1980 PLP 133 (SCMR)

G. SAFDAR SHAH, J.‑On 7th September, 1978 at 7.55 P.M. com plainant Raja George Sikandar Zaman Khan lodged report with Muazzam Shah S. H. O. of the Khanpur Police Station to the effect that while returning from village Harmal, where he had gone to offer 'Fateha', his motor wagon No. AD‑8, in which he and his servants were travelling, was fired upon at a point called `Lapera' from the adjoining maize crop fields, as a result of which his driver named Muhammad Aslam was hit by pallets on his right leg. No one was named by him in the F. I. R. as the occurrence had taken place in the dark hours of the night, but in the early hours of the next morning, when the Investigating Officer, visited the spot, he found a purse containing the identity cards of accused Muhammad Din, his son Feroz Din and of two ladies of their household, as well as Rs. 53 in currency notes, and a receipt showing the purchase of a wrist watch from Kohinoor Watch Company. Upon the recovery of the said material, the Investigating Officer interrogated Muhammad Din and Feroz Din who are alleged to have volunteered to make confessional statements. According ly, the Investigating Officer got their confessional statements recorded in which they not only implicated themselves in the commission of the crime but also respondent Raja Ghulam Sarwar Khan saying that the firing on the wagon of complainant Raja George Sikandar Zaman had been done by them in pursuance of a conspiracy to murder him. In consequence of the said confessional statements made by Muhammad Din and Feroz Din, respondent Raja Ghulam Sarwar Khan, alongwith four co‑accused (his sons and relatives) was arrested, whereas the three other accused are said to be still absconding. In order to secure bail for himself, the efforts made by Ghulam Sarwar Khan did not fructify in the Court of the local Magistrate, as well as the learned Sessions Judge, Abbottabad, but in the High Court he succeeded in that behalf mainly on the ground of his old age, which, according to the learned Judge was sufficient to prove infirmity besides the petitioner also suffers from senility and other ailments depicted by the medical certificate. Being aggrieved of the said Order passed by the High Court, com plainant Raja George Sikandar Zaman Khan came to this Court praying for leave to appeal on the ground, amongst others, that apart from the two confessional statements made by the accused Muhammad Din and Feroz Din in which the respondent accused has been fully implicated, his licensed gun recovered after the commission of the crime has been connec ted with one of the crime empties and thus there appeared reasonable grounds to believe that he was (a) connected with the crime and (b) that he deliberately misled the High Court by making a false statement to the effect that he was 70 years old as well as sick and infirm whereas he was still a Government servant and according to the Certificate obtained from his Department he was actually 54 years old. In the face of these allegations made in the petition which were supported by an affidavit as well as a copy of the said Certificate issued by the S. D O. Store, K.D.P., WAPDA, Khanpur, leave was granted to the petitioner by the order of this Court dated 23rd April, 1979 and consequently the petition was numbered as Criminal Appeal No. 18 of 1979. We have heard Mr. Zafar Mahmood the learned Senior Advocate for the Appellant. Mr. Akhtar Mahmood for the accused respondent and Mr. Muhammad Ajmal, the learned Advocate appearing on behalf of the Advocate‑General, N.-W. F. P., who has; supported the appellant. Now the first contention urged by the learned counsel for the appellant is indeed supported by the investigation record made available to us by the learned counsel appearing on behalf of the A. G., N.‑W. F. P. but we would rather abstain from giving any opinion thereon, as the said conten tion was not only not urged in the High Court but the impugned order of the High Court was passed on the basis of the second contention. Dealing with the second contention, therefore, reference may first be made to a copy of the Certificate dated 4th March, 1979 issued by the S. D. O. Store, KDP, WAPDA, Khanpur (appended at page 21 of the paper book) in which it has been certified that Raja Ghulam Sarwar s/o Raja Mohammad Zaman Khan, resident of Khanpur was working as Security Sergeant in the office of Senior Store Officer, Khanpur Dam Project till 10th September, 1978 (A. N.). Since then he is absent from duty. His age according to our service record is 54 (fifty‑four) years." The prima facie authenticity of this Certificate has been underwritten by the accused respondent himself, who, in his application made to the X. E. N., Khanpur Dam Divisional (see page 37 of the paper book) asked to be permitted to resume his duty as Security Sergeant on the ground 'that has since been released on bail in this case. The fact that the learned counsel for the accused respondent did not question the said two documents, it would follow that the accused respondent had indeed misled the High Court by falsely claiming to be an old man of 70 years of age. Furthermore in so far as this appeal is concerned perhaps we can take judicial notice of the fact that if the accused respondent was any where near tile age of 70 years WAPDA could not have kept him in employment and that too as Security Sergeant which employment in the nature of things would require a comparatively fit and younger person. In this view of the matter we are constrained to observe that the accused respondent has secured bail for himself from the High Court by resorting to dubious and sharp tactics ‑a device which must be firmly censured by this Court in order to save the machinery of the administration of justice from being polluted and or taken undue advantage of. This appeal, therefore, succeeds. Consequently, the bail granted to the accused respondent by the High Court is hereby recalled and it is directed that he must surrender himself before the Ilaqa Magistrate immediately who shall arrest him and remand him to judicial custody. We may observe, however, that after the investigation in the case has been completed it would be open to the accused respondent to make fresh endeavour for securing bail for himself and we have no doubt that if he filed an application in that behalf the same would be considered on its own merits. Appeal accepted. Bail cancelled.