1992 P Cr (PLP)

3. The aforenoted accused were arrested. Rifle 7 m.m. and pistol .38 bore were recovered from Abdul Sattar and Farooq respectively. No recovery was effected from Zafar lqbal. A gun was recovered from Jamshed Alam. From the scene of occurrence 10 empties of 7 m.m. rifle and 4 empties of .38 bore pistol were recovered by the S.H.O. Police Station, Hasilpur. Meanwhile Tariq Nawaz son of deceased Haji Muhammad Nawaz applied to the Superintendent of Police that the accused mentioned in the F.I.R. were not his father's murderers. As a matter of fact, Haji Muhammad Nawaz was assassinated by Muhammad Aslam, Zulfiqar and Afzal, on the instigation of Shahid Latif who was entertaining enmity towards his father. The investigation was initially conducted by Muhammad Ramzan, S.H.O. who by report dated 21-2-1991 found all the accused except Zafar Iqbal, guilty. On the complaint of one of the parties, the investigation was handed over to the Additional Superintendent of Police, Bahawalpur who rendered opinion that there was sufficient material connecting Muhammad Aslam, Zulfiqar and Muhammad Afzal with the commission of offence under section 307/324, P.P.C. This did not end the matter. Again on the complaint of one of the parties, the D.I: G., Bahawalpur Division entrusted the investigation to Rana Muhammad Aslam, Superintendent of Police Crime Range, who visited the spot, recorded the statements of witnesses of both the sides and opined that the accused mentioned in the F.I.R. by Shahid Latif were guilty of offence of murder. This opinion was built upon his finding that Muhammad Aslam, Zulfiqar and Afzal had gone to their house, had fetched the lethal weapons and used them in exercise of right of self-defence. On the basis of this report, an application was made to the Judicial Magistrate who by order, dated 31-7-1991 discharged the accused and cancelled the case against Muhammad Aslam, Zulfiqar and Afzal. At this stage, it will be necessary to notice that Muhammad Aslam, Zulfiqar and Afzal were granted bail after arrest by the Judicial Magistrate vide order, dated 21-5-1991. Against this order, cancellation application was preferred by Tariq Nawaz which was accepted by the learned Additional Sessions Judge by order, dated 27-6-1991 and the bail granted to the aforenoted. persons was cancelled. Feeling aggrieved with this order, Muhammad Aslam, Zulfiqar and Afzal had filed Criminal Miscellaneous No.384-B of 1991.

4. The application for bail after arrest by Abdul Sattar, Farooq Ahmad, Rashid Ahmad, Zafar lqbal and Jamshed Alam was rejected by the learned Additional Sessions Judge vide order, dated 27-6-1991. These applicants have filed Criminal Miscellaneous No.381-B of 1991 for grant of after arrest bail, in this Court.

5. Malik Ghularn Farid, Advocate who led the arguments on behalf of the applicants, submitted that the prosecution case was of three versions. The first investigator opined that all the accused except Zafar Iqbal, were guilty. He had prepared a report under section 173, Cr.P.C. and submitted the same in Court. The second investigator i.e. the Additional Superintendent of Police, Bahawalpur, found that there was sufficient material on the file connecting Muhammad Aslam, Zulfiqar and Muhammad Afzal with the commission of offence under section 324/134, P.P.C. and a report under section 173, Cr.P.C. was submitted before the Court by the second investigator. The 3rd investigator, i.e. Superintendent of Police, Crime Range, recorded the conclusion that Muhammad Aslam, Zulafiqar and Afzal had used fire-arms after taking them from houses during the continuation of occurrence. According to the learned counsel, the case of the applicants in the circumstances was of further inquiry and the applicants were entitled to the concession of bail. It was further contended that the conclusion of Superintendent of Police, Crime Range was built upon conjecture and surmises and was totally illegal.

6. It was lastly argued that the son and brother of the deceased were unanimous that the real culprits were Muhammad Aslam, Zulfiqar, Afzal and Shahid Latif.

7. Learned counsel for the applicants, Mr. A.R. Tayyib, Advocate, adopted the arguments of Mr. Ghulam Farid, Advocate and brought to the notice of the Court, Habib v. The State 1983 S C M R 370 and Nasira Surriah v. Muhammad Aslam and others 1988 S C M R 1095, in support of the proposition that the Judicial Magistrate had passed the order of discharge in mechanical manner without application of mind to the facts and circumstances of the case.

8. On the other hand, the learned counsel for the complainant, opposed the grant of bail on following ground:-- (i) It was urged that all of the three investigators have held that the applicants were guilty. The difference was with respect to the right of private defence exercised by Muhammad Aslam, Zulfiqar and Afzal. According to the learned counsel in such a circumstance, the applicants were accused of offence punishable with death/imprisonment for life and so the applicants were not entitled to the concession of bail. As regards the order of discharge, it was submitted that this order was an administrative one and so was not liable to interference in revisional jurisdiction of this Court under section 439, Cr.P.C. Reference was made to Bahadur and another v. The State and another PLD 1985 SC 62 and Muhammad Ibrahim and others v. Qudrat Ullah Ruddy and others P L D 1986 Lah.

256. According to the learned counsel, Criminal Miscellaneous No.384-B of 1991 had been rendered infructuous as the applicants have been released from jail on account of the order of discharge. The learned D.S.P. (Legal) who appeared in pursuance of Court's call, submitted with fairness that the findings recorded by the Superintendent of Police, Crime Range regarding the exercise of right of self-defence by Muhammad Aslam, Zulfiqar and Muhammad Afzal, was based upon no material. He submitted that most presumably, the Superintendent of Police Crime Range must have arrived at this conclusion by taking whole of the circumstances of the episode into consideration. He might have concluded that this occurrence might have lasted long and Muhammad Aslam, Zulfiqar and Afzal might have entertained fear that their associates were in danger. In such a circumstance, they might have gone to their houses and might have brought the arms in order to deter the aggression. He further stated that as far as the question of right of self-defence is concerned, no hard and fast rules can be laid down. Every case is to be judged on its own facts within the framework of sections 97, 99, 100 and 102, P.P.C. He further stated in consonance with the circumstances of the case, the order of discharge passed by the Judicial Magistrate could not be defended. Elaborating his contentions, he suggested, that the police despite the order of discharge may resubmit the report under section 173, Cr.P.C. against the accused and the learned judicial Magistrate may forward their case for trial to the learned Court of competent jurisdiction; that the complainant Tariq Nawaz may file complaint to the learned Court of competent jurisdiction who may issue process against the accused, that the learned trial Court may after recording some evidence, summon the accused noted above to face the trial.

9. I have heard the learned counsel for the parties at a considerable length. Before I proceed to determine the merits of the contentions of the parties, I feel it necessary to record my feeling of dissatisfaction with the investigation. The practice of investigation and re-investigation in murder cases came in consideration before the Supreme Court in Riaz Hussain and others v. The State 1986 S C M R 1934. This practice was depercated in unmistakeable terms. The relevant passage from the judgment may be quoted with advantage which is as follows:-- "The occurrence in this case had taken place in September, 1974 and the final report of the re-investigation was submitted in April, 1977 i.e. after a lapse of about three years. How on earth any significance can be attached to a report complied and submitted after such a long time, especially when there was every possibility of fabrication of evidence. The system of re-investigation in criminal cases is a recent innovation which is always taken up at the instance of influential people and favourable reports obtained. This in no way assists the Courts in coming to a correct conclusion."

10. In Criminal Miscellaneous No.45/H of 1991, I examined the scheme of Police Act. After the survey of the relevant provisions of the Police Act, it was held:-- "From the examination of sections 2, 3, 4, 5 and 7 it is quite clear that the police services comprise of subordinate and supervisory police hierarchy. At the apex is the Inspector-General of Police of Province who has been armed with even Magisterial powers. In this scheme the District Magistrate is also invested with powers of general control and direction of police force within his District. Section 29 stipulates penalties for neglect of duties of police officers. In short the superior police officers are under statutory duty to watch the performance of subordinate police officials and see that they do not transgress their powers. The superior police officers have been given power to take departmental as well as criminal actions in respect of the delinquent officials."

11. Notwithstanding these observations by the superior judiciary, it appears neither the condemned practice of investigation/re-investigation is being given up nor the superior police hierarchy is giving effect to the principle that a murder case should not be subjected to investigation/re-investigation. The investigation in this case was first conducted by the S.H.O., then by the Additional Superintendent of Police, Bahawalpur and then by the Superintendent of Police Crime Range. The first investigator found that all the accused mentioned in the F.I.R. except Zafar Iqbal are guilty, the second investigator held that there was sufficient material against Muhammad Aslam, Zulfiqar and Muhammad Afzal connecting them with commission of offence under section 3?A, P.P.C. and the third investigator introduced the theory of self-defence. Even the learned counsel for the complainant and the learned D.S.P. (Legal) were not able to support the finding of Superintendent of Police Crime Range. Had the observation given in Riaz Hussain's case followed, such results would not have happened. The superior police hierarchy are in the circumstances noted above, directed to meticulously follow the observation/finding embodied in Riaz Hussain and others v. The State 1986 S C M R 1934 and in future refrain from making investigation in murder cases as a shuttle cock.

12. Without proceeding further in this matter, I revert back to the merits of this case. It is sufficient to say that the finding of the Superintendent of Police, Crime Range is totally illegal and founded upon unfoundational assumptions and so the consequential order of discharge. As no grievance has been shown against the order of discharge, I refrain from examining it any further.

13. Coming to the merits of the case, it is clear from the three investigations, that the case has become of three versions; that the legal heirs of the deceased have specifically stated that the applicants arc not the assassins of Haji Muhammad Nawaz; that Haji Muhammad Nawaz was on inimical terms with Shahid Latif--complainant.

14. Without going deeper into the merits of the case lest it may prejudice the case, I am of the view that the case of the applicants is of further inquiry. I' accordingly accept the application. Abdul Sattar, Farooq Ahmad, Rashid, Ahmad, Zafar Iqbal and Jamshed Alam are allowed bail. Each of the applicants shall be released on bail provided he furnishes bail bond in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the trial Court/Duty Sessions Judge.

15. As regards, Criminal Miscellaneous No.384-B of 1991 by Zulfiqar and others, this application had been rendered infructuous and is accordingly dismissed.

16. Before closing with this order, it is made clear that this order shall not preclude the trial Court from examining the prayer for cancellation of bail allowed to the applicants in Criminal Miscellaneous No.381-B of 1991. N.H.Q./A-24/L Bail allowed.