1988 P Cr (PLP)

Tanvir Ahmad Khan, Addl. A.‑G. and Rao Hamid Mukhtar Khan for the State. Raja Muhammad Muzaffar for the Complainant. This order will dispose of Criminal Miscellaneous No.4196‑B of 1987, Criminal Miscellaneous No.4252‑B of 1987 and Criminal Miscellaneous No. 4437‑B of 1987 as well as W.P. No.5665/1987 and W.P. No.5790/1987 as these are connected matters.

2. Relevant facts for the disposal of these petitions are that earlier Syed Iqbal Hussain Shah and his cousin, daughter of his mother's sister filed Writ Petition. No. 1184/1987/Multan saying that they had married on 12‑8‑1987 but a case under section 11 of Ordinance VII of 1979 was got registered by her father at P.S. Sadar Mailsi on 23‑8‑1987. They prayed that the F .I.R. and investigation be quashed and the S.H.O. directed not to arrest or harass the petitioners. When the case came up for hearing on 20‑9‑1987 the girl was asked where did she want to go? She said that she wanted to go with her husband i.e. the then petitioner No.1, Syed Iqbal Hussain Shah. Learned counsel appearing for them in order to prove the bona fides stated that‑ the girl may be sent to Darul Aman, Multan for a few. days and while she be there parties or their relatives may meet. The Superintendent, Darul Aman, Multan sent a statement of the girl saying that she was being threatened by Syed Iqbal Hussain Shah. When she appeared in Court she stated that she wanted to go with her parents. During the course of hearing it was alleged on behalf of the prosecution that the alleged Nikah Nama was executes'. Under coercion and duress. After hearing the parties concerned and their learned counsel, the petition was dismissed with the observation that the investigation may have its own course in accordance with law. However, the interim bail earlier, granted to Syed Iqbal Hussain Shah was extended for another 10 days for him to apply to the competent Court for such a relief as may be available to him. This is vide order dated 26‑9‑1987.

3. Thereafter, Syed Iqbal Hussain Shah, filed an application for bail before the learned Sessions Judge and the learned Additional Sessions Judge, Vehari on 26‑10‑1987 passed the following order :- "Iqbal Hussain petitioner was present in the earlier hours with his counsel. This application was kept in wait. It is about 2‑45 p.m. when this application has been called for the second time. The petitioner has not turned up. Riaz Ahmad Advocate who has stated himself to be the junior of Ch. Mustafa Ahmad Tarar, adv. who appeared or; behalf of the petitioner, has stated that' Ch. Mushtaq Ahmad Tarar, adv. has also gone to his house. The application is dismissed in default of, appearance of Iqbal Hussain, petitioner.

4. Iqbal Hussain Shah has filed Criminal Miscellaneous No. 4196‑B/1987. Mushtaq Hussain who is a co‑accused in the aforementioned F.I.R. after rejection of his application by the learned Additional Sessions Judge vide his order, of the same date and in same terms, stated before has filed bail application bearing Criminal Miscellaneous No. 4252‑B/1987. Syed Muhammad Shah father of Syed Iqbal Hussain Shah aforementioned has directly applied to this Court for bail through Criminal Miscellaneous No.4437‑B/1987.

5. Learned counsel for the petitioners has contented that in view of the petition filed by Iqbal Shah and the girl bearing W.P. No.1184/ 1987 (Multan) and her statement on 20‑9‑1987, there is no doubt whatsoever that the matter requires inquiry and the petitioners are entitled to bail. He has referred to 1982 P Cr. L J 196 and 1983 P Cr.L J

909. He has also submitted that firstly, the petitioners Iqbal Shah and Mushtaq Hussain having appeared in the morning before the learned Additional Sessions Judge and cases put off in wait, their applications were liable to be dismissed for non.‑prosecution. It required decision on merit. He referred to P L D 1973 Lah. 874.

6. The learned Additional Advocate‑General (Mr. Tanvir Ahmad Khan) who was appearing in the afore‑mentioned two writ petitions was invited to assist the Court in these bail applications as well. The learned counsel for the complainant submitted that Syed Iqbal Hussain Shah is the principal accused. He is named in the F.I.R. and has been implicated in the main offences in the statement of the girl under section 164 Cr.P.C. recorded on 27‑9‑1987. As regards Mushtaq Shah, he has submitted that he too was named in the F.I.R. and had also been mentioned having committed the main crime in the aforementioned statement under section 164 Cr.P.C. He has also submitted that Mushtaq Shah had filed three applications before the learned Sessions Judge for bail and those having been dismissed, his last application for bail was rightly dismissed by the learned Additional Sessions Judge in so far as that in spite of being granted interim bail, he did not appear at the time of final hearing and the afore?mentioned order of the learned Additional Sessions Judge is in order. He further submitted that Mushtaq Hussain has been involved in a number of criminal cases previously. As regards Syed Muhammad Shah, he has submitted that he is father of Iqbal Shah and has been mentioned to have kept a watch when the girl was being detained and violated upon, as mentioned in her statement under section 164 Cr.P.C. He had earlier been involved in a case under section 302 P.P.C. and is a previous convict.

7. After hearing the learned counsel for the parties and perusing the record and the documents to which attention was drawn by the learned counsel for the parties, there is no doubt that the learned Additional Sessions Judge in his order was not quite right when he rejected the application of Iqbal Shah and Mushtaq Hussain on 26‑10‑1987 in default of appearance. They had appeared with their counsel in the morning. Their application was kept in wait. When it was taken up at 2‑45 p.m., the counsel appearing said that the senior counsel for the petitioner had gone home. In the circumstances, he should have either postponed the hearing to a next date or disposed of the applications on merit as required vide the law laid down in PLD 1973 Lah.

874. When an application for bail is taken up by a learned Court, unless there is a direction for appearance of the petitioner in person, his representation through counsel is sufficient and the application requires determination on merit or if the learned Judge dealing with the matter feels that it is necessary that the petitioner should appear in person, a direction should be issued to the person for appearance on a date given for the purpose. As regards Iqbal Shah, he was allowed interim bail so that he could apply for bail before the competent Court. Mushtaq Hussain has been granted interim bail on 2‑12‑1987 by the learned Acting Chief Justice and the matter is for confirmation of bail to him. On merits of the case, no comment is being made lest it may affect one way or the other the investigation or the trial if ultimately held. The previous involvement in crimes of Mushtaq Hussain had given an .anxiety as to whether the bail earlier granted to him should be confirmed but the matter has to be considered in its own context for the moment. As regards Syed Muhammad Shah who is father of Iqbal Hussain Shah it need only be said that he was not mentioned in the F.I.R. And the allegation against him in the statement under section 164 Cr.P.C. would require inquiry and proof. In all the circumstances of the case and the precedent cited by the learned counsel for the petitioners, the petitioners appear to be entitled to bail. Therefore, they i.e. Iqbal Hussain Shah, Syed Mushtaq Hussain and Syed Muhammad Shah are allowed bail in the sum of Rs.20,000 with two sureties each in the like amount to the satisfaction of the A.C. Mailsi. The first three petitions are thus disposed of.

8. As regards Writ Petition No.5665/1987 filed by Abdul Razzaq Shah, cousin of Iqbal Shah and Syed Muhammad Shah, father of said Iqbal Hussain Shah, complaining that the respondent has taken away their tractor and buffaloes and a direction be issued to him to return the same, parawise comments have been filed and it is stated that the answering respondent had not taken into possession their buffaloes. The buffaloes of the petitioners were taken into custody by the Chaukidar of Mauza Hassan Shah and were compounded into the cattle pond of Municipal Committee Mailsi. As far as the tractor is concerned the tractor was taken into custody by the Incharge Police Chauki Karampur under section 115 M. V .O.

9. Learned counsel for the petitioner has contended that there is no doubt that the respondent S.H.O., had got the buffaloes impounded without lawful authority. He had forcibly taken the tractors and buffaloes and other animals in his possession. However, in view of the comments that the buffaloes etc. are with the Municipal Committee, Mailsi, he should apply to the Secretary for inquiry as regards non‑culpability of the petitioners and high‑handedness in taking over the possession of their buffaloes. He may be directed to make an inquiry and release the buffaloes. The submission is quite fair and genuine. The Secretary or the relevant authority of Municipal Committee holding the buffaloes and other cattle shall inquire into the matter and find out in what circumstances the animals were taken and by whom in possession and whether the petitioners were at all liable that their animals could be taken in possession. As regards the tractor, the learned counsel for the petitioners says he would apply to the learned Magistrate concerned for Superdari. That is the right course of action. The learned Magistrate shall examine the matter objectively and pass orders in accordance with law. With these observations this petition is disposed of. As regards W.P. No. 5790/1987 is concerned the complaint is that the S.H.O. has committed various offences as mentioned in the application and that he had refused to register a case against himself. The respondent states that the petitioner has never approached him. He has also denied the allegations made in the petition. On the one hand, there is a vehement contention of the learned counsel for the petitioner that the petitioner had suffered tremendously at the hands of the respondent; on the other hand, the latter is the Investigating Officer in the case, in which the petitioner is involved. The proper thing appears to be that the petitioner may apply to the D.I.G. Multan who shall look into the matter and get it enquired through an officer who will deal with the matter in an objective way. This petition is thus disposed of. S.A./I‑83/L????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.