Brief facts giving rise to this petition for anticipatory bail may be given first: Muhammad Farooq, resident of village Kanjroor, Distt. Narowal got registered case F.I.R. No, 39 at 3.10 p.m. on 4.3.2009 under Sections 302/324/427 read with 34 of Pakistan Penal Code, 1860 at Police Station. Shah Gharib, Distt. Narowal with an allegation, in brief, that same day at 2.00 p.m., he along with his family members; namely, Muhammad Qasim (father), Muhammad Fayyaz and Muhammad Bilal (brothers), Mst. Bushra Bibi (wife), Abdul Manan (son), Mst. Jaweria (daughter), Mst. Najma Bibi (brother's wife) and Muhammad Tariq was returning to his native village (Kanjroor) from Lahore in two cars and the moment the vehicles reached within the area of village Kanjroor, all of a sudden a car boarded by three unknown armed persons emerged on the road. Two unknown riders alighted from the car and resorted to indiscriminate firing hitting Muhammad Fayyaz, 4/5 years old Jaweria, Muhammad Qasim and Abdul Manan, out of whom the former mentioned two died at the spot. Thereafter, the unknown accused persons fled. The complainant lodged the F.I.R. against three unknown accused persons without casting doubt against any one, however, with the claim that he would be in a position to identify, the assailants as and when produced before him.
2. At the cost of repetition, it is must to bring on record that as per the F.I.R. the above said incident in which two persons suffered death had been witnessed by the following P.Ws:--
(i) Muhammad Farooq, complainant,
(ii) Muhammad Bilal,
(iii) Muhammad Tariq, (iv)Mst. Bushra Bibi,
(v) Mst. Najma Bibi,
(vi) Muhammad Qasim, injured and
(vii) Abdul Manan, injured.
The case remained under investigation for three months, but the investigator and afore mentioned seven eye-witnesses including the two injured failed to identify and trace out the three unknown accused persons. It so happened that after more than three months of the incident i,e, on 12.6.2009 Muhammad Farooq, complainant appeared before the investigator and produced his written statement to the effect that w,e,f, 4.3.2009 to 11.6.2009 he remained upset and in shock and on regaining his normal faculty it revealed to him on 12.6.2009 that while lodging the F.I.R. on 4.3.2009 he could not name the assailants previously known to him and then involved Muhammad Irshad, present petitioner, his sons Shehbaz, Fayyaz and Ijaz, and grand son Muhammad Ali with an allegation that within his view and in presence of six eye-witnesses, they had committed the crime.
After this supplementary statement of the complainant, the aforesaid six witnesses also came forward on 12.6.2009 and made supplementary statements in line with the complainant's re- shaped version. On 14.6.2009, two more witnesses; namely, Sain and Abdul Hameed joined investigation for the first time and made statements that within their view, the petitioner and his co-accused had committed the crime on 4.3.2009. The same day i,e, 14.6.2009 Nazir Ahmad and Muhammad Anwar made statements that two accused persons approached them and made joint extra judicial confession. In this way the petitioner, his sons and grand son were involved on 12.6.2009 in the case registered against unknown three accused persons on 4.3.2009.
3. Apprehending arrest at the hands of local police in the above said case, Irshad Ahmad, petitioner has approached this Court directly for anticipatory bail mainly on the ground that the D.P.O. Narowal got him involved in the case because he (the petitioner) refused to affect a compromise with the killers of his sons and dismissed the order in this regard by the D.P.O. The petitioner has been apprehending his assassination at the hands of the D.P.O. in a fake police encounter since then.
4. I have heard the parties and perused the record very minutely and carefully.
5. To a question, as to why the petitioner is apprehending his assassination in a fake police encounter at the hands of Narowal police, the D.P.O. has denied the allegation but admitted that he has been performing his official functions under pressure. However, he has not disclosed identity of the eminence grace. The learned Law Officer has vehemently argued that as a result of investigation, the, petitioner and his co-accused were found connected with the charge of murder and attempted murder and that it would be seen at trial as to why and under what circumstances, the eye-witnesses could not identify their co-villagers during the day light occurrence at 2.00 p.m.; that the P.Ws. will disclose at trial the circumstances, which forced them to make statements against unknown accused persons and to keep quiet for three months and that the investigating officer was fully competent to form an opinion that subsequent statements of the P.Ws. against the petitioner and his co-accused, which they made after more than three months of the occurrence, were sufficient to challan the accused persons to Court. I am in agreement with the learned Law Officer that investigation into cognizable cases falls within the allotted sphere of the police and in view of the provisions contained in Chapter XIV of the Code of Criminal Procedure, 1898 no prohibition/restriction or bar could be imposed upon the police relating to the subject of investigation. The police have ample powers to investigate or re-investigate criminal cases. The point in issue, which requires determination by this Court is, as to whether the investigator remained within his allotted sphere or stepped over his authority while investigating the case or cases against the petitioner and his family members. In order to answer this question, it is must to determine and define the scope of investigation. Although, the term, `investigation' has not been defined by the Pakistan Penal Code, 1860 and the Code of Criminal Procedure, 1898 yet it is manifest from a combined examination of the relevant provisions of the Code, The Police Order, 2002 and the Police Rules, 1934 that investigation consists of spot inspection, collection of evidence, ascertainment of facts in the light of collected evidence and attending circumstances of the case and apprehension of the accused provided the collected evidence is sufficient to connect him with the charge. In case the investigator comes to the conclusion that the evidence is sufficient, he is required to prepare final report under Section 173 read with 170 Cr.P.C. and if he is of the opinion that the evidence is deficient, cancellation report in terms of Section 173 read with 169 Cr.P.C. is drawn up. In the case in hand the investigator and the D.P.O. are of the opinion that statements of the eyewitnesses that they could not identify their co-villagers on the day of occurrence and thereafter for three months, are truth inspiring. In view of the above, an important legal question has arisen as to whether the investigating agency is possessed with uncontrolled and unfettered powers to investigate into cognizable cases or the Court can build legal checks and restrictions on its powers. In order to answer this question of public in portance touching the root of administration of criminal justice, I convert this bail petition into a petition under Article. 199 of the Constitution of Islamic Republic of Pakistan.
6. The investigator was required to ascertain the facts in the light of collected material and attending circumstances of the case. The seven eye-witnesses including the two injured and the complainant are/were residents of village Kanjroor. The petitioner and his four could used persons are co-villagers of the seven eye-witnesses. This is not in dispute or disputable that the petitioner and his co-accused persons are were previously known to all the eye-witnesses. The occurrence took place at 2.00 p.m. on 4.3.2009 and was reported to the police same day at 3.10 p.m. by Muhammad Farooq, complainant against three unknown persons. All the P.Ws. stated before the investigator that they could not identify the assailants. This is a matter of record that all the P.Ws. did not utter a single word against the petitioner and his co-accused during the course of investigation w,e,f, 4.3.2009 to 11.6.2009. On 12.6.2009 the seven eye-witnesses came forward with the claim that the petitioner, his sons and grand son had committed the crime within their view on 4.3.2009 at 2.00 p.m. and that they could not name them previously as they (P.Ws.) remained in shock for three months. It is/was not the prosecution case at any stage of investigation that w,e,f, 4.3.2009 to 11.6.2009 all the seven eye-witnesses remained unconscious. It is true that collection of evidence is the job of investigator and its analysis and scrutiny is prerogative of the learned trial Court. But this Court in exercise of its constitutional jurisdiction can interfere with the process of C investigation as and when it is conclusively established that the investigation is tainted with mala, fide and is being conducted in a self styled manner, in utter disregard of the statutory provisions contained in Chapter XIV of the Code of Criminal Procedure for some considerations extraneous to the record. Tentative assessm ent of the Material so far brought on the record by the investigating agency provides a basis to say without any fear of contradiction that this is a case of dishonest investigation. After inordinate delay of three months, tie eye-witnesses made supplementary statements that they could not name the petitioner and his co-accused persons previously as they remained in shock. It is not in dispute that on the day of occurrence at 2,00 p.m. all the P.Ws. were in senses and they witnessed the incident with their own eyes. The human psychology and medical science do not recognize the view point of seven eye-witnesses that being in shock they could not commit to their memory the identity of the assailants previously known to them, who had been operating in front of them in day light. It is neither believable nor acceptable and rather appears to be foolish and ridiculous that the seven eye-witnesses remained in shock for more than three months and they all re-gained their normal mental faculty together at one time on 12.6.2009.
Hence, it can be safely said without holding trial of the case that the investigator distorted the facts after fabricating evidence instead of ascertaining the facts after collecting legal evidence.
7. On 14.6.2009 the investigator examined Sain and Abdul Hameed, P.Ws. who had not been named as eye-witnesses in the F.I.R. lodged on 4.3.2009. These two witnesses' claimed for the first time on 14.6.2009 to have witnessed the occurrence on 4.3.2009. Sain, P.W. offered explanation for his delayed statement to the effect that after witnessing the occurrence within the area of village Kanjroor, he left for Karachi and returned back after three months. There is no explanation from his side as to why he did not disclose identity of the assailants to the seven eye-witnesses allegedly present with him at the spot, before leaving for Karachi. Similarly, the record does not show as to what prevented this P.W. from contacting the complainant on telephone during his alleged stay of three months at Karachi. Abdul Hameed. P.W. explained that he kept quiet for three months out of fear. The available record does not reveal as to how and under what special circumstances this P.W. came out of the state of fear after two days of supplementary statement of the complainant against the petitioner and his co-accused.
8. Extra judicial confession is the weakest type of evidence whereas joint extra judicial confession is no evidence. To the hard luck of the petitioner and his co-accused, in the case in hand, the investigating officer deviated from the established legal principle and treated so called joint extra judicial confession of two co-accused persons as a valid piece of evidence against all the accused persons.
9. In the light of above noted circumstances, it is must to define the constitutional role of this Court qua dishonest investigation. This Court has always interfered with the investigation where the investigating agency conducted the investigation without considering all the relevant facts and circumstances of the case or exercised the powers in an arbitrary manner. In the case in hand, the investigator concluded against the accused persons arbitrarily and fancifully. For the aforesaid reasons I feel no difficulty in concluding that findings and conclusions by the investigator are based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent error of law, consideration of inadmissible evidence, excess and abuse of authority and unreasonable view point about the result of investigation. The learned Law Officer attempted to argue that the investigating officer was not required to examine and read the evidence with the yardstick of trial Court and he while remaining within his allotted sphere ascertained the facts in the light of available evidence. It is true that the investigator is not supposed to read and analyze the evidence by holding mini trial at investigation stage, but he is required to ascertain the facts on the basis of legal evidence only. The yardstick of reading the evidence by the investigator and the trial Court is altogether different from each other; in the former case, the evidence is read to ascertain the facts in order to form an opinion as to whether the collected evidence is sufficient in terms of Section 170 Cr.P.C. or deficient as provided by Section 169 of the Code, whereas in the later case the evidence is read to determine the question of guilt or innocence of the accused. The investigator would be guilty of misreading and non-reading of evidence if he comes to a conclusion either under Section 170 or 169 Cr.P.C. offensive to the record and the law. In the case in hand, the investigator's view against the accused persons was certainly unreasonable because he treated joint extra judicial confession as legal piece of evidence and agreed with ridiculous stance of the P.Ws. that being in shock they could not commit to their memory identity of their co-villagers while witnessing the occurrence in day light and that they regained normal faculty after three months on one date. In view of the above very little application of judicial mind is required to conclude that dishonest, mala fide, arbitrary, illegal and offensive to the record actions by Narowal Police are wearing the mask of investigation. This Court is, therefore, fully justified to stop the Narowal Police from investigating the case over and above the law. I am also supported in my view by the case law laid down by the apex Court of the country in the case of Shehnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan (PLD 1971 SC 677). Key lines of the precedent case are reproduced below:-- "If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the Investigating Agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of Section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under Section 561-A of the Criminal Procedure Code."
12. Article 9 of the Constitution of Islamic Republic of Pakistan provides that no person shall be deprived of life or liberty save in accordance with law. The Constitution guarantees against any attack on life or liberty of a citizen over and above the law. Under Article 4 of the Police Order, 2002 every police officer is required to protect life and liberty of citizens and apprehend only those for whose apprehension sufficient grounds exist. The petitioner has made specific allegation against the B.P.O. Narowal that some one sitting behind the scene hired his official authority to force the petitioner for a compromise with the killers of his (the petitioner's) sons. Besides admission of the D.P.O. that he has been performing his duty under pressure, the following 'acts lead this Court to infer that the allegations against the police are not without substance:--
(i) Two sons of the petitioner were killed for which the killers were challaned to the Court of Addl.
Sessions Judge, Shakargarh and Anti Terrorism Court, Gujranwala. The former case ended in conviction while the later is ripe for decision.
(ii) On 4.5.2009 Narowal Police arrested the petitioner in another blind murder case FIR. No, 181 of 2008 of Police Station Shah Gharib. He was allowed bail in that case by this Court vide order dated 25.2.2009.
(iii) Petitioner's nephew Muhammad Ateeq and two others were detained by Police Station Shah Gharib. A bailiff deputed by this Court in Crl. Misc. No, 443-H of 2009 recovered the detenues from the police lock up and produced them before this Court, who were set at liberty being not required in any case.
(iv) The Police Station Shah Gharib registered F.I.Rs, No, 92 of 2009, 93 of 2009 and 94 of 2009 against the petitioner's family.
In the light of above noted facts, fair investigation of the case by Narowal Police is out of question.
In order to ensure fair, transparent, impartial and unbiased investigation of the cases and to eliminate police- him factor, the Narowal Police cannot be and should not be allowed to investigate the above said cases any more.
The culture of the Court is not agitation and provocative. This Court always uses head, heart, hand and tongue with restraint and self control and does not blow up issues out of proportion. But how long the Court will tolerate and ignore naked assault on life and liberty of the people by the Government agency established to protect their life and liberty. In the circumstances, I speak out the bitter truth that the troubles of administration and law and order situation are confronting the Government because its functionaries have failed to create goodwill in the minds of the subjects.
The people are divided into classes, grades and sections qua their financial and social status. Each class of the society is inter-dependent like a woven net. Less important section of the society is the central pillar of the State. The Court treats each and every one alike but jealously guards the rights of the commoners and will not allow the Government agencies to crush them under heels, of cruelty. The persons in authority, particularly in uniform should remember that displeasure and disapproval of the common man may erode the whole system. Therefore, the Government functionaries are advised in their own interest and in the interest of the country not to insist upon oppression over the less important section of the society as the Narowal Police did in the present case. Needless to add that besides accountability of the law breakers under the law of the land, the Allah Almighty will give no chance to the oppressors to operate for an indefinite period.
15. For what has been stated above, I restrain the Narowal Police from investigating the above said cases registered against the petitioner and his family members with the direction to the D.P.O.
Narowal to transmit record of F.I.R. No, 39 of 2009, 181 of 2008, 92 of 2009, 93 of 2009 and 94 of 2009 all registered at Police Station Shah Gharib, Distt. Narowal to the Inspector General of Police, Punjab, Lahore before 22.7.2009, who shall make over investigation of the cases to a team of two honest and up right senior police officers headed by D.I.G. who, in the opinion of the Police Commander of the Province are not amenable to any pressure, obviously after observing all legal formalities in terms of Article 18(6) of the Police Order, 2002. The petition stands disposed of in the above terms.
16. Apprehension of arrest is condition precedent for seeking pre-arrest bail in any case which has come to an end qua the petitioner in view of the transfer of investigation by means of this order.
The bail petition, therefore, stands disposed of as having become infructuous, however, with the clarification that the petitioner would be at liberty to reagitate his bail plea as and when he feels so advised.