' M.A. ZAFAR, J.---Arshad Aziz petitioner has filed this habeas corpus petition for the recovery of his cousin Muhammad Shamshad and his maternal nephew Ghulam Abbas from the custody of S.H.O.
P.S. Saddar Arifwala, District Pakpattan Sharif.
2. The background of filing of this petition is that father of Ghulam Abbas detenu No,2 was murdered when he in the company of the aforesaid detenu was coming from his agricultural land/Dairy Form and a case under sections 302/34, P.P.C. Was registered with P.S. Saddar Arifwala, District Pakpattan Sharif at the instant of Ghulam Abbas detenu vide F.I.R. No,804/08 dated 23-12- 2008.
3. Learned counsel for the petitioner submits that due to the family dispute qua the property left by late Niaz Ahmad, uncle of Ghulam Abbas detenu by joining deceased second wife with whom he only married last year started pressurizing them to forego their property in their favour and they also put pressure upon the first wife and children of late Niaz Ahmad through S.H.O. Concerned.
4. According to the averments of the petition filed on 31-1-2009 present respondent along with 5/6 constables came at the house of Ghulam Abbas detenu and asked him to accept the proposal of his paternal uncle but when he refused to do so respondent/S.H.O. Threatened to involve him in some false criminal cases. Again S.H.O. Along with 5/6 constables came at the house of Ghulam Abbas detenu on 24-1-2009 at about 5-00 p.m. And took him into custody as well as his maternal uncle Muhammad Shamshad. According to the averments both the detenus are in the illegal custody of respondent since 24-1-2009.
5. Bailiff of this Court was deputed on 2-2-2009 to recover the alleged detenus from the custody of the respondent and to produce them in Court and in pursuance of order dated 2-2-2009 they have been produced in the Court and according to the report of bailiff the detenus told him that S.H.O.
Arrested them on 25-1-2009 and since then they were in the police custody and they were never produced before any Court of law. It was further told to the bailiff by Ghulam Abbas detenu that police has been torturing him for getting confession that he himself has murdered his father. On inquiry made by the bailiff, the duty officer told him that the alleged detenus were arrested on 2-2- 2009 at 8-00 a.m. Which fact has been duly entered in the daily diary vide Rapat No, 6 dated 2-2- 2009.
6. Bailiff has further reported that the other persons confined in the lock-up also stated that police has arrested alleged detenus on 25-1-2009 and since than they are together in the lock-up. As per report no record was available with the police at the time of raid. Today, the assertion of police officer present in Court is that both the detenus were arrested on 2-2-2009, which fact has been duly incorporated in the daily diary and when they were questioned that why the record/police file was not given to the bailiff regarding the arrest of the detenu in case lodged by Ghulam Abbas detenu regarding the murder of his father Niaz Ahmad, the answer of the police officer was that at that time, the Investigating Officer along with file had gone to Okara in connection with some investigation when questioned whether the departure of Ghulam Murtaza S.-I./ Investigating Officer has been entered in the daily diary, the answer was big no. Non-production of record before the bailiff is not only dis-obeyance of the order passed by this Court but most probably by that time police was not in possession of statement of any witness implicating the detenu in the aforesaid case and possibility cannot be ruled out that they fabricated the said statements later on after the raid conducted by the bailiff. The entry about the arrest of the detenus in the daily diary on 2-2- 2009 at 8-00 a.m. Appears to have been made after coming to know from some source about the filing of present habeas corpus petition on 31-1-2009, therefore, let a notice be issued to Muhammad Yousaf HC/Duty Officer, Muhammad Yaqoob S.-I. And Ghulam Murtaza S.-I. To show cause why the contempt proceedings may not be initiated against them for not producing the record before the bailiff of this Court qua that arrest of the detenus and fabricating the same to avoid the legal consequences of the petition filed against them. In this regard, separate file be prepared and the same shall be fixed for hearing for on some other date to be fixed by the office.
7. Since the arrest of the detenus was entered in the daily diary two days after filing of this petition before this Court, therefore, I convert this habeas corpus petition into bail after arrest application.
Ghulam Abbas detenu is complainant of case F.I.R. No,804/08 dated 23-12-2008 for an offence under section 302/34, P.P.C. Registered with Police Station Saddar Arifwala regarding the murder of his father Niaz Ahmad. Ghulam Abbas and his paternal uncle Muhammad Shamshad detenus have been arrested by the police in the same very F.I.R, which was lodged by Ghulam Abbas. Police Officer recorded the statements of different persons, who have implicated the present detenus as an accused for the murder of Niaz Ahmad. There is statement of Mst. Yasmeen dated 25-12-2008 second wife of Niaz Ahmad deceased with whom he married in February 2008 and in the said statement she has stated that first wife of the deceased Shahida and his son Ghulam Abbas came to her house and threatened that they would not give her any share from the property left by late Niaz Ahmad. There is another statement of one Sher Ahmad in which he has stated that he was sitting in Drawing Room of Yasmeen second wife of Niaz Ahmad and he heard from the adjoining room that Haq Nawaz, Shamshad and Aslam were saying to Ghulam Abbas that they have done their job of murdering Niaz Ahmad and pay them the remaining amount of Rs,400,000 out of the total settled amount of Rs,500,000 and similar statements of Shafique Ahmad and Sher Ahmad real brothers of Mst. Yasmeen were recorded, who also stated the same thing in their statement.
The said statements were allegedly recorded on 25-1-2009. The aforesaid evidence collected by the police against the detenus at the behest of second wife of Niaz Ahmad with whom she only married in February, 2008 are not sufficient to connect the detenus with the commission of offence.
There are reasonable grounds to believe that detenus are not guilty of offence charged with and they have been involved just to deprive first wife of Niaz Ahmad and her grown-up children from the property left by her deceased husband.
8. For the foregoing reasons, this petition is accepted and both the detenus Ghulam Abbas s/o Niaz Ahmad and Muhammad Shamshad son Noor Muhammad are admitted to bail subject to their furnishing bail bonds in the sum of Rs,200,000 (two lac) each with one surety each in the like- amount to the satisfaction of Deputy Registrar (Judl) of this Court within a period of two weeks.
Copies of daily diary and statements etc., comprising of eight pages have been placed on record and the same have been signed by the Reader of the Court to avoid any tampering in the police record.