1. ' This order will dispose of Criminal Miscellaneous No,8382/B of 2004 filed by Malik Muhammad Iqbal, Ex-D.I.-G., Gujranwala Range, Amjad Javed Saleemi, Ex. District Police Officer, Sialkot, Raja Munawar Hussain, D.P.O., Gujrat, Dr. Syed Muhammad Firdous, Ex-Medical Superintendent and Dr. Sajid Hussain, Consultant Surgeon, Criminal Miscellaneous No,8656/B of 2004, filed by Zafarullah Butt, Criminal Miscellaneous No,8462/B of 2004 filed by Amjad Ali, Shahzad Ahmad, Qaiser Mahmood, Abdul Razzaq and Inam Ullah, petitioners, Criminal Miscellaneous No,8414/B of 2004 filed by Muhammad Mehmood Butt, Ghulam Sarwar, Qaisar Mahmood, Kamran Ali and Asghar Ali, Criminal Miscellaneous No,8778/B of 2004 filed by Shabbir Anwar all petitions for pre-arrest bail, Criminal Miscellaneous No,7543/B of 2004 filed by Muhammad Akhtar Iqbal and Criminal Miscellaneous No, 8648/B of 2004 filed by Zulifkar Ali Virk (Post-arrest bail petitions).
2. Syed Mazahar Ali Naqvi started the arguments on behalf of the petitioners, in Criminal Miscellaneous No,8382/B of 2004. Learned counsel submitted that the order dated 12.11.2004 passed by the trial Court/Judge Anti-Terrorism Court No,1, Gujranwala is not a speaking order; the order which is not speaking is no order in the eye of law; for this proposition of law, learned counsel relied upon PLD 19/0 SC 173; there was not an iota of evidence on record before the trial Court to implicate the petitioners in the instant case; the petitioners were not named in the F.I.R., their names were added in the three supplementary statements of the complainant; the name of Raja Munawar, one of the petitioner, does not figure even in the supplementary statements; no credence can be given to the supplementary statement and it is at the most statement under section 161, Cr.P.C.; elaborating his arguments, learned counsel submitted that the first supplementary statement was made 2 days after registration of the F.I.R., then second was made four days after the occurrence and third on 2-8-2003; for this proposition of law, learned counsel has relied upon 2000 YLR 763 and 2003 SCM R 1419; the order impugned in all the petitions is against the spirit of the remand order passed by this Court in Criminal Miscellaneous No,3264/BC of 2004; learned counsel has read before us paras 45, 48, 51 and 52 of the said judgment; Dr. Firdous was Administrative Officer at the relevant time and has been summoned under section 319, P.P.C. And not under section 302, P.P.C.; the name of Dr. Sajid Hussain was added with mala fide at the instance of the complainant; explaining his submission, learned counsel submitted that one of the deceased namely Shahryar Bokhari was removed to Punjab Institute of Cardiology where he was operated upon and a patient cannot be operated if he is not fit; learned counsel wanted to submit that proper medical aid was provided to Shahryar Bokhari and even according to E.D.O.(Health) Sialkot, four ambulances were ready with all equipment of emergency but the injured was removed to P.I.C. By the heirs of the deceased himself; no material whatsoever was available with the trial Court for summoning the doctors to face the charge under section 319, P.P.C.; learned counsel has read before us the definition clause of section 319, P.P.C. The petitioners have never misused the concession of pre- arrest bail and unless the concession is misused, bail cannot be cancelled; reliance has been placed upon PLJ 1989 SC 526 and that the arms and ammunition used in the commission of the offence was supplied in connivance with the jail authorities.
2. ' Further submitted that the action was taken by the Police not in haste, as alleged by the prosecution, but the same was taken when it was inevitable; the occurrence started at 10-30 a.m.
3. And the action was taken at 5 p.m. So it cannot be said that operation was carried with hurry; as to summoning of Army commandos is concerned, learned counsel has submitted that the District Coordination Officer, Sialkot had made a statement before the Investigating Officer that he established contacts with highups of the Army including G.H.Q. But his request was not acceded to but learned counsel failed to show the said statement of D.C.O. Added that there was no order of the High Court in black and white as is being alleged by the complainant in the F.I.R. As also in the supplementary statements for not starting the operation without the commandos of the Army.
4. ' Learned counsel maintained that there was no private complaint filed, in fact the trial Court on its own after perusing the F.I.R. And statements of the witnesses under section 161, Cr.P.C. Summoned the petitioners; according to learned counsel, two parallel matters are being dealt with by the trial Court, one issued by the trial Court itself under section 204, Cr.P.C. And the other relates to final report submitted by the Investigating Officer.
5. ' Learned counsel submitted that the petitioners having acted in discharge of performance of their official duties, their acts are protected under section 132 of the Cr.P.C. It was however conceded by learned counsel for the petitioners that the trial Court after having issued non-bailable warrant, could not have allowed the accused to go free only after submission of bail bonds. According to learned counsel, this act of the trial Court was illegal and not recognized by any principle of law. A reference was also made to section 19(3) (6) of Anti-Terrorism Act, 1997.Accordng to learned counsel, magisterial powers vests in the Court constituted under the Anti-Terrorism Act, 1997. It was vociferously argued by learned counsel for the petitioners that when a Court summons any person in terms of challan case, then the said person is to be dealt with according to the procedure laid down by in section 91 of Cr.P.C. Reliance was placed on PLD 2002 S.C. 687 and 2002 SCM R 63. It was also argued by learned counsel that under section 190, Cr.P.C. The Court can take cognizance of the offence and not of the offender. A reference was also made to Criminal Miscellaneous No, 100/T of 2004 seeking transfer of the case but the said petition was withdrawn on 3-11-2004 and a direction was issued to the trial Court to submit final report under section 173, Cr.P.C. Before the trial Court.
6. ' Concluding his submissions, learned counsel submitted that the petitioners being Government servants, there is no question of their abscondence.
7. ' Malik Amjad Pervaiz, Advocate submitted that FIR, which is basic document, was lodged by an experienced learned Civil Judge and had laid much emphasis on sixth line thereof and also submitted that complainant himself stated in. The F.I.R. That negotiation failed and it was only thereafter that the Police action was taken. Further argued that it is also admitted by the complainant in the F.I.R. As well as in the supplementary statements that the injured were removed to the hospital with the help of the Police. By this, learned counsel wanted to submit that the Police acted in good faith and quite efficiently. Also argued that there was no material on record before the trial Court to summon the accused-petitioners and since there was no material on record before the trial Court to summon the accused, hence the order of the learned trial Court summoning the accused petitioners was illegal.
8. ' Learned counsel has read before us the statements of Javed Iqbal Warriach, injured and Shahryar Bokhari, Civil Judge, who later on expired in the hospital. He has also referred to the statement of Sibtain Haider Kazmi, Special Judicial Magistrate who had stated in his statement recorded under section 161, Cr.P.C. That two accused fired at Asif Mumtaz, the deceased Civil Judge, one accused gave him injury with fatters and that Mumtaz and Shahryar were injured due to firing of the Police.
9. Learned counsel also referred to the statements of Mst. Rasahida Bibi, Mst. Shanaz, Mst. Naseem Akhtar, Mst. Shah Jehan, who according to learned counsel were independent witnesses and they all have stated that the accused who had made them hostages, had fired at the Judges even before the start of operation by the Police. The statement of Zahid Saeed, who was the D.C.O. At the relevant time made on 2-8-2003, was also read before us to submit that the D.C.O. Established contact with highups of the Army to have the assistance of the Army commando but failed. Much stress was laid on the statement of Muhammad Akram, Constable (Naib Court of Sessions Judge, Sialkot) who had stated that the three Judges were fired at by the accused-prisoners. It was submitted that statements of all the witnesses recorded under section 161, Cr.P.C. Are unanimous that Police started the operation when the prisoners-hostages had already fired at the deceased Judges. It was however, admitted by the learned counsel that Shahryar Bokhari, Judge was injured because of the Police firing. Further submitted that the action was taken by the Police in order to save the lives of 52 hostages and the action of the Police was so accurate and prompt that five accused prisoners were also killed. Elaborating his arguments, learned counsel submitted that since the action was taken to get the hostages released from inside the barrack, so it was not possible for the Police to see as to whom the shot would hit. Further elaborated that it has come on record that all the five accused prisoners had changed their clothes with the Civil Judges and when the clothes of the Judges were changed with the accused, the action of the Police was justified to some extent and was natural. Four persons namely Tariq Mahmood, Civil Judge, Pervaiz Iqbal Butt, Special Judicial Magistrate, Akram, Gunman of the Sessions Judge and Maqsood, Ahlmad were got released by the officials of the Elite Force after putting their lives to danger. A reference was also made to the statement of Tariq Abbass Qureshi, S.P. (Headquarters) who stated that the operation was started after negotiation in between the D.P.O., District Nazim and the Sessions Judge. Learned counsel also read before us the statement of Malik Muhammad Iqbal, the then D.I.-G., Range who stated that if he would not have started the operation; many people must have lost their lives.
10. ' It was vehemently argued by learned counsel for the petitioners that his clients being members of the Elite Force took part in the operation under the order of the D.P.O. And the D.I.-G. Of the range and made the rescue of 48 persons at the cost of killing of four judicial officers.
11. ' On Court question, learned counsel submitted that 3 magazines and 22 live bullets were recovered from accused Shahbaz, three magazines and 23 live cartridges from Ijaz, three magazines and 25 live bullets from Ishaq, three, magazines and 18 live bullets from Munir accused, three magazines and 22 live bullets from bathroom of ladies barrack and from the spot, 9 empties of rifle G-3, 3 empties of rifle MP-5, 194 empties of klashnikov, lead bullets 70, 34 empties of .30 bore pistol, three handcuffs and nine empties of tear gas shell were also taken into possession.
12. ' Reverting to his arguments, learned counsel submitted that it is an admitted position that the Elite Force was called by the D.P.O., Sialkot; the officials of the Elite Force reached at the spot within 15 minutes, the D.P.O. Took the initiative on the telephonic all of the Civil Judge made hostage, the Elite force kept on waiting till 5 p.m., the officials of the Elite force were under the direct command of the D.P.O. Sialkot and D.I.-G., Gujranwala, it is not the case of the prosecution that the officials of the Elite Force had any or mala fide or motive against any deceased, it is also not the case of the prosecution or any of the co-accused that they have not asked the officials of Elite Force to start the operation, the Elite Force is a disciplined force and they being members of the Elite Force are to obey the lawful command of their superiors. If any thing or misunderstanding or confusion was there, that was between the highups and had no concern with the officials of the Elite Force. It was submitted that his clients who are members of the Elite Force had no option but to obey the order of their superiors. Further argued that the petitioners acted in discharge of their official duties under the valid and direct command of the officers so they could not have been made responsible for the job of the officers. Also submitted that the D.I.G. Had to take the decision and petitioners are, to follow it and as soon as the D.I.-G. And the D.P.O. Decided to take action, they started the operation. Our attention was also drawn to section 76 of the P.P.C. And specially illustration (a) thereof to submit that nothing is an offence which is done by a person who, or who by reasons of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be bound by law to do it.
13. ' Learned counsel maintained that except the solitary statement of Nazir Ahmad, Additional District Judge connecting the petitioners who are the members of the Elite Force, there is no other independent corroboration.
14. ' It was also argued by learned counsel for the petitioners that sections 6 and 7 of the Anti- Terrorism Act are not attracted to the facts and circumstances of the instant case and that the petitioners did not commit any offence which created terror in the mind of the public rather they acted to save lives of at least 42 persons who were made hostages. Reliance was placed upon PLD 2003 Lah.
15. 588.
16. ' Concluding his submissions, learned counsel submitted that the petitioners were not named in the F.I.R. And even their names do not find mention in the report under section 173, Cr.P.C. Lastly argued that the trial Court should have waited for final submission of the challan instead of proceeding on the basis of reading the F.I.R. And statements of witnesses recorded under section 161, Cr.P.C. It was at this stage again submitted that investigation having been complete, challan being before the trial Court, no useful purpose will be served by sending the petitioners behind the bars.
17. ' Mr. Naveed Rasool Mirza, Advocate representing Inspector Zulifqar Virk submits that there was no material available before the trial Court to summon the petitioner. According to learned counsel, the allegation against him is that he took part in the negotiation with the accused and because of his some act, ,the accused prisoners became furiated when according to complainant as alleged in the F.I.R., the accused had fired at the Sessions Judge but missed. Learned counsel wanted to say that no act of the petitioner became the cause of action of the operation. Further submitted that the name of the petitioner does not find mention in the F.I.R. And his name figured only in the supplementary statement recorded on 1-8-2003. On legal aspects, learned counsel submitted that bail is not to be withheld as a punishment, there has to be some material against the accused, there has to be reasonable grounds to believe that the accused was connected with the crime, the Court is supposed to see all the material collected against accused by the investigation, the petitioner did not take part in rescue operation, he had no enmity with any injured or deceased, it was not a statutory offence in which mens rea is the basic part and there was no mens rea on the part of the petitioner, the petitioner was found innocent by the Police and placed in Column No,2 of the report under section 173, Cr.P.C., there was no conscious application of mind by the trial Court while summoning the petitioner and that it is bail after arrest and not pre-arrest and consideration for the grant of bail after arrest are totally different to that of pre-arrest.
18. ' Learned counsel for the complainant submitted that the act of the petitioners comes within the definition of intentional murder and for this purpose had drawn our attention to section 300, P.P.C.
19. According to learned counsel, the knowledge of an act is derived from the facts of the case it was in the knowledge of the petitioners that the operation they started may result to loss of many lives specially when apart from the Judges, there were 43 other under-trial prisoners and they resorted to indiscriminate firing. Further submitted that the Police resorted to operation without caring for the orders of the Chief Justice, Lahore High Court, Registrar of the High Court, Sessions Judge, Sialkot. Next submitted that top from the D.I.-G. To the lower staff of the Police, they all are sailing in the same boat, the officials of the Elite Force are not bound to obey an illegal order of the commander, when an accused takes a specific plea, then under Article 121 of the Qanun-e- Shahadat Order the onus to prove the same lies upon him, it has come on record that Shahryar Bokhari Civil Judge was hit by the firing of the Police party, it has also come on record that firstly the Police started the operation and it was only thereafter that the accused under-trial prisoners fired at the deceased , it was concluded by the Investigating team that the operation was started in hurry (Zimni No,37) the fourth reason for the episode was action of the Police, Shahryar Bokhari was wearing his own clothes, same was the position of Asif Mumtaz, the deceased and the clothes of Shahid Munir Ranjha and Sagheer Anwer were replaced with those of the under-trial prisoners and in this view of the matter it was all the more necessary for the Police not to start the operation, neither the clothes of. The deceased Judges nor that of the deceased under-trial prisoners were taken into possession by collusion of the doctors and the S.H.O. Under the command of the D.I.-G.; at the time of start of operation, the Sessions Judge who was incharge of the district was there, second in command was the D.C.O. Who was also present there, the Sessions Judge refused to allow the operation, in this regard, learned counsel has read before us the statement of Abdul Sattar Ajaaz, Deputy Secretary, (Prisons) who stated that it was communicated by the High Court that Chief Justice has directed not to start operation without his permission; statement of Faseel Asghar, Additional Secretary (Home) was also read before us to submit that the witness stated in his statement under section 161, Cr.P.C. That he had asked the D.I.-G. Not to start the operation as he was reaching within 10 minutes but before his arrival, the operation was started; when the lawful authorities prohibited the operation, there was no need on the part of the D.I.-G. Or the D.P.O. To start the operation; a reference was also made to the statement of jail doctor to submit that the accused under-trial prisoners after snatching the mobile from the him, made a call calling Inspector Zulifqar Virk statement of injured witness namely Javed Iqbal Warriach was recorded on 1-8-2003; the light was switched off before start of the operation so it was in the knowledge of the petitioners that their indiscriminate firing may result to loss of many people ; the act of the Police was intentional and deliberate; no weapon of offence used by the Police was taken into possession; as to role of Raja Munawar D.P.O. Is concerned, it was concluded by the Investigating team that it was Raja Munawar who called a Nahrah and threw cracker (Zimni No, 26) both the injured witnesses namely Sibtain Raza Kazmi and Javed Iqbal Warriach have fully supported the version of the prosecution in their statements recorded on 1.8.2004; it was very difficult at the time of operation whether it were the Police officials or the officials of the Elite Force who took part in the operation; 14 witnesses namely Saeed Rafique, Muhammad Naeem, Abdur Rehman, Yousaf Aujla, Zafar Hussain, Rai Naeem Kharal, Munawar Hussain Warriach, Mst. Salma d/o Muhammad Sharir, Mst. Salma wife of Hassan Mahmood, Ahsan d/o of Muhammad all under-trial prisoners and Nazir Ahmad, Additional District and Sessions Judge as also Faseel Asghar Additional Secretary Home department; they all have stated that the deceased were killed due to firing of the Police; it was concluded by the Investigating team that operation was started by the Police first and then the accused acted in their defence; according to statement of Javed Iqbal Warriach, Civil Judge, PW, the atmosphere inside the jail was friendly and the accused did not use any insulting or abusive language towards the Judges; Mahmood Butt, S.-I., Incharge of Elite Force in his statement under section 161, Cr.P.C. Stated that putting of the light was not the part of the operation and that the cracker were thrown by the D.P.O. Gujrat Raja Munawar; none was injured from the side of the Police; so it was not an action to save the hostages but act intending to commit murder of the Civil Judges; the demands of the hostages were to (i) provide vehicle, (ii) security, (iii) not to convict them, (iv)security of the family (v) and to provide arms; there was no such threat to kill the Judges as such there was no justification to start the operation; the presence of the injured witness namely Javed Warriach cannot be denied; he had no enmity whatsoever against the Police and that there is sufficient evidence on record that the D.I.-G. And the D.P.Os. Were told about the orders of the Chief Justice and the Registrar of the High Court.
20. ' It was maintained by learned counsel that as far as question of unlawful assembly is concerned, the accused were four in number so there was no necessity on the part of the Police to use the force.
21. ' Learned counsel submitted that in the MLR of Shahrayr Bokhari his age was give as 45 years when in fact he was aged about 27 years at the time of occurrence; this much difference in the age of the injured cannot be expected from an experienced doctor, it was all with mala fide; it was written on the MLR that the patient was in a shock, if it was so how he could have complained of sever pain, blackening was also shown to be there, the column of weapon of offence used left blank, no X-ray was done, was no fracture on the body of the deceased; he died due to excessive bleeding, the ambulance provided for shifting of Shahryar Bokhari to P.I.C., Lahore was without any equipment, such as oxygen and glucose etc. Lastly submitted that it was the case of the prosecution that Shahryar was removed to hospital at Lahore by his some relative but till today, as to who took the injured to the hospital even his statement has never been recorded by the Police.
22. ' It was argued by learned counsel for the complainant that challan was submitted for the first time on 5-11-2004 against Malik Muhammad Iqbal, Ex-D.I.-G. Only and that too under section 319, P.P.C.
23. On the direction issued by a Division Bench of this Court; in the challan Inspector Zulfiqar Virk who remained absconder was, placed in column No,2 on the basis of statements of his co-accused; Malik Iftikhar Superintendent Jail and one Moazzam alias Mauji are still absconders; reliance was placed on 1985 PCr.LJ 325, PLD 2001 Lah. 127 and Writ Petition No,20988 of 2002; according to learned counsel, section 319, P.P.C. Would be read as section 302, P.P.C. And mention of section 319 in the report under section 173, Cr.P.C. Does not carry any weight; as to mala fide of the Investigating Officer, learned counsel submitted that in the site plan, there was no mention of the place where the members of the Elite Force were standing and resorted to firing; there being no proper arrangement for medical facility, statements of Sessions Judge, Sialkot, Munawar Warriach, President District Bar Association, Nazir Ahmad Additional District Judge and Nazir Ahmad driver of Sessions Judge have been read before us which gives the irresistible conclusion that no medical facility was available in the jail hospital.
24. ' Much stress was laid on sections 32, 33, 35 and 36 of P.P.C. Learned counsel maintained that Malik Muhammad Iqbal Ex-D.I.-G., did not obey the orders of Honourable the Chief Justice, the Sessions Judge, Sialkot, the Additional Secretary, Home Department and in a hurried manner started the operation; the D.I.-G. Has even no authority to kill the five under-trial prisoners; due care and caution was not taken before start of the operation; Reference was also made to sections 52, 76 and 79 of the P.P.C.; according to learned counsel, an act which is obligatory is justified by law and act which is not obligatory, is mistake of fact; as to act done in good faith, learned counsel has relied upon AIR 1930 Lah. 266 and AIR 1940 Lah. 210; the accused at bail stage cannot take the defence of section 76, P.P.C. And it can be pressed into service at the time of punishment and can be considered as extenuating Circumstance.
25. ' The conduct of the accused was also pressed into service. It was submitted that the accused were summoned vide order dated 19-1-2004 passed by trial Court; Malik Muhammad Iqbal applied for bail before arrest on 3-3-2004; protective bail was granted, Writ Petition No,3021 of 2004 was also filed against the order dated 19-1-2004 passed by the trial Court; after confirmation of bail before arrest by the trial Court, write petition was withdrawn on 12-4-2004; it means that the order dated 19-1-2004 of the trial Court summoning the accused under sections 319 and 302, P.P.C.
26. Remained in the field; summoning of accused is a different process while grant of bail is different subject, summons or warrant can be issued even against witnesses. Reference was also made to 2004 SCM R 1560 wherein the conduct of Malik Iqbal, the petitioner was discussed by the Honourable apex Court.
27. ' It was also argued by learned counsel that under section 21-D of the Anti-Terrorism Act, 1997 bail cannot be allowed to the petitioners. As to tampering of evidence by the accused, learned counsel submitted that Mumtaz Ahmad Cheema and Naseer Ahmad Cheema father and uncle of the deceased Civil Judge Asif Cheema have sworn affidavits to the effect that they are being extended threats not to pursue the criminal case. It was submitted by learned counsel that in the inquiry both the doctors namely Sajid and Firdous were found guilty inasmuch as Dr. Sajid was recommended for removal from service and ban on private practice and as to Dr. Firdous, recommendation was made by the Investigating team that he be issued censure. According to learned counsel, though challan against the doctors has been submitted under section 319, P.P.C. But the trial Court has framed charge against them under section 322, P.P.C. Which offence is non-bailable.
28. ' It was submitted by learned counsel that case is fixed for evidence and in such an eventuality, bail cannot be allowed. Reliance was placed on 1996 SCM R 931. For the proposition that evaluation of evidence at bail stage is not permissible, learned counsel relied upon 1978 PCr.LJ 321. Lastly submitted that there is sufficient evidence on record to connect the petitioners with the commission of the offence.
29. ' Summing up his submissions, learned counsel submitted that all the P.Ws. Had no malice or enmity whatsoever against any of the petitioners and they are entitled to bail.
30. ' Ch: Tahir Farooq Cheema, Advocate representing Mr. Muhammad Yousaf Aujla, complainant submitted that the prosecution branch of the District Attorney raised 29 objections on the report under section 173, Cr.P.C. But the Investigating Officer instead of complying with the said objections, get an order from the A.I.-G. (Legal) and submitted the challan in the Court. Further submitted that all the accused have been made as P.Ws. And their statements have been recorded under section 161, Cr.P.C.
31. ' Mrs. Yasmeen Seghal, learned A.A.-G. Submitted that question of bail is to be determined on the basis of material collected during the course of investigation, that is, F.I.R. And statements of the P.Ws. Recorded under section 161, Cr.P.C. She submitted that sufficient powers under sections 51, 52, 53 and 54, Cr.P.C. Vests in the Police tb take action of a cognizable offence and even according to section 59 of the Act, any person can arrest a person accused of a cognizable offence and hand him over to the Police. According to her, when the under-trial prisoners had already fired at the Sessions Judge and negotiation failed between the hostages and the accused, there was no option left with the Police except to start the operation and save the precious lives of 42 persons, detained in a barrack. Elaborating her arguments she submitted that occurrence started at 10-30 a.m., negotiation failed and it was only at 5 p.m. That the operation was started. Learned A.A.-G.
32. Further submitted that at the most section 319, P.P.C. Is applicable to the case of the petitioners. She however, conceded that act of the Police was gross and 'criminal negligence and taken without due care and caution. She maintained that it was the bounden duty of the Police to have come to rescue of the persons detained by the accused in a barrack and that the intention for the operation was to rescue the hostages. There was no element of pre-meditation or intention or mens rea on the part of the petitioners and there is no evidence on record that they were the abettors. So far as Inspector Zulifqar Virk is concerned, learned A.A.-G. Submitted that she has found innocent during the course of investigation and placed in Column No,2 of the report under section 173, Cr,.P.C.
33. ' With regard to application of sections 6 and 7 of Anti-Terrorism Act, 1997, learned A.A.-G.
34. Submitted that by mere mention of above said sections of the Act, the grant of bail cannot be withheld and the Court has to see as to whether the act of the accused created any sense of panic or fear in the mind of the public which is missing in the instant case. Learned law officer lastly argued that under section 5 of the Act, the Police force can be used to prevent the commission of terrorist act.
35. ' We have heard learned counsel for the parties at length for three days, that is, 24th, 25th, and 26th of January, 2005. We have also very carefully and minutely gone through the Police record.
36. ' The first objection raised by Syed Mazhar Ali Akbar Naqvi learned counsel for the petitioners in Criminal Misc. No,8382/B of 2004 was that after summoning the accused petitioners under section 204 Cr.P.C., the Court was to follow the procedure laid down in section. 91 of the Cr.P.C. This objection of the learned counsel was dealt while disposing of Criminal Miscellaneous No,3264/BC of 2004 titled Muhammad Yousaf versus Malik Muhammad Iqbal etc. For facility of reference, paras 43 and 44 of the judgment dated 30-9-2004 are reproduced: -- "(43) Section 204, Cr.P.C. Deals with question of issuance of process to accused when a Court taking cognizance of an offence in a complaint case is of the opinion that there is sufficient ground for proceeding further with matter. This in no way deals with an offence, the cognizance of which is taken on a report made by a police officer of facts constituting an offence.
(44) It is to be noted here that the case against these respondents had proceeded on the report made by the police officer concerned. The cognizance of such an offence is taken by Magistrate under Section 190, Cr.P.C. There is no cavil to the proposition that an Anti-Terrorism Court has powers of Court of Magistrate as well as that of Sessions. Subsection 1(b) suggests that any Magistrate may take cognizance of an offence upon report in writing of such facts made by Police officer. There was no complaint before the Anti-Terrorism Court in the matter. The learned Judge, Anti-Terrorism Court had taken cognizance of the offence on the incomplete challan submitted by the Police officer concerned. It, thus was the one under Section 190(1)(b), Cr.P.C. And not under section 204, Cr.P.C. So, the view of the learned Judge Anti-Terrorism Court that he had acted under section 204, Cr.P.C. While issuing process to these respondents was fallacious or wrong. Here we would refer to the case of Safdar Ali v. Zafar Iqbal and others 2002 SCM R 63. It has been held therein by the apex Court that a Magistrate can take cognizance of an offence, even in case of negative report submitted by Police that accusation is baseless and no case is made out against delinquents. The same is taking of cognizance of an offence under section 190, Cr.P.C. The view of our's is further forfeited by the case of Azmat Bibi and another v. Asifa Riaz and three others PLD 2002 SC 687. In the same, the apex Court had dealt with scope of Sections 204 and 205, Cr.P.0 in relation to the complaint case. It has been held therein that where the Court had recorded statement under section 200, Cr.P.0 and after finding prima facie case had taken cognizance of the matter, it was under Chapter XVII, Cr.P.C. And then sections 204 and 205, Cr.P.0 would come into operation. It is also to be noted here that the case of Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359 (Lahore) was a complaint. It so very clearly reflects from the same. So, the learned Judge, Anti-Terrorism Court has erred in holding that he took cognizance of the matter under section 204, Cr.P.0 in issuing process to these respondents.".
37. ' Learned counsel also vehemently argued it for the accused petitioners that name of none of the accused petitioners was stated in the F.I.R. It is to be noted that F.I.R. Is recorded only to set the machinery of law into motion. Merely on the basis of the fact that names of the accused were not stated in the F.I.R. Itself does not make a ground for bail.
38. ' In the operation carried out by the Police, four judicial officers lost their lives while two namely Javed Iqbal Warriach and Sibtain Raza Kazmi were injured. They are star witnesses of the prosecution. They have fully supported the case of the prosecution implicating the present petitioners. None of the PW including the complainant had any malice or ulterior motive against the accused. The operation was started under the order of Malik Muhammad Iqbal, the then D.I.-G., Gujranwala Range in consultation with two D.P.Os. Despite the order of the Honourable the Chief Justice, Lahore High Court, the Sessions Judge, Sialkot, Mr. Faseel Asghar, Additional Secretary (Homes) not to do so unless the Army commandos are summoned.
39. ' The number of empties recovered from the spot are as under:-- 9 empties of rifle G-3 3 empties of rifle MP-5 194 empties of klashnikov lead bullets 70 34 empties of 30-bore pistol.
40. ' It is thus crystal clear that the Police during the operation resorted to indiscriminate firing. It has been concluded by the Investigating team that it was Raja Munawar D.P.O. Who raised the slogan Allah-hu-Akbar and three tear gas shell knowing fully well that about 52 persons were in the barrack including the judicial officers, to rescue whom, the operation was started. It prima facie seems that no caution, care or tactics were adopted to carry out the operation. According to statement of SI Mahmood who was in-charge of the Elite Force lights of the barrack where the firing was made, was put off before the start of the operation. Who switched of the light, nobody knows. It was thus in the knowledge of the Police officials that indiscriminate firing may result into, loss of lives.
41. ' It was also argued on behalf of the petitioners that cross firing was made in between the members of the Elite Force and the accused who had made the judicial officers hostages but not a single police official received a scratch on his body.
42. ' It was vehemently argued by learned counsel for the complainant that supplementary statements made by the complainant and the statements of the P.Ws. Recorded under section 161, Cr.P.C. Were only those which were signed by the P.Ws. And the statements without signature are prepared by the Police. No doubt, the statements under section 161, Cr.P.C. Are not to be signed by the P.Ws. But since the complainant and the P.Ws. Were apprehending partial investigation, as such they signed their statements. As far as delay in recording supplementary statements is concerned, it may be noted that investigation of the case was stayed by highups of the Police on the ground that permission was to be taken and thereafter when the permission was granted, statements of the P.Ws. Were recorded. It is a case in which the Police officials are the accused and they are the investigators. The first Investigating Officer did not take into possession the last worn clothes of the deceased as also the crime weapons used by the officials of the Police. The investigation in this case was carried out in a partial and dishonest manner. The clothes and crime weapons were not taken into custody just to spoil the case of the prosecution. The mala fide of the Investigating agency is also proved from the fact that even the clothes of Shahryar the deceased Civil Judge were not sent to the office of the Firearms Expert so it could not be determined as to whose fire hit him. The investigating being dishonest is also proved from the fact that in the site plan, the Investigating Officer has not shown the place from where the Police party fired. The doctor who medically examined Shahryar Bokhari, one of the deceased, in the hospital at Sialkot, had shown blackening of injuries to make it a case of firing from the close range and that was obviously the accused under-trial prisoners who were inside the barrack and close to the deceased. It was so written to show favor to the Police party. At this stage, we may make a reference to section 19 of the Anti-Terrorism Act, 1997 which requires submission of the report under section 173, Cr.P.C. Within seven working days and if the same is not submitted within 7 working days, the Investigating Officer had to make an application before the Special Court constituted under the Act seeking time but had to show reasonable grounds in that regard.
43. ' The Investigating Officer with mala fide intention firstly submitted the challan against the officials of the jail and then after direction by a Division Bench of this Court against Malik Muhammad Iqbal, the then D.I.-G. Of the range and one Inspector Zulifqar Virk. It was only on 19-1-2004 when the trial Judge by passing a speaking order, issued non-bailable warrant of arrest under section 302, P.P.C.
44. Against Malik Muhammad Iqbal, D.I.-G., Munawar Hussain D.P.O., Gujrat, Amjad Javed Saleemi, D.P.O., Sialkot and bailable warrant against the two doctors namely Dr. Muhammad Firdous and Dr. Sajid Hussain under section 319, P.P.C. We fail to understand as to how when the trial Judge had issued non-bailable warrant of arrest against the Police officers, allowed them bail after submission of the bail bonds. It was not a complaint case. No private complaint was filed by the complainant. It was a challan case.
45. ' It is also worth mentioning that in the instant case, two inquiries were held, one by the Registrar of the High Court and other by Mr. Safdar Suleman, Secretary to Government of the Punjab. Even the panel of the Investigators came to the conclusion that operation wads done in haste. The panel of Investigators opined that Dr. Sajid should not be allowed to remain in service and even his civil practice should be prohibited and against Dr. Firdous, recommendation was made for issuing him censure. Before the start of the operation, there was no threat to the lives of the judicial officers. The demands made by the hostages were to provide vehicle, (ii) security, (iii) not to convict them, (iv) security of their families and (v) to provide them arms. In our opinion, the occurrence started when one of the accused namely Inspector Zulifqar Virk who was posted at the relevant time as S.H.O.
46. Police Station Zafarwal, District Narowal, was called by Shahbaz Butt, an under-trial prisoner after getting the mobile phone of the jail doctor or some of the judicial officer. When the said Inspector came along with mother of one of the accused under-trial prisoner, used filthy language against the accused in the presence of mother of one of the accused namely Shahbaz Butt upon which the accused were infuriated.
47. ' Mrs. Yasmeen Seghal, learned A.A.-G. Though did not support the case of the prosecution and was in favor of grant of bail to the accused but could not refute that it was not only gross negligence but criminal negligence of the accused who had ordered for the operation. We fail to understand, that during the course of hearing of Criminal Miscellaneous No,3264/BC of 2004, the present learned Advocate General who appeared in that case, had fully supported the case of the prosecution and argued against the accused but today for the reasons best known to the State, a complete somersault has been taken. We also fail to understand how the learned law officer had submitted before us that it is a case under section 319, P.P.C. At this juncture, we would like to reproduce section 318 of the P.P.C. And illustration thereof :- "318. Qatl-i-Khata.--- Whoever, without any intention to cause death of, or cause harm to, a person causes death of such person, either by mistake of act or by Mistake of fact, is said to commit Qatl- i-Khata.
48. Illustrations: (a) A aims at a deer but misses the target and kills Z who is standing by A is guilty of Qatl-i-Khata.
(b) A shoots at an object to be a boar but it turns out to be a human being. A guilty of Qatl-i-Khata.
49. The above illustrations would show that the case in hand does not fall within the provisions of section 319. It is also important to note here that Malik Muhammad Iqbal accused filed Writ Petition No,3021 of 2004 against the order dated 19-1-2004 passed by the trial Court summoning the accused to face trial under sections 302 and 319 PPC. Malik Muhammad Iqbal, the accused petitioner after confirmation of bail by the trial Court, withdrew the writ petition. By implication, section 302, P.P.C. Still holds the field.
50. ' The Court at bail stage has to make tentative assessment of the evidence on record and evaluation of evidence is not permissible in finding whether or not reasonable grounds existed for belief in accused's guilt for involvement in an offence punishable with death or imprisonment for life.. It is the prerogative of the trial Court after recording of evidence to see as to which offence is made out. Reliance can safely be placed on Full Bench judgment of this Court reported as The State versus Mr. Zulifqar Ali Bhutto 1978 PCr.LJ 321. It is neither the function of the Police of the Investigating agencies to submit the challan according to their own whims. The Police is to submit the challan under the section under which F.I.R. Was recorded. At this stage, para.8 of the order passed in Writ Petition No,8962 of 2001 may also be reproduced:-- "Before parting with the case, I have noticed that the Police is becoming more powerful and exercising the powers of judicial officer by converting the offences from section 302, P.P.C. To section 322, P.P.C. Or section 302 to section 308, P.P.C. And submit the challan instead of section 302, P.P.C. To other sections which are punishable with lesser punishment and are triable by a Magistrate. This tendency is very dangerous. In each and every case which is registered under section 302, P.P.C., the Police if comes to a conclusion to submit challan against the accused in some other offence even then it should submit the challan before the Sessions Court and the Sessions Court will decide whether the case is triable by it or not."
51. ' This order was challenged in Intra Court Appeal No,461 of 2001 but the same was dismissed by a Division Bench of this Court.
52. ' It has also to be noted that when the challan was sent to the District Attorney, Sialkot for checking, he had raised 29 objections thereon but those objections were not removed and on the direction of the A.I.-G. (Legal) Lahore, the challan was submitted and that too only against Malik Muhammad Iqbal D.I.-G. Under section 319, P.P.C. And also against Inspector Zulfiqar Virk by placing his name in Column No,2 of the challan.
53. ' Malik Muhammad Iqbal, the Deputy Inspector General of Police, Raja Muanwar, the D.P.O. And Amjad Javed Saleemi, D.P.O. Are still performing duties as supervisory Police officers. There is thus apprehension of there being tampering with the prosecution evidence by exerting their influence and misusing their official position. During the course of arguments, it was brought to our notice that real father and uncle of one deceased Judge namely Asif Mumtaz Cheema had submitted affidavits before the trial Court that Hassan Iqbal, (real brother of Malik Muhammad Iqbal, D.I.-G.) who was posted as District Coordination Officer, Sargodha was pressurizing and extending threats to the legal heirs not to pursue the case and compromise the case.
54. ' It was hotly argued by learned counsel from both the sides that whether the petitioners in good faith committed the act of operation or not. In this regard, different sections of the P.P.C. Were referred. This matter, we leave for the trial Court because it will only be the trial Court to see after recording of evidence as to whether the act was done in good faith or not.
55. ' Section 21D of Anti-Terrorism Act, 1997 which relates to bails is reproduced hereunder:-- 21-D. Bail.--- (1) Notwithstanding the provisions of sections 439, 491, 496, 497, 498, 498-A and 561-A of the Code, no Court, other than an Anti-Terrorism Court, a High Court or the Supreme Court of Pakistan, shall have the power or jurisdiction to grant bail to or otherwise release an accused person in a case triable by Anti-Terrorism Court.
(2) All offences under this Act punishable with death or imprisonment exceeding three years shall be non-bailable: ' Provided that if there appear reasonable grounds for believing that any person accused of non- bailable offence has been guilty of an offence punishable with death or imprisonment for life or imprisonment for not less than ten years, such person shall not be released on bail.
(3) Subject to subsection (2), the Court may admit a person to bail, unless satisfied that there are substantial grounds for believing that the person, if released on bail (whether subject to conditions or not), would:
(a) fail to surrender to custody;
(b) commit an offence while on bail;
(c) interfere with a witness; otherwise obstruct or attempt to obstruct the course of justice, whether in relation to himself or another person; or
(d) fail to comply with the conditions of release (if any).
(4) In exercising its powers in relation to a person seeking bail under this Act, the Court shall have regard to such of the following conditions (as well as to any others which it considers relevant):
(a) the nature and seriousness of the offence with which the person is charged;
(b) the character, antecedents, associations and community ties of the person; ' Subsection (4)(b) of section 21D of Anti-Terrorism Act, 1997 has been quoted for the reason that in a recent judgment of the Hon'ble apex Court reported as Muhammad Amin alias Irfan and another versus State 2004 SCM R 1560 remarks were made against Malik Muhammad Iqbal, the D.I.-G. The' observations made in para.8 of the report are reproduced:-- "(8) As mentioned herein above the investigation has been conducted in a haphazard manner which shows the inefficiency of the Investigating Officer. The investigating officer could not explain that in spite of sufficient incriminating material why co-accused Shahnawaz who had played pivotal role was placed in column No,2 of challan and why he was not arrested after rejection of his bail application from the High Court, which smacks of mala fides and dishonest investigation, inefficiency and poor knowledge of the basic law for which a thorough probe should be made that how Shahnawaz who should have been the main accused has been let off which aspect of the matter went unnoticed and no action whatsoever was taken by the Deputy Inspector General and the Senior Superintendent of Police which indicates the poor supervision, inefficiency and lack of vigilance which aspect of the matter should be taken care of by the Inspector General of Police. It is worth mentioning that the concerned Investigation Officer was absolutely blank regarding the duties and functions of the clearing agent, importer and relevant laws on the subject. How he could be expected to investigate the matter thoroughly. It was for the Senior Superintendent of Police and the Deputy Inspector General to depute some skilful officer having legal know how and experience to deal with such sort of cases which has not been done which shows lack of their interest. This case is a classic example of lack of efficiency, supervision, vigilance and coordination. "
56. ' Both the doctors namely Syed Muhammad Firdous and Dr. Sajid Hussain were summoned by the trial Court under section 319, P.P.C. It is to be kept in mind that sections 6 and 7 of Anti-Terrorism Act, 1997 find mention in the F.I.R. The Anti-Terrorism Act, 1997 is a special law within the meaning of section 41 of P.P.C. And where a Statute has created a special offence and lays down a special procedure for the trial of such offence, it is that procedure that must be followed and not the ordinary procedure. Reliance can safely be placed upon the case of The State versus Hamtho 1971 SCM R 686. Section 21D, quoted above, deals with bail. According to sub-clause (2) thereof all offences under this Act punishable with death or imprisonment exceeding three years shall be non-bailable. Even the section under which both the doctors petitioners herein have been summoned by the trial Court entails punishment according to Pakistan Penal Code up to five (5) years. Sections 6 and 7 of the Anti-Terrorism Act being there, section 21D of the said Act relating to bail would come into play and specially clause (2) thereof which makes an offence non-bailable carrying punishment exceeding three years.
57. ' Charge has been framed by the trial Court so at this stage we would not attend to merits of the case lest it may prejudice the case of either party. Reliance is placed upon the case of Muhammad Nawaz versus The State 2002 SCM R 1381.
58. ' In the case of Dr. Muhammad Shoaib Suddle, D.I.-G., Police Karachi and others v. The State 1997 SCM R 1234 it was concluded by their Lordships of the Honourable Supreme Court at page 1244 as under :-- "Coming to the case of Shahid Hayat Khan, A.S.P. And Rai Muhammad Tahir, A.S.P., petitioners in Criminal Petition No, 215-K of 1996, they are shown to be present at the place of occurrence at the time of incident which resulted in the death of Mir Murtaza Bhutto, Ashiq Hussain Jatoi and their other six partymen due to firing by the Police party.,"
59. ' In the case in hand, all the three Police officers, namely Malik Muhammad Iqbal, D.I.-G., Raja Munawar and Amjad Javed Saleemi both District Police Officers were present at the spot at the time of operation rather it has come on record that Raja Munawar D.P.O. Threw the tear gas shells.
60. ' There are statements of witnesses involving the petitioners and supporting the case of the prosecution. The names of those witnesses are Ch: Zafar Hussain, Sessions Judge, Muhammad Yousaf Aujla, Muhammad Naeem Sheikh, Muhammad Saeed Rafique, Syed Sibtain Abid Kazmi, Javaid Iqbal Warriach, Abdur Rehman Awan, Muhammad Naeem Kharal, all Magistrates Munawar Hussain Warriach, Mst. Salma daughter of Muhammad Sharif, Mst. Salma wife of Hassan Muhammad, Nazir Ahmad, Additional District Judge, Faseel Asghar, Additional Secretary, Home Department and Mahmood Butt, S.-I., Incharge of Elite Force.
61. ' Malik Iftikhar, who was Superintendent Jail, Sialkot at the relevant time and one person namely Moazam alias Mauji who provided arms to the under-trial prisoners in jail are still at large.
62. ' Consideration for the grant of bail before arrest and bail after II arrest are totally different.
63. ' For all that has been stated above, no case for bail before arrest in favor of petitioners of Criminal Miscellaneous No, 8382/B of 2004 Malik Muhammad Iqbal, D.I.-G., Amjad Javed Saleemi, Ex-D.P.O.
64. Sialkot, Raja Munawar Hussain, D.P,O., Gujrat, Dr. Syed Muhammad Firdous and Dr. Sajid Hussain is made out. Their bail petition is dismissed accordingly.
65. ' Now, we take up the files of Criminal Miscellaneous No,8414/B of 2004 filed by Muhammad Mahmood Butt, Ghulam Sarwar, Qaiser Mahmood, Kamran Ali and Asghar Ali, Criminal Miscellaneous No,8462/B of 2004 filed by Amjad Ali, Shahzad Ahmad, Qaiser Mahmood son of Muhammad Aslam, Abdur Razzaq and Aman ullah Qaiser, Criminal Miscellaneous No,8656/B of 2004 filed by Zafarullah Butt and Criminal Miscellaneous No,8778/B of 2004 filed by Shabbir Ahmad, petitioners. All these petitioners were members of the Elite Force. They were under the direct command of the D.I.-G. And the D.P.Os. They fired under their directions. They being subordinates could not have dared to disobey the orders of their superiors at the risk of their service. They had no knowledge about the orders of the Honourable Chief Justice, the Sessions Judge, Additional Home Secretary and the other highups not to start the operation. The case of these petitioners thus falls within the purview of subsection (2) to section 497, Cr.P.C. Calling for further inquiry. Resultantly, the orders granting pre-arrest bail to these petitioners are made absolute.
66. ' Next is the case of Inspector Zulfiqar Virk Criminal Miscellaneous No,8648/B of 2004. It was he, who was called by one of the accused namely Shahbaz Butt through a phone call made from the mobile phone of the jail doctor or some judicial officer. It has come on record that he came in the jail premises along with mother of one of the under-trial prisoner, used filthy language about the accused-under-trial prisoners and it was then that they were infuriated. He also remained absconder for sufficient long time. There is also apprehension that he will abscond after he is allowed bail. The provisions of section 21D of Anti-Terrorism Act, 1997 are also attracted to his case.
67. This petition is also dismissed.
68. ' Last is Criminal Misc. No, 7543/B of 2004 filed by Muhammad Akhtar, Assistant Superintendent Jail, through jail where he is confined. His case is similar to that of Sikandar Hayat, Deputy Superintendent Jail, whose bail petition has been dismissed by a Division Bench of this Court and now the matter is pending before the Hon'ble apex Court. In his petition, the petitioner has submitted that his petition for bail on medical grounds is pending before the trial Court and because of stay granted by this Court; the same is not being decided. This being the position, we direct the trial Court to decide the bail application of the petitioner within 10 days of receipt of this order. A copy of this order shall be sent to the trial Judge.
69. ' We may observe here that the accused whose bail have been confirmed by this Court shall appear on each and every date of hearing before the trial Court and in case of their absence on any date of hearing, the trial Court would be at liberty to cancel their bails.