1986 PLP 1121 (MLD)

6. Javaid was arrested on 23‑2‑1986 while Azam absconded and is still an absconder.

7. As the investigation proceeded, it transpired that Shehbaz Ahmad and his brother Sabir Hussain had a hand in the murder of Ghulam Hussain. Sabir was arrested on 17‑12‑1985 whereas Shehbaz was admitted to interim pre‑arrest bail by the Additional Sessions Judge, Lahore on 19‑12‑1985, which was confirmed on 1‑2‑1986.

8. After his arrest, Sabir was also admitted to bail by the same Additional Sessions Judge on 23‑12‑1985.

9. Muhammad Din, father of the deceased Ghulam Hussain, filed an application before the Additional Sessions Judge for the cancellation of the bail of Sabir Hussain. The application was dismissed by the Additional Sessions Judge, by his order dated 1‑2‑1986. Hence this application for cancellation of bail of Shehbaz Ahmad and Sabir Hussain.

10. Before proceeding further, I would like to observe that Shehba Ahmad and Sabir Hussain, respondents, had moved two separat applications for grant of bail and the Additional Sessions Judge by tw separate orders admitted both the brothers to bail. Judicial propriety demanded that there should have been two separate applications for cancellation. To my surprise, neither the counsel for the respondents nor the Assistant Advocate‑General objected to it, especially when the counsel for the petitioner argued that the considerations for pre‑arrest and post‑arrest bail were different.

11. I thought of rejecting this petition on the aforesaid technical ground, but then naturally it would have followed by two separate applications with the same prayer. So, in order to avoid multiplicity of proceedings I thought it proper to dispose of this petition on merits.

12. First I take up the case of Shehbaz Ah.mad. From the order of the Additional Sessions Judge, dated 1‑2‑1986, it appears that in the first instance he was admitted to interim pre‑arrest bail. That order was later on confirmed by the order dated 1‑2‑1986. Once again, none of the parties brought this fact to my notice during the arguments. Learned counsel for the petitioner did not submit that Shehbaz respondent had been admitted to interim pre‑arrest bail in the first instance. Even copy of that order was not placed on record. Therefore, i did not know what was the initial consideration, which weighed with the Additional Sessions Judge for admitting Shehbaz to pre‑arrest bail in a capital offence. I myself called for the file from the Court concerned and I find that this respondent was admitted to interim pre‑arrest bail by means of order dated 19‑12‑1985, which is as under:‑ "Present‑‑Petitioner with counsel. Submitted that petitioner has not been named in the F.I .R. Further submitted that there is no reference about any conspiracy relatable to the petitioner at all. Further submitted that the petitioner got a habeas corpus petition moved through his brcther‑in‑law Muhammad Hayat before the Hon'ble High Court against the S.H.O. and the complainant. Further submitted that this was the malice, which actuated the police to involve the petitioner also. Admit Notice and record for 12‑1‑1986. Meanwhile, the petitioner is admitted to pre‑arrest interim bail in the sum of Rs. 20 000 with one surety in the like amount to the satisfaction of this Court. He has to join the investigation and attend the Court on each date of hearing." The aforesaid order was confirmed by the Additional Sessions Judge by order dated 1‑2‑1986 with the following observations:‑ "Without going into the merits of the case and considering only the relevant facts on record as also hearing both the sides, I find that prima facie the petitioner was not present at the spot at the time of occurrence and the allegation of the instigation or conspiracy against him, in the circumstances of the case, needs further inquiry."

13. Learned counsel for the petitioner submitted that Shehbaz, respondent, was not entitled to the concession of pre‑arrest bail. The murder was planned and was result of the conspiracy between the two respondents. It was submitted that this fact was brought to light after the registration of the case when the investigation proceeded. According to the learned counsel, the mere fact that the names of the respondents had not been mentioned in the F.I.R. did not mean that they were entitled to bail, especially Muhammad Shehbaz to extraordinary concession of pre‑arrest bail.

14. Learned counsel laid great stress on the motive as given in the report, which, he submitted, had gone unchallenged, had resulted in the murder of Ghulam Hussain. Learned counsel further submitted that one of the accused is still an absconder. In such circumstances, the order granting bail was not warranted by law.

15. Learned counsel for the respondents opposed this application. With regard to Shehbaz, he placed on record proceedings of the ordinary meeting of the Cantonment Board, held on 15‑12‑1985 at 1000 hours, to show that the respondent participated in the meeting which was presided over by Brig. Mukhtar Ahmad. According to the learned counsel, this proved beyond doubt that this respondent was neither present nor he had anything to do with the murder of Ghulam Hussain. His name had not even been mentioned in the F. I. R. Therefore, he was rightly granted bail. In support of this, the counsel relied on Miraj Din and others v. The State and others 1983 P Cr. L J 1951

16. Learned counsel laid great stress that the respondent was roped in because the police was hostile to lam on account of a habeas corpus petition (Criminal Miscellaneous No. 559/H‑85), filed by his brother‑in‑law against the S.H.O. and S.I., Police Station North Cantt. The learned counsel submitted that the involvement of the two brothers was an afterthought and was due to the fact that the local police was hostile to them. Counsel relied on Maqsood Ahmad alias Pehlwan v. The State 1985 P Cr. L J 357 and Jamaluddin v. The State 1985 S C M R 1949.

17. So far as the other respondent, Sabir Hussain, is concerned, learned counsel for the petitioner repeated most of the submissions with regard to Shehbaz Ahmad, but added that the mere fact that he was injured did not entitle him to bail in a murder case. Learned counsel for the petitioner further submitted that the Additional Sessions judge did not give cogent reasons while granting bail to him.

18. Learned counsel for the respondents, while dealing with the case of Sabir Hussain, in addition to the arguments advanced in respect of Shehbaz Ahmad, contended that Sabir was seriously injured for which a case was registered against Ghulam Hussain and others. In that case Shehbaz Ahmad was the first informant. Sabir Hussain was in such a bad shape that two chest tubes passed in his left 4th and. 7th inter costal space under L/A. In support of this, learned counsel placed on record a photostat of Discharge Ticket from the Services Hospital, Lahore. The argument pertaining to the habeas corpus petition was also submitted vis‑a‑vis this respondent.

19. The learned counsel wound up his arguments. by submitting that in the case of both the respondents the Additional Sessions Judge exercised his discretion in judicial manner. His order called for ‑ no interference.

20. I also heard learned Assistant Advocate‑General. He did not submit as to which side he was supporting and I did not want to embarrass him by asking whether he was for the petitioner, or for the respondents. However, he produced a copy of the report dated 7‑3‑1986, lodged by Muhammad Din, father of Ghulam Hussain, deceased, to show that after the bail the two respondents misused the concession and extended threats to the father of the deceased. The Inspector present with the A.A.‑G. submitted that after the aforesaid complaint necessary proceedings had been initiated.

21. Admittedly, the firing is not attributed to the respondents. It is not the prosecution case that they were present at the spot. The fatal shot is ascribed to Javaid alias Jaidi. The other person present with him was Azam, who was empty‑handed. The complaint was drafted by the S.I., who was escorting Ghulam Hussain. He did this without losing any time. It is quite natural that he wanted to report the matter to the Police as early as possible. Therefore, it was not expected from him to give the details. He did mention the motive. However, the true facts came to light after the investigation. The motive as alleged. in the report was not challenged by the learned counsel for the respondents.

22. In the interim order of pre‑arrest bail of Shehbaz, the learned Additional Sessions Judge simply incorporated the contentions of his counsel and allowed him interim pre‑arrest bail. This was not the correct approach. The counsel should have been called upon to substantiate his contentions, because the learned Judge was dealing with bail in murder case wherein the parties had strained relations. Even at the time of confirmation of the interim pre‑arrest bail, the counsel did not place on record any evidence in support of his contentions. Although a plea had been taken by the counsel‑‑the Additional Sessions Judge that on the day of occurrence shehbaz was attending a meeting of the Cantonment was furnished before the Additional Sessions Judge. it was only before me‑ that the counsel placed on record minutes of the meeting of the Cantonment Board.

23. The mere fact that Shehbaz attended ‑the meeting would be no proof of his innocence and could not exempt him from the charge of conspiracy.

24. It is, therefore, obvious that prima facie there was no material before the Additional Sessions Judge either at the time when Shehhaz was admitted to interim pre‑arrest bail or at the time when the bail was‑ confirmed. I am, therefore, clear in my mind that the reasons given by the Additional Sessions Judge in admitting this respondent t pre‑arrest bail are not in conformity with the principles laid down by the superior Courts.

25. No doubt Sabir Hussain was injured for which Ghulam Hussain and others had been challaned under section 307/34, P.P.C. His Discharge Ticket shows that he was out of hospital on 14‑12‑1985. The alleged incident of firing took place on 15‑12‑1985. Counsel for the respondent argued that after discharge from the Hospital, Sabir was admitted to a private clinic, but no proof has been placed on record and I was not shown any certificate by a private practitioner. However, I am prepared to accept that Sabir was injured. At the most it will b one of the factors in his favour, but the Additional 'Sessions 'udg was bound by law to take all the relevant facts into consideration and then give his finding.

26. It has been‑ repeatedly observed by me that it is not th prosecution case that the two respondents were present at the spot. They are accused of conspiring for the firing, which resulted in th murder of Ghulam Hussain. Thus they had the 'remote control.

27. When the respondents were allowed bail, Javaid alias Jaidi ha not been arrested. His co‑accused Azam was an absconder and is stil a fugitive from justice, although the counsel for the respondent submit te that Azam is abroad. I wonder how the counsel came to know of this aspect: The grant of bail to both the respondents not only resulted in encouragement of the absconder, but also seriously hampered th investigation in a murder case.

28. During the arguments learned counsel for the respondents laid great stress on the habeas corpus petition to prove mala fides of the police. I have considered this aspect. According to the file of the habeas corpus it was filed on 17‑12‑1985. It came up before the learned Judge on the same date when a bailiff of this Court was deputed to recover the detenus. The petition then came up for hearing on 18‑12‑1985. The bailiff submitted his report. He also produced Mst. Nusrat Bibi wife of Sabir and Mst. Hanifan Bibi wife of Siraj. Sabir was produced in hand‑cuffs by Jamshaid Raza, S.H.O., Police Station North Cantt. The bailiff stated in the report that Sabir Hussain was shown to have been arrested at noon time on ‑17‑12‑1985 in a murder case. The petition was disposed of by the learned Judge on the same date. The occurrence took place on 15‑12‑1985. The case was registered on the same date. I, therefore, do not find any evidence of the police being inimical towards the respondents.

29. Taking all the relevant circumstances into consideration, assessing the over all station and having gone through the case‑law teed by the learned counsel for the respondents, I am of the view that the two respondents were not entitled to the bail in the manner in which they have been enlarged by the Additional Sessions Judge. I, therefore, cancel their bail and order that they shall be taken into custody an .:nt to judicial lock‑up forthwith. H.A.K . Bail cancelled.