' RUSTAM S. SIDHWA, J.---This judgment will dispose of Cr.A No,31 of 1990 filed by Zaheer Din and others against the order of a learned Single Judge of the Lahore. High Court dated 15-1-1990 dismissing their petition for bail, Cr.A. No,58 of 1990 filed by Muhammad Munir appellant against the order of the same learned Judge whereby he accepted the prayer for. Bail of Khalid Javed, Haji Ismail alias Haji Bau and Shafique alias Bhola respondents and Cr.A.No,32 of 1990 filed by Muzaffar Ahmad and others appellants against the order of the High Court dated 16-12-1989.
2. These appeals arise out of two incidents, one which took place on 19-4-1989 at 9-00 p.m. At Naushehra Road, Gujranwala and the other which took place on 16-7-1989 at 12-00 noon in Chak Sikander-30, Tehsil Kharian. With regard to the first incident, two F.I.Rs, were recorded, namely, F.I.R.
No,115 on .29-4-1989 at 11-45 p.m. By one Muhammad Bashir complainant and F.I.R. No,122 on 26.4.1989 at 4-00 p.m. By one Muhammad Munir complainant; both being registered at police station, Baghbanpura, Gujranwala. With regard to the second incident, two F.I.Rs, were recorded at police station Kharian, namely, F.I.R. No,333 on 16-7-1989 at 1-45 p.m. By one Ghulam Haider and F.I.R. No,334 on the same day at 3-30 p.m. By one Bashir Ahmad complainant. I In respect of F.I.R.
No,115 it is submitted that nine accused persons, out of whom five were armed with fire-arms and one with danda, attacked the complainant party, killing Muhammad Yousuf deceased and injuring Naeem, Muhammad Saeed and Muhammad Bashir complainant.
4. In respect of F.I.R. No,122 lodged by Muhammad Munir complainant it is stated that eight accused persons, out of whom seven were armed with firearms and one with a dagger, attacked the complainant party, injuring Muhammad Anwar, Mazhar and Muhammad Naeem.
5. Two further cases were also lodged against the accused party covered by case F.I.R. No,122, but they not being relevant for the purposes of the disposal of these cases, we do not propose to discuss the same here.
6. During investigation of the case covered by F.I.R. No,115 lodged by Muhammad Bashir complainant, the police did not arrest any accused named therein, but exonerated them of their criminal liability on the basis of a report made by Ch.Fida Hussain, the then S.S.P. Gujranwala, who inter alia concluded that the case may be treated as untraced.
7. During investigation of the case covered by F.I.R. No,122 lodged by Muhammad Munir complainant, the police challaned six accused persons and declared Lala Muhammad Idrees and Muhammad Yousuf accused as innocent and placed their names in column No,2 of the challan.
8. Two bail petitions were filed by the accused covered by case F.I.R. No,122 before the High Court.
The learned Single Judge of the High Court, after examining all aspects of the case covered by the four F.I.Rs,, held, that the parties got involved in an encounter on the main Road where Muhammad Yousuf, Muhammad Naeem, Muhammad Saeed and Muhammad Bashir complainant of F.I.R. No,115 and Muhammad Naeem, Mazhar and Muhammad Anwar P.Ws. Of case F.I.R. No,122 were injured, that both parties had tried to lessen their own roles and exaggerated the roles of the other and that prima facie it appeared that there was a concerted encounter between the two parties and the tempo was so high that a part of the encounter was carried to the hospital also where the injured were taken and where indiscriminate and ineffective firing took place. Dealing with the case of each of the accused, the learned Single Judge on 15-1-1990 released Haji Ismail alias Haji Bau, Khalid Javed and Muhammad Shafique alias Bhola accused on bail, but rejected the prayer of Zaheer Din alias Chan, Asadullah alias Papa and Miraj Din alias Laloo for bail.
9. We now turn our attention to the other incident which took place on 167-1989 in Chak Sikander- 30, Police Station Kharian.
10. In respect of F.I.R. No,333 lodged by Ghulam Haider complainant, 28 accused persons are alleged to have assaulted the complainant party, killing Ahmad Khan deceased and injuring Muhammad Asghar and Fateh Ali with firearms and burning the houses of Adalat Khan, Khadim Hussain and Abdul Ghafoor.
11. In respect of F.I.R. No,334 lodged by Bashir Ahmad complainant, it is alleged that 44 accused attacked the complainant party, killing Nazir Ahmad, Rafiq and Mst.Nabila and injuring Mst.Hamida, Mst.Najma, Mst.Razia and Abdur Razzaq by fire-arms and burning 28 houses of the complainant party, which later on were found to be 62. The occurrence appears to be the result of sectarian differences.
12. In respect of F.I.R. No,333, the challan was submitted in Court on 9-4-1990, whereas in respect of F.I.R. No,334, the case is still at the investigation stage, because it is submitted that the witnesses named by Bashir Ahmad complainant are not appearing before the Investigating Officer to support their case.
13. On a bail petition filed by a number of accused relating to the case covered by F.I.R. No,333, a learned Judge of the Lahore High Court on 16-12-1989 rejected the petition of Muzaffar Ahmad, Mubashar Ahmad and Abdur Razzaq accused, but accepted that of the other accused.
14. Zaheer Din, Asadullah and Miraj Din accused filed Cr.P. No,24 of 1990 for leave to appeal against the order of the learned Single Judge dated 15-1-1990.
' Likewise Muzaffar Ahmad, Mubashar Ahmad and Master Abdur Razzaq accused filed Cr.P. No,18 of 1990 for leave to appeal against the order of the learned Single Judge of the High Court dated 16- 12-1989. Both these petitions were taken up together by this Court, wherein leave was granted with the following observation:- "In both the cases, as argued by the learned counsel for the petitioners, the police in the conduct of investigation adopted partisan roles and made arrests from one side in each case holding by itself that the others were not so liable on account of assumption of the police that no offence has been committed by the respective opposite sides. This was notwithstanding the fact that in one of these cases victims of attack were killed on both sides, while in the other case death occurred on the accused/petitioners' side; but those are involved in a case for attempted murder. Not only this, according to learned counsel appearing for the petitioners, the rule of consistency has not been followed, nor the cases of individual accused/petitioners who could be given benefit on account of lesser role, have been properly dealt with. We have accordingly granted leave to appeal in both these petitions so as to examine the aforenoted points, as also those raised in these petitions."
' Interim bail was allowed by this Court to Master Abdur Razzaq and Asadullah alias Papa.
CR. A.No,31 of 1990
15. Ch.Muhammad Rafique Bajwa, Senior Advocate, appears on behalf of Zaheer Din and others, appellants. On behalf of the appellants it is submitted that since there are two cross cases, the question as to which party was the aggressor yet remains to be decided, after evidence is recorded, and the appellants are, therefore, entitled to be released on bail. In this connection, Fazal Hussain v. The State 1976 SCM R 124 and Fazal Muhammad v. Ali Ahmad and 3 others 1976 SCMR 391 have been referred. It is further submitted that the injury imputed to Meraj Din is only a simple sharp-edged injury on the person of Muhammad Anwar PW and that imputed to Zaheer Din is only a simple fire-arm injury on the head of Mazhar PW and since the case is one under Sections 307, 324, 148 and 149 P.P.C. And it is not expected that the appellants will be visited with heavy punishments, it is submitted that the appellants are entitled to be released on bail. It is lastly contended that Meraj Din appellant is an old case of serious diabetes and his bail may also be considered on medical grounds.
16. Ch.Qamaruddin Khan, Advocate, appears on behalf of the State. The learned counsel has frankly conceded that the conclusion of the S.S.P., Gujranwala, that case covered by F.I.R. No,115 should be treated as untraced, cannot be accepted, as the accused persons nominated in the said F.I.R. Were named and it could not be said that they were untraceable. The learned counsel submits that the S.S.P. Found that the story as disclosed by Muhammad Bashir complainant in F.I.R. No,115 was untrue and that the culprits named were not those that had participated in the occurrence and since there were certain other persons who had participated, the S.S.P. Had treated the case as untraced, which legally was not correct, as the police officer should have challaned the accused and sent the case up to the. Court for the determination of the question as to who were guilty and who were not and at best he could have placed all the accused named by Muhammad Bashir complainant in column No,2, with his report that the story of the complainant was untrue, so that the complainant could have filed a private complaint. By treating the case as "untraced", the learned counsel submits the complainant was forestalled from moving a private complaint. As regards the merits of the case regarding the prayer of the appellants for bail, the same is opposed.
17. Qazi Muhammad Salim, Senior Advocate, appears for Muhammad Munir complainant. On behalf of the complainant, it is submitted that Khalid Javed, Haji Ismail and Muhammad Shafique respondents were not entitled to bail, as they were members of an unlawful assembly whose common object was to commit the offences, which prima facie have been found to have been committed by them. It is further submitted that by virtue of section 8 of the Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance, XVII of 1988, the respondents were not entitled to be released on bail. CR.A. No,32 of 1990
18. Kh.Sarfraz Ahmad, Advocate, appears for Muzaffar Ahmad and others, appellants. On behalf of the appellants it is submitted that since there are two cross cases, the question as to which party was the aggressor, yet remains to be decided after evidence is recorded, and the appellants are, therefore, entitled to be released on bail. In this connection Fazal Hussain's case (1976 SCM R 124) and Fazal Muhammad's case (1976 SCM R 391) have been referred. It is further submitted that from the final results of the encounter, it is obvious that the complainant party, who were Ahmadis, were assaulted by the Muslims who dominated the area, but that the police having taken a partisan attitude, have tried to scotch the case lodged by the Ahmadi party.
19. Ch. Qamaruddin Khan, Advocate, appears on behalf of the State. He opposes the bail of the appellants as they appear to have injured the deceased Ahmad Khan and Muhammad Asghar P.W. And section 149 P.P.C. Is applicable. As regards the submission of the Investigating Officer, who is present in Court, and states that since none of the witnesses named in F.I.R. No,334 have appeared before him, he was not able to complete investigation of the said case, the learned counsel for the State has made an offer that if the said witnesses appear before the Investigating Officer, their statements would be recorded. Both the learned counsel for the appellants and the learned counsel for the State having agreed to the venue. It has been agreed that the Investigating Officer would record the statements of the witnesses named in F.I.R. No,334 in the premises of the Supreme Court at Lahore on Sunday, 27th May, 1990 at 10.00 a.m. And that in case any of the said witnesses cannot appear on the said date, they will be produced the day after or on any mutually convenient date so that their statements can be recorded in Lahore.
20. We have heard the arguments of the learned counsel for the parties and have also perused the record. There are two incidents where two parties in each case have clashed and cross F.I.Rs, have been recorded in respect of the said incidents by a representative of each of the conflicting parties.
The circumstances in which one of the cases on each side been scotched or left unattended leaves much to be desired. These are undoubtedly cases where the police in the conduct of investigation have adopted a partisan role and made arrests of one set of accused and allowed the other set to go scot free on the assumption that they were not the culprits, though they were specifically named, but certain other persons were the real culprits, or that the investigation could not be completed for want of cooperation of the witnesses named in the F.I.R. In the case covered by F.I.R. No,115, one person died and three were injured and the accused named for committing the said murder and injuring three persons have, by the ipsi dixit of the police, been placed outside the jurisdiction of the trial Court. In the case covered by F.I.R. No,334, the Investigating Officer has not bothered to contact the witnesses named in the F.I.R. With a view to record their statements under section 161, Cr.P.C., and though a whole group of persons belonging to one sect have allegedly been uprooted from their hearths and homes, the senior police officers have not found it fit to contact or trace any of the witnesses named in the F.I.R. Or the persons uprooted, to investigate into this harrowing tale of woe.
21. It has been held on more than one occasion by this Court that the police should not arrogate to themselves the last word in respect of the guilt or innocence of accused persons, when investigating a case and in particular where there are cross cases. See Imtiaz Ahmad v. The State (1986 SCM R 192). This rule is all the more important in respect of cross cases arising out of ethnic or sectarian clashes. The investigation into these cases should be conducted impartially and questions relating to the innocence or guilt of the accused as far as possible should be left for judgment by the trial Courts concerned. It would have been better for the police to have impartially challaned both sets of accused, leaving the innocence or guilt of the accused on either side for determination by the trial Court. Assuming that the Investigating Officers were tormented by their conscience to declare all or some of the accused in any case as innocent, they should have placed their names in column No,2 of the challan and submitted the same to the Court, with the other cross challan, so that the complainant could have had the opportunity to have them summoned by filing a private complaint against the said persons. We deprecate most strongly the apparently partisan attitude taken by the police in investigating the cases covered by F.I.Rs, Nos. 115 and 334 and direct the Inspector-General of Police, Punjab, to have the said cases investigated by independent police officers, keeping in view the serious nature of the incidents that have taken place, so that justice is not only done but appears to be done to both parties, not unmindful of the law on the subject and the principles laid down by this Court in respect of investigation where cross cases I are involved.
22. We now revert to the main prayer of the appellants for bail. With regard to the case covered by F.I.R. No,122, the learned Judge of the High Court prima facie found that both the parties happened to collide in a concerted cross encounter. Zaheer Din appellant is alleged to have fired at Mazhar P.W., which shot hit his head. Meraj Din appellant is alleged to have inflicted a dagger blow on the abdomen of Muhammad Anwar P.W. Asadullah appellant is alleged to have inflicted a blow with the butt end of his fire-arm on Muhammad Anwar P.W. All these three injuries by the said appellants were found to be simple. However, without going on the record as having given any finding in the matter, we would only say, for the limited purpose of this appeal, that Asadullah appellant is entitled to be released on bail, whereas Zaheer Din and Meraj Din are not so entitled.
Criminal Appeal CrA.31 of 1990 qua Asadullah alias Papa, appellant, is accepted. His interim bail is hereby confirmed. The prayer for bail of Zaheer Din and Meraj Din appellants is rejected. However, we direct that Meraj Din appellant shall be specially treated for diabetes in the District Headquarter Hospital nearest to where he may be confined and if he requires admission in the hospital, he shall be admitted in the hospital for treatment.
23. With regard to the case of cancellation of bails of Haji Ismail, Khalid Javed and Shafique alias Bhola, respondents, they have only been impugned ineffective firing. In these circumstances, there is no merit in Criminal Appeal CrA.58 of 1990 filed by Muhammad Munir, appellant, which is hereby rejected.
24. With regard to the case covered by F.I.R. No,333, the learned Single Judge of the High Court, after appraising the case presented by both the opposite parties in their respective F.I.Rs, rejected the bails of Muzaffar Ahmad, Mubashar Ahmad and Master Abdur Razzaq, appellants, on the ground that Muzaffar Ahmad appellant had fired at and hit Ahmad Khan deceased, Mubashar Ahmad had fired at and hit Muhammad Asghar P.W. In the neck and Abdur Razzaq appellant was injured in the occurrence and his presence thus stood established. This Court has already allowed interim bail to Abdur Razzaq. Taking all the circumstances into consideration, but without going on the record as having given any finding in the matter, we would only say, for the limited purpose of this appeal, that Master Abdur Razzaq is entitled to be released on bail, whereas Muzaffar Ahmad and Mubashar Ahmad appellants are not so entitled. Criminal Appeal CrA.32 of 1990-qua Master Abdur Razzaq is accepted. His interim bail is hereby confirmed. The prayer for bail of Muzaffar and Mubashar appellants is rejected.
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