KHAWAJA MUHAMMAD SHARIF, C.J.---This order will dispose of I.C.A. No,683 of 2009 filed by Mahmood alias Mooda appellant and I.C.A. No,684 of 2009 filed by Mobeen Butt and Musarrat Bibi appellants against the judgment dated 9-7-2009 passed by the learned single Bench of this court through which Writ Petitions Nos.17635/08 and 15998/08 separately filed by the appellants respectively were dismissed.
2. Learned counsel for the appellants contends that there is apprehension that the appellants namely Mahmood alias Mooda and Mubeen Butt may not be done to death under the garb of fake police encounter and the respondents may be restrained from taking out the appellants from the Central Jail Kot Lakhpat, Lahore. It is also contended that the learned single Judge has not granted the prayer made in the writ petitions and has erred in law by not issuing direction for not shifting the appellants from the jail. It is also contended that the two accused namely Rashid alias Rashoo and Shahid were murdered and there is apprehension that the appellants may also be given the same treatment. It is also contended that the application was moved by Zakria Mahmood complainant in case F.I.R. No,299/09 and the notice was not issued, but the application has been disposed of and the arguments advanced by the applicant have been given weight in the judgment without affording an opportunity of hearing to the appellants to contest the said application; that the order has been passed which may be declared as illegal and unlawful. It is also contended that under section 21-A of Anti-Terrorism Act, 1997 investigation can be conducted in jail premises as the venue of the investigation has to be declared by the Investigating Officer. It is further contended that the appellants have been convicted in case F.I.R. No,331/05 and the respondents are bent upon to take out the appellants in case F.I.R. No,299/09, dated 4-7-2009 and F.I.R. No,8/03. It is also contended that F.I.R. No,8/03 has not been registered under the ATA. It is also contended that the writ petitions were filed for enforcement of the legal rights of the appellants and the order may be set aside and direction may be issued to the respondents to be restrained from taking out the appellants from Jail.
3. Learned Assistant Advocate General and the learned counsel appearing on behalf of the complainant in the above-said F.I.R. Nos.8/03 and 299/09 opposes these appeals on the ground that the learned counsel for appellants before the learned single Bench and this Court have failed to point out any relevant provisions of law which restrain the police from taking the accused persons for the purpose of investigation. It is further contended that the appellants are desperate persons who are involved in numerous cases have been convicted in some cases and for the purpose 0f investigation their person is required by the police; that the learned Magistrate had passed order in case F.I.R. No,8/03 for the production of the appellants and the said order was not challenged in revision petition, which holds the field and these appeals are not maintainable under section 3 of the Law Reforms Ordinance, as the alternate remedy against the original order of the learned Magistrate was available, but the appellants concealed this fact; that the officials against whom he had shown the apprehension for commission of murder are not investigating the case and this is the reason that they have not been impleaded as respondents and in their place Inspector General of Police and S.H.O. P.S. Samanabad have been impleaded as respondents, but now the new Team is investigating the case against whom no apprehension has been shown by the appellants. It is also contended that no area has been notified and there is no reason for restraining the appellants from summoning for the purpose of investigation. Relies upon 2000 PLC
(CS) 189 and Mst. Saeeda Bibi v. The Government of Punjab through Chief Secretary, Lahore and 4 others (1998 SCMR 2642) in support of his contentions. It is also contended that the appellants are involved in 43 cases and the police cannot be restrained from performing their lawful duty to investigate the matter.
4. We have heard the learned counsel for the parties and also perused the impugned judgment as also the writ petitions which were filed by the appellants. W.P. No,683/09 was filed by the appellant Mahmood alias Mooda on 12-8-2009 while the learned Magistrate has passed the order dated 1-11- 2008 for summoning the appellants from jail on 11-11-2008 in case F. I. R. No . 8/03 registered on 18- 1-2003 under sections 302/ 392, P.P.C., on the statement of Muhammad Aamir complainant.
Learned Assistant Advocate-General and the learned counsel for the complainant of the above- said F.I.R. Have rightly pointed out that the said order passed by the learned Magistrate for summoning the appellants was never challenged by the appellants even after the filing of the comments by the Superintendent of Police, CIA Kotwali, Lahore in which order dated 10-11-2008 has been duly mentioned passed by the learned Ilaqa Magistrate for summoning of the appellants. An alternate remedy was available to the appellants by way of filing a new petition against the said order and ICA under section 3 of the Law Reforms Ordinance is not maintainable. No doubt the learned counsel for the appellants have vehemently opposed the said order and have prayed for restraining the police from taking out the appellants from jail on the basis of apprehension that earlier two accused have been murdered who were members of the gang of the appellants and they may also be murdered but the police has given full assurance in the Court. Statement was also made by SP CIA, Lahore that the police did not want to murder the appellants in a fake encounter and it is also stated in comments by the responsible officials that the person of the appellants is required for the purpose of investigation in case F.I.R. No,8/03 as the witnesses have made statements against the appellant. It is also found that the Investigating Officers who were respondents in the writ petitions filed by the appellants S.P, CIA Kotwali, Deputy Superintendent of Police (Rai Zamir) Lahore have not been impleaded as parties in the ICA and instead S.H.O. P. S. Samanabad, Lahore has been introduced as respondent. The learned single Judge-inChamber has discussed the arguments of the learned counsel for the appellants in B detail and observed that the appellants' counsel has failed to show any law which empowers this court to restrain the removal of the appellants from jail for the purpose of investigation and the learned single Judge- in-Chamber has directed to take precaution measures which are reproduced as under:--- "In the instant case learned counsel for the petitioner has failed to substantiate that any provision of law or the Constitution has been violated by the respondents, therefore, the writ cannot be issued in favour of the petitioner. Even otherwise the prayer made in this writ petition is totally vague and ambiguous. Be that as it may, this writ petition is disposed of with a direction that if the production of the petitioner before any Magistrate for physical remand is indispensable then IG Punjab and the Secretary Home Department, Government of the Punjab, shall ensure the safety of life of the petitioner during the course of his production before the Court and sending back to Jail.
The concerned Magistrate shall also ensure that no unnecessary remand shall be granted. Before obtaining physical remand of the petitioner by the police concerned the IG Punjab, the GCPO Lahore, the Secretary Home Department, Government of the Punjab shall take all the necessary measures for the safety of the petitioner's life during the period of his physical remand if any, granted by the Magistrate concerned. In case any untoward incident takes place during this process and the petitioner gets hurt, the aforesaid officers shall be personally responsible for the breach of security of the petitioner. The office is directed to send a copy of this order to each of the said officers immediately."
5. In the above circumstances when the learned counsel for the appellants has failed to show any law in support of his contentions, the learned Judge-in-Chamber has rightly dismissed the writ petitions of, the appellants in view of the case-law reported in 1998 SCMR 2642. The contentions raised by the learned counsel for the appellants are unfounded. It has already been directed by the learned Judgein-Chamber to the responsible officer for avoiding any untoward incident or the, police encounter etc. With the appellants. The persons of the appellants are claimed to be required for the purpose of investigation in both the cases F.I.R. No,8/03 and F.I.R. No,299/09 and the investigation cannot be hampered due to the apprehension of an accused person the purpose of which is to collect the evidence. In such circumstances we do not find any reason for interference through these appeals, wed.
As. Dismissed.