1. Petitioner has moved this petition for the withdrawal of the order passed by the addition senior judge Rwalpindi, dated 7-5 whereby he directed respondents Nos. 1 to 5 to execute the bonds in the sum of Rs.1 lac with one surety each for heir appearance in his Court and released them on bailFacts in brief are that an F.I.R. No.488 was recorded initially under section 324/148/149, P.P.C. At the instance of the petitioner at Police Station Civil Lines on 11-11-1991 at, 2-40 p.m. For an occurrence stated to have taken place at 1-45 p.m. Before the Court of Civil Judge, Rawalpindi. The allegations against the respondents are that they came armed with lethal weapons and opened an attack injuring Altaf Hussain, Muhammad Siddique and Fidah Hussain with their respective weapons. The injured were immediately removed to Rawalpindi General Hospital where they were medically examined by Dr. Muhammad Asif Alvi. The dying declaration of Altaf Hussain deceased was recorded on 16th of November, 1991 which was duly attested by S.P. Headquarter as well as the Doctor. Altaf Hussain injured expired on 29th of November, 1991 and accordingly section 302 was added. The post-mortem examination of the deceased was conducted onthe same day.
2. According to the prosecution the accused party came in three cars bearing Nos. SA-8197, RIP-- 9629 and RIF-11. Accused-respondents Nos.1 to 5 succeeded to escape from the place of occurrence in Motor Car No. RIF-11 while the rest of the afore stated cars left behind were taken into custody by the police during. The course of investigation. Muhammad Asif co-accused was apprehended at the spot. Manzoor-ul-Haq accused-respondent, a retired S.S.P. Also got a different version recorded through F.I.R. No. 495 under section 324/148/149, P.P.C. For the same occurrence trying to make out a case of self defence. It is his case that the petitioner Malik Anjum Farooq Peracha picked up a quarrel in the premises of the Court at 11-30 a.m. On 11-11-1991 with Ch. Ikram- ul-Haq, one of the respondents due to which hot words were exchanged between them. The petitioner, according to him, left the premises after extending threats of dire consequences and then at 1-30 p.m. He came along with ten other persons having lethal weapons and raised a Lalkara. They started indiscriminate firing and a person with the name of Naseer alias Jhero was injured. He (Manzoor-- ul-Haq) according to his own showing, took out his licensed revolver and fired in self-defence. The revolver fell down from his hand which was taken by his co-accused Muhammad Asif who also fired in self-defence.
3. It is the case of the petitioner that all the respondents secured their pre-arrest bail and the learned Additional Sessions Judge, Mr. Mazhar Hussain Minhas, declined to confirm the same by advancing cogent reasons through his order dated 22-124991. Grievance has been made that the D.S.P. Crime Branch, who was present along with the record, during the course of proceedings, instead of performing his duties in arresting the respondents, sat with them in a car and gave them a free hand. Faced with this situation, the petitioner was constrained to file a complaint on 7-1-1992 with the same version as earlier taken by him in his aforementioned F.I.R. No. 488. The learned Additional Sessions Judge, Rawalpindi, after recording the preliminary evidence of the two injured P.Ws., namely Fidah Hussain and Muhammad Sadiq as well as the testimony of Dr. Muhammad Asif Alvi, Medical Officer and Dr. Muhammad Ashraf who conducted the post-mortem examination, issued non-bailable warrants for appearance of the respondents Nos. 1 to 5 on 7-5-1992. The respondents consequently moved an application for their release on bail by accepting their bonds.
4. The Additional Sessions Judge, through his impugned order dated 7-5-1992 directed them to execute the bail bonds in the sum of Rs.1 lac with one surety each in the like amount to his satisfaction for their appearance after relying upon Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359.
5. Learned counsel for the petitioner has argued that the earlier pre---arrest bail on similar facts was dismissed by Mr. Mazhar Hussain Minhas, Additional Sessions Judge on 22-12-1991 and on the same facts Mr. Ata Rasool Joya, Additional Sessions Judge was not competent to admit them to bail by accepting bonds through his impugned order in view of the law laid down in Zubair's case PLD 1986 SC 173. This objection according to the learned counsel was taken before the Court but the same was not taken note of. He has also argued that in this case non-bailable warrants were issued after the recording of the preliminary evidence whereby the Additional Sessions Judge prima facie came to the conclusion that the respondents were accused of an offence failing within the prohibitory clause and while admitting them to bail, the conditions laid down in section 497, Cr.P.C.
6. Have completely been ignored.
7. Learned Asstt. Advocate-General has supported the view that in such like cases while exercising power under section 91, Cr.P,C. The provision of section 497, Cr.P.C. Has also to be kept in mind.
8. However, the learned counsel appearing for the respondents has stated that section 497, Cr.P.C.
9. Has got no application while directing the respondents to execute bonds for their appearance.
10. According to him section 91, Cr.P.C. Is an independent provision and the learned Sessions Judge has got all powers to direct for the execution of bail bonds in spite of the nature of offence. The conditions for the grant of bail laid down in section 497, Cr.P.C. Would not be applicable.
11. I have considered the contentions. I must observe at the very outset that the role of the Investigating Agency is highly questionable in this case. The stance taken by the S.P. Crime Branch who is present in Court is that once the investigation of a case is entrusted to the Crime Branch, the accused named therein would not be arrested unless and until the investigation is finalized and its approval is accorded by the Inspector-General of Police. He has stated that though there are no such written instructions or rules but this procedure is based upon prevailing practice. It is strange enough that in this broad daylight occurrence in the premises of the Court in which one person lost his life and two persons were brutally injured; the F.I.R. Was promptly recorded; the pre---arrest bail of respondents Nos.1 to 5 was not confirmed by the learned Additional Sessions Judge Mr. Mazhar Hussain Minhas on the 22nd of December, 1991 the police functionaries did not apprehend the accused/respondents. If this practice is not arrested and is allowed to continue-, then an accused of' any serious crime, can successfully avoid arrest by arranging the investigation through Crime Branch and frustrate a judicial order. Inspector-General of Police, Punjab is to take serious note of this A practice.
12. Subsequent to this attitude of the Crime Branch, on a complaint filed by the petitioner on the similar facts, Mr. Ata Rasool Joya, Additional Sessions Judge issued process after being fully satisfied from the preliminary evidence recorded by him that a case of section 302, P.P.C. Is made out. He issued non---bailable warrants of the respondents and instead of keeping his hand away as it was brought to his notice that the earlier pre-arrest bail application on similar facts was disallowed by Mr. Mazhar Hussain Minhas, Additional Sessions Judge, he allowed the execution of bail bonds through his order dated 7-5-1992. The proper procedure for him was to refer the matter to the learned Sessions Judge, Rawalpindi for an appropriate order. Instead of doing the same he in a mechanical manner directed the respondents to execute the bail bonds without noticing and considering the conditions for grant of bail under section 497, Cr.P.C. This exercise of power on his part is clearly in violation of the rule laid down in Zubair's case PLD 1986 SC 173 wherein it has been specifically held that in the same case (or in the cross-case) successive bail application has to be heard by the same Court. In the case in hand the facts of F.I.R. No.488 and that of a complaint are completely similar. Respondents were earlier held by Mr. Mazhar Hussain Minhas, Addl. Sessions Judge not entitled to the concession of bail as according to him there appears reasonable ground for believing that they have been guilty of an offence punishable with death or imprisonment for life or for 10 years. Keeping all the facts and circumstances of the case into consideration, the concession granted to the respondents Nos.1 to 5 by allowing them to submit their bail bonds is hereby. Recalled and it is directed that they shall be arrested forthwith. Office is directed to transmit this order to the S.S.P., Rawalpindi for compliance. A copy of this order shall also be sent to the Inspector-General of Police, Punjab.
13. M.B.A./A-183/L