I propose to dispose of three connected petitions bearing Crl. Misc. No, 5246/CB-2005 (Abid Latif Rashid Shahzad & another), Crl. Misc. No, 6023/CB-2005 (Abid Latif v. Sardar Muhammad Sharif Sohdal & another) and Cr1. Misc. No, 20/CB-2006 (Abid Latif v. Muhammad Zubair & 2 others) through this single order, as they arise out of the same F.I.R.
2. Abid Latif son of Muhammad Latif, the petitioner, who is complainant in case F.I.R. No, 804, dated 4.12.2004, registered at Police Station Saddar Kasur for offences under Sections 302, 324, 148,.149 P.P.C., by filing the aforesaid three petitions, seeks cancellation of bail allowed by the learned Additional Sessions Judge, Kasur to Rashid Shahzad (Respondent No, 1 in Cr. M. No, 5246/CB-2005) vide order dated 24.6.2005; to Sardar Muhammad Sharif Sohdal (Respondent No, 1 in Cr. M. No, 6023/CB-2005) Side order dated 15.8.2005 and to Muhammad Zubair and Shaukat Ali (Respondents Nos, 1 and 2 in Cr. M. No, 20/CB-2006) vide order dated 2.11.2005.
3. The case of the prosecution as it unfurled in the F.I.R. registered at the instance of Abid Latif son of Muhammad Latif, caste Jat Tarar, resident of Kot Fateh Din, Kasur was that he was employed in.
Lahore and owned land in village Saddar Diwan; on 27.11.2004, about 3.00 p.m., Amjad son of Nazar Muhammad, Zubair son of Muhammad Anwar, Zaheer son of Shaukat, who were his relatives, alongwith certain unknown persons had come to the land to take forcible possession thereof; on being admonished by Ghulam Yasin alias Kashif son of Haji Muhammad Sharif and Ghazanfar Ali son of Sanaullah, they had gone back; on the fateful day, i,e, 4.12.2004, about 2.00 p.m., Amjad, Zubair, Tahir, armed with pump-action guns, Sharif Sardar Sohdal, Rashid Shahzad, Zaheer, Shaukat Ali carrying rifles and two unknown persons reached the land again while raising Lalkaras; they had also brought bricks by means of a tractor/trolley and tried to take possession of the complainant's land forcibly; he alongwith his brothers, namely, Wajid Ali, Sajid Ali and Muhammad Qais son of Muhammad Ashiq, Muhammad Altaf son of Qais, Ali Ahmad, Ghazanfar Ali sons of Sanaullah, Ghulam Yasin alias Kashif son of Muhammad Sharif and Muhammad Imran son of Muhammad Abdullah refrained them from doing so; thereafter Shaukat Ali raised a Lalkara that no one out of them should escape alive, whereupon Sharif Sardar Sohdal fired a shot with his rifle, which hit Sajid Ali on the back of his head; then Amjad made two fire shots with his pump action gun at Wajid Ali hitting him in the right armpit and right side of the chest, who on receipt of those injuries fell down and became unconscious; third fire shot made by Rashid Shahzad with his rifle struck. Ghulam Yasin alias Kashif beneath his right ribs; Zubair's fire shot with his pump action hit on his left arm and near the shoulder; Tahir shot a fire with his pump action striking Ali Ahmad below his left flank on the buttock; Zaheer and Shaukat Ali then made firing with their respective weapons at the complainant and Muhammad Qais, but they escaped by taking cover behind the trees; the accused while making indiscriminate firing and raising Lalkaras scampered from the scene; he took his brothers Wajid Ali, Sajid Ali and Ali Ahmad injured persons to the Civil Hospital by means of a cart for medical aid, but Wajid Ali breathed his last in the way. Resultantly, the instant F.I.R. had been recorded.
4. I have heard the learned counsel for the parties at considerable length. The learned State counsel has also taken me through the record of the case brought by Muhammad Sarwar, SI.
5. The role attributed to Rashid Shahzad (Respondent No, 1 in Cr.M. No, 5246/CB-2005) has been mentioned in some detail in Paragraph No, 3 ante while narrating the contents of the F.I.R. However, at the cost of being repetitive, I would once again like to highlight his role. It was alleged by the complainant that he while carrying a rifle had fired a shot hitting Ghulam Yasin alias Kashif on the right side beneath his ribs. A look at the Medico-legal Report No, 962/2004 of Ghulam Yasin alias Kashif showed that the injury suffered by him had been noted by the doctor as an ingoing circular wound measuring (1/2) x (1/2) cm on the eipgastric region. According to the operation notes, the injury had been declared a Jurr Jaifah, which has been defined by Section 337-C P.P.C. as an injury which extends to the body cavity of the trunk. The said injury is punishable under Section 337-D P.P.C. entailing punishment of Arsh which shall be 1/3rd of the Diyat and in addition punishment of imprisonment of either description for a term which may extend to ten years as Ta'zir. In the impugned order dated 24.6.2005, whereby post-arrest bail had been allowed to Rashid Shahzad, the learned Additional Sessions Judge had been essentially impressed by the fact that no injury had been allegedly attributed to him on the person of Wajid Ali deceased. The learned Additional Sessions Judge went on to add that, "the only allegation against the accused/petitioner is that he caused injury on the person of Ghulam Yaseen alias Kashif PW."
The other ground, which appears to have heavily weighed with the learned Additional Sessions Judge in extending the concession of bail to Rashid Shahzad was that the latter had been declared to be innocent during investigation and that the said opinion rendered by the Investigating Officer had been verified by the supervisory Police Office. It is surprising that the learned Additional Sessions Judge did not advert to the medico-legal report of Ghulam Yasin alias Kashif and did not bother to acquaint himself with the locale and nature of the injury allegedly suffered by the said witness. He also did not comment on the vicarious liability aspect of the matter. The learned Additional Sessions Judge also failed to 'acquaint himself with the conduct of Rashid Shahzad. It is on record that after his arrest on 23.1.2005, he moved his first post-arrest bail application on 17.3.2005, which was fixed before Mr. Rehan Bashir, Additional Sessions Judge but the said application was dismissed as having been withdrawn on 26.3.2005. His second post-arrest bail application moved on 28.4.2005 was again entrusted to the said learned Judge, which was also dismissed as having been withdrawn on 21.5.2005. Concealing the said fact of dismissal of his earlier two applications, he moved yet another application for post-arrest bail on 25.5.2005, which came up for hearing before Mr. Muhammad Ghauri Qureshi, Additional Sessions Judge, who proceeded to accept the same vide the impugned order dated 24.6.2005. The learned Additional Sessions Judge also overlooked that ever since submission of challan on 24.4.2005, respondent Rashid Shahzad as also his co-accused have been getting adjournments on one pretext or the other and have not even allowed the formal charge to be framed as yet.
6. Now I come to the case of Sardar Muhammad Sharif Sohdal (Respondent No, 1 in Cr.M. No, 6023/CB-2005). To be precise, the allegation against him was that on a Lalkara raised by Shaukat Ali, he while carrying .222-bore rifle fired straight at the complainant's brother Sajid Ali hitting him on the back of the head. It was also alleged by the complainant that after his brother Sajid Ali and Ghulam Yasin alias Kashif, Altaf and Ali Ahmad had been injured, the respondent along with his other co-accused had indulged in discriminate ineffective firing at the complainant party. The impugned order dated 15.8.2005, whereby post-arrest bail had been allowed to the respondent makes quite an interesting reading. In Paragraph No, 6, the learned Additional Sessions Judge quite amusingly stated that "the only allegation against the petitioner is that he caused injury the back of head of one Sajid. He has not been attributed any injury on the person of Wajid Ali deceased."
Thereafter he painstakingly mulled over the so-called opinion of innocence qua the respondent in successive investigations and the said opinion having been confirmed by the supervisory police officers. Surprisingly in his case too, the learned Additional Sessions Judge omitted to apprise himself of the nature of the injury having been attributed to the respondent. The doctor in the Medico-legal Report No, 963/2004 relating to Sajid Ali son of Muhammad Latif had noted "an ingoing circular wound on the occipital region of head measuring 1 x 1 cm". The said injury had been declared to be falling under Section 337-A (v) P.P.C., which is Shajjah-i-annah and is an injury which causes fracture of the skull so that wound ruptures the membrane of the brain, which is liable to Arsh, which shall be 1/3rd of the Diyat and may also be punished with imprisonment of either description for a term which may extend to fourteen years as Ta'zir. It would thus emerge that the observation of the learned Additional Sessions Judge that the only injury attributed to the respondent was to a witness can be termed as ridiculous and an attempt to trivialise the role of the respondent. In addition, the learned Additional Sessions Judge once again did not try to inform about the conduct of the respondent. He had applied for pre-arrest bail on 10.12.2004 and the said application had been dismissed for non-prosecution by Mr. Rehan Bashir, Additional Sessions Judge on 22.12.2004. Thereafter he absconded and then moved an application bearing Crl. Misc.
No, 28/B of 2005 on 5.1.2005 in this Court seeking pre-arrest bail. However, on 26.1.2005, he absented himself and in his absence his counsel had withdrawn the bail application. During this while, proceedings under Section 87/88 Cr.P.C. had been initiated against him and he was formally declared a proclaimed offender. He again moved an application for pre-arrest bail in the High Court, which had also been withdrawn (the particulars of the said application are not available with both the parties). He moved yet another application for pre-arrest bail in the Court of Sessions, which too had been dismissed for non-prosecution on 28.7.2005. His last application for pre-arrest bail to the Court of Sessions had, however, been dismissed for non-prosecution on 30.7.2005 by Mr. Muhammad Ghuari Qureshi, Additional Sessions Judge, whereupon he had been arrested on the same date. Surprisingly enough, the police sent him to judicial remand on the same day i,e, 30.7.2005. He applied for his post-arrest bail on 4.8.2005 and his application had been allowed by the impugned order dated 15.8.2005 by Mr. Badar-ud-Din, Additional Sessions Judge as Mr. Muhammad Ghauri Qureshi, Additional Sessions Judge, who had earlier dealt with the application of the co-accused had declined to hear his application.
A perusal of the impugned order would show that the learned Additional Sessions Judge had largely been influenced as already stated elsewhere by the fact that there was only one injury attributed to the respondent on the back of the head of one Sajid Ali PW. The other consideration which appears to have found favOur with him was the solitary injury" on the person of Sajid Ali. PW and further that he had been found to be innocent in four successive investigations, which opinion had been confirmed by the supervisory police officer. He had not adverted at all to the fact that there was a very serious allegation against him and the injured PW had fully implicated him in his statement under Section 161 Cr.P.C. Apart from the injured PW, who had allegedly suffered injury at the hand of the respondent, three other injured PWs had also fully implicated him. The learned Additional Sessions Judge blindly followed by the ipsi dixit of the police without even analyzing the conduct of the respondent, who had successfully been able to elude the process of law.
7. Now a word or two about Muhammad Zubair and Shaukat Ali (Respondents Nos, I and 2 in Crl.
Misc. No, 20/CB-2005). Both of them had been arrested on 27.1.2005. It was alleged in the F.I.R. that they were armed with pump action gun and .222-bore rifle, respectively. According to the complainant, Shaukat Ali had raised a Lalkara, whereupon his co-accused, namely, Sardar Sharif Sohdal, Amjad, Rashid Shahzad, Zubair, Zaheer and Tahir had fired with their respective weapons causing injuries to Wajid Ali deceased, Sajid, Ghulam Yasin alias Kashif, Altaf and Ali Ahmad PWs.
Although allegedly armed with a lethal weapon, like .222-bore rifle, Shaukat Ali (respondent) contended himself with only raising a Lalkara is a circumstance, which calls for further probe qua his culpability under Section 302/324 P.P.C. as also his vicarious liability under Section 149 P.P.C. The other allegation against him was that while leaving the place of occurrence after the transaction, he alongwith his co-accused had indulged in ineffective firing. Insofar as Muhammad Zubair (respondent) is concerned, the role attributed to him was that he had caused an injury to Altaf PW on the left arm near the shoulder. However, it has been observed that name of Altaf PW initially did not feature in the F.I.R and had only cropped up in the supplementary statement of the complainant. In the medico-legal report of Altaf PW, the injury had been described as "an ingoing circular wound of entrance measuring x cm edges inverted on the front of middle arm". Thereafter the nature of this injury had never been determined. The discretion exercised by the learned Additional Sessions Judge in granting bail to Muhammad Zubair and Shaukat Ali (respondents) does not appear to be arbitrary or fanciful so as to call for any interference by this Court.
8. The arguments advanced by the learned counsel appearing on behalf of Sardar Muhammad Sharif Sohdal (respondent) that since he was armed with .222-bore rifle and a pellet had allegedly been seen in the occipital region of Sajid Ali injured PW, therefore, his case is one of further inquiry is of no substance at all, inasmuch as in order to give any finding on this aspect of the case, it would require deeper appreciation of the material available on the record, which is not the function of this Court while deciding a bail application. His other contention that once trial in a criminal case commenced, bail allowed to the accused is not to be cancelled is again an argument, which does not have any universal application. It has time and again been emphasized by the Hon'ble apex Court as also by this Court that each criminal case depends on its own peculiar facts and circumstances. In this regard, reference to the case of Muhammad Sharif v. Shafqat Hussciin alias Shaukat and another (1999 P.S.C. (Crl. 398) can profitably be made, wherein their lordships of the Supreme Court had observed that no hard and fast rule could be laid down that bail should not be cancelled merely because the trial had commenced or was likely to commence and that the possibility could not be ruled out that there could be cases in which prima-facie a person would be entitled to the grant of bail but during the trial material may come on record to show that such person had committed the offence.
9. I also find no merit in the contention of his learned counsel that case of Sardar Sharif Sohdal (respondent) is at par with that of Tahir Khan co-accused, who has been allowed bail by this Court, inasmuch as the role assigned to Tahir Khan co-accused was that he fired with his pump action gun causing an injury on the person of Ali Ahmad PW below the left flank on the buttock and that his medico-legal report suggested that he had received a lacerated grazing injury. The said Ali Ahmad at his own request had been sent to the General Hospital, Lahore, where he was admitted on 4.12.2004 and before the exact nature of the injury suffered by him could be determined, he left the hospital on 5.12.2004 at 9.00 p.m. of his own, without permission of the hospital authorities. As such the exact nature of injury suffered by him could not be found out. Therefore, it would not be correct to say that the case of Sardar Sharif Sohdal (respondent) is at par with that of Tahir Khan co-accused.
10.At this stage, I would not like to comment on the opinion rendered by the Investigating Officers regarding the innocence of the respondents, namely, Sardar Sharif Sohdal- and Rashid Shahzad, lest it prejudices the case of either of the sides. It has already been noted elsewhere that the learned Additional Sessions Judges had proceeded to grant bail to both these respondents heedlessly following the ipsi dixit of the police and without even attempting to acquaint themselves as to the damage allegedly caused by the said respondents. They had unfortunately failed to take into account the fact that as many as five prosecution witnesses stubbornly cling on to the stance taken by the complainant in the F.I.R. and had fully implicated the said respondents. The learned Additional Sessions Judges, who were to confine themselves to the tentative assessment of the material available on the record, travelled beyond that sphere and entered into realm of deeper appreciation of the said material. They conveniently forgot to note the conduct of both the said respondents, who had been trying to play fast and loose with the process of the. Court and had been eluding the process of law with impunity for a reasonable length of time. Thus, I am in no manner of doubt that the discretion exercised by the learned Additional Sessions Judges while extending concession of bail to Rashid Shahzad and Sardar Sharif Sohdal (respondents) was arbitrary and fanciful and accordingly the orders granting bail to them are not sustainable.
11. For what has been discussed above, I allow cancellation petitions bearing Crl. Misc. Nos, 5246/CB and 6023/CB of 2005 and recall the bail granting orders dated 24.6.2005 and 15.8.2005 to Rashid Shahzad and Sardar Sharif Sohdal (respondents), respectively.
12. Insofar as the impugned order dated 2.11.2005 in Crl. Misc. No, 20/CB-2006 allowing bail to Muhammad Zubair and Shaukat Ali (respondents) is concerned, in view of the observations made hereinabove, the same cannot be termed as arbitrary or in excess of jurisdiction. Resultantly, the said application is dismissed.
13. Before parting with this order, I would like to add that the observations made hereinabove are tentative in nature and are not designed to influence the course of the trial.