ORDER IFTIKHAR MUHAMMAD CHAUDHRY, C.J.- This petition has been filed for leave to appeal against the order dated 13th July, 2002 passed by Lahore High Court, Lahore in Crl. Misc. No. 4375-B of 2005.
2. Facts in brief, leading to filing of this petition are that petitioner has been accused for the offence under Sections 324/337-A(2) and 337-L(2), PPC on the complaint of Naris Ali son of Mubarik Ali, vide F.I.R. No. 379/2005, dated 13th May, 2005, registered at Police Station, Khurrianwala, District Faisalabad, on the stated allegation that on the day of incident at about 12.00 noon, Mian Abid Shakeel, S.D.O, along with Overseer and other persons came in front of Govt. Boys High School. Chak No. 58/RB. In connection with inquiry against the petitioner, ln the meantime, Haji Ibrahim Nazim, UC-17, Mian Habib Ahmed, Tariq Mehmood also reached there. Uaqat son of Fazal Din, Muhammad Rafique and complainant were also called No sooner, the inquiry started, petitioner quarreled with complainant and .Exchanged hot words, v, Hereupon the complainant also abused him. Petitioner took out his 30 bore pistol by aiming it towards the complainant, fired one after the other four shots, which did not hit the complainant. Thereafter, petitioner attacked upon the complainant and inflicted "Butt" blow of pistol, causing two injuries on his head. Motive stated in F.I.R, is that the complaint had submitted an application against the petitioner for committing corruption etc. In the construction of streets and others of Union Council.
3. After registration of the case, petitioner could not be arrested, however, he approached to the Additional Sessions Judge, Jaranwala, for concession of bail before arrest. The request so made by him was turned down on 8th June, 2005. Thereafter, he approached to the Lahore High Court for bail before arrest but the same was declined to him vide impugned order. Relevant para therefrom is reproduced herein below:- "5. Original learned counsel for the petitioner was heard at length on 21st June 2005. Where after the Investigating Officer was directed to complete investigation within four days and to appear before this Court personally to convey his findings. The Investigating Officer has appeared and informed that petitioner is guilty of the offence charged. Original learned counsel for the petitioner has sent a request for adjournment of the case inspire of the fact that case on the preceding date was adjourned in his presence for actual date i.e. Today. Since the learned counsel for the petitioner was heard in detail and he raised above-noted contentions, I opted to decide this petition in presence of his office associate (Mr. M. Khawar Saleem, Advocate) after examining the police record. Injured Umar Hayat was medically examined at 3.45 p.m. On 13.5.2005 and the case was registered on 14.5.2005, there is no delay in reporting the matter to police as the occurrence had taken place on 13.5.2005 at 12.00 noon. Since petitioner resorted to firing which did not injure any of the persons present at that time, absence of recovery of empties from the place of occurrence, is of no material effect. Petitioner caused two injuries with wrong side of his pistol, one of those is on vital part of the body of the injured i.e. Head and is bone deep. Petitioner by raising counter-version admitted scuffle between the parties and DSP who investigated the case found him guilty. Prima facie, petitioner is connected with the offence charged and weapon of offence has yet to be recovered from him. Confirmation of his bail before arrest would amount to hamper the police investigation, especially without proof of any enmity/animosity of complainant/police against the petitioner.
4. Against the above order, instant petition for leave to appeal has been filed.
5. Learned counsel contended that petitioner is a sitting Naib Nazim and is also a candidate for the Office of Nazim, therefore, his opponent had involved him in the commission of offence, with ulterior motives, to keep him away from the election.
According to him, learned High Court had declined him concession of bail without looking into this aspect of the case. Inasmuch as, opportunity to produce the counsel engaged by him for this purpose, was not afforded to him.
6. Learned Additional Advocate-General, however, opposed the request of the petitioner for bail before arrest on the premises that neither the police nor the complainant had registered the case with ulterior motives against him. Even otherwise, the petitioner has failed to spell out mala fides of the prosecution to involve him in the commission of the offence, because overwhelming incriminating evidence including the medical evidence is available on record to suggest that he is involved in the commission of offence. Inasmuch as, happening of the incident has also not been denied by him, as it is evident from the plea, which he has taken before the High Court. Therefore, no case for grant of bail before arrest is made out.
7. Learned counsel appearing for complainant contended that petitioner himself is highly influential person, as it is evident from the fact that after registration of the case, up till now, he has not been arrested and above all he is also allowed to contest elections because before the same Courts, he appeared and filed his nomination papers. Police has not taken any step to cause his arrest, although he was available during the election process. He subscribed to the arguments advanced by learned Additional Advocate- General and made reference to the medical evidence of the complainant Naris Ali and contended that petitioner attempted on the life of the complainant as he had fired about four shots from his pistol but on having not succeeded in his design, he attacked with the "Butt" of the pistol on the vital part of his body i.e. Head, and caused injuries. For such reason, learned Additional Sessions Judge and learned High Court had rightly declined to grant him bail before arrest.
8. We have heard learned counsel for the parties and have also gone through the evidence so made available before us. The case was fixed on 25th August, 2005, when the petitioner was not present along with his counsel. However, it was postponed for today's hearing i.e. 26th August, 2005. Learned counsel stated at the bar that he was contesting the elections of Nazim in UC-17 and now he has succeeded in the elections, therefore, he failed to attend the Court on the previous date of hearing. Contesting election openly for the office of Nazim by petitioner being an accused for the offence under Sections 324/337-A(2) and 337-L(2), PPC itself is an evidence that the authorities, including the In charge of Police Station, Khurrianwala, District Faisalabad and the learned Presiding Officer, etc. Have not caused, his arrest, knowing well that he is involved in the offence, lt seems that petitioner on account of his influence attempted to circumvent the process of law, admittedly for no other purpose but with mala i.e intentions, with ulterior motives. Now the question arises for examination, as to whether the petitioner has been involved in the commission of offence with ulterior motives? To answer the proposition, two things are important, which are to be kept in mind. Firstly, whether there is a prima facie case against the accused-petitioner on the basis of F.I.R, and the material available on record? And secondly, whether with ulterior motives, case has been registered against the petitioner-accused? A perusal of the F. I.R, as well as the medical evidence leads us to conclude that he inflicted injuries with the "Butt" of the pistol on the vital part of the body of complainant i.e. Head, confirms the injuries on the head of the complainant. Apparently, this fact itself goes to show that there is no ulterior motive in the registration of the case against the petitioner. As far as the happening of the incident is concerned, it has also not been denied by the petitioner. Although his case is that complainant party had attacked upon him, but this plea has not been substantiated by him through an independent source at this stage.
9. There is yet another important aspect of this case which requires consideration i.e. Whether any harm will be caused, if the petitioner is arrested. Admittedly, prima facie, petitioner is involved in the commission of offence. The complainant has charged him for the offences under Sections 324/337-A(2) and 337-L(2), PPC, which also includes an attempt of murder. He had also suffered at his hands therefore, no harm would be caused if he is arrested. The Investigation Agency has yet to recover the crime weapon from him, which is not possible unless he is arrested. Therefore, following the law laid down in the case of Muhammad Safdar Vs. State (1983 SCM R 645), we are of the opinion that he is not entitled for bail before arrest.
Before parting with the judgment, we want to express our concern in respect of the attitude of the Returning Officer of UC-17 and the In charge of the Police Station, Khurrianwala, District Faisalabad, because they failed to discharge their duties efficiently as they had to cause the arrest of the petitioner being an accused involved in the commission of offence, but they failed to do so.
However, directions in this behalf have already been made in the short order of even date.
I Herein above are the reasons of our short order of even date, which reads as under:--
(1) For the reasons to be recorded later, petition for leave to appeal filed by Ashir Wasim Babar involved in F.I.R. No. 379/05, P.S. Khurrianwala, District Faisalabad is dismissed.
(2) Returning Officer of UC-17, District Faisalabad is directed to furnish explanation as to why the petitioner was not got arrested after the refusal of his bail by the High Court vide order dated 13th July, 2005. Explanation submitted by him shall be placed before us in Chambers for further action if need be.
(3) Inspector General Police (Punjab) is directed to conduct inquiry against DPO, Faisalabad, SDPO, Jaranwala, as well as SHO of PS, Khurrianwala and Muhammad Arshad, AS1 of same Police Station for not causing the arrest of the petitioner after the dismissal of his bail plea by the High Court and allowing/facilitating him to contest the election of Local Government for the office of Nazim from UC- 17, District Faisalabad. The report must be sent within two weeks in Chambers for our perusal and further orders.