' IJAZ AHMAD, petitioner/complainant seeks cancellation of to the respondents Nos.1 and 2/accused by the learned Additional Sessions Judge, Rawalpindi, vide order dated 3-12-2010 in case F.I.R.
No,365 dated 24-6-2010, registered under sections 365, 109, P.P.C., at Police Station Saddar Baironi, Rawalpindi.
2. The allegation, as levelled in the F.I.R., is that the petitioner's brother Dr.Niaz Ahmed and some others were involved in certain cases. They were ultimately acquitted. Later on, he along with others was incarcerated under West Pakistan Maintenance of Public Order, 1960. Writ Petition No,1846 of 2010 was submitted in Lahore High Court, Rawalpindi Bench, Rawalpindi. Vide order dated, 27-5- 2010, passed by this Court, the petition was accepted and the detenus were ordered to be released.
The 'robkar' was sent to the jail authorities on 28-4-2010. The detenus were not released. On 29-5- 2010, at about 0100 hours, the detenus were abducted from the jail premises by the personae of agencies and taken to some unknown place.
3. It is contended by the learned counsel for the petitioner that Writ Petition No,1846 of 2010 was accepted, vide order dated 27-5-2010. The 'robkar' was sent to the jail authorities and was received by them on 28-5-2010. The detenus were not released and were forcibly handed over by the respondents to the personae incognito of unidentified agencies for being moved to an unknown destination and for being put in secret confinement. He makes reference to the daily situation report of the Special Branch Rawalpindi, wherein it has been stated that on 29-5-2010, the detenus were released. The detenus refused to leave the jail premises, as they saw the personae of various agencies mounted on the vehicles in and outside the jail premises for taking them away and that there was a scuffle between the parties and ultimately the detenus were forcibly taken away. He also makes a reference to the proceedings before the august Supreme Court of Pakistan in Civil Petition No,1973 of 2010, wherein the Superintendent Jail had taken a plea that he was on leave on the 29th and 30th May, 2010, and, thus, had no nexus with the whole episode. He however, points out to the observations made by the said apex Court in the order dated 1-11-2010, that the record relating to the leave of the Superintendent Jail, prima facie, seemed to be tampered with. It is contended that the impugned order has been passed in violation of the principles laid down for granting and refusing a bail; that all the citizens, howsoever highly placed or on the other end, downtrodden they be, are to be treated in equality in law. He further argues that it is not a case of simple abduction, it also betrays the flagrant violation of the orders passed by the Courts and adamance of the respondents to release the detenus whose detention they intended to continue.
4. The learned D.P.-G. Supports the petition and prays for cancellation of the bail.
5. The learned counsel appearing on behalf of the respondents/accused contends that the detenus were released from the jail premises on 28-5-2010; that the Superintendent Jail was on leave on the said date, therefore, he has no nexus with the whole affair; that the reports Nos.17 and 22, dated 29-5-2010, entered at Police Station Saddar Baironi, District Rawalpindi make it manifestly clear that the detenus were released, however, they were taken to some unknown destination by the personae incognito of various agencies. It is further argued that the circumstances narrated in the F.I.R., even if, taken to be true, do not constitute an offence under section 365, P.P.C., as no offence of abduction had personally been committed or otherwise abetted by the respondents; that even if the facts narrated in the F.I.R. Are taken to be true, only an offence under section 342, P.P.C. Is attracted which is bailable and that the respondents are government servants and their abscondance is not feared, if they are released on bail.
6. I have heard the learned counsel for the parties the learned DPG and have also gone through the record.
7. The detenus were involved in various cases. They were ultimately acquitted. Later on, they were incarcerated under the law relating to the preventive detention. After the expiry of the prescribed period, the detention was extended. The detention was later on declared illegal and they were ordered to be released, vide order dated 27-5-2010, A passed in the constitutional petition. They should have been released forthwith, which the respondents claim, had been so done. The record reveals that the detenus, prima facie, were not released on 28-5-2010, when the 'robkar' had been sent to the jail authorities. The special report indicates that the scuffle and quarrel took place between the detenus and the jail authorities outside the main gate of the jail but within its premises on. 29-5-2010, when they were ordered to leave the jail premises, which the detenus were refusing to do on account of their scare that they would be abducted by the personae standing in and outside the jail compound. Report No,17 dated 29-5-2010, referred by the learned counsel for the respondents also indicates that the 'robkar' had been received on 28-5-2010 by the jail authorities, however, the detenus were not released and it was on the next day that they were abducted in various vehicles to unknown places. The question arises, if the detenus were abducted, whether the respondents were privy to the affair or not? The adamance on the part of the respondents to release the detenus on 28-5-2010, betrays their intention to prolong the detention of the detenus to facilitate their abduction at some appropriate time. The personae of various agencies were allowed to abduct the detenus for their illegal and secret confinement, they should have resisted and refused the entrance of members of the agencies in jail compound. Whether the respondents were supposed to and could disobey the order of those persons who were bound to take away the detenus? If such an order is patently and on the face of it illegal and not even an illusion of legality can be attributed to it, the same should be refused by the government functionaries even if they were threatened and obliged to obey suchlike orders. There is not even a slightest lead to supposition that the respondents resisted the abduction of the detenus. Their contribution is however highly probable. Their abetment is glaring. The bail once granted, should not ordinary be cancelled because the principles of cancellation and granting of bail are different and distinct. Although the Courts have to be slow in cancelling the bail, yet there is no absolute bar.
Should the respondents being the government servants be extended relief of the bail in all the cases irrespective of the gravity of their C offence, only because their ascension is not feared. The concession of bail used to be extended to the government officials keeping in view the respect they commanded in the society. They have by passage of time successfully proved they more deserve this concession. At a time when the people sitting at the helm of affairs are tweezing the last tissues of the flesh from the corpus of the nation, the consideration that the accused being a government servant is more entitled to the concession of bail has to be fare-welled. If the government officials are not brought to justice and are granted bail at the early stage, even in offences like the one in hand, the result would be lawlessness that spreads like a contagious disease. The longing of the aggrieved people to have resort to street power would be irresistible, the consequent anarchy would be irreversible.
8. For what has been discussed above, the petitioners are held not entitled to the concession of bail. The order dated 3-12-2010, passed by learned Additional Sessions Judge. Rawalpindi is hereby set aside. The to the respondents is cancelled. This petition is accepted. The observations made above are, however, not supposed to prejudice the trial of the case.