P L D 1993 Lahore 801 (PLP)

One Abdul Rashid alias Shida Gadi approached this Court through Crl. Misc. N0'.2328/B of 1992 seeking his release on bail in a case registered against him for the alleged commission of an offence punishable under section L3-B of Arms Ordinance of 1965 on account of a KLASHNIKOV having allegedly been recovered from his possession for which possession the said accused had no licence. The F.I.R. which was registered in this connection was F.I.R. No.207 of 1992 of Police Station Misri Shah of Lahore.

2. During the hearing of this bail matter, it transpired that the said KLASHNIKOV had been recovered from the said Abdul Rashid accused during the course of the investigation of a case F.I.R. No.195 of 1991 of Police Station Misri Shah which stood recorded for the alleged commission of offence punishable under section 324/148/149, P.P.C. on the accusations that having allegedly fired at the members of their opposite-party (hereinafter called HAKA PARTY), Abdul, Rashid alias Shida Gadi accused and his six party men had caused fire-arm injuries to four persons, namely, Maqsood, Allah Ditta, Babar and Iqbal. This occurrence had allegedly taken place at about 6-00 p.m. on 24-4-1991 near the railway track in the area of Badami Bagh and the above mentioned F.I.R. had been registered at the instance of one Muhammad Akram belonging to the said HAKA PARTY. The record further revealed that on the same day i.e. on 24-4-1991 another F.I.R. bearing No.62 of 1991 had been recorded at P.S. Lorri Adda at about 8-50 p.m. on the statement of the above mentioned Abdul RASHID ALIAS SHIDA GADI wherein he had alleged that nine persons of Haka Party, including Inayat Haka himself had attacked Shida Gadi Party at about 6-00 p.m. while the assailants were armed with KLASHNIKOVS, Rifles and Guns etc., as a result of which, three members of Shida Gadi Party, namely, Majeed, Shabir and Ashiq who were amongst the persons nominated in the above mentioned F.I.R. No.195 of 1991, had received fire-arm injuries.

3. It further transpired that from amongst the accused persons nominated as such through F.I.R. No.195 of 1991 who belonged to SHIDA GADI Party, three persons, namely, Shabir, Nazir and Ashiq were absconders while the remaining four i.e. Abdul Rashid alias Shida Gadi, Shahid Iqbal, Abdul Majid and Yasin had been admitted to bail by a learned Special Judge exercising powers under the Suppression of Terrorist Activities (Special Courts) Act XV of 1975. 4. 1 further noticed that all the nine accused persons belonging to Haka Party who were persons named as assailants through the above mentioned F.I.R. No.62 of 1991, also stood released on bail before arrest by the same learned Court. 5. 1 issued notice to all the bailed out members of both the above mentioned parties to show cause why the bail allowed to them be not re called? The matter of cancellation of bail allowed to Abdul Rashid alias Shida Gadi is the subject-matter of Crl. Misc. No.4024/CB of 1992 while the cancellation of bail allowed to Shahid, Majid and Yasin of Shida Gadi Party who were accused persons of F.I.R. No.195 of 1991, is the subject-matter of CrI. Misc. No.5133/CB of 1992. Crl. Misc. No.2396/CB of 1993 pertains to the notices issued to the nine persons of Haka Party who were accused persons of F.I.R. No.62 of 1991, to show cause against the re-call of the pre-arrest bad allowed to them all.

6. All these matters are being disposed of together through this single order, , 7, They have"all been heard 8. 1 shall first deal with the accused persons of F.I.R. No.62 of 1991 who belonged to Haka Party and seven of whom, namely, Inayat alias Haka, Walayat, Karamat Javed alias Jeeda, Amir Khan, Shabir IQlan and Ahmad had been released on pre-arrest bail through an order dated 31-1-1993 whereas the remaining two, namely, Maqsood and Arif had been admitted to pre-arrest bail vide an order dated 2-3-1993 of the said learned Special Court.

9. The bail granting orders in question revealed that in admitting these nine accused persons to bail before arrest, the learned Special Court had been influenced by the fact that t he local police had concluded that no occurrence as alleged through F.I.R. No.62 of 1991 had ever taken place; that this report of the local police had been verified by D.S.P. (City), D.S.P. (Ichhra) and the D.S.P. (C.I.A.) of Lahore. The said learned Court had been further impressed by the fact that all these police officers, had according to him, absolved all these nine accused persons of their criminal liability in the occurrence in question and Hussain Asghar, an A.S.P. who had investigated this case under the orders of the High Court had also opined that it had not been possible for him to determine as to which of the two parties was the aggressor at the time of occurrence though he had held that the two occurrences reported through the two separate F.I.Rs. of P.S. Misri Shah and P.S. Larri Adda, were in fact one occurrence. It was on account of these grounds that the learned trial Court had extended the extraordinary concession of pre-arrest bail to these nine persons.

10. The facts above narrated which appear to have persuaded the learned triad Court to grant the above mentioned extraordinary relief to the accused persons in question, are not correct. I have gone through the police file of case F.I.R. No.62 of 1991 as also the connected file of case F.I.R. No. 195 of 1991. It is not true that the local police had opined that no occurrence as alleged through F.I.R. No.62 of 1991 had ever taken place. It is also not correct that any such finding given by the local police had been verified by the D.S.Ps. of City, Ichhra and C.I.A. of Lahore. These facts appear to have been misrepresented before the learned trial Court.

11. The actual position which emerges from the police file is that it was one Muhammad Sharif S-1. who had initially started the investigation of case F.I.R. No.62 of 1991. He had nowhere opined or declared that no occurrence as alleged by the complainant of the said F.I.R. had ever taken place. The last ZIMNEE that he recorded in this ca was dated 11-5-LW1 in which he had recorded that he had still not received the M.L.R. of injured Majid of the occurrence in question; that according to MOHALLADARS, Inayat alias Haka and Zahid accused were not armed at the time of occurrence; that some persons of the locality had also informed him that Karamat, Amjad and Arif accused had not taken part in the occurrence in question; that Maqsood and Arif accused had not joined the investigation and finally that he had summoned Abdul Rashid alias Shida GadL complainant of the said case, to offer further evidence to him so that the above pleas taken by the accused party could be met. It will be noticed that the local police had thus not reached any conclusion in the matter when the investigation had been withdrawn from the local police by an order dated L3-5-1991 of the S.S.P. of Lahore and had been entrusted to D.S.P. (City) of Lahore. Before the said D.S.P. (City) could take any step in the investigation of this case, the same was withdrawn from him also, by the D.I.-G. of Lahore on 22-5-1991 and had been entrusted to the D.S.P. of Ichhra and once again before this D.S.P. of Ichhra could move in the matter, the D.I.-G. of Lahore passed orders on 27-5-1991 withdrawing this investigation from the D.S.P. of Ichhra and entrusting the same to the S.P. of Lahore Range Crimes. This case had then been finally investigated by one Khalid Masood Inspector of the Lahore Range Crimes. The matter had never gone to the D.S.P. of C.IA. and the fact narrated by the learned trial Court to the contrary was also incorrect.

12. This Khalid Masood Inspector of the Range Crimes who was the first investigating officer to have reached some conclusion in the matter was of the view, through his ZIMNEE dated 30-8-1991 recorded in the police file of case F.I.R. No.62 of 1991, that the occurrence in question had actually taken place at the railway track; that both the parties in question had resorted to firing, that however, the aggressor party was Shida Gadi Party and Haka Party had retaliated only in their defence; that the occurrence as narrated through F.I.R. No.62 of 1991 was false; that this F.I.R. should be canceled and that proceedings should be initiated against Abdul Rashid alias Shida Gadi complainant of the said F.I.R. for the alleged commission of an offence punishable under section 182 of the P.P.C. It may be mentioned here that as has been noticed above, the D.I.-G. of Lahore Range had entrusted the investigation to the S.P. of Lahore Range Crimes and not to Khalid Masood Inspector of the said agency. It appears from the police file that the said S.P. of Range Crimes did not investigate this case personally. He did not, even supervise this investigation nor did he verify the same. Irrespective of the merits of the conclusions reached by Khalid Masood Inspector, I must express my displeasure over the manner in which this investigation had come to the hands of this Inspector because the D.L-G. of Lahore Range, acting as the officer-in-charge of the police station of his Range as envisaged by section 551 of the Cr.P.C., had disputed one of his subordinates, namely, the S.P. of the Range Crimes to investigate the said case in which circumstances, the S.P. was in turn clothed with no authority to entrust this investigation to an Inspector working under him without ever remaining himself associated with this investigation.

13. Be that as it may, it may be mentioned here that the investigation of case F.I.R. No.195 of 1991, had been originally conducted by Shah Hussain S.I. of P.S. misri Shah who never reached any final conclusion in the matter when the investigation was transferred to D.S.P. (City) on 4-5-1991 when the same came into the hands of Zamin Abbas Inspector /Staff Officer of D.S.P. (City) who however, did nothing in the matter till 14-5-1991 when the investigation of this case was also entrusted to the D.S.P. of Ichhra on 16-5-1991 and he investigation of both these cases, namely, F.I.R. No.62 of 1991 of P.S. Larri Adda and F.I.R. No.195 of 1991 of P.S. Misri Shah came to be entrusted to the same police officer. As has been mentioned above, the D.S.P. of Ichhra also did nothing in the matter when the investigation of this case was also transferred to the S.P. of Range Crimes along with the investigation of the above mentioned F.I.R. bearing No.62 . of 1991.

14. In the Range Crimes, this case arising out of F.I.R. No.195 of 1991 had also been investigated by Khalid Masood Inspector above mentioned and the final conclusion reached by him as revealed from the ZIMNEE dated 30-8-1991, indicates that he was of the opinion that the two occurrences were not independent occurrences and was in- fact one occurrence in which both the -parties had resorted to firing at each other and in which persons belonging to both the parties had received injuries. He had further opined that all the accused persons of F.I.R. No.19~ of 1991 i.e. Shida Gadi Party were guilty, that the members of Shida Gadi Party had also received injuries in the occurrence in question and that case F.I.R. No.62 of 1991 had since been canceled. He, however, went on to add that the S.H.O. of P.S. Misri Shah was being directed that the injured persons belonging to Shida Gadi Party should be re-joined in the investigation; their statements should be recorded and that in the light of these statements of the members of Shida Gadi Party, a separate challan should be submitted against the members of Haka Party on the strength of the statements of the injured persons belonging to Shida Gadi Party and on the strength of the statements of witnesses in case F.I.R. No.195 of 1991 and finally that the S.H.O. of P.S. Misri Shah, while preparing this challan against the members of Haka Party, should seek assistance from the file of the canceled case of F.I.R. No.62 of 1991.

15. From the above-noticed conclusions reached by Khalid Masood Inspector, it would transpire that the same are mutually contradictory and destructive. Having opined that it were the members of Shida Gadi Party who were aggressor in the occurrence in question and having consequently advised that F.I.R. No.62 of 1991 registered against the members of Haka Party be cancelle4 the said 1.0, in the same breath, went on to add that a separate challan should also be prepared and submitted against the members of Haka Party who were the accused persons of F.I.R. No.62 of 1991 in respect of the injuries that they had caused on the persons of the members of Shida Gadi Party. This 1.0. appears to have obliged both the parties and these contradictory opinions recorded by the said 1.0. were thus of no real value. (16)It was in these circumstances that while dealing with this matter, I had directed that both these cases should be investigated by Hussain Asghar, A.S.P. The I.-G. Police consequently passed orders entrusting the investigation of both these cases to the said A.S.P.

17. The said A.S.P. investigated these matters and opined that the firing did take place as alleged in the two above mentioned F.I.Rs. Le. No.195 of 1991 of P.S. Misri Shah and No. 62 of 1991 of P.S. Larri Adda, that both the parties had used fire-arms and had resorted to firing at each other; that members of both these parties had received injuries as a result of the said firing-, that weapons had also been recovered from some members of both the parties; that sufficient evidence was available on record justifying the challan against the accused persons of both the F.I.Rs. and that the accused persons of F.I.R. No.62 of 1991 should also be challaned that it was difficult at that stage to determine which of the two sides was the aggressor and that the same should be left to the trial Court to decide.

18. It would thus be noticed that the local police had nowhere declared that the occurrence as narrated through F.I.R. No.62 of 1991 had never taken place nor at any stage any such finding had been verified by the D.S.Ps. of City, Ichhra and C.I.A. as claimed by the learned trial Court. -The grant of extraordinary concession of pre-arrest bail to the nine accused persons of F1,.R. No.62 of 1991 had thus emanated from foundations which never existed. The finding of Inspector Khalid Masood were also not conclusive because in one breath, he had recommended cancellation of F.I.R. No.62 of 1991 and in the same breath, he had also advised that a separate challan should be submitted against them. Hussain Asghar A.S.P. was of the definite opinion that sufficient evidence existed on the record to justify sending of accused persons of both the parties for trial. The mere fact that it could not be determined by the police as to which of the two sides was the aggressor could not mean that both the parties were innocent and should be let off. It could well have been a case of free fight where members of both the parties had resorted to firing at each other with sophisticated and other fire-arms. .

19. The nine accused persons of F.I.R. No.62 of 1991 stood specifically named in the F.I.R. Each one of them had been specifically alleged to be armed with specific fire-arms held by them and used by them during the occurrence in question. There was no conclusive finding by any of the 1.0s. that these accused persons were innocent.

20. Consequently, the discretion exercised by the learned Special Court in admitting these persons to bail before arrest was not a power exercised judiciously. The result is that the pre-arrest bail allowed to Inayat alias Haka, Maqsood alias Dooda, Karamat alias Baggi~ Walayat alias Kalu, Amir Khan, Shabir Khan, Amjad, Arif alias Mongi and Javed alias Jeeda, through the abovementioned two orders dated 31-1-1993 and 2-3-1993, are re-called. Criminal Miscellaneous No.2396/CB of 1993 is disposed of in the said terms.

21. The new question which requires consideration is regarding the bail allowed to Abdul Rashid alias Shida Gadi, Shahid lqbal, Abdul Majid and Muhammad Yasin alias Heera who are accused persons of the above mentioned F.I.R. No.195 of 1991 of P.S. Misri Shah of Lahore.

22. All the four accused persons were specifically named in the F.I.R They were specifically alleged to be armed with fire-arms and it is on record C that they had resorted to firing which had resulted in injuries to four persons. namely, Maqsood, Allah Ditta, Babar and Iqbal of their opposite-party. One the 1.0s. was of the view that they were the aggressor party of the occurrence in question but the opinion of Hussain Asghar A.S.P. was that it was not possible to determine as to which of the two parties was the aggressor though according to him, both the parties had fired shots at each other which had resulted in the above-noticed damage. It appears that the occurrence in question was a free fight amongst these two groups of desperado who were out to humble the other party in order to establish their respective superiority D against the other. Such-like persons who resort to discriminate firing out in create alarm and panic in the area, are certainly the kind of persons who fall within' the fourth proviso of section 497(l) of the Cr.P.C. and who consequently stand disentitled from the concession extendable to them through the third proviso of the said section. Abdul Rashid alias Shida Gadi had been involved in more than fifteen criminal cases in the past and similar was the position of some of his other party men.

23. In this view of the matter, I find that such-like desperate and dangerous criminals were not entitled to the concession of bail either in equity or , in law. Resultantly, the bail allowed to Abdul Rashid alias Shida Gadi, Shahid lqbal, Abdul Majid and Muhammad Yasin alias Heera through orders dated 31-1-1993 and 2-3-1993 passed by the learned Special Judge at Lahore the open area endanger, not only the lives of innocent persons but also are re-called. Criminal Miscellaneous No.5133/CB of .1992 and Criminal Miscellaneous No.4024/CB of 1992 are disposed of in the above terms.

24. The learned counsel appearing for Abdul Rashid alias Shida Gadi in Criminal Miscellaneous No.2328-B of 1992 which is a petition praying for his release on bail in case F.I.R. No.207 of 1992 registered under the Arms Ordinance of 1965, prays for permission to withdraw this petition. The same is, therefore, dismissed as withdrawn. N.H.Q./A450/L ORDER ACCORDINGLY