P L D 1976 Lahore 591 (PLP)

On 6‑5‑1975, at about 6‑30 a.m,, Shafqat Ali complainant was going on the bank of rajbah Kala Shah Kaku. He was proceeding towards bus‑stand ,Kartu. His maternal cousin Muhammad Aslam deceased and Muhacumad Ashraf P. W. were going ahead of him. Fateh Muhammad (absconder), Haq Nawaz, Khizar accused armed with guns, Ijaz Ahmad respondent and Muhammad Yousaf accused were sitting on the way. When Muhammad, Aslam and Muhammad Ashraf went ahead of them, Ijaz respondent, Khizar and Muhammad Yousaf co‑accused shouted that they would not allow them to go alive. Simultaneously, Fateh Muhammad absconder and Haq Nawaz co‑accused fired gun shots at Muhammad Aslam deceased, which hit him and the deceased fell down. The occurrence was witnessed by Shafqat Ali,.. Muhammad Ashraf, Iftikhar Elahi and Rehmat Ali, who stepped forward to rescue the deceased. Ijaz Abmad respondent and Muhammad Yousaf co‑accused took out revolvers from the fold of their loin cloth (dub). Khizar co‑accused fired gun shot over the heads of the witnesses in the air and shouted that whoever tried to intervene, would be killed. Fateh Muhammad absconder took out licensed revolver of Muhammad Aslam from the bandolier. Haq Nawaz co‑accused removed wrist watch of ithe deceased. The accused went away firing shots. They boarded a wagon which was parked at the service road of rajbah Muridke. The motive for the occurrence was, that one and a quarter years ago,, Muhammad Aslam deceased and Rehmat Ali etc. purchased 85 acres of land from Nawabzadi Sajida Sultana. Fateh Muhammad etc. had filed a civil. suit in the Court of Civil Judge, Sheikhupura, and a complaint in the Court of A. C. Ferozewala, in respect of the said land and both the cases were fixed for 6‑5‑1975: The deceased and Muhammad Ashraf were going in connec tion with those cases. Leaving Muhammad Ashraf and Iftikhar Elahi with the dead body, Shafqat lodged the report the same day, at 7‑15 a.m. at Police Station, Narang, which was at a distance of 3J miles from the spot.

2. Statements of Muhammad Ashraf, Iftikhar Elabi and Rehmat Ali were recorded by the Investigating Officer under section 161, Cr. P. C. According to them, Ijaz Ahmad respondent bad fired pistol shots at them.

3. Ijaz Ahmad respondent moved CrI. Misc. No. 1838/13‑75, on. 10‑5‑1975, for the grant of bail before arrest. Ijaz Ahmad disclosed in the bail petition that the allegations against him were false and frivolous and his involvement was the outcome of political factionalism as he was, a younger brother of Nisar . Ahmad Punnu, Advocate, Member National Assembly. He was allowed interim bail. Muhammad Akram Buttar, Advocate (brother of Muhammad Aslam deceased) moved Crl. Misc. No. 1954/13‑75, on 19‑5‑1975, under section 497(5) of the Criminal Procedure Code read with section 561‑A, Cr. P. C. It was maintained by Muhammad Akram that there were reasonable grounds to believe that Ijaz Ahmad was involved in a case, which was punishable with death or imprisonment: for life. A prayer was made that the order whereby Ijaz Ahmad was, allowed interim bail, be recalled. Both the petitions were disposed of by this Court vide order dated 20‑5‑1975, which was as follows "This order would dispose of Crl. Misc. No. 1838/B‑75, filed by Ijaz Ahmad and Crl. Misc. No. 1954/13‑75, filed by Muhammad Akram Buttar. (2) The learned counsel for Jjaz Ahmad contended that only lalkara had been attributed to the petitioner and no over‑act had been ascribed ; that altbough Ijaz petitioner was alleged to have taken out revolver from his dub, he did not fire any shot ; that 30/35 persons appeared in defence of the petitioner to prove that he was not present at the time of occurrence. (3) The learned counsel appearing on behalf of the State contended that the provisions of section 149, P. P. C. were clearly attracted: in this case ; that the name of Ijaz Ahmad was mentioned in the F. I. R. ; that at the exhortation of the petitioner, co‑accused Fateh Muhammad and Haq Nawaz had fired gun shots at the deceased. (4) The Investigating Officer informed that 15/16 persons appeared in defence of Jjaz Ahmad but the police had not arrived at the conclusion that the petitioner was innocent. (5) The learned counsel appearing on behalf of Muhammad Akram Buttar contended that liberal grant of bail bafore arrest in cases, under heinous offences was depricated by the Supreme Court. (6) 1 was taken through the F.

1. R. of this case lodged at the instance of Shafqat Al~i. The occurrence had taken place on 6th May, 1975,. at 6‑30 a.m. and the report was lodged the same day at 7‑15 a.m. The Police Station was at a distance of 3J miles from the spot. The report was lodged with promptitude. Shafqat Ali disclosed in the F. I. R. that he was proceeding on the bank of rojbah Kala Shah Kaku. Muhammad Aslam deceased and Muhammad Asaraf were also going on the same path. The petitioner along with his co‑accased were sitting at a place and when the deceased, reached near them, the petitioner and his co‑accused Khizar and Muhammad Yousaf exhorted that they would not allow the dcceasedi to go alive whereupon Fateh Muhammad and Haq Nawaz co‑accused. fired gun shots at the deceased which hit him and the deceased fell. down. The complainant further mentioned in the F.

1. R. that he and Muhammad Ashraf stepped forward to rescue the deceased, but Ijaz Ahmad petitioner and Muhammad Yousaf co‑accused took out revolvers from their dubs ; that Khizar co‑accused fired gun shot in the air in order to scare them ; that Fateh Muhammad took out pistol from the bandolier of Muhammad Aslam while Haq Nawaz! co‑accused removed his wrist watch ; that all the accused including Ijaz Ahmad petitioner boarded the wagon which was parked at some distance and made good their escape. According to the prosecution version, the petitioner and co‑accused constituted an unlawful Assembly and in the prosecution of the common object of that unlawful assembly, committed the murder of Muhammad Aslam deceased intentionally. All the accused were sitting together before the attack was opened on the deceased. Two of the co‑accused were armed with guns The petitioner had exhorted the co‑accused and on his exhortation, Fateh Muhammad and Haq Nawaz fired gun shots at the deceased resulting in his death. The police has not arrived at the conclusion that Ijaz Ahmad was found innocent in the case. Thus, the provisions of subsection (2) of section 497, Cr. P. C. are not attracted in this case. There are reasonable grounds to, believe that the petitioner is, prima facie, guilty of an offence punishable with death or imprisonment for life. It is not a fit case for the grant of bail before arrest. The petition is dismissed and the earlier order granting him interim bail is recalled."

4. Jjaz Ahmad respondent moved bail petition before Sessions Judge,. Sbeikhupura, on 30‑7‑1975. Notice was issued to the State for 4‑8‑1975. Record was also summoned for the said date. The petition was adjourned to 30‑8‑1975, for arguments. It was again adjourned to 2‑9‑1975, since then police file had not been received. Arguments were heard on the said date and the petition was adjourned to 3‑9‑1975, for orders. Counsel for Ijaz Ahmad respondent appeared before Sessions Judge and informed him ‑that Dr. Khalid Ranjah, Advocate, had to argue the bail petition. A request was made for affording further opportunity. In order to accommodate ‑the learned counsel, the petition was adjourned to 8‑9‑1975. Mr. Nisar Ahmad, Advocate, submitted application before Sessions Judge, on 8‑9..1975. informing that Mr. Aitizaz Ahsan who had been engaged to argue the bail petition, was busy in the High Court and was expected to reach at 12‑30 p.m. The petition was adjourned to 13‑9‑1975. Ijaz Ahmad respondent was allowed bail by Sessions Judge vide detailed order dated 13‑9‑1975, on the .grounds that he neither fired pistol shot at the deceased nor in the air and on account of this restraint, he was entitled to the concession of bail. The second ground which weighed with the learned Sessions Judge was that only lalkara had been attributed to him. It was also held in thA impugned order that the order of rejection of petition for bail before arrest passed by this Court did not create any hindrance for the consideration of ‑petition for bail after arrest by the Sessions Judge. .

5. It was contended by the learned counsel for the petitioner that unnecessary indulgence had been shown to the accused‑respondent in the matter of hearing and the subsequent order passed by the Sessions Judge in .allowing bail to the accused‑respondent could cause reasonable apprehension in the mind of the petitioner that the bail was not allowed strictly on merits ; that Sessions Judge had no authority to sit in judgment over the .order passed by the High Court ; that the name of the accused‑respondent was neither shown in column No. 2 of the challan nor it was recorded in reports submitted under section 173, Cr. P. C. that the accused‑respondent was found innocent ; that the Sessions Judge conveniently skipped over the effective part of the relevant zimni that the accused‑respondent was using delaying tactics and was not allowing the case to proceed ; that the relatives of the accused‑respondent had threatened the Committing Magistrate several times and had abducted his servants after giving them thrashing.

6. The learned counsel for Ijaz Ahmad accused‑respondent submitted that Dr. Kbalid Ranjah, Advocate, was counsel for the complainant and .and not for the accused‑respondent and thus, no indulgence had been shown ‑to the accused‑respondent by the Sessions Judge ; that an application ‑for bail before arrest filed by accused‑respondent was dismissed by this Court on 20‑5‑1975, before the challan had been submitted in Court whereas Sessions Judge allowed bail on 13‑9‑1975, after the submission of challan and sufficient time had elapsed between the two orders ; that the accused respondent was found innocent by the Investigating Officer and the Sessions .Judge was justified in allowing bail to accused‑respondent on the basis of the opinion of the Investigating Officer ; that the order of the Committing Magistrate wherein he mentioned that the relatives of the accused had exerted influence over him several times and had abducted his servants, !was malicious ; that no action was taken by the District Magistrate on the report of the Committing Magistrate : that the accused‑respondent had no motive to join hands with the other accused.

7. The arguments were heard by Sessions Judge in the bail petition, .on 2‑9‑1975, and the petition was adjourned to 3‑9‑1975, for orders. Counsel for accused‑respondent appeared before Sessions Judge, on 3‑9‑1975 .and conveyed information that Dr. Khalid Ranjab, Advocate, had to .argue the petition. A request was made for adjournment, which was acceded ;to and the petition was adjourned to 8‑9‑1975. Mr. Nisar Ahmad, Advocate, appeared for accused‑respondent and informed Sessions Judge that Mr. Aitizaz Ahsan, Advocate, had been engaged for accused‑respondent, who was expected to reach at 12‑30 p.m. Sessions Judge adjourned the petition to 13‑9‑1975, on the assumption that since Mr. Aitizaz Ahsan, Advocate, was busy in the High Court, he might not be able to reach the Court at 12.30 p.m. A certificate of Dr. Khalid Ranjah, Advocate, has been produced in this Court wherein the learned Advocate maintained that he appeared 'on behalf of the complainant on 13‑9‑1975, and prior to it, he did not appear before Sessions Judge. He further disclosed that the accused without consulting him made a statement that he had to ‑appear on his behalf. !It so appears that the accused‑respondent wanted to engage Dr. Khalid Punjab, Advocate, but since he had been engaged by the complainant party, he could not argue the bail petition on behalf of the accused respondent. Adjournments are normally granted by the Courts on the reasonable request of either of the two parties and there is nothing un‑usual ~in it. I cannot agree with the learned counsel for the petitioner that uneces sary indulgence had been shown to the accused‑respondent in the matter of granting adjournments.

8. The next point for determination is as to whether Sessions Judge ,could allow bail to the accused‑respondent after his petition for bail before .arrest had been dismissed by this Curt on merits. This proposition ‑of law is undisputed that when a bail petition is dismissed by High C.)urt .on merits, bail can still be allowed by the Sessions Judge/Committing Magistrate/trial Court if the case of accused falls under proviso to sub section (1) of section 497, Cr. P. C., for instance the accused falls sick or if his case falls under subsection (21 of section 497, Cr. P. C. or the witnesses while appearing in Court do not support the prosecution case. Unless the above‑mentioned circumstances exist, the subordinate Court has no jurisdic tion to sit in judgment over the orders passed by tae High Court. The Supreme Court, which is the highest Court of Pakistan, has always considered the rule of, propriety. It was held in Farid v. Ghulam Hassan and others (1968 S C M R 924) that where one Judge of High Court expresses himself strongly against grant of bail, another Judge of High Court, when moved for the grant of bail, should transfer such application for disposal by the First) Judge, in accordance with long established practice and rule of propriety. In another case titled Chaudhary Muhammad Khan v. Sana Ullah and .others (P L D 1971 S C 324) it was held that the order of a Judge of High Court in granting bail suffered from impropriety as another Judge of the High Court had earlier refused bail. Omission to follow rule laid down in Farid v. Ghulam Hassan and others was depricated. Yet in another case titled Muhammad Nawaz alias Nawaza and another v. Mst. Sakina and another (1971 S C M R 374), it was held that rule of propriety also required that Magistrate, unless a resurrection in that behalf was already made, should have referred case to High Court. The facts of the last reported case were that High Court earlier cancelled the bail, but the trial Court after recording statements of all prosecution witnesses (except complainant who was held to be deliberately absenting in ‑order to prolong accused's detention in jail) allowed bail to tae accused on coming to the conclusion that prosecution case was not supported by witnesses. The High Court subsequently canceled bail keeping in view the earlier order and the erroneous assumption by the trial Magistrate ;that the witness was deliberately avoiding appearance in Court. The order of the High Court was not interfered with by the Supreme Court. In, the instant case, the merits of the case had been thoroughly gone into. The petitioner was a member of an unlawful assembly. He was keeping a pistol in the fold of his loin cloth. He along with other accused was sitting on the way. Fateh Muhammad absconder, Haq Nawaz and Khizar co‑accused were armed with guns. Muhammad Yousaf co‑accused had also revolver in his dub. As soon as Muhammad Aslam deceased and Muhammad Ashraf . We went ahead of respondent and other accused, the respondent, Khizar and Yousaf co‑accused shouted that they would not let then go alive whereupon Fateh Muhammad absconder and Haq Nawaz fired gun shots at Muhammad Aslam deceased, which hit him and the deceased fell down. Although in the F. I. R., the accused‑respondent was) not alleged to have fired any shot, the statements of three eye‑witnesses,; namely, Muhammad Ashraf, Iftikhar llahi and Rehmat Ali recorded under section 161, Cr. P. C. indicated that accused‑respondent had fired revolver) shots at them. The statements of the three witnesses recorded under section 161, Cr. P. C. cannot be ignored at the time of the decision of the bail petition. The report had been lodged within 45 minutes of the occurrence in spite of the fact that the Police Station was at a distance of 32 miles. After committing the murder, the accused‑respondent and co‑accused boarded a wagon, which was parked at some distance, and made good their escape. It was urged on behalf of Nisar Ahmad petitioner in case titled Nisar Ahmad v. The State (P L D 1971 S C 174) that provisions of section 34 were not attracted in the case to make accused constructively liable for the offence of murder. It was held in this authority that the point involved appraisal of entire evidence of prosecution, which could not safely be undertaken by High Court hearing bail petition. Provisions of .4ection 34, P. P. C. and section 149, P. P. C. are identical. Provisions of section 34, P. P. C. are attracted when the offence is committed in furtherance of common intention of several accused. Provisions of section 149, P. P. C. are attracted when an offence is committed by members of unlawful assembly in the prosecution of common object of unlawful assembly. A person shouting lalkara can be guilty of abetment. It was so held in case Chiragh Din and others v. The State (P L D 1967 S C 340). In this authority it was also observed that the case titled Abdul Aziz v. Bashir Ahmad and another (P L D 1966 S C 658) was not to be read as laying down that a lalkara was never to be regarded as a sufficient overt‑act, if proved, to establish abetment and that question must be decided by the trial Court on an appreciation of all the facts, including the degree of interest in the crime possessed by the person who shouted the lalkara. and the part he played in the background of the affair. It was also observed that the appreciation of the evidence and the drawing of conclusion therefrom in relation to all the circumstances was the function exclusively of the trial Court and it could not be anticipated by a Superior Court dealing with an ancillary matter, e.g., the grant of bail, pending trial. Sessions Judge bad placed reliance on case titled Muhammad Yaqub v. The State (1971 P Cr. L J 106). In the said reported case, Muhammad Yaqoob petitioner was allowed bail for the reason that he was empty banded and only lalkara bad been ascribed to him. The petition for the cancellation of bail of Ghulam Rasool was rejected for the reason that although he was stated to be armed with chhuri, he did not use it and only lalkara had been attributed. The facts of the reported case are distinguishable from the facts of the present case. in the instant case, the three eye‑witnesses clearly stated in their statements under section 161, Cr. P. C. that the accused respondents had fired revolver shots at them. Hence the said authority is not applicable to this case. Another case titled Manzoor and 4 others v. The State (PLD1972SC8) cited by the learned counsel for the accused respondent is also not applicable to the facts of this case. In the reported case, the names of the persons mentioned in F. I. R. were placed in column No. 2 of the challan while a number of other persons were charged as culprits. The complainant maintained that the police was shielding the real culprits and the persons charged as accused, were innocent. The accused applied for bail but the High Court rejected the petition on the main ground that the police investigation had held them to be guilty. Since the facts of the reported case have distinct features, it is not applicable to the facts of the present case. It is an admitted fact that Mr. Nisar Ahmad, Advocate, who is Member National Assembly, is real brother of Ijaz Ahmad accused respondent. It is also not disputed that Fateh Munammad who had filed suit for specific performance and a complaint under sections 420 and 461, P. P. C. against Muhammad Aslam deceased and others, is maternal uncle of accused‑respondent. Both the cases were fixed for the day on which the murder of Muhammad Aslam was committed. In these circumstances, it could not legitimately be argued that the accused‑respondent had no motive to join hands with the co‑accused. The case was investigated and an incomplete challan was submitted in Court by S. H. O. Police Station, Narang, on 1‑6‑1975. The name of accused‑respondent was not mentioned in column No. 2 of the challan. It was also not mentioned in report under section 173, Cr. P. C. that the accused‑respondent was found innocent Complete challan was submitted on 21‑7‑1975, by Inspector Crimes, Lahore. The position did not change and it remained the same. The name of the accused respondent was neither mentioned in column No. 2 of the challan nor it was recorded in report under section 173, Cr. P. C. that accused‑respondent was found innocent. Sessions Judge referred to zimni~ dated 21‑7‑1975, in the impugned order. According to the Sessions Judge. finding of the Investigating Officer was a material circumstance which entitled the accused to the concession of bail. It was not the finding of the Inspector, Crimes Branch that he found accused‑respondent innocent. He mentioned in the zimni that the case was earlier investigated by Zamir Ahmad, S. H. O. who arrested the respondent, Haq Nawaz, Khizar Hayat and Muhammad Yousaf co‑accused and after investigation, the local police submitted an incomplete challan on 1‑6‑1975. It was at the instance of the complainant party that the investigation was entrusted to Crimes Branch. The Inspector further mentioned that the defenze evidence produced on behalf of the said four accused was not so sound and un‑rebuttable but according to general and secret inquiry and rumours the accused were innocent, yet the evidence produced by the complainant was so sound that the challan was being submitted and the matter left to the Court. It is evident from the said zimni that Inspector Crimes Branch never came to the conclusion that the said four accused were innocent. In the first part of the zimni, he mentioned that the defence evidence was not very sound and unrebuttable. In the concluding portion of the zinanl, he mentioned that the evidence led by the complainant party was very sound. The Inspector simply mentioned that according to general and secret inquiry and rumours the accused were innocent. It was not the finding of the Investi gating Officer. In these circumstances. it could not be said that the case of the respondent was covered under subsection (2) of section 497, Cr. P. C. Sessions Judge tried to find fault with the prosecution case in order to grant bail to the respondent. He did not exercise the discretion judiciously. His order being illegal, cannot be maintained. Besides, the: respondent was not produced from jail on 9‑9‑1975 and 12‑9‑1975, on the ground of sickness and the report of Medical Officer, Jail, was challenged by the complainant. Six witnesses who were present on both the dates, could not be examined and the Committing Magistrate was compelled to discharge the witnesses. It is evident from the order sheet dated 19‑9‑1975, that the Committing Magistrate was held out threats several times by the relatives of the accused. On 18‑9,‑1975, the Committing Magistrate was informed that few days ago, relatives of the ac :used including Mr. Nisar Ahmad brother of IJaz respondent and Muhammad Hanif. Advocate. gave beating to the servants of the Committing Magistrate and abducted them to a Bungalow which was probably of Mr. Nisar Punnu and something was got written from them under coercion against the Committiug Magistrate. The matter was brought to the notice of Deputy Commissioner through A. C. The Commiting Magistrate sent the file to the District Magistrate for entrusting it to some other Court of competent jurisdiction. It is a serious matter and is being inquired into by the A. C. It weighs heavily against the accused‑respondent.

9. For the reasons stated above, I accept this petition, set aside the order of the learned Sessions Judge and cancel the bail of Ijaz Ahmad accused‑respondent. s. A. H. Petition accepted. Bail cancelled.