1997 PLP 1534 (MLD)

Haji Khair Muhammad Bhadera for Petitioners. Syed Niaz Ahmad Shah for the State. Mumtaz Hussain Bazmi for the Complainant. Ghulam Nabi, A.S.I. Police Station Qaim Pur, District Bahawalpur got recorded F. I. R. No. 236 dated 10‑11‑1994 at Police Station Qaim Pur, District Bahawalpur under sections 302, 324, 116, 225, 353, 148 and 149, P.P.C. He alleged that on 10‑11‑1994 at 6‑30 p.m. he alongwith Muhammad Meraj, Head Constable, Manzoor Ahmad, Head Constable, Muhammad Azam, Head Constable, Irshad Ali, Constable armed with semi‑automatic rifle and his driver Rab Nawaz, Constable went for the investigation of case F.I.R. No. 235 dated 9‑5‑1994 registered at Police Station Qaim Pur under section 379, P.P.C. against Amir Ahmad and Shabbir Ahmad sons of Mahmood Khan, resident of Mauza Luddan Riasati. At that time he (complainant) was armed with a revolver. Shabbir Ahmad (deceased of this case) was present in his house who was arrested. He started on foot alongwith his subordinates as the official vehicle was made to stand at a distance of about 8 acres. They were at a distance of one acre from the vehicle when Amir Ahmad armed with a rifle, Muhammad Amin and Falak Sher armed with guns, Shabbir Ahmad and Riaz alongwith six females came there running. They issued the threats to the police party to leave Shabbir Ahmad. He introduced himself to be an Assistant Sub‑Inspector of Police and advised them to obey the law. The aforesaid accused persons started firing and wanted to rescue Shabbir Ahmad. In his right of self‑defence Rahim Dad, HC effected the firing in the air. Shabbir Ahmad was to be made to sit in the official vehicle when Amir Ahmad fired while present in a Khaal which hit Shabbir Ahmad on his left "Kuhla" who expired. Mahboob Ahmad and other persons also arrived there. The accused persons were also fired at who made good their escape.

2. In the post‑mortem report a lacerated wound on the lateral aspect of right middle buttock (wound of entry and the other as wound of exist were seen by the Medical Board comprising the Medical Superintendent, B.V. Hospital, Bahawalpur and two other Medical Officers. At the request of the accused party of the F.I.R. the judicial enquiry was held at the direction of the District Magistrate, Bahawalpur by Mr. Sharaq Masood Ansari, Magistrate 1st Class, Bahawalpur which was joined by both the parties. The said Enquiry Magistrate gave the opinion in favour of the accused persons by holding that Ghulam Nabi, A.S.I. (complainant of this F.I.R.) fired at Shabbir Ahmad who expired. He held Ghulam Nabi, ASI, Ch. Mumtaz and Dr. Muhammad Younas Javed, Incharge, Rural Health Centre, Qaim Pur as the accused for the murder of Muhammad Shabbir. At the instance of Mahmood, father of Muhammad Shabbir, F.I.R. No. 16/95 was registered against the police party under section 302/148/149, P.P.C. which was, however, cancelled without proper investigation. At present the criminal complaint has been filed against the police party etc. which is on the file of an Additional Sessions Judge, Bahawalpur and is fixed for 15‑8‑1995.

3. Apprehending their arrest in case F.I.R. No. 236 dated 10‑11‑1994 Muhammad Amir, Muhammad Amin, Falak Sher, Bashir Ahmad and Riaz have filed this application in this Court for their admission to pre‑arrest bail who have been allowed the interim relief. Muhammad Amir petitioner‑accused has been arrested in case F.I.R. No. 235/94 registered under section 379, P.P.C. in Police Station Qaim Pur, District Bahawalpur and in view of his aforesaid justified absence this petition shall be disposed of on merits to his extent as well alongwith his co‑accused/petitioner.

4. At the very outset Mr. Mumtaz Hussain Bazmi, Advocate for the' complainant raised the objection that according to the judicial hierarchy the bail application has to be disposed of by the Court of the lowest grade which in the instant matter is the Court of Session. Technically he is correct as it has so been provided in Rule 14, Chapter 10, High Court Rules and Orders, Volume III. However, at the same time it has been provided in the aforesaid Rule 14 that in exceptional cases the application for bail before arrest can be disposed of by the High Court directly. My view is that it is an exceptional case wherein this application for bail before arrest must be disposed of by the High Court. Muhammad Shabbir brother of Muhammad Amir, Muhammad Amin, Falak Sher and Bashir Ahmad petitioners accused has been murdered and his close nears and dears have been named as the accused persons by Ghulam Nabi, A.S.I. in the F.I.R. In the judicial enquiry Ghulam Nabi, A.S. I./complainant of this case has been held to be the assailant by the Magistrate 1st Class. The F.I.R. No. 16/95 was registered at Police Station Qaim Pur under section 302/148/149, P.P.C. against Ghulam Nabi, A.S.I. and others. Without formal enquiry that case stands cancelled and obviously due to the reason that the police officers are never ready to take the action against their colleagues. At present the criminal private complaint has been lodged against Ghulam Nabi, ASI and others before an Additional Sessions Judge, Bahawalpur. In the circumstances it is better that the matter is taken up by this Court for the proper administration of justice.

5. The main contention of the learned counsel for the petitioners is that the petitioners have been involved by Ghulam Nabi, A.S.I. to save his own skin as he was posted in Police Station Qaim Pur who succeeded in getting registered the case against the petitioners even though their close relative Muhammad Shabbir was murdered by him. Learned counsel for the petitioners referred to the report of the Judicial Enquiry and expressed that the F.I.R., lodged at the instance of Mahmood, father of Muhammad Shabbir, has been cancelled by the police without investigation. He added that the private complaint has been filed against Ghulant Nabi, A.S.I. and others wherein the next date of hearing is 15‑8‑1995. He added that the apprehension of the petitioners, who have lost a close relative at the hands of Ghulam Nabi, ASI, about their unnecessary harassment at the hands of the police cannot be ruled out. On the contrary learned counsel for the complainant as well as the learned State Counsel argued that the petitioners took the law in their hands and out of them Muhammad Amir fired which hit Muhammad Shabbir resulting in his death and all the accused in the prosecution of their common object were liable for the murder of Muhammad Shabbir. He continued that all the petitioners‑accused are involved in different cases who are head strong and desperate persons and are not entitled to the extraordinary relief of pre‑arrest bail.

6. After giving my serious consideration to the matter in hand I hold that Ghulam Nabi, ASI was in a better position to get registered the F.I.R. against the petitioners being a member of the police force and posted in Police Station Qaim Pur wherein the F.I.R. has been registered. In the judicial enquiry the Magistrate 1st Class has expressed the view that Ghulam Nabi, ASI and others are liable for the murder of Muhammad Shabbir. The F.I.R. was also lodged against Ghulam Nabi, ASI and another which has been cancelled by the police without formal investigation. The private complaint for the murder of Muhammad Shabbir has been filed against Ghulam Nabi, ASI and others which is pending in the Court of Additional Sessions Judge, Bahawalpur and is fixed for 15‑8‑1995. I am tempted to express that the firing was allegedly being effected on the police party comprising six persons including Ghulam Nabi, ASI and not a single person received any abrasion. It cannot be expected that Muhammad Amir petitioner‑accused would fire at his brother Muhammad Shabbir deceased of the case. It is a case wherein it can safely be held that the apprehension of the petitioners‑accused for their unnecessary harassment at the hands of the police is not uncalled for. They have lost Muhammad Shabbir and yet the police is desirous to get them detained in Jail. The only irresistible conclusion which can be drawn from the aforesaid state of affairs and discussion would be that the petitioners are entitled to be admitted to pre‑arrest bail.

7. I, therefore, accept this application and admit all the five petitioners accused namely Muhammad Amir, Muhammad Amin, Falak Sher, Bashir Ahmad and Riaz to pre‑arrest bail in the sum of Rs.10,000 each with one surety each in the like amount to the satisfaction of the Sessions Judge/Duty Sessions Judge, Bahawalpur. The bail bond etc. shall be submitted within a period of ten days and shall be retained in the Court of Session. N.H.Q./M‑2551/L Pre‑arrest bail granted.