Masha Allah Khan has moved this application for cancellation of pre-arrest bail of the four respondents. They are accused of murder of Badar-ud-Duja, real brother of the petitioner.
On 29-4-1980, the petitioner gave a written application at Police Station Nawankot, Lahore, about the occurrence. The report was to the effect that on 28-4-1980, at about 8-00 p.m., the petitioner received a telephone call at the residence (telephone No. 67508). The person calling wanted to talk to Badar-ud---Duja. He asked for his identity and the man at the other end said that he was Khalid Mian, a Civil Judge (respondent No. 1). According to the petitioner he could recognize his voice being familiar with it, because he had been calling before. He was asked to hold the line. Badar- ud-Duja was called from the next room. He came to the telephone and talked to Khalid Mian. The petitioner asked his brother what was the matter. He was told that he had been invited by the Civil Judge to spend the evening with him. When Badar-ud-Duja was talking to Khalid Mian at that time his two brothers Masood and Mansoor and Kh. Mohammad Amin and Farooqi were present. The latter two were Chartered Accountants, whose income-tax cases were to be presented on 29-4- 1980. Pervaiz, Stenographer of the petitioner, was also present. Incidentally the petitioner is also a Chartered Accountant.
Badar-ud-Duja left soon after and told his brother that he would be coming late in the evening.
On the morning of 29th April, 1980, at about '7-00 a.m., when the family gathered for the breakfast, the mother of the deceased called him by his nickname "Pappu". There was no response from his room. In the meanwhile somebody knocked at the door. The person calling at the door said that he had come from Mayo Hospital. Badar-ud-Duja was lying in precarious condition there. He should be visited at once. The petitioner called everybody out and told them that all of them should rush to the hospital. Reaching hospital the party made inquiry from the Emergency Ward. They were directed to proceed to Operation Theatre.
The petitioner remained with his brother till he was operated upon and bandaged. He was then transferred to Gujranwala Ward. When he gained consciousness, the petitioner inquired as to what had happened to him. He was told that Khalid, a Civil Judge along with three others, namely, Muhammad Ashraf, Khawaja Muhammad Iqbal and Shabbir Ahmad and a few other unknown persons hail beaten him with iron rods and other weapons.
The persons who took part in the beating were the brothers-in-law/other relatives and servant. The petitioner remained with his brother till 2-00 p.m. When he expired.
The doctor pronounced him dead. Nawankot Police was informed on telephone.
The report concluded that the petitioner apprehends that Khalid Mian is likely to twist the actual incident by putting his own story. This he is likely to do in collusion with the local police and if it so happens then the counter-version would be false, frivolous and concoction.
According to the petitioner, his brother was done to death as a result of pre---planned conspiracy.
2. 'There is another F.I.R. No. 173/80, lodged by respondent No.1, which was registered at the same police station earlier than the one referred to above. I shall refer to it in this order at the proper stage.
On the aforesaid report of the petitioner a case under section 302 P.P.C. Was registered. The respondents applied for pre-arrest bail. They were admitted to ad interim bail by order dated 30- 4-1980, of the Sessions Judge, Lahore. Later on, on 10th September, 1980, their interim bail was confirmed by the Additional Sessions Judge, Lahore. It is this order which the petitioner wants to be set aside.
3. The main contention raised by the learned counsel for the petitioner was that the reasons which weighed with the learned Judge for giving the concession of pre-arrest bail to the respondents were not sufficient in law. Learned counsel submitted that the respondents had not made out even a prima facie case for anticipatory bail nor did they allege any mala fides.
It was next contended that as such the learned Judge acted in arbitrary manner and failed to exercise his judicial discretion; his order, as such, was not only erroneous in law but also contrary to the well-recognized principles governing the grant of the pre-arrest bail in the capital offence.
4. I have also heard the learned counsel appearing on behalf of the respondents. I shall first discuss the submissions made by the learned counsel for respondent No. 4, who contended that he had been falsely implicated in this case. There was no community of interest so far as he was concerned with the remaining respondents, who are related inter se. Learned counsel further submitted that he has been falsely implicated.
5. So far as the remaining respondents were concerned, Khawaja Sultan Ahmad submitted that there was a counter-version of the incident regarding which respondent No. 1 lodged report earlier in time. He further submitted that the First Information Report was delayed one for which the prosecution has no explanation. Learned counsel also submitted that there was no eye-witness to this incident. The evidence on which the prosecution was relying is of the weakest type. In this connection he referred to the dying declaration.
It was submitted that at the time of the alleged telephone call respondent No.1 was present in a party of Judicial Officers. He laid great stress on the-plea of alibi duly supported by number of affidavits.
Learned counsel further submitted that the judicial discretion exercised by the learned Judge called for no Interference.
Last of all, learned counsel submitted that the challan has been submitted and no useful purpose will be served to send the respondents to jail now.
6. I have also heard the Assistant Advocate-General, who supported the impugned order.
7. Now I would like to refer to First Information Report No. 173/80 lodged by respondent No. 1 on 29- 4-1980 at 12-40 a.m., in which he said that he was a Civil Judge working at Lahore. He had been receiving obnoxious calls from some unknown person and was worried about it. In this connection he contacted the Telephone Department to find out who the caller was. On the day of occurrence, at about 12-30 a.m,, when he was present in the Dining Room on the upper storey of his house and was busy talking to Kh. Muhammad Iqbal, they heard the sound of some motor-cycle stopping outside the main gate and also some noise from inside the house. Khalid Mian and Kh. Muhammad Iqbal came down and found a person not known to them, but later on they came to know his name as Badar-ud-Duja son of Insha Allah. He was in the bed-room. The motor--cyclist outside the house drove off. Khalid Mian raised alarm on which Shabbir Ahmad and Muhammad Ashraf came there. The intruder tried to escape but he was apprehended. During the struggle he received injuries. The complainant said that action be taken against him.
8. I have considered the submissions made by the learned counsel for the parties. No doubt, bail either before or after arrest, is a matter of judicial discretion. It has been repeatedly held in number of cases and I do not wish to mention those, that the criterion for anticipatory bail especially in a capital offence is different than the bail after arrest. In bail before arrest, the mala fides, false involvement, arrest with the purpose of humiliation and malicious prosecution, are some of the very strong grounds.
9. The first important and relevant evidence to be considered is the post mortem report of the deceased. Autopsy was performed by Dr. Abdur Rashid Khan, Medical Officer. He noticed the following injuries on the dead body:---
(1) A lacerated wound 4 cm long, with two stitches on left side of middle of head.
(2) Swelling on the right side of forehead in an area of 6 cm x 4 cm. It extends to above the right eye.
(3) Multiple contusion marks all around the right shoulder.
(4) Multiple contusion marks on the front and outer side of right arm.
(5)The right elbow is enormously swollen with a lacerated wound 1 cm x 1/4 cm x 1/4 cm. The bone of right are (humerus) fractured at its lower end.
(6) Multiple contusion marks on the back or right forearm.
(7) Five contusion marks of various sizes on the front and outer side of left arm and forearm.
(8) The left hand is swollen and tender. The metacarpal bone of little finger of left hand found fractured.
(9) Contusion mark in area 10 cm x 8 cm on the right side of back of chest.
(10) An abrasion 1 cm x 1/2 cm with scab on the tip of nose.
(11) An abrasion 1 cm x 1/2 cm on, the chin, right side.
(12) Multiple contusion marks on the right buttock 3/4 of buttock is reddish.
(13) Multiple contusion marks in front and outer side of right thigh.
(14) Multiple (5) small lacerated (stitched) wounds in front of right leg, with swelling.
(15) The right ankle joint is swollen. The outer bone of right leg (fibula) fractured at the ankle joint.
(16) The left leg is enormously swollen. Both bones of left leg fractured.
(17) Multiple (4) small stitched lacerated wounds in front of the left leg.
(18) Both feet swollen due to injuries to legs.
As is evident from the above report, some of the injuries are multiple, which would mean that the number would be much more than eighteen. The opinion of the doctor was that death was due to shock as a result of severe pain and bleeding. All the injuries were antemortem caused by blunt weapon and were collectively sufficient to cause death in the ordinary course of nature.
The number and nature of injuries prima facie show that the victim was completely over-powered by his assailants. He was at their mercy and they dealt with him according to their pleasure.
10. Great emphasis was laid on the counter-version by the learned defence counsel. At this stage, I would not like to express any opinion but would observe that accepting this report at its face value, it is established beyond doubt that the deceased, according to respondent No. 1, was found in his house at odd hours of the night. It is also admitted in the report that the four respondents were present and that it was in the struggle that the deceased received injuries. But neither the details of the injuries, nor as to what happened to Badar-ud-Duja after he had been caught at the spot find reference in the report. It so appears that all this has I been conveniently omitted.
11. That leaves me to consider the plea of alibi of respondent No. 1. This plea is to be taken into consideration along with other relevant factors and as already observed by me, in the report lodged by respondent No. 1 he accepted his presence when Badar-ud-Duja was caught. Hence it will only be at the trial when the sanctity of this plea will be examined.
I have examined the reasons given by learned Judge. He observed "they (the respondents) have vested interest in this part of the country", but he never referred to those interests. Every citizen in this country has a vested interest in some way or the other.
Similarly, the mere fact that in the opinion of a Judge an accused charged with a capital offence is not likely to abscond is not good ground for anticipatory bail.
The mere fact that now the challan has been submitted would not validate an order which otherwise lacks judicial discretion.
12. I am, therefore, of the view that this was not a fit case where the respondents were entitled to the extra-ordinary concession of bail before arrest. This application is allowed and the order dated 10th September, 1980, is set aside. The respondents shall be arrested and sent to prison forthwith.
Before concluding I would like to observe that none of the observations made by me in this order shall be used either for or against any party and those observations are only relevant for the purpose of disposing of this petition.
SA./M-1639/L