Iftikhar Muhammad Chaudhry, C.J.--This Criminal Petition has been filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, for leave to appeal against order dated 20.12.2011 of Lahore High Court, Lahore, passed in Crl. Misc. No, 16360-B of 2011.
2. Vide order dated 18.01.2012, the petitioner was granted ad interim bail; relevant paras therefrom are reproduced hereinbelow:-- "10. In above view of the matter, we admit the petitioner to ad-interim bail till the next date of hearing, subject to his furnishing surety bonds in the sum of Rs.2,00,000/- (two lacs) with two sureties and P.R. in the like amount to the satisfaction of the Registrar of this Court.
In the meantime, the Provincial Police Officer Punjab is directed to constitute a Special Investigation Team to investigate this matter and submit report within 15 days to the Registrar of this Court for our perusal. The petitioner is directed to fully cooperate with the Police; if he fails to do so, the matter shall be reported to the Registrar of this Court for further necessary orders, if needed"
3. It is to be noted that contrary to the contents of FIR No, 756, dated 25.10.2011, registered under Sections 302,324, 148, 149 and 427, PPC with Police Station Haveli Lakha, District Okara, it has been informed by the learned Additional Prosecutor General, Punjab, that the story put forth by the police may not be the same, as it has been disclosed in the FIR because of the emerging facts and circumstances of the case, according to which, the petitioner has enmity with the complainant party, On 20.10.2011, the petitioner left the country for Thailand (Bangkok) and incidently on the same day three persons, admittedly petitioner's servants, namely Muhammad Hassan, Muhammad Ahmed and Muhammad Ahmed S/o Baqir were arrested at Police Station Mochi Gate, Lahore, in a case of possessing without license .30 bore pistol each falling within the mischief of Section 13 of Arms Ordinance, 1965. They did not get themselves released on bail and meanwhile on 25.10.2011 another servant of the petitioner, namely Javed alias Jaidi, who committed murders of two persons, was also killed in the said incident. After occurrence of this incident, on 26.10.2011, the petitioner came back from Bangkok and on the same day aforementioned three servants were released on bail.
4. The learned counsel appearing for the petitioner has vehemently contended that both the parties (the petitioner and complainant) have enmity with each other; that the allegation against the petitioner that he is involved in a number of criminal cases is of no significance because the complainant is also involved in as many twenty criminal cases; and that admittedly on the day of incident i,e, 25.10.2011, the petitioner was out of country and this fact has been verified on the basis of passport, copy of which has also been taken by the police.
5. The learned Additional Prosecutor General, Punjab, however opposed the bail in view of the facts and circumstances, which he disclosed on the last date of hearing on the basis whereof an inquiry was ordered; a relevant portion thereof has been reproduced hereinabove. He states that notwithstanding the fact that whether there is any enmity between the parties or not, but Section 109, PPC is fully attracted for the purposes of involving the accused in the commission of offence of abetment and for which it is not necessary that the person being involved was present at the spot or not because the accused does adopt such devices on the basis whereof, the crimes are committed.
6. Learned counsel for the complainant has opposed the grant of bail on the grounds which have been urged by the learned Additional Prosecutor General, Punjab, and also for the reason that petitioner's involvement under Section 109, PPC, in view of latest report of the Police Investigation Team, cannot be overruled. He has also disclosed an important fact that the petitioner is involved at least in 12 cases and in one of the case, which was pending, on the complaint filed by Muhammad Ahmed under Sections 302/324, 148 and 149, PPC, when he was absconding, his arrest warrants were issued by the learned Additional Sessions Judge and despite the directions issued by the Court, he was not arrested by the police, inasmuch as, even now he is an absconding accused because bail has not been granted to him. On the other hand, learned counsel appearing for the petitioner has candidly conceded that on the last date of hearing i,e, 18.01.2012, when the petitioner appeared before this Court and succeeded in getting ad interim bail, he was absconding in the complaint case, but on 09.02.2012 i,e, four days before he has succeeded in getting bail from High Court, as he filed a revision petition against his warrants of arrest issued by the learned Additional Sessions Judge.
7. A report has been submitted by Mr. Abdul Qadir Qayyum, SSP (Investigations), Lahore; two paragraphs there from, being, important, are reproduced herein below:-- "3. Investigation Conducted by the Special Team of Investigation Branch, Punjab Police, Lahore.
(i) On the direction of the Supreme Court of Pakistan the Addl. OGP Investigation vide Order No, 486270/Inv-HC dated 23.1.12 nominated the Special Team from the Punjab Police Investigation Branch for the Investigation of the subject case as under:-- (1)Abdul Qadir Qayum, SSP (2)Zahid Hussain Sherazi, SSP (3)Liaqat Hussain, DSP (ii)On 24.1.2012 the team visited the scene of crime where Qamar Hayat and Niaz were injured and killed in Car No, FSH/1088 and then inspected the spot nearby where Javed was deserted by the accused attackers. The place where the attackers left their car LEA 11/415 was also inspected. Both the cars were inspected and photographed at the police station. There was dried blood on the driver's seat, and in the back seat of the complainant's car and on the driver's seat of the accused persons' car.
(iii) Both parties were first heard at PS Haveli Lakha.
(iv) Complainant Tahir Masood produced his pistol .30 bore, licensed, which he claimed was with his gunman Niaz at the time of the incident. It was sent to Forensic Science Agency for comparison with the already recovered empties.
(v)Accused Ghulam A Chishti submitted his travel papers and original passport, which were sent to FIA Lahore Airport for verification of dates. FIA Lahore, later, on reported the date of departure for Thailand as 20.10.2011 on Flight No, TG/376 and verbally said that his return to Islamabad will be verified by the FIA at the Islamabad Airport, and thus a letter for the same was faxed to FIA Islamabad.
(vi)Accused Ghulam Ahmed Chishti on 25.10.12 promised that he would produce his servants for investigation, namely Muhammad Ahmed s/o Baqar Wattoo, Muhammad Ahmed s/o Habib Kumhar, and Muhammad Hassan s/o M. Yousaf Brain, who were arrested in FIRs Nos, 334/11,336/11, and 335/11, all under Sections 13/20/65 AO, at PS Mochi Gate Lahore, the same date he left for Thailand. These were nominated in FIR 756/11 of PS Haveli Lakha.
(vii) On 25.1.2012 the doctor who did the post-mortem examinations was also asked to clarify certain aspects of the reports.
(viii) On 26.01.2012 the call data record of Javed was studied and I.B was requested vide 5846/R- SSP dated 26.12.12 to furnish call data of 9 phone numbers, which appeared to be suspicious. The reply is yet to be received.
(ix)On 27.01.2012 statements were recorded. On 28.1.2012, police officers of PS Mochi Gate, DSP Gawalmandi Nasir Mushtaq, SHO Mochi Gate Inspector Kashif Khalil, TASI Tariq Mehmud, SI Khan Muhammad and ASI Said Muhammad joined the investigation and explained the circumstances in which the three servants of Ghulam A Chishti were arrested.
(x)On 31.01.12 complainant Tahir Masood and Accused Ghulam A. Chishti cross-questioned each other. Tahir was told of the travel information received from FIA, but he is still insisting that G.A.
Chishti was on the crime scene and they did not have enmity with anyone else. He also stated that if Javed had not been killed we would have not known who had attacked us. This shows that he was not sure of the attackers.
(xi)On the same date Ghulam A. Chishti brought his licensed weapons 3 Kalashnikovs, one 222 Rifle, and one pistol .30 bore which were sent to Forensic Science Agency for comparison.
(xii) The criminal records of both the main accused Ghulam Ahmed Chishti and complainant Tahir Masood Maneka are attached as Annexures B and C.
4. Evidence Related to the Abetment/Conspiracy (Sec 109 PPC) by Accused Ghulam A. Chishti.
(a)The motive for the murder attack is previous enmity of Tahir Masood and G. Chishti, and the instant murder attack was because of the murder of G. Chishti's brother Maqbool Ahmed, for which he blamed Tahir Masood etc. (FIR No, 663/10 dated 28.10.10, u/S. 302/324/148/149 PPC of PS Haveli Lakha).
(b)Ghulam A. Chishti flew to Thailand five days before the murder on 20/12/11 and returned one day after on 26.12.11 (return yet to be confirmed by the FIA).
(c)The, same date G. Chishti left for Thailand his three personal servants, Muhammad Ahmed s/o &tor Wattoo, Muhammad Ahmed s/o Habib Kumhar, and Muhammad Hassan s/o M. Yousaf Arain, were arrested in FIRs Nos, 334/11,336/11, and 335/11 all under Sections 13/20/65 AO, at PS Mochi Gate Lahore. Contrary to normal police practice neither they were interrogated nor their antecedents were verified. They did not apply for bail in a bailable offence. They remained in judicial custody and only came out after the murder. These three are nominated accused in the subject FIR 756/11 of PS Haveli Lakha.
(d) G. Chishti himself promised to produce the three servants, but has not done so till now. '
(e) Javed, the personal servant of G. Chishti, who was killed in the same incident, had no personal enmity with the complainant party. Javed managed the murderous attack in which two persons of the complainant side were killed and two were injured. Javed at the time of his death was dressed for an attack. He was wearing joggers, with a cloth to cover his face. A pistol and three magazines were recovered from him. He was driving the car used in the attack. 214 live rounds of Kalashikov were recovered from that vehicle along with several empties. The rest of the attackers deserted Javed when he was injured.
(f) Javed and G. Chishti, who was in Thailand, were in telephonic contact the days before the incident and even in the morning of the date of the incident.
(g)Police Officers SHO Mochi Gate Insp. Kashif Khalil and TASI Tariq Mehmood created alibis for the later nominated accused servants of G. Chishti by registering cases against them in Lahore. They also fall within the ambit of 109 PPC. SDPO Gawalmandi, DSP Nasir Mushtaq was negligent in his supervision and departmental action is being recommended."
He has also informed that petitioner's three servants, named hereinabove, have also not been produced and the police is investigating to further probe into the matter on the basis of some cell phones; one belonging to Jaidi since dead and the other belonging to the petitioner. He adds that there is yet another cell phone, owned by some unknown person, as according to so far evidence available on record prime facie the application of Section 109, PPC cannot be overruled.
8. When we have inquired from the learned counsel for the petitioner that under the circumstances, when an accused is absconding in a case, it was his duty to apprise the Court because in such like cases where discretionary relief has been sought from the Court, he was required to approach the Court with clean hands. However, notwithstanding the fact and circumstances of the case noted hereinabove, the petitioner made himself disentitled from any relief by this Court because of his non-disclosure of the true facts. It is to be noted that the petitioner is absconding and his warrants of arrest has been issued, but on account of his influence, he is not being arrested by the police, inasmuch as, on the last date of hearing Ejaz Ahmed, SHO/Inspector and Khadim Hussain, SI/I0, present' in Court, also did not point out to the Court that the accused is absconding in one of the case and not even a single word about the same has been mentioned by the learned counsel for the petitioner in his petition.
9. On the Court query, as to why the police officials, present in Court, had not pointed out about the said case and what was the reason for them not to cause his arrest on the last date of hearing, they stated that they were not aware about the same and prior to it he was not available in the area of. Police Station Haveli Lakha and his servants were also absconding, therefore, police could not arrest him or his servants.
10.A perusal of the record, made available on case file by the learned counsel for the complainant, indicates that the police had not been cooperating to cause his arrest and knowing well that learned Additional Sessions Judge had issued warrants of arrest, SHO/Inspector, present in Court, was reluctant to appear for one or the other reasons. Be that as it may, under the circumstances, although the petitioner obtained bail from the High Court, but we are of the opinion that a person who is prima facie fugitive from law cannot claim relief from this Court without approaching it with clean hands, therefore, ad interim bail granted to him vide order dated 18.01.2012 is recalled; judgment of High Court, dated 20.12.2011 is maintained; and let the law take its own course.
11.In the facts and circumstances of the case, we direct the Provincial Police Officer, Punjab, to constitute a special investigating team to probe into the matter and submit compliance report within 15 days to the Registrar of this Court for our perusal in Chambers. Mr. Abdul Qadir Qayyum, SSP (Investigation), Lahore, who is conducting the investigation of the case shall also report this matter to the Provincial Police Officer, Punjab, about the conduct of both the above named police officials, enabling him to proceed against them in accordance with law, after observing all codal formalities. Needless to observe, if any action is taken by the PPO, Punjab it shall be without being influenced by any of the serrations, made hereinabove.
12.Consequently, the listed petition is dismissed and leave refused.