' IJAZ AHMAD CHAUDHRY, J.--- This single order will dispose of instant petition i.e. Criminal Miscellaneous. No,406-B of 2010 filed by Muhammad Fayyaz, Muhammad Ijaz, Muhammad Shahbaz and Muhammad Ali alias Chand/petitioners and Criminal Miscellaneous. No,407-B of 2010 filed by Irshad Muhammad/petitioner seeking pre-arrest bail in case F.I.R. No,39, registered at Police Station Shah Gharib, District Narowal, on 4-3-2009, for offences under sections 302, 324, 427 and 34, P.P.C, on the statement of Muhammad Farooq regarding the incident wherein Mst.
Jawereia daughter of the complainant and Muhammad Fayyaz brother of the complainant lost their lives, whereas two persons namely Muhammad Qasim and Abdul Mannan, ather and son of the complainant respectively received serious fire-arm injuries.
2. Brief facts of the case are that on 4-3-2009 at about 2-00 p.m. The complainant and his other family members were going back to Lahore from their village on two different cars. In one car, which was being driven by Muhammad Fayyaz brother of the complainant, Muhammad Qasim, Mst. Bushra, Mst. Jaweria and Abdul Mannan (father, wife, daughter and son of the complainant respectively) and Mst. Najma wife of brother of the complainant were travelling, while in the other car the complainant along with Muhammad Tariq and Muhammad Bilal was travelling. When the complainant party reached near "Bagh Muhammad Iqbal" all of a sudden one white coloured car stopped in front of the car of Muhammad Fayyaz. Two persons armed with firearms came out of the said car and started indiscriminate firing upon the said car. One person armed with fire-arm remained present inside the white coloured car. The firing resulted into death of Muhammad Fayyaz and Mst. Jaweria and injuries to Muhammad Qasim and Abdul Mannan. The car belonging to the complainant was also damaged. It was claimed by the complainant that he and other witnesses could identify the accused if they were brought before them.
3. Learned counsel for the petitioners submits that from the registration of the instant case i.e. On 4-4-2009 till 11-6-2009 the petitioners were not involved in the case, despite the fact that both the parties are admittedly resident of the same village; that they were introduced through supplementary statement made by the complainant on 12-6-2009, wherein the complainant claimed that the petitioners had participated in the occurrence, but neither any source of information through which the complainant came to know about their participation in the occurrence was mentioned or any specific role was assigned to the petitioners; that Irshad petitioner filed Criminal Miscellaneous No,7901- of 2009 for grant of pre-arrest before this Court, which was subsequently converted into writ petition and was disposed of vide judgment dated 6- i-2009 and certain observations were made in the said judgments, which have been read by the learned counsel for the petitioners, according to which, the complainant party and all the accused persons being residents of the same village were known to each other and if they had participated in the incident then why the complainant or other witnesses did not mention their names in their statements recorded under sections 154 and 161, Cr.P.C. And this Court observed that the investigation was based on mala fide; therefore, the matter was referred to the Inspector-General of Police, Punjab, Lahore, to constitute an investigation team consisting of at least five senior police officers. Learned counsel further contended that said team was consisted of two S.S.Ps. And other senior Police Officers and was headed by the D.I.-G., Gujranwala; that according to the findings of the said Team the arrest of the petitioner was required as it was found that though the petitioners had not participated in the occurrence but they had knowledge about the actual culprits who had participated in the occurrence; that this court in the judgment dated 6-7-2009 also observed that the findings of the police officers were based on mala fide intentions to falsely implicate the petitioners in the instant case; that two sons of Irshad co-accused were murdered on two different dates i.e. On 25-9-2007 and 4-4-2008 in the area of Village Kanjrur; that in the said case the accused were tried and on conclusion of the trial they were convicted and sentenced to death; that father of the said accused Nazir Ahmad Khan manoeuvred false implication of the petitioners and got registered false cases through F.I.Rs, Nos.92, 93 and 94 of 2009; and in such circumstances ad interim pre-arrest bail already granted to the petitioners may be confirmed is sending them behind the bars will not advance the prosecution case any further.
4. On the other hand, learned counsel for the complainant states the petitioners are specifically named in this double murder case and the injured eye-witnesses have fully supported the version of the prosecution; that earlier the witnesses had mentioned the names of the accused but the dishonest Investigating Officer had not recorded their statements correctly; that after one month in the case diary the statements of the witnesses were recorded regarding the involvement of the petitioners; that disciplinary action was taken against the said Investigating Officer; that there are reasonable grounds to believe that the petitioners had committed the offence; that it is a pre- arrest bail petition and deeper appreciation of the evidence cannot be made at this stage; that during the last investigation the petitioners were found guilty; that it is a case of double murder, wherein two persons have also received serious fire-arm injures; that the allegation against the petitioners is of serious nature; and that if ad interim pre-arrest bail is confirmed, it will hamper the investigation.
5. Learned D.P.-G., while vehemently opposing this petition, has adopted the line of arguments advanced by the learned counsel for the complainant.
6. I have heard the learned counsel for the parties and gone through the record.
7. The incident in the present case had taken place on 4-3-2009 at 2-00 pm i.e. In a broad-daylight and the F.I.R. Was got recorded on the same day at 3-10 pm by Muhammad Farooq complainant, who claimed that he along with other two witnesses namely Muhammad Tariq and Muhammad Bilal was travelling in the second car while the first car was being driven by his brother Muhammad Fayyaz-deceased, which was stopped by the car being driven by the accused. It has been stated by the complainant and two other eye-witnesses in their statements under sections 154 and 161, Cr.P.C. That two unknown persons came out of the car and started firing at the car, which resulted into death of Muhammad Fayyaz and Mst. Jaweria and causing of serious fire-arm injuries to Muhammad Qasim and Abdul Mannan. According to the prosecution case, the complainant as well as two injured witnesses had witnessed the occurrence. The complainant and his eye- witnesses are residents of village Kanjrur. Admittedly the petitioners are also residents of the same village. There is also no dispute that they were known to each other rather they are neighbours. Till 11-6-2009 same evidence was on the record that two unknown persons had fired at the deceased, but all of a sudden on 12-6-2009 supplementary statement was got recorded by the complainant allegation therein that he had firmed belief that the petitioners had committed the offence. The source of information about their participation was not disclosed by the complainant in his supplementary statement nor his witnesses in their statements as well. This court while disposing of Criminal Miscellaneous. No,7901-B of 2009, which was converted into writ petition had made following observations:-- "(5) ..... In the case in hand the investigator and the D.P.O. Are of the opinion that statements of the eye-witnesses 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 importance touching the root of administration of criminal justice, I convert this bail petition into a petition under Article 199 of the Constitution of the 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 co-accused persons are co-villages 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 grant 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 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 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, the 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 eyewitnesses 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 daylight. 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 regained 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 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, be 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 his P.Ws. From contacting the complainant on telephone during his alleged stay of three months at Karachi. Abdul Hameed P.Ws.
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.
8. After the order passed by this Court a Committee of five senior police officers headed by the D.I.- G., Gujranwala, was constituted, which finalized the investigation on the basis of the same evidence earlier collected when the above said order was passed while declaring that the witnesses were not truthful and why they kept mum for about three months in disclosing the names of the accused who were their neighbourers and co-villagers, when specifically the witnesses were claiming to have seen the incident. It creates serious doubt in the case of prosecution qua involvement of the petitioners. It was held by the Committee and the Investigating Officer that the petitioners were neither present at the spot at the time of incident nor they had fired at the deceased or any P.Ws. But their arrest was necessary to know the whereabouts of the actual culprits. These findings were made by the Committee without recording any further evidence, so whether only for this purpose the custody of the petitioners can be handed over to the police is a funny question and if during investigation the petitioners have not been found guilty how their arrest can be justified. The pre-arrest bail is meant to protect the innocent citizens, who are involved in criminal cases with mala fide intention and ulterior motive. In view of the above, I find that involvement of the petitioners in the instant case is based on mala fide intention and with ulterior motive. The investigation has already been completed. According to the Investigating Officer, the petitioners were not present at- the spot and they had not used any weapon during the occurrence. No useful purpose would be served if the petitioners are sent behind the bars.
Resultantly, I accept both these petitions and confirm ad interim pre-arrest bail already granted to the petitioners vide order dated 15-1-2010, subject to their furnishing fresh bail bonds in the sum of Rupees One Lac (Rs,1,00,000) each, with one surety each, in the like amount, to the satisfaction of the Trial Court.