When this case was called, the learned counsel for the petitioner and the learned State counsel stood up and occupied their places at the Bar, Malik Munsaf Awan, Advocate, also got up and came and stood in the middle of the two learned counsel. A gentleman clad in a Shalwar, a Shirt and a Waistcoat walked up from the end of the Court room and came and stood next to Malik Munsaf Awan, Advocate.
2. Presuming that Malik Munsaf Awan, Advocate, would have been representing the complainant and the gentleman standing next him could be some one on behalf of the complainant, I commenced the hearing of this bail petition.
3. After the learned counsel for the petitioner had read the F.I.R., it transpired that Sardar Khan petitioner was not one of the nominated accused persons of the case in question. On my query, the learned counsel for the petitioner replied that the accused persons named in the F.I.R. Had been found innocent during the course of the investigation, and instead Sardar Khan petitioner who was the son of Imran Khan deceased and thus also the son of Mst. Mehr Khatoon complainant had been falsely and maliciously substituted as the killer of his father.
4. At this stage, Malik Munsaf Awan, Advocate interjected to submit that Sardar Khan petitioner had been found responsible for the murder of his father on account of a confession made by him to that effect. The said learned Advocate produced before me a photostat copy of an application allegedly submitted by Sardar Khan petitioner before the learned Ilaqa Magistrate/Duty Magistrate at Mianwali stating therein that through a shot which had accidentally got fired by him, his father Imran Khan, had got killed and his mother Mst. Mehr Khatoon had got injured; that giving this accidental death of his father a touch of murder, his mother had falsely involved Razaullah Khan and others in the said murder; that it was in fact Sardar Khan himself who was responsible for the murder of his father and that he consequently, wanted to make a statement as envisaged by section 164 of the Cr.P.C. And prayed that the said statement be accordingly recorded.
5. I perused this application which was dated 24-9-1991 i.e. Two days after the occurrence in question and had been submitted through one Zahoor Ahmad Khan, Advocate of Mianwali.
6. Instead of passing any order on this application regarding the prayer made therein, as per the orders available on the face of this application, the Magistrate marked this application to the S.H.O.
Of the concerned police station for taking necessary legal action.
7. I was rather intrigued by the above-mentioned alleged conduct of Sardar Khan petitioner in confessing his guilt and in falsifying his mother as also by the manner in which the learned Magistrate had dealt with this application who had instead of passing any order for the recording or otherwise of the confessional statement of Sardar Khan had felt contented on by marking this application to the concerned S.H.O.
8. Therefore, I felt the necessity of a slightly deeper probe into the veracity of this application.
9. On my question to Malik Munsaf Awan, Advocate, as to who was Zahoor Ahmad Khan, Advocate, through whom the above-said application had been submitted, allegedly by Sardar Khan petitioner, he pointed out towards the gentleman standing next to him at the Bar saying: `he was the said advocate'.
10. This answer shocked me further realizing that an advocate who had submitted an application containing the confession of Sardar Khan petitioner was today standing on the other side of the fence to oppose the bail application of the person of whom he had one been an advocate in the same very matter.
11. Since the complainant in the present case happened to be the real mother of Sardar Khan petitioner, I also wanted to verify whether she was also opposed to the grant of bail to Sardar Khan petitioner.
12. On my inquiry, Malik Munsaf Awan, Advocate, replied that he was not representing the complainant but had in fact been engaged by one Jahan Khan who was one of the witnesses at whose instance Sardar Khan petitioner had been involved in the murder in question. It may be mentioned here that the said Jahan Khan had not been named in the F.I.R. As one of the witnesses of the occurrence in question.
13. Malik Munsaf Awan, Advocate, further submitted that he was not holding any power of attorney even from the said Jahan Khan and further that Zahoor Ahmad Khan, Advocate, who was standing next to him at the Bar had been assisting him in the preparation for opposing Sardar Khan petitioner's bail and had come to his Chambers last evening alongwith the said Jahan Khan and one Ahmad Khan Councillor who was also one of the witnesses implicating Sardar Khan petitioner in the occurrence in question.
14. On my question to Zahoor Ahmad Khan, Advocate, as to how, having been the counsel of Sardar Khan petitioner in the proceedings which is the subject-matter of the present petition, he was now holding brief in opposition to the interests of the said Sardar Khan, Zahoor Ahmad Khan, Advocate, stepped away from the Bar without giving any reply and said only that he was ii sorry.
15. The above facts which had come to light in the above manner pointed out towards the possibility of attempts being made at fabrication of evidence to implicate Sardar Khan petitioner for the murder of his father and also, at least prima facie, demonstrated a conduct on the part of Malik Munsaf Awan; Advocate, as also on the part of Zahoor Ahmad Khan Advocate, which was Advocate, which was open to serious exceptions.
16. I then directed the said two advocates to make statements on oath explaining their conduct in the matter including an attempt on their part to fabricate evidence in order to implicate Sardar Khan petitioner in the occurrence in question.
17. Therefore, the statements of Malik Munsaf Awan and Zahoor Ahmad Khan, Advocates, have been separately recorded.
18. I am, at least for the present, not making any comments on the statements because I propose to direct some other action in the matter.
19. Adverting now to the merits of the present case, the position is that Mst. Mehr Khatoon who is the widow of Imran Khan deceased had made a statement before Allah Bakhsh S.I. Who had reached the place of occurrence after receiving information about the said occurrence on wireless that at about 7-30 a.m. While she was sitting at her Dera alongwith her deceased husband and her son Abdul Sattar aged about 14/15 years, Razaullah armed with a Rifle, his brothers Habibullah and Haq Nawaz armed with Guns and one Amir Khan also armed with a Gun appeared there and after entering their Dera Razaullah fired a shot at Imran Khan deceased which hit him on his right shoulder whereafter the said Razaullah fired a second shot which hit the door and thereafter landed on a finger of the complainant's right hand. She had further reported that the above- mentioned three companions of Razaullah continued raising Lalkaras and the said Razaullah then fired further shots which again hit one of the doors of the complainant's Dera whereafter, the said assailants ran away from the place of occurrence and it was then found by the complainant that Imran Khan deceased had succumbed to the injury received by him.
20. The complainant had further disclosed that Imran Khan decease and Razaullah etc., were locked-up in litigation regarding a piece of land falling in the Shamlat situate in their ancestral village, namely, Khan Zade Wala; that the litigation regarding this dispute had ended with a decision in favour of the deceased party; that the deceased party had even constructed houses on the land in question; that Razaullah accused and others were pressurising them into vacating the land in question and it was on account of the persistent refusal of the deceased that the said accused persons had mounted the assault in question which had resulted in the death of Imran Khan deceased and an injury on the person of his widow Mst. Mehr Khatoon complainant.
21. According to the investigation of this case, one Ahmad Khan Councillor had informed the I.O. On 24-9-1991 that he had installed a Tube--well in his land which was only 400 yards away from the Dera of the deceased and that on 22-9-1991 Karam Dad and Ibrahim were also present with him at his Tube-well at about 7-30 a.m. When they suddenly heard the report of a fire--arm at the Dera of the deceased and after a short-while, Sardar Khan, who is the son of the deceased (the present petitioner) came running to them alongwith a rifle and told them that he had had a fight with his mother Mst. Mehr Khatoon (the complainant of the present case) and had, feeling enraged, fired a shot at his said mother which had, however, hit his father Imran Khan who had died at the spot and further that he had thereafter, fired a second shot which had hit the hand of his mother who had also thus got injured. According to the said Ahmad Khan, Sardar Khan had confessed before them that he had committed a mistake and that he should be helped.
22. On the same day, the above-mentioned Karam Dad and Ibrahim Khan also allegedly appeared before the I.O. And supported the statement made by the above-mentioned Ahmad Khan.
23. It may be mentioned here that the above-mentioned Ibrahim Khan was a real brother of Imran Khan deceased.
24. The learned counsel for Sardar Khan petitioner submits that the said Ibrahim Khan was in litigation with the complainant and her husband and that the above-mentioned Ahmad Khan and others used to help the said Ibrahim against his brother Imran Khan deceased and that the said Ibrahim thus being inimical towards the complainant party, could not be relied upon.
25. Adds that Razaullah accused and Ahmad Khan Councillor party above-mentioned were very influential persons of the area and they had manoeuvred to wipe out the complainant's family by murdering the deceased and then through implicating his son for the said murder.
26. The learned counsel also referred to the application first above--mentioned allegedly filed before the Ilaqa Magistrate on behalf of Sardar Khan petitioner and contended that definite efforts were being made to fabricate evidence against Sardar Khan petitioner to ensure that he was sent to the gallows and to further ensure in the process that the real assailants were screened of their liability towards the occurrence in question.
27. According to the theory propounded by the I.O. It is being claimed that Mst. Mehr Khatoon was a professional litigant against whom a number of criminal cases stood registered and that Sardar Khan petitioner who was a driver by profession, used to admonish his said mother and used to advise her to mend her ways and that it was on account of this discussion, that Sardar Khan petitioner had got flared up and had fired a shot at his mother which had instead killed his father.
28. Mst. Mehr Khatoon complainant had mentioned in the F.I.R. That her son Abdul Sattar aged about 14/15 years was the only one present at the Dera besides herself and the deceased at the relevant time.
29. The I.O. However, never took the trouble of interrogating the said Abdul Sattar.
30. It also appears to be a matter of further inquiry where a mother who had been fired at by his son and which fire had resulted in the death of her husband, would spare the son and would instead implicate some other innocent persons in the murder in question.
31. The application above-mentioned, a photostat copy of which has been produced before this Court and has been placed on record as Exh.P.1, also raises suspicion regarding some invisible hand being at work to put the blame in question on the shoulders of Sardar Khan. The conduct of Zahoor Ahmad Khan, Advocate, who had allegedly been one the advocate creating the evidence of the so-called confession by Sardar Khan petitioner and who was today opposing the grant of bail of Sardar Khan petitioner also makes the entire affair one of a serious further inquiry.
32. The claim of Malik Munsaf Awan, Advocate, that he had been engaged by one Jahan Khan who was allegedly another son of Imran Khan deceased and who however, was not residing with his father but was living in village Khan Zade Wala and the fact that Malik Munsaf Awan, Advocate, did not possess any power of attorney executed by the said Jahan Khan, is also a factor which is rather intriguing.
33. The facts and circumstances above-noticed, persuade me to hold that there are no reasonable grounds for believing, at least for the present, that Sardar Khan petitioner had committed the offence in question and that there are in fact sufficient grounds warranting further inquiry into the matter.
34. The position which emerges from the above facts and circumstances is as udder:--
(a) The investigation conducted suggests that it was a son of the deceased who was unhappy with his mother to the extent that he was out to kill her, who had in the process done his father to death;
(b) That in spite of the said son being so offensive to his mother, the mother right from the very beginning was persistent in absolving the said son of his responsibility for the murder in question but for the said purpose, she did not have to name the enemies of her deceased husband and which purpose she could have achieved only by stating that the death in question was the result of an accident of that some unknown person had shot her husband to death;
(c) That Abdul Sattar, who was a son of the deceased and the complainant and who was the only person besides the complainant and her deceased husband who was present at the place of occurrence at the relevant time, had never been interrogated by the I.O.
(d) That Zahoor Ahmad Khan, Advocate, who had allegedly been engaged by Sardar Khan to confess his guilt regarding the murder of his father was today standing in opposition to the said Sardar Khan to ensure the remained behind bars for as long as possible;
(e) That Malik Munsaf Awan. Advocate claims to have been engaged by Jahan Khan, another son of the deceased, to oppose the grant of bail to his brother Sardar Khan but the said learned Advocate besides a bald assertion that he had been so engaged and instructed by Jahan Khan, has no power of attorney executed by the said Jahan Khan in his favour;
(f) That the I.O. Never cared to verify the motive alleged by the complainant which had prompted the nominated assailants to kill the deceased;
(g) That the I.O. Never probed into the act of Ibrahim's enmity with his deceased brother and the complainant, which enmity would have prompted him to maliciously implicate his nephew in the murder in question, and
(h) That the nominated accused persons never appear to have been arrested by the I.O.
35. The above facts and other circumstances compel me to hold that the investigation in the present case, which head left so much unanswered, was far from satisfactory.
36. I would, therefore, direct that some responsible, impartial and independent officer or agency should be entrusted with the investigation of the present case which should preferable be the S.P.
Of the C.I.A. Staff at Lahore.
37. The agency/I.O. So deputed shall also look into the veracity of the above-mentioned application allegedly filed by Sardar Khan petitioner through Zahoor Ahmad Khan, Advocate, and to find out whether the same was not a fabrication attempting only at creating evidence to falsely involve Sardar Khan petitioner in the occurrence in question.
38. Mr. Zaeem-ul-Farooq Malik, the learned Assistant Advocate-General shall convey a copy of this order to the Inspector-General of the Punjab Police for necessary action.
39. It is further directed that the fresh investigation into the matter shall be expeditiously concluded.
40. Although the facts and circumstances of the present case as noticed above, do make out a case for the petitioner's release on bail, yet, I find it appropriate to await the result of the fresh investigation as herein directed.
41. However, in the meantime, the petitioner shall be released on interim bail after arrest subject to his furnishing security in the sum of Rs.25,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Mianwali, Copy Dasti.
42. It is further directed that the petitioner shall be present before this Court in person on every future date fixed for the hearing of this petition.
43. The above-noticed conduct of Malik Munsaf Awan, Advocate, and of Zahoor Ahmad Khan, Advocate, also, at least prima facie, requires scrutiny.
44. Notices shall issue to both the said learned counsel to show cause why proceedings should not be initiated against them for professional misconduct as also for trying to divert the course of administration of justice by the Courts of law.
45. To come up on 16-6-1992.
N.H.Q./S-157/L