this matter cannot be determined, till proper evidence is recorded in the case, we would, taking all circumstances into consideration, allow bail to the petitioner. Notice has already been issued to the Advocate‑General in this case. Whilst converting this petition into an appeal, we would accept this appeal and set aside the order of the Lahore High Curt, Lahore, dated 14th January, 1990, and allow bail to Rab Nawaz, appellant, subject to his furnishing security in the sum of Rupees twenty‑five thousand (Rs. 25,000) with two sureties each in the like amount, to the satisfaction of the Assistant Commissioner /Duty Magistrate, Mandi Bahauddin. N.H.Q./R‑146/S Bail allowed.