' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- Petitioners seek leave to appeal against the order, dated 26th January, 2005 passed by a Division Bench of Lahore High Court, Lahore whereby their request for grant of bail before arrest has been declined.
2. Instant proceedings have arisen out of an unfortunate incident took place on 25th July, 2003 inside the barrack of female prisoners in District Jail, Sialkot. The facts, as emerge from F.I.R. No,237 of 2003 registered at Police Station Civil Lines, Sialkot, on the complaint of Muhammad Yousaf Ojla, Senior Civil Judge, Sialkot, are that Ch. Zafar Hussain District and Sessions Judge in the company of complainant and Messrs Asif Mumtaz Cheema, Shahid Munk Ranjha, Sagheer Anwar, Syed Sheheryar Bukhari (deceased) Civil Judges as well as Muhammad Saeed Rafique Awan, Muhammad Naeem Sheikh, Rai Muhammad Naeem, Abdul Rehman, Malik Tariq and Javed Iqbal Warriach, Civil Judge/Allaqa Magistrates, Pervaiz Iqbal Butt, Syed Sibtain Raza Kazimi, Special Judicial Magistrate, had gone to inspect the jail. As statedly on the said date on account of death of a Senior Advocate, lawyers were not appearing in the Courts. During the visit when Sessions Judge came out of ladies barrack and rest of Judicial Officers were still in the barrack, five prisoners namely Muhammad Shahbaz Butt, Ijaz Ahmed Butt both sons of Sarfraz Ahmed Butt, Ishfaq alias Ishaq son of Muhammad Samar, Muhammad Rafique alias Kona son of Zahoor Hussain, and Munir Ahmed alias Muniri son of Nazir Ahmed, all armed with .30 bore pistols suddenly emerged at scene and fired upon the Sessions Judge with an intent to commit his murder but he escaped luckily. He hurriedly proceeded towards the office of Superintendent Jail. The complainant along with Abdul Reiman, Rai Naeem Ahmed, who till then had also reached there, entered in the Barrack No,8 (a place other than ladies barrack) whereas the rest of the Judges were kept hostages by the above said accused/culprits in ladies barrack. Complainant made a call from his mobile to D.P.O., Sialkot. Police Force reached at the spot in a short while. Negotiation started with the culprits/captors, which, failed, therefore, police started its action and when firing ended the complainant and two others also came out of Barrack No,8 and learnt that Messrs Asif Mumtaz Cheema, Shahid Munir Ranjha and Sagheer Anwar, Civil Judges have been martyred, whereas Syed Sheheryar Bukhari is injured {later on he succumbed to the injuries on 31st July, 2003 in Punjab Institution of Cardiology, Lahore), Javed Iqbal Warraich, Syed Sibtain Raza Kazmi and two others were found injured by him. The culprits/captors named above had also died. It is alleged in F.I.R.
That incident took place due to conspiracy and connivance of the jail authorities because without their abetment the prisoners were not in a position to take arms/ammunitions inside the prison.
The statement of the complainant Muhammad Yousaf Ojla was reduced in writing and he accepted its contents to be correct by putting his signature on it. Accordingly a case under sections 148, 149, 302, 319, 322, 324 and 353, P.P.C. Was registered.
3. As post-mortem of the deceased Judges was not allowed to be conducted under the orders of the Magistrate, therefore, external postmortem reports were prepared in hospital. Similarly M.L.R. Of Syed Sheheryar Bukhari (injured) was prepared and later on he was shifted to Punjab Institute of Cardiology, Lahore, where he succumbed to the injuries on 31st July, 2003.
4. Investigation of the case was carried out during course whereof on 1st August, 2003; supplementary statement of the complainant was recorded. Police reports under section 173, Cr.P.C. Were also filed on 1st September, 2003, 19th September, 2003, 18th November, 2003, 16th December, 2003 and 17th December, 2003. In the police reports all the petitioners were not challaned except Malik Muhammad Iqbal, D.I.-G. Gujranwala Range under section 319, P.P.C.
However, petitioner Syed Muhammad Firdous Ex-Medical Superintendent and Dr. Sajid Hussain were summoned in pursuance of an application dated 8th January, 2004 submitted by Muhammad Yousaf Ojla, wherein they were not nominated as accused. The Judge of Anti- Terrorism Court, Gujranwala vide order, dated 19th January, 2004 observed that the petitioners have been found negligent in performance of their duties specially in the treatment of Syed Sheheryar Bukhari and for his transporting to Punjab Institute of Cardiology, Lahore, as such they are involved under section 319, P.P.C. Thus, their bailable warrants in the sum of Rs,50,000 were issued which were furnished by them.. Later on, an application was filed by the complainant for cancellation of their bonds. The application was dismissed by the trial Court on 24th April, 2004 with the observation that they were summoned under section 204, Cr.P.C. And they are required to be dealt with under section 91, Cr.P.C. Reference in this behalf was made to the case of Mazahar Hussain Shah v. The State 1986 PCr.LJ 2359. Meanwhile, when they appeared before the trial Court on 29th January, 2004 the amount of bail bond was enhanced to Rs,2, 00,000 each with one surety.
6. The petitioners Malik Muhammad Iqbal, D.I.-G., Amjad Javed Saleemi, D.P:O. Sialkot, Raja Munawar Hussain, D.P.O. Gujrat and other Police Officers along with members of Elite Force, who participated in the operation of Jail were also summoned under section 302/149, P.P.C. Vide order dated 19th January, 2004 and their non-bailable warrants of arrest were issued, accordingly.
7. Malik Muhammad Iqbal, D.I.-G. Got protective bail on 3rd March, 2004 for. 10 days from the High Court and he was then admitted to bail before arrest by trial Court. Similarly, Amjad Javed Saleemi and Raja Munawar. Hussain D.P.Os. Were also admitted to bail before arrest by the trial Court vide order dated 10th April, 2004.
8. Being aggrieved from the aforesaid order of the Anti-Terrorism Court (Trial Court) one of the Wali' of deceased Civil Judge i,e, Syed Ghulam Abbas Bukhari (father of Syed Sheheryar Bukhari), moved learned High Court for cancellation of their bail which was disposed of on 14th October, 2004 with direction to learned trial Court to re-consider the bail already granted to petitioners and others.
9. Accordingly on 8th November, 2004, the to Malik Muhammad Iqbal, D.I.-G. And others was cancelled along with the bail, which has already been granted to Drs. Syed Muhammad Firdaus and Sajid Hussain (petitioners in Criminal Petition No,39 of 2005). Thus, they all approached to the High Court for bail before arrest. Initially they were admitted to ad interim bail but subsequently vide impugned order, dated 26th January, 2005 the bail applications of Malik Muhammad Iqbal and two others as well as Drs. Syed Muhammad Firdaus and Sajid Hussain, were dismissed for pre- arrest bail, whereas the members of Elite Force were granted the concession of bail, as such instant petitions have been filed.
10. We have heard learned counsel for the petitioners, the Advocate-General and other State Counsel as well as to. Syed Ghulam Abbas Bukhari at length and have also gone through the record of the case carefully.
11. Learned counsel appearing for petitioners in Criminal Petition No,39 of 2005 contended:-- ' That the names of both the doctors do not find mention in the F.I.R. No,237 of 2003 dated 25th July, 2003. Inasmuch as in the supplementary statement of the complainant Muhammad Yousaf Ojla, Senior Civil Judge, they were not shown to be the accused involved in any manner in the commission of the offence nor in the reports submitted by the police under section 173, Cr.P.C. On different dates, they were challaned, but in pursuance of a criminal miscellaneous application dated 8th March, 2004, submitted without mentioning their names, they were allegedly found negligent in providing proper treatment to deceased Syed Sheheryar Bukhari, therefore, they were summoned by the trial Court on 19th January, 2004 in accordance with section 204, Cr.P.C. As such, they are entitled for bail before arrest because section 319, P.P.C. Does not entail the punishment for death or life imprisonment.
12. On the other hand Syed Ghulam Abbas Bukhari stated:--
(a) That overwhelming evidence is available on record to substantiate that Dr. Syed Muhammad Firdaus, former Medical Superintendent, Allama Iqbal Memorial Hospital, Sialkot failed to provide ambulance well equipped with medical instruments due to which Syed Sheheryar Bukhari (deceased) had excessive bleeding, which ultimately resulted in his death.
(b) That petitioner Dr. Sajid Hussain had not properly attended to the deceased Syed Shehryar Bukhari when he was brought in an injured condition in hospital and he had wrongly mentioned his age to be 45 whereas his age was only 27 years in the M. L. R.
(c) That to show favor to the Police Dr. Sajid Hussain had shown blackening around the injury of the deceased fictitiously.
(d) That both the doctors have been charged by the trial Court under section 322/34, P.P.C., therefore, learned High Court had rightly declined to grant concession of bail before arrest to them under the circumstances of the case.
13. Learned Advocate-General as well as Ch. Mushtaq Ahmed Khan, Special Prosecutor for State, however, supported to the case of petitioners and argued that as neither in the F.I.R. Nor in the statements of witnesses they were charged for any criminal negligence, therefore, they were entitled for bail before arrest.
14. We have heard learned counsel for the petitioners-doctors and have also gone through the record carefully. It is to be noted that deceased Syed Sheheryar Bukhari was attended for the first time in hospital by Dr. S. Tahir Zafar on 25th July, 2003 at 5-50 p.m. Copy of M.L.R. Prepared by him indicates that he had noticed blackening around the injuries received by the deceased. It is equally important to note that in the application dated 1st August, 2004 name of any of the doctors was not mentioned, however, subsequent thereto a separate application dated 19th November, 2004 was moved for summoning Dr. S. Tahir Zafar Bukhari as an accused in the case, but learned trial Court vide order, dated 26th November, 2004 declined their request for the following reason:-- "By the same application summoning of Dr. Tahir Zafar Bukhari M.O. Allama Iqbal Memorial Hospital, Sialkot has been prayed who has medically examined Syed Sheharyar Bukhari injured Civil Judge (who succumbed to the injuries later on) and issued his M.L.C. Dated 25-7-2003. It is maintained that the said M.O. Wrongly recorded age of Syed Sheheryar Bukhari deceased Civil Judge as 45 years and has recorded contradictory observations regarding condition of the injured, on one hand, he opined that the injured was under shock, his B.P. Was 80/40, pulse 40 and on the other hand, he observed that the injured was complaining of severe pain. The said M.O. Under the influence of Dr. Firdos and D.I.-G. Has not given the opinion regarding the weapon of offence used in the occurrence and in spite of advising X-ray of the injured, had not managed doing of his X-ray to determine that any bullet or pellet existed in the body of the injured and thus, he had screened the material evidence due to his criminal negligence. To my humble view, it is too early to give any opinion regarding conduct of this witness and that too without any material collected by the Investigation Team. Of course, all these pleas of prosecution agitating at bar are to be examined at final stage and forming of any such opinion before the commencement of the trial is against the norms of criminal justice. Of course, if at final stage, the Court observes that the M.O. Has committed any criminal negligence, it can pass appropriate legal orders with the able assistance of learned counsel for the parties. As such, to his extent the application being premature is dismissed."
' The above order has not been assailed by the complainant as well as Syed Ghulam Abbas Bukhari before the High Court. Thus, it is abundantly clear that the case of petitioner Dr. Sajid Hussain is on better footings than the case of Dr. S. Tahir Zafar Bukhari, therefore, the trial Court as well as High Court may have not cancelled his bail bonds, furnished by him in terms of section 91, Cr.P.C. On his being summoned by the trial Court under section 204, Cr.P.C.
15. Now turning towards the case of Dr. Syed Muhammad Firdaus petitioner No,l. It is to be noted that for proving that he has shifted the deceased Civil Judges Syed Sheheryar Bukhari, to Lahore without making adequate arrangements, strong evidence is required to establish his criminal negligence because the fact remains that the deceased succumbed to the injuries in the ' Punjab Institute of Cardiology, Lahore on 31st July, 2003 after about 6/7 days and no Expert evidence is available on record to, prima facie, hold that he died B because of his shifting from Sialkot to Lahore, which proved fatal for his life.
' In addition to above, it is to be noted that learned trial Court vide order, dated 19th January, 2004 summoned him and Dr. Sajid Hussain (petitioner No,2) being accused for the offence under section 319, P.P.C. But surprisingly on 17th December, 2004 on the basis of same material, they were charged for Qatl-bis-Sabab under section 322/34, P.P.C., which is a non-bailable offence as per schedule of Cr.P.C. It seems that the learned Judge could not decide, whether it is a case under section 319 or 322, P.P.C. Be that as it may, in any case they shall not be punished ultimately for death or life imprisonment as under section 322, P.P.C. The sentence is of Diyat, therefore, for this added reason as well, concession of bail cannot be denied to them under the law.
16. Khawaja Sultan Ahmed, learned Advocate Supreme Court for the petitioners in Criminal Petition No,40 of 2005 as well as Dr. Babar Awan, learned Advocate Supreme Court, who assisted him to the extent of case of Amjad Javed Saleemi, petitioner argued:--
(i) That it was the duty of the Police Officers to rescue 52 hostages including 26 women, 3 suckling babies, 12 Civil Judges/Judicial Magistrates, etc. Therefore, they adopted all precautionary measures to rescue them safely and to accomplish the object they kept on negotiating from 10-30 a.m. To 5-30 p.m. With the culprits/captors, who were desperate hardened criminals, during course whereof they demanded supply of five kalashanikovs with 2000 rounds and a 72 seater coach/bus with permission to leave the jail premises along with all the hostages to whom they would release subsequently at a place where they would feel safe and protected.
(ii) That petitioner Malik Muhammad Iqbal, D.I.-G. Of Gujranwala Range, made efforts to procure the services of Army Commandos but could not do so as it is evident from the statement of Zahid Saeed, D.C.O.
(iii) That neither the Sessions Judge nor any other high-ups of the judiciary gave instructions to D.I.-G. In writing not to carry out the rescue operation and on account of uncertain position, one of the Civil Judges i,e, Asif Mumtaz Cheema was killed by the accused inside the ladies barrack, therefore, he had no option, but to launch rescue operation in good faith, during which he got released 48 hostages including 26 women, 3 suckling babies and 6/7 Civil Judges, who were inside the barrack.
(iv) That before the commencement of rescue operation, five persons out of total hostages were also got released by breaking open the wall of the latrine, attached with ladies barrack, where they have succeeded in entering and it shows sincere efforts being put up by the D.I.-G. For the release of hostages.
(v) That in absence of mens rea on the part of the Police Officers/petitioners, no mala fide can be attributed to them, in launching the rescue operation.
(vi) That Malik Muhammad Iqbal, D.I.-G. Was challaned under section 319, P.P.C., whereas no one else amongst the petitioners including Dr. Muhammad Azam, D.P.O. Narowal, were challaned but the learned trial Court vide order, dated 19th January, 2004 summoned them to be the accused under section 302, P.P.C. For which there was no justification.
(vii) That petitioners were summoned by the trial Court under section 204, Cr.P.C., therefore, they were liable to be dealt with under section 91, Cr.P.C. Instead of issuing their non-bailable warrants, which now have been cancelled by the learned High Court contrary to law.
(viii) That the petitioners are Government servants and had no or ulterior motive to cause harm or injuries to any of the deceased Civil Judges, therefore, they are entitled for bail, particularly in view of the fact that 14 members of the Elite Force have been granted bail before arrest, in view of the principle of consistency.
17. Learned Advocate-General put up the complete picture of the incident and described important events, indicating the happening of the incident and prayed for confirmation of the bail, already granted to petitioners. He argued that under section 5 of the Anti-Terrorism Act. 1997 (hereinafter referred to as "the Act, 1997"), a Police Officer is authorized to use Armed Force to prevent terrorism or terrorist activities, therefore, on having, prima facie, satisfied that the culprits/captors, who have taken 52 persons including 12 Civil Judges as hostages, were going to commit the act of terrorism, Malik Muhammad Iqbal. D.I.-G. Launched rescue operation in good faith after administering warning to the culprits and got released 48 persons, therefore, in absence of mens rea, on his part, he was not liable for negligence, under any of the provisions of P.P.C., but he was challaned under section 319. P.P.C., with ulterior motives and the trial Court without recording evidence enhanced his liability to section 302. P.P.C. Without any legal justification. As far as, remaining Police Officers are concerned, there is no incriminating material against them on record and the trial Court without any request from the complainant side, summoned them on 19th January, 2004, knowing well that it had declined to summon Dr. Muhammad Azam D.P.O., Narowal vide order, dated 16th November, 2004, who was also present at the spot. According to him, the trial Court was not justified to charge the petitioners/Police Officers under section 7 of the Act, 1997 because their action in launching rescue operation, by no stretch of imagination, fall within the definition of terrorism.
18. Ch. Mushtaq Ahmed Khan, learned Special Prosecutor for State supported to the Advocate- General and explained that under section 5 of the Act, 1997, the Police Officer(s) is/are empowered to use the Armed Force to stop terrorism, and his/their such action is immune from any action under section 132, Cr.P.C. To substantiate his submission, he relied upon various judgments from foreign jurisdiction wherein Officers of the Agencies, who launched rescue operation, have never been held liable for criminal liability under the law as well as conventions.
19. Syed Ghulam Abbas Bukhari argued that:--
(1) The investigation of the case was conducted with mala fides by the police of Sialkot because of the involvement of their senior Police Officers including Malik Muhammad Iqbal, D.I.-G., who kept the file of the case with him up to 27th July, 2003 and did not allow to any independent Officer to conduct the investigation of the case impartially, however, later on, file of the case was taken out of his possession on 27th July, 2003 and it was handed over to Mr. Shahid Hanif, for investigation.
Subsequent thereto, Inspector-General of Police Punjab changed the investigation and constituted a Board on 31st July, 2003, and investigation board recorded supplementary statements of complainant Muhammad Yousaf Ojla and other witnesses i,e, P.Ws. Javed Iqbal Warriach, Syed Sibtain Abid Kazmi, Muhammad Naeem Sheikh, Nazir Ahmed Driver to District and Sessions Judge, Rai Naeem Kharral on 1st August, 2003, who deposed that police conducted the operation in reckless manner, with criminal negligence, which resulted in the death of four Civil Judges, as such they are not entitled for bail.
(2) The death of four Civil Judges and others is the result of acts and omissions of the petitioners, as it has been defined under sections 35 and 36, P.P.C., as they have launched the operation without procuring the services of professional commandos of Army and without the permission of the Chief Justice of Lahore High Court, Lahore, who had specifically refrained the police from launching operation, and if at all it is become necessary then it should have been launched through professional commandos of Army, but the directions of Chief Justice of High Court were violated by them.
(3) The Police Officers had no explanation for exceeding their authority during discharge of their duties, therefore, learned High Court, on having evaluating their conduct, declined to grant them bail, because action done by them was not found in good faith in terms of section 52, P.P.C., as such concession of bail may not be granted to them.
(4) The culprits/captors had not made the hostages to the inmates of the ladies barrack, therefore, it is incorrect to plead that the police had an obligation to get released 52 hostages. The hostages were only the Civil Judges; therefore, it was quite convenient for the police to have successfully negotiated with the culprits/captors for their release, but the police instead of. Doing so, first of all fired teargas shells and thereafter opened indiscriminate firing, which resulted in the death of accused persons as well, whereas according to his claim deceased Judges were killed by the firing of police.
(5) The conduct of Malik Muhammad Iqbal, D.I.-G. Makes him disentitled for grant of bail because his bailable warrants were issued on 19th January, 2004 and he applied for bail before arrest to the Lahore High Court on 3rd March, 2004 and during this period, being responsible Police Officer, he never bothered for the process of law. Besides, this Court in the case of Muhammad Amin alias Irfan v. State 2004 SCM R 1560 had made adverse observation against him about has conduct as Police Officer, therefore, concession of bail may not be granted to him.
(6) At bail stage deep appreciation of evidence is not warranted as it has been held in State v.
Zulfiqar Ali Bhutto 1978 PCr.LJ 321, Said Akbar v. Gul Akbar 1996 SCM R 931, thus, taking into consideration, prima facie involvement of the police officials, their request for grant of bail may be declined.
(7) As the Police Officers have been charged for the offence under section 302, P.P.C. Read with section 7 of the Act, 1997 therefore, on having taken into consideration the cognizance of offence under these sections, petitioners are not liable to be dealt with under section 91, Cr.P.C. On the presumption that they have been summoned in terms of section 204, P.P.C., as such the learned trial Court rightly issued their non-bailable warrants of arrest and keeping in view all these facts, learned High Court had also rightly dismissed their applications for bail' before arrest.
20. We have heard parties, counsel at length and have also gone through the record of the case with their assistance.
21. At the very outset, it may be noted that according to medical evidence, there was blackening around the injuries of the deceased Judicial Officers, which would mean that they were fired upon from a close vicinity. It is an admitted fact, as per the evidence available on record, the Judicial Officers were kept at target by the accused persons, therefore, their deaths, prima facie, at the hands of accused persons, cannot be disbelieved.
22. From perusal of available record, it is abundantly clear that P.W. Ch. Zafar Hussain, District Judge planned the inspection of jail all of sudden, leaving no opportunity for Jail Staff, posted there at the relevant time, to confine the prisoners inside the barracks, particularly those, who were known hardened desperate criminals because according to learned State Counsel, instructions have been issued to hold their trial inside the jail premises, which includes the accused persons, who have been killed in this episode. Viewing the case against the petitioners from this angle, one can prima facie hold that the unfortunate incident is also the result of unplanned and sudden inspection of the jail, due to which, four innocent Judicial Officers lost their lives, without any fault on their part.
23. A perusal of contents of F.I.R., lodged immediately by P.W. Muhammad Yousaf Ojla, Civil Judge at 5-50 p.m. On 25th July, 2003, reveals that neither the complainant nor the District and Sessions Judge had witnessed the events, which took place inside the ladies barrack, inasmuch as, in F.I.R., the complainant had not attributed any role to Malik Muhammad Iqbal, D.I.-G. And other Police Officers/officials, to establish their criminal negligence in launching rescue operation. However, in supplementary statements, the complainant as well as other witnesses stated that operation was launched contrary to the instructions of the Sessions Judge, in reckless manner, not to rescue the hostages but to attack upon them. The evidentiary status of supplementary statements of the witnesses would be determined by the trial Court in the light of the law laid down by the Superior Courts but, prima facie, at this stage, their statements indicate that they had not furnished consistent evidence, therefore, prima facie to evaluate the situation, prevailing inside the ladies barrack, without appreciating the same in depth, their versions are required to be examined, particularly of those persons, who remained as hostages inside the barrack, from 10-30 a.m. To 5- 30 p.m. In this behalf there are two sets of evidence; one furnished by the Judicial Officers and; second by the other inmates of the ladies barrack.
24. The statements furnished by Javed Iqbal Warriach, Syed Sibtain Abid Kazmi, Nazir Ahmed, Driver, Muhammad Saeed Rafiq Awan, and Muhammad Naeem Sheikh, recorded on 1st August, 2003, are consistent to the statements of Mst. Salma Bibi, recorded on 25th July, 2003, Mst. Robina Bibi, Rashida Bibi and Nadra Bibi, on the point that the Judicial Officers have not disclosed that they were made to sit on the cots by the accused persons, whereas remaining inmates of the barrack including their other companions i,e, Driver, Ahelmad, etc. Were directed to remain in the corner of the room; exchange of clothes by the accused with the Civil Judges; and commission of murder of Asif Mumtaz Cheema, Civil Judge by the culprits before the commencement of the operation, whereas in second set of the evidence, furnished by ladies, whose names have been mentioned hereinabove, these aspects of the case have been prominently highlighted.
' The statement of Ch. Zafar Hussain, District and Sessions Judge is also important in this context because he had also received information from P.W. Javed Iqbal Warraich that the culprits/captors had exchanged their clothes with the Judges. P.W. Muhammad Akram, Constable/ Ahelmad, who was also one of the hostages, had also given complete details of the incident in his statement, which indicates that efforts were being made by the police for the release of the hostages and when the demands of the accused were not accepted, then one of them i,e, Shahbaz (deceased) gave threat that if within half or an hour their demands are not accepted, he will kill the two persons and will throw their dead bodies in the courtyard. According to him after sometime accused Shahbaz fired from his pistol on Asif Mumtaz Cheema and thereafter teargas shells were fired from outside in the ladies barrack. Simultaneously firing also started from I utside.
' At this juncture, it is pertinent to mention here that, prima facie, it seems that Police Officers did their best to save as many as hostages from the clutches of the accused persons. In this behalf, reference may be made to the release of four persons namely Tariq Mehmood, Civil Judge, Pervaiz Iqbal Butt, Special Judicial Magistrate, Maqsood Sadiq, Ahelmad and Ikramullah Gunman, from the latrine, attached with ladies barrack after breaking open its wall.
' Thus, in view of above discussion, it is not possible at this stage to conclude that which set of the evidence would be believed by the trial Court. However, above noted two sets of evidence, prima facie, persuade us to hold that when Asif Mumtaz Cheema, Civil Judge had been killea and accused Shahbaz was threatening for the killing of the others, the police had no option but to commence the operation under the command of Malik Muhammad Iqbal, D.I.-G.
' Similarly, it is not possible to ascertain without appreciating the evidence in depth, whether police conducted the operation recklessly or otherwise because efforts made by them as per the statement of Zahid Saeed D.C.O., to procure the services of Military Commandos before launching operation, lead us to hold that, prima facie, all possible steps were taken to save the lives of the Judicial Officers at the hands of the accused.
25. A careful perusal of record reveals that petitioner Malik Muhammad Iqbal, D.I.-G. Reached Sialkot Jail premises at about 2-30 p.m. And prior to his arrival, local police was handling the situation but without any fruitful result. Although, in the meantime, negotiations have commenced in which the accused had put up their demands and according to one set of evidence, discussed above, the rescue operation was launched by the police because of the reason that the accused killed one of the hostages i,e, Asif Mumtaz Cheema. To assist the local police, D.I.-G. Also summoned the force from the District Gujrat and Narowal under the command of Raja Munawar Hussain and Dr. Muhammad Azam, D.P.Os. Gujrat and Narowal, respectively. Since no one was ready to share the responsibility of the operation with the Malik Muhammad Iqbal, D.I.-G., because according to Capt. (Retd.) Sarfraz Mufti, Acting I.-G. Prisons, the District and Sessions Judge was not ready to give him in writing for not launching the rescue operation nor the Chief Justice of Lahore High Court had talked to him in this behalf, as such, it was his responsibility to take a decision independently, with a view to save the lives of the hostages, therefore, he used the force against the culprits in terms of section 5 of the Act, 1997 and in this manner, he succeeded in getting released 48 persons from the clutches of the accused persons. Thus, under these circumstances, we are, prima facie, of the opinion that if Malik Muhammad Iqbal, D.I.-G. Had not conducted the operation, then he would have also become liable for failing to perform his duty, as such when it has become indispensable, he rightly took a decision to launch operation because "under 'rescue doctrine' emergencies may sometimes justify what would otherwise be considered a rash and indefensible act" Rovinski v. Rowe, C.C.A. Minch, 131 F.2d 687, 692, 693. (Words and phrases Permanent Edition Volume 37 page 161).
26. Although petitioner Malik Muhammad Iqbal, D.I.-G. Launched rescue operation under unavoidable circumstances but despite that, he was challaned under section 319, P.P.C. And as far as remaining two Police Officers are concerned, they were not challaned under any provisions of law. At this juncture it may not be out of context to note that after passing of the order dated 19th January, 2004, when petitioners were summoned by the trial Court under section 204, Cr.P.C. An application was moved on behalf of complainant to summon Dr. Muhammad Azam D.P.O. Narowal as well, but the same was declined vide order, dated 26th November, 2004 for the following reason:-- "No doubt presence of Muhammad Azam, D.P.O., Narowal in the jail premises on the fateful day is not in dispute but no other incriminating material exists against him justifying his summoning to face the instant trial. Moreover, my learned Predecessor by the elaborative order, dated 19-1-2004 has summoned all the accused against whom some material was collected by the Investigation Team. None of the Judicial Officers in their statements under section 161, Cr.P.C. Has deposed against this Police Officer. The application has been moved obviously to enlarge the prosecution net and that too at much belated stage and without any foundation. As such, to his extent the application is declined."
' A perusal of above order indicates that prima facie, learned trial Court failed to take into consideration that the case of petitioners Raja Munawar Hussain, Amjad Javed Saleemi is also at par with the case of Dr. Muhammad Azam, therefore, they have also not been summoned and once the Court decided to proceed against them, then their bail should have not been cancelled, as they were liable to be dealt with under section 91, Cr.P.C. In view of the judgment in the case of Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359.
27. Be that as it may, now it would be imperative to examine as to whether for grant of bail before arrest to the petitioners, principle laid down in the case of Sadiq Ali v. The State PLD 1966 SC 589, would be attracted or not, according to which "exercise of this power should, however, be confined to cases in which not only a good, prima facie, ground is made out for grant of bail in respect of and offence alleged but also it should be shown that if the petitioners were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motives and with the object of injuring the petitioner, or that the petitioner would in such an eventually suffer an irreparable harm". This principle has been reiterated in the case of Meeran Bux v_ The State PLD 1989 SC 347. In this behalf, it may be noted that in this case bail before arrest granted to an accused by the Sessions Judge was cancelled by the High Court in suo motu revisional jurisdiction on the premises that pre- requisite for bail before arrest Le. Ulterior motive was not satisfactorily proved but this Court restored the order of Sessions Judge, taking into consideration that the accused remained on bail for a period of more than one year before cancellation of his bail and he did not abuse the concession in any manner. Reference in this behalf was also made to the case of Murad Khan v.
Fazal-e-Subhan and another PLD 1983 SC 82. Similarly in the case of Jamal-ud-Din v. The State 1985 SCM R 1949, this Court had laid down that "arrest for ulterior motives such as humiliation and unjustified harassm ent makes it valid consideration for grant of pre-arrest bail. This very principle has been reiterated in the case of Ajmal Khan v. Liaqat Hayat PLD 1998 SC 97.
' 'Thus, answer to above query would be that in view of the facts and circumstances of the case, these principles are very much attracted in the instant case because in absence of evidence on record that the conduct of the petitioners was marred with criminal intention, they are entitled for grant of bail before arrest.
28. There is yet another important aspect of the case namely that the prosecution, in black and white, had not saddled the petitioners with any criminal liability and it was the learned trial Court who, on having seen the record, summoned them under section 302, P.P.C. Although one of them Malik Muhammad Iqbal, D.I.-G. Was challaned under section 319, P.P.C., therefore, they cannot allege any mala fide against the Court for making out a case under section 498, Cr.P.C., as such, following another principle which has been laid down under the same provision of law namely their arrest would cause humiliation and unjustified harassment, as it has been held in the judgments noted hereinbefore, they are held entitled for grant of bail.
29. For the foregoing reasons, petitions are converted into appeals and allowed, as a result whereof impugned judgment is set aside. Consequently, bail already granted to petitioners by this Court on 4th February, 2005 is confirmed. Petitioners are, directed to cooperate with the trial Court, so it may finalize the trial expeditiously.
' Before parting with the judgment it is clarified that observations made hereinabove are tentative in nature and the trial Court shall be free to decide the case independently without being influenced in any manner from the same on merits, strictly in accordance with law.
Pre-arrest .