This is an application for grant of bail to Rafiq Ahmad Awan, petitioner, in a case under sections 365, 506, 427, 380, 148, 149, 452, 109, P.P.C. And 324 of Qisas and Diyat Ordinance, 1991, and sections 14 and 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and section 13 of the Arms Ordinance, 1965, registered at Police Station Allama Iqbal Town, Lahore, vide F.I.R.
No.205/91, dated 8-5-1991.
2. The prosecution case was that the petitioner alongwith about 150 persons carrying klashnikov not only took forcibly possession of the property but also abducted Sajid, Mst. Robina and Mst.
Surrayya took away the dowry of Mst. Robina, criminally intimidated the complainant party and also indulged in indiscriminate firing on the spot. The petitioner allegedly had accompanied the co-accused to the spot, remained present there and actively participated in the crime. Mr. Shafaqat D.S.P. Ichhra/Investigating Officer states that according to his investigation, the petitioner was not present on the spot at the time of occurrence, although the crime was committed at his instance and with his connivance.
3. The learned counsel for the petitioner submitted that the offences other than section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, do not fall within the prohibitory clause under section 497, Cr.P.C.; that the allegations that the petitioner was present at the spot have been found false during the investigation; and that the petitioner is sick and is present admitted in the hospital.
Conversely, the learned Assistant Advocate-Gen r assisted by the learned counsel for the complainant has seriously opposed the plea of the bail of the petitioner on the ground that he does not deserve the concession of bail inasmuch as he being an Assistant Commissioner was obliged to maintain law and order, instead he indulged to a serious crime; that Habibullah Goraya, Magistrate, and Sadiq Mehdi, Sub-Inspector, in their statements recorded under section 161, Cr.P.C.
Have involved the petitioner in the crime; that the entire crime was committed at the instance of the petitioner and he was controlling the whole situation and that it was on his direction that the Magistrate and the Sub-Inspector provided assistance to_ the culprits in the -commission of the crime.
4. I have considered the matter carefully. I find that according to the statements of the eye- witnesses, the petitioner was very much present on the spot at the time of occurrence and was controlling the situation; that during the investigation, the allegations that the petitioner was present on the spot and had physically participated in the crime did not find favour with the Investigating Officer; that in the evidence collected by him during the A investigation, the D.S.P./Investigating Officer has come to the conclusion that the petitioner although not present on the spot yet was responsible for the entire occurrence, which took place at the eventful time and had fully abetted the commission of crime; that the abducted persons were released by the accused persons at a distance of ten miles from the place of occurrence at the eventful time and are no more to be recovered; that the offences other than the A offence under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, do not fall within the prohibitory clause of section 497, Cr.P.C. And that according to report, dated 28-5-1991 submitted by the Medical Officer, District Jail, Lahore, with regard to the ailment of the petitioner, he is a sick person within the meaning of section 497, Cr.P.C. The doctor has further reported that:-- "He is being given treatment in the Jail Hospital but not improving. For the same complaint, he requires specialized Gestro-Entrelagist treatment, which is not available in the Jail Hospital and he can't be treated adequately in the Jail Hospital:" and that the sickness is a recognised ground for the grant of bail in a case falling within the prohibitory clause of section 497, Cr.P.C.
5. Without making any expression of opinion, lest it may prejudice the investigation or the trial, I feel that a case for the grant of bail to the petitioner is made out, so he will be released on bail in the sum of Rs.50,000 with one C surety in the like amount to the satisfaction of Deputy Registrar (J) of this Court.