' The incident of firing took place at Polling Booth, Girls School Chhanni Chothal, Tehsil Bhimbar, on May 21, 1990. It was the day of General Elections of members of the Legislative Assembly of Azad Jammu and Kashmir. It was alleged that at 10.30 a.m., the electors, who were supporters of Muslim Conference, had polled their votes, whereas the supporters of the opposite candidate had yet to poll their votes, when Parvaiz, Munir Ahmad, Yaqub and Muhammad Bakhsh of Ghazi-Gore started pelting stones, in consequence of which an elector was injured. The polling was stopped. At about 11 a.m., the Returning Officer arrived on the scene and directed the polling staff to restart the polling.
The accused party insisted on stopping the polls but their request was turned down. On restart of polling, about ten persons had polled their votes when Raja Muhammad Ishaque, Member District Council, accompanied by Basharat, Azam Zahid alias Munna, Haq Nawaz, Ansar, Tariq, Azam Subedar Muhammad Shafi, Arif and Tariq s/o Manzoor arrived on the scene. Raja Muhammad Ishaque Khan raised Talkara' that no Jat should be spared alive at the Polling Station, and he started firing with his Klashnikov. Muhammad Asghar received pellet injuries in his abdomen and fell down. Arif accused inflicted `Danda' blows on his head in lying position. Parvaiz accused fired at Attique, which hit his arm. Zahid alias Munna fired on Khalid and hit him at his thigh. The other accused also continued indiscriminate firing, as a result of which, polling was stopped. Muhammad Asghar died on the spot. The injured persons were sent to the hospital for medical aid. The incident of firing was seen by Muhammad Iqbal, Rafique, Muhammad Sadiq and Haji Latif. The report was made at 5 P.M., at Police Post Ali-Beg and the case was registered at 6-30 p.m. On the same day.
The petitioners have moved for bail pre-arrest.
2. The learned counsel for the petitioners has raised the following points in support of grant of bail:- - "(i) That the petitioners are not ascribed any specific role in the incident and none of them is responsible for the murder of Muhammad Asghar, deceased, and infliction of injuries to the eye- witnesses;
(ii) That the first information report was given after delay. This was done after deliberation, to involve innocent persons, including the petitioners, to vindicate political enmity;
(iii) that the evidence collected by the investigating agency was self-contradictory and suffered from inherent defects, as such it was a case of further inquiry; and
(iv) that Raja Muhammad Ishaque Khan, the principal accused, was declared innocent by the senior investigating officer who submitted his final report to the Inspector-General of Police. The report of the A.I.-G. Police was accepted by the Inspector-General of Police. Raja Muhammad Ishaque was a free person and the prosecution has not taken any step by this time to seek his arrest on account of his involvement in the case. That suggests that the whole episode was fabricated and cooked up.
' The learned Advocate-General and the learned counsel for the complainant controverted all the aforesaid points and opposed the application. It was argued by the learned Advocate-General that the investigating agency was negligent as no prompt steps were taken by it to register the case and to record statements of the injured witnesses. It was emphasised that the lapses made by the police should not be considered as loopholes in the prosecution's case, to give its benefit to the defence. The learned counsel for the complainant further added that the statements of the complainant and two injured eye-witnesses could not be brushed aside, at this stage, to allow bail on the ground of benefit of doubt or further inquiry.
3. It is a well-accepted rule of law relating to bail that the Court has to avoid deep appreciation of evidence placed before it and has to form its tentative opinion to grant or refuse bail to an accused. In present case, prima facie, it is noticed that the first information report was given in writing by Muhammad Hussain, complainant, at Police Post Ali-Beg. The report was received by the police officer at 5 p.m. And it was sent to the Police Station Bhimber where the case was registered at 6-30 p.m. The police prepared two separate inquest reports of Muhammad Asghar, deceased.
The statement of injuries of Muhammad Asghar was prepared by Muhammad Amin. In the statement of injuries, the name of the injured person was added subsequently, as initially he was described as unknown person. In the column of "summary of police report", it was stated that the deceased died on May 21 by a bullet fire. The place, time and manner of incident was not given in the report. In the inquest report, again, in column No.5, the deceased was described as unknown person and his name was entered subsequently. He was identified by two police constables of Mirpur City Police Station. The police report attached with the inquest report was prepared by Muhammad Amin, Sub-Inspector, Police Station City Mirpur. In that report, the place, time and manner of incident was not disclosed. Moreover, the time of knowledge of the death was given as 4-15 p.m. And the place where the dead body was found, was shown as Mirpur Hospital. The second inquest report was prepared by the officer incharge of Police Post Ali-Beg. The time of information of death of the deceased as entered in Column No.3 was 2-45 p.m. The dead body was identified by Ghulam Ghaus, father of the deceased, and Haji Muhammad Latif. The summary of the police report attached with the inquest report, mentioned that a written report was made to the police by Muhammad Hussain but the time of that report was not given. The inquest report was prepared in the hospital.
4. The aforesaid material collected at the initial investigation, prima facie, suggests that at the_eartiest stage, the police was not in possession of information of the incident. There was no evidence as to who brought the dead body of the deceased in the hospital and what was the place, time and the manner of the incident of firing.
5. The complainant and injured persons, no doubt, in their statements under section 161, Cr.P.C., gave detailed account of the incident, but the prosecution was unable to explain such a delay despite the fact that it was a day of general elections and the voters of the complainant party were present at the Polling Station. It is undenied that the local police and the polling staff, consisting of public servants, were also present at the Polling Station, but none of them reported the incident. A senior police officer of the rank of A.I.-G. Also made a detailed report of the incident whereby Raja Muhammad Ishaque Khan was declared innocent.
6. It is undenied that the petitioners, prima facie, were not ascribed their role in infliction of injuries to the deceased or the injured persons.
(ii) The initial investigation, prima facie, is not found compatible with the version of the complainant and the injured persons. An explanation to that effect is yet to be rendered.
(iii) The role of Police, the Magistrate on duty and the polling staff in not reporting the incident and taking appropriate steps to apprehend the culprits in itime is deplorable. The learned Advocate- General was quite vocal to contend such an attitude and role of the aforesaid officers.
Nevertheless, the inaptitude, inefficiency and negligent role of the police cannot be deemed a sufficient ground to deprive the petitioners of the benefit of loop-holes in the prosecution's case.
7. It is agreed that the Court is not bound by the ipse dixit of the police, yet the report of A.I.-G. Police addressed to the Inspector General of Police, has to be taken into consideration alongwith the other evidence to reach a safe conclusion in the matter.
8. The aforelisted factors bring the case of the petitioners within the purview of subsection (2) of section 497 of the Criminal Procedure Code. The material placed before the Court, prima facie, does not constitute reasonable grounds to hold, at this stage, that the accused-petitioners are found positively connected with the alleged offence of murder and infliction of the injuries to the injured persons. Thus, they are entitled to the benefit of concession of bail on the ground of further inquiry. The order of interim bail passed on March 25, 1991 is hereby confirmed.
Interim .