' Malik Ejaz Ali son of Haji Malik Noor Muhammad petitioner seeks pre-arrest bail in case F.I.R.
No.1053 of 2004 dated 9-12-2004, registered at Police Station Islampura, Lahore, for offences under sections 209, 302/34, P.P.C.
2. The case of prosecution as it unfolded in the F.I.R. Registered at the instance of Ch. Ghulam Haider son of Chaudhry Muhammad Hussain was that he deals in the business of steel furniture; on 9-12-2004 at 9-00 a.m. He along with his real brother Babar Hussain and Muhammad Fayyaz Ameen son of Ch. Muhammad Ameen, Aatif Atta son of Ch. Muhammad Atta came to the Sessions Courts in a car to attend the hearing of a murder case; when the car was bei' parked near Aamir Hotel and he was in the process of locking the same, his nephew Aatif Atta, etc. Turned to proceed towards the Court and both of them were a few steps apart when two persons namely Malik Wajid Ali alias Wajoo and Malik Asghar Ali son of Malik Liaqat Ali, residents of Main Bazaar Qila Gujjar Singh arrived on a read coloured Honda 125-CC Motorcycle without a registration plate; immediately on arrival they resorted to firing with .30 bore pistols with the intention of killing them; Malik sghar fired with his pistol straight at his nephew Aatif Atta which hit at the backside of his right ear and pierced the same; Aatif Atta fell down whereafter Wajid Ali fired with his .30 bore pistol which landed at the right foot; they raised noise and saved their lives by taking shelter behind the parked vehicles; the accused persons fled from the scene on their motorcycle ,towards Lower Mall while indulging in firing. All three of them picked up Aatif in an injured condition, put him in the car and brought him to Mayo Hospital where he succumbed to his injuries after a shortwhile. According to the complainant the accused had committed this murder at the instance of Malik Ijaz a Police Inspector, the present petitioner.
' The motive according to the F.I.R. Was that the accused persons suspected that Aatif Atta had got one Liaquat Ali who was the father of Asghar accused, murdered. Resultantly the instant FIR. Had been recorded.
3. The petitioner applied for his pre-arrest bail. He was allowed ad interim bail, however, his bail application was finally turned down by the learned Addl. Sessions Judge, Lahore, vide order dated 25-1-2005. Hence this petition.
4. I have heard Kh. Harts Ahmed, the learned counsel for the petitioner, M/s. Farooq Bedar, M.S. Shad and N.A. Butt Advocates for the complainant as also Ch. Muhammad Nazeer, Advocate for the State and have perused the record brought by Abdul Sattar S.I. Police Station lslampura, Lahore.
5. The learned counsel for the petitioner argued that the only allegation against the petitioner is that of providing behind the scene abetment to his co-accused as he was not present at the spot; that no overt act had been attributed to the petitioner; that no details of abetment/conspiracy find mention in the FIR.; that the F.I.R. Neither discloses the names of the witnesses of abetment, the venue where the alleged conspiracy had been hatched nor the time thereof; that the petitioner is a paternal uncle of Asghar co-accused and a real brother of Wajid Ali co-accused and has been involved only due to mala fide intention and ulterior motives being the relative of the main accused persons; that the petitioner could not be connected with the motive part ,of the story in that, Liaqat was murdered in the year 1997 and in the intervening period of about eight years, there is no allegation against the petitioner that he in any manner wanted to avenge the said murder, that Asghar Ali co-accused who is a young man of 23/24 years of age is the real son of Liaquat and the allegation that the petitioner instigated him is not very convincing, that the petitioner is being named in this case because he is an in-service Inspector of Police and the complainant party implicated him in order to prevent him from pursuing the case; that the statements of two witnesses of conspiracy namely Sajjad Akhtar and Sharafat Ali do not inspire-confidende and that the said persons had been set up later on as witnesses of abetment/conspiracy after the registration of the F.1.R. To falsely implicate the petitioner; that the petitioner had joined investigation after the grant of ad interim pre-arrest bail and nothing had been recovered from him by the police. He added that the arrest of the petitioner was being sought only with a view to causing humiliation to him through the process of being handcuffed. He finally submitted that the mala fides of the police are evident inasmuch as SSP (Investigation) Lahore is inimically disposed towards the petitioner and it was for this precise reason that the petitioner had made an application for transferring the investigation, whereupon the investigation of the case has been transferred by the Standing Board. However, according to the learned counsel lamentably investigation had been transferred to another officer who again was a direct subordinate of SSP (Investigation). In support of his plea for pre-arrest bail he relied on Syed Amanullah Shah v. The State and another (PLD 1996 SC 241), which was case for cancellation of bail yet the observation of the Hon'ble Supreme Court was that, accusation of abetment, instigation and conspiracy can easily be set up when the parties are inimically disposed towards each other and possibility of false implication of the opponent is very much there. He also relied on Ghulam Murtaza v. The State (2003 YLR 3255) wherein this Court had granted pre-arrest bail to an accused who was not present at the spot at the time of occurrence and had not been attributed any injury to the deceased or the injured although his name did find mention in the F.I.R.
6. Conversely M/s. Farooq Bedar, M.S. Shad and N.A. Butt, the learned counsel for the complainant argued that there was a word of difference between an application for pre-arrest bail and one for post-arrest bail and consideration for grant of pre-arrest bail were totally different. The learned counsel laid a lot of emphasis on the conduct of the petitioner which according to them was not praiseworthy in that, the petitioner had not been regularly appearing before the Court of Session after obtaining ad interim pre-arrest bail and had on a couple of occasion filed medical certificates. According to the learned counsel, by his sneaky conduct the petitioner has disentitled himself to the extraordinary concession of pre-arrest bail. They argued that the witnesses of conspiracy/instigation namely Sharafat Ali and Sajjad Akhtar had been examined on the very day of occurrence and they had categorically stated about the involvement of the petitioner. They also argued that both the Investigating Officer had found the petitioner to be guilty and that he had direct nexus with the motive part of the prosecution story. In support of their contention for refusal of pre-arrest bail they relied on the cases of Murad Khan v. Fazal-e-Subhan and another (PLD 1983 SC 82)'wherein the Hon'ble Supreme Court had laid down conditions for the grant of pre-arrest bail holding that it could be granted only if the arrest was being sought for ulterior motive such as humiliation and unjustified harassm ent with a view to causing irreparable injury to reputation and liberty of a citizen; Mst. Qudrat Bibi v. Muhammad Iqbal and another (2003 SCM R 68) wherein pre- arrest bail allowed to the accused person who had been attributed a specific role of causing injury with a hatchet on the neck of the deceased had been recalled by the Hon'ble apex Court, on the ground that no mala fides had been, prima facie established against the complainant for false involvement of accused in the commission of the offence; Abdul Rauf v. The State (2001 PCr.LJ 694 (Karachi), wherein pre-arrest bail was disallowed to the accused who was a Sub-Divisional Police Officer and had been avoiding the service of non-bailable warrants repeatedly issued against him with impunity and Allandino and 6 others v. The State (2003 PCr.LJ 135) the Hon'ble Sindh High Court had reiterated the conditions for the grant of pre-arrest bail as set forth by the Hon'ble Supreme Court in the case of Murad Khan v. Fazal-e-Subhan and another supra.
7. The learned State counsel adopted the arguments advanced by the learned counsel for the complainant and added that the petitioner had been tampering with the prosecution evidence ; that the co-accused were still absconders and that they would not appear unless the concession of pre-arrest bail was withdrawn from the petitioner.
8. I have considered the arguments of the learned counsel for the parties at a considerable length and have also perused the record.
9. It has been observed that the statement of the complainant had been recorded at 12-10 p.m. On 9-12-2004 whereas the occurrence had taken place at 9-00 a.m. According to the complainant he had immediately taken the injured to the Mayo Hospital where the latter succumbed to his injuries.
Both the witnesses of abetment/conspiracy namely Sajjad Akhtar and Shrafat Ali stated in their statement under section 161, Cr.P.C. That they had heard the petitioner exhorting the, main accused namely Asghar Ali and Wajid Ali to do away with the deceased early in the Morning on the fateful day. According to them they wanted to inform the complainant party but had found out that the deceased and the complainant had already left for the Court, whereupon they came to the Sessions Court and found that the incident had already taken place whereafter they proceeded to the Mayo Hospital. According to the KARWAI POLICE a Sub-Inspector had recorded the statement of the complainant under section 154, Cr.P.C. At the Emergency Ward of the hospital at 12-10 p.m. This clearly shows that till 12-10 p.m. i.e. Almost 3-1/4 hours after the occurrence the said two witnesses had not reached the hospital, otherwise their names would have found mention in the F.I.R. The reason extended by Sajjad Akhtar regarding his visit to the petitioner's house early in the morning of 9-12-2005 was that the latter had promised to get his son recruited in the police as constable, and, that he had .Gone there to find out about the progress in the matter. However, the schedule appended with this petition regarding recruitment of constables and drivers (Annex-'F') shows that the process of recruitment which had commenced on 22nd November, 2004 had concluded on 4th December, 2004. There is prima facie substance in the argument of the learned counsel for the petitioner that since the programme for recruitment had concluded on 4-12-2004, therefore, there was no occasion for Sajjad Akhtar P.W. To go to the petitioner on 9-12-2004 at an unearthly hour. It has also been noticed that Sharafat Ali P.W. Had accompanied Sajjad Akhtar for no reason and allegedly it was in the presence of both the witnesses of abetment that the petitioner had exhorted the main co-accused to kill the deceased. It has also been noticed that no untoward incident had happened ever since the murder of Liaquat which had 'taken place as far back as in the year 1997 and the prosecution itself does not allege that during these eight years the petitioner had ever instigated his co-accused' or had caused any provocation 'to the complainant party. The contention of the learned counsel for the petitioner that since the petitioner was a police Inspector, therefore, he was falsely implicated with a view to forestalling him from pursuing the case of the co-accused is not totally devoid of substance and cannot right away be brushed aside. The allegation that the petitioner wanted to avenge the murder of his real brother which had taken place eight years ago cannot be labelled as a wild or absurd allegation, however, at the same time it has to be viewed with the attending circumstances i.e. That eight years had elapsed since the murder of Liaquat Ali, and it is not understandable as to what stopped the petitioner who was an influential police officer to avenge the murder of his brother and why did he have to wait for eight long years for his nephew to grow up and take revenge. I would'not like to further dwell on the merits of the case lest it prejudices the case of the prosecution. Suffice it to say that admittedly the petitioner was not present at the spot it the time of occurrence and there is no allegation that he cawed any injury to the deceased or to anyone else, Likewise the F.I.R. Does not offer either the details qua the hatching of conspiracy or the names of the witnesses and the possibility that the petitioner who was a police inspector has falsely been implicated due to his close relationship with the main accused cannot right away be ruled out. The mere fact that the petitioner is a police inspector does not disentitle him to the protection of law. Pre-arrest bail is meant to protect an innocent citizen if there is doubt that the motive for his involvement is not pure. The petitioner has joined investigation and no recovery is to be effected from him. He cannot be denied the concession of bail for the reason that the co-accused are still at large.
10. Resultantly, I find that the culpability of the petitioner needs further probe within the meanings of subsection (2) of section 497, Cr.P.C. Consequently this petition is allowed and the interim pre- arrest bail granted to the petitioner in terms of this Court's order dated 14-2-2005 is hereby confirmed.
' However, before parting with this order, I would like to make it absolutely clear that the observations made hereinabove are tentative in nature and are not designed to influence the proceedings of the trial in any manner whatsoever.