' The petitioners have applied for anticipatory bail in a case registered against them and two other unknown persons vide F.I.R. No,63 of 1993 date 3-3-1993 for an offence under section 324/34, P.P.C.
Later converted into S.302/34, Qisas and Diyat Ordinance at P.S. Gowalmandi, Lahore.
2. It is stated in the F.I.R. That the complainant is Editor of Daily `Matwazan' and was sitting in his office located at Nisbat Road, Lahore on 2-3-1993. At about 9-15 p.m. The present petitioners alongwith two others, armed with revolvers, pistols and mauzers came, in front of the office, abused the complainant's servant Afreedi Khan and inquired from him the whereabouts of the complainant etc. The complainant, on hearing their voice came out whereupon the petitioners and their co-accused started firing. Afreedi Khan fell injured and the assailants ran away on their motor-cycles. The occurrence was witnessed by the complainant, his brother Pervaiz Rabbani, Abdul Rehman Khan and Haqnawaz. It was further stated in the FIR that the accused persons had left the spot with a threat that in case Rabbani etc. And 10 lease-holders made any statement regarding unauthorised possession of the land belonging to Noora Mughal and his sister, situated in Mauza Rakhpat, District Kasur, then they would be done to death. The complainant added that he was special and general attorney of Abdul Sattar etc. Who had obtained the land on 5 years' lease and that Noora etc. Who belonged to `Qabza Group' wanted to occupy the land illegally. For that purpose they had filed some suits/writs against some officers and used to extend threats of murder to him. The injured was medically examined by Doctor Shahid Bashir who found one lacerated wound with blackening and charring around it in front of the chest with an exit wound on the back side. He died on 9-3-1993.
3. The Investigating Officer recorded the statements of Pervaiz Rabbani brother of the complainant and Abdul Rehman on 3-3-1993. He also recorded the statement of one Raza Khan on 17-3-1993 who claimed to have witnessed the occurrence. The statement of Haqnawaz eye-witness was recorded on 10-4-1993. Pervaiz Rabbani supported the version embodied in the F.I.R. He stated that on hearing the voice of the accused persons who had loudly abused Afreedi Khan, Aftab Rabbani, complainant came out of his office whereupon the present petitioners and their co-accused started firing. Abdul Rehman stated that 4 accused had arrived at the place of occurrence and that one of them fired at Afreedi Khan. He did not know the names of the assailants but was informed by the, complainant that two persons who had fired, were the present petitioners. Raza Khan (who was not mentioned as an eye-witness in the FIR) stated that he was employed in the office of Daily `Matwazan'. On 2-3-1993 he was present in the office of the said Daily and Afreedi Khan deceased was sitting near the main gate of the office. In the meanwhile, one person aged about 22/23 years who was thin and tall came there and resorted to firing. Afreedi Khan was hit and fell down on the ground. Haqnawaz appeared before I.O. Alongwith the complainant on 10-4- 1993 and placed before him a written statement and in the relevant zimine his statement was accordingly recorded under section 161 of the Cr.P.C. I again heard arguments on 13-4-1993 when the I.O. Appeared before the Court and stated that the written statement was given to Haqnawaz by the complainant and that on his questions Haqnawaz supported its contents. He further stated that on his asking, Haqnawaz had partly scribed his statement on a paper but on the insistence of the complainant, the same was not completed. He produced the incomplete statement said to have been written by Haqnawaz in the Court, a photo copy of which was placed on the file of the bail petition and the original, on the police file. It may be observed that the I.O. Had stated in the Court that the incomplete statement in the handwriting of Haqnawaz was not quite legible but the one produced in the Court can be easily read. He was warned to be careful while making a statement in the Court.
4. The petitioners' learned counsel strenuously urged that the petitioners were absolutely innocent and falsely involved in the present case with mala fide intentions and ulterior motives. He submits that Malik Noor Ahmad is a respectable Zamindar and holds a Masters Degree in Journalism.
Petitioner No,2 is also a respectable Zamindar and an ex-President of Kisan Board Lahore Branch.
He added that Sardar Mohammad Chaudhary petitioner No,2 has filed Writ Petition No, 9505/1991 in this Court against Pervaiz Rabbani and Shahid Rabbani two real brothers of the complainant and some other near relatives namely M.Y. Habib-ur-Rehman and Muhammad Younas etc. Which is pending in this Court. In this case this Court directed the A.C., Kasur to complete the inquiry against the brothers and near relatives of Aftab Rabbani complainant which made him highly hostile to the petitioners. Sardar Muhammad Chaudhary also moved another petition (Writ Petition No,10404/1992) in this Court against Habib-ur-Rehman etc. Which is also pending. He submits that due to the applications made by petitioner No,2, FIR No,25 of 1988 was registered against the brothers and near relatives of the complainant, some of whom are C.S.P. Officers. He submits that the complainant is taking care of the interest of his relatives C.S.P. Officers. At one stage the anti- corruption police made a recommendation that the lease fraudulently obtained by the relatives of Aftab Rabbani and some other persons (on whose behalf the complainant is acting as attorney) be cancelled. Despite the said recommendation, the Collector did not take the neceessary action in the matter whereupon petitioner No,2 filed Writ Petition No,9505/1992 in this Court and under the orders of the Court, the A.C., Kasur was holding an inquiry which was to be finalised by 8-3-1993.
The complainant wanted to eliminate the petitioners from the scene and for that reason were falsely involved in the present case so that they may not produce evidence before the A.0 regarding fraud and forgeries committed by the brothers and relatives of the complainant. He further submits that the motive was on the side of the complainant and not the accused because there was no inquiry against the accused persons. He further submits that the story narrated in the .F.I.R. Is highly doubtful. He submits that had four assailants armed with deadly weapons gone to the spot, the complainant would not have dared to come out of his office. Had he done so, he alone would have been killed. Moreover, it appears that there was only one accused who fired one shot at the deceased which resulted in his death. According to the learned counsel, Afreedi Khan was got killed by the complainant to implicate the petitioners in the case with mala fide intentions. He submits that the police is out to arrest the petitioners due to collusion with the complainant. He further submits that the petitioners never absconded but took precaution to appear before the I.O.
Through the D.S.P. Noor Ahmad petitioner No,1 alongwith Karamat Ali appeared before the I.O. On 7- 3-1993 while Sardar Muhammad petitioner No,2 appeared before the D.S.P. On 8-3-1993. Till then the case had not taken a serious turn because Afreedi Khan was lying injured in the hospital. For that reason the police did not arrest the petitioners. He further submits that both the petitioners promptly advanced their plea of alibi before the police. Noor Ahmad claimed that he was present in the house and produced evidence of three persons before the I.O. In that behalf. Sardar Muhammad petitioner No,2 was present at Kot Addu. His plea of alibi was supported by Sardar Muhammad Babar, Civil Judge, Kot Addu Hamzulf of petitioner No,2, Muhammad Afzal, Civil Judge, Kot Addu and Muhammad Ashraf, Project Manager, Rural Development Markiz, Kot Addu. The learned counsel urged that the case required further probe and inquiry into the petitioners' guilt and that at this stage there were no reasonable grounds to implicate them. He also pointed out that Aftab Rabbani had lodged 3 FIRs bearing Nos. 309, 315 and 369 against different persons who were inimical to him and someone out of them might have attacked him. Lastly, he submitted that there was no history of violence between the petitioners and Aftab Rabbani complainant and that the petitioners were merely pursuing their legal remedies against him. They were not expected to resort to a criminal act at a stage when the noose against the complainants' neck had been tightened by the orders passed in Writ Petition No, 9505 of 1992. In support of his contentions he places reliance on the cases of Muhammad Roshan v. Ahmad Khan PLJ 1974 Crl. Cases (Lahore)
185, Muhammad Hussain v. Muhammad Anwar Ahmad Khan and another 1975 SCM R 151, Akram Khan v. State and another 1978 SCM R 242, Muhammad Azam v. Khalid Javed Gillan etc. 1981 SCM R 734, Ashraf and 3 others v. State 1978 P.Cr.L.J 903, and Ali Muhammad v. Yameen etc. 1981 SCM R 1139.
5. On the other hand the complainant's learned counsel vehemently urged that the petitioners were named in the promptly lodged F.I.R. And direct role of firing at the deceased was attributed to them, hence, they were not entitled to extraordinary relief of pre-arrest bail. He submits that various writs filed by petitioner No,2 against near relatives of the complainant and the inquiry initiated against them at the behest of petitioner No,2 establishes serious hostility between the parties.
Therefore, the petitioners had a motive to attack the complainant. He further submits that the plea of alibi raised by the petitioners is belated and false and cannot be made foundation of pre-arrest bail at this stage. He submits that the alibi evidence was not worthy of credence as Sardar Muhammad Babar, Civil Judge was Hamzulf of petitioner No,2 and Qaisar is his father-in-law. The other Civil Judge Muhammad Afzal and Muhammad Ashraf, Project Manager had made statements only to oblige Sardar Muhammad Babar, Civil Judge. He points out that the complainant has already submitted applications before the Hon'ble Chief Justice as well as the Investigating Officer regarding the false statements made by the Civil Judge in support of the plea of alibi raised by petitioner No,2. He submits that the police was not actuated with malice and for that reason this Court had no jurisdiction to grant bail to the accused persons. He next submits that the recovery of crime weapons had yet to be made from the accused persons. Lastly, he submits that the offence falls within the prohibitory clause. In support of his contentions he placed reliance on the following judgments:--
(1) Zia-ul-Hassan v. The State PLD 1984 SC 192.
(2) Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82.
(3) Muhammad Azam v. The State PLD 1987 Lah.
456.
(4) Ch. Ameer Muhammad Khan v. The State 1970 SCM R 283. ,
(5) Masha Ullah Khan v. Khalid Mian, Civil Judge and three others 1988 MLD 4667.
(6) Muhammad Amin and another v. The State 1987 SCM R 1522.
6. The learned AA.-G. Opposed the petition and reiterated the arguments raised by the complainant's learned counsel. He, however, added that according to the I.O. The matter required further probe and inquiry qua the petitioners' guilt but according to him, prima facie, the case under section 302 was made against the petitioners who did not deserve concession of pre-arrest bail at this stage.
7. I have given anxious consideration to the arguments raised by the learned counsel for the parties and carefully perused the material on the record. Ordinarily, concession of pre-arrest bail is not granted to an accused person who is named in the FIR and to whom a definite role has been assigned in the commission of the offence. However, an accused whose involvement in the case appears to be false and mala fide must be protected by a Court of law. Mala fide involvement may be due to the ulterior motives of the complainant or the police. If the police shares the ulterior motives of the complainant party and attempts to arrest an accused person collusively then the police can also be persumed to be acting with mala fide intentions. An accused need not show express malice on the part of the Investigating Officer. It was emphasised by the Hon'ble Supreme Court in the case of Ali Muhammad v. Yameen and another 1981 SCM R 1139 that in a petition for pre-arrest bail, the petitioner must show that he apprehended arrest on account of ulterior motives. It was not specified whether the ulterior motives were relatable to the complainant party or the police. In the said precedent the element of ulterior motives was absent and for that reason pre-arrest bail allowed by the High Court was cancelled. In the case of Zia-ul-Hassan v. The State the Hon'ble Supreme Court reiterated the rule that the intended arrest must be shown to be tainted with mala fides. The element of mala fides was said to be the jurisdictional prerequisite for grant of anticipatory bail. In Murad Khan's case relied upon by the complainant's learned counsel the Hon'ble Supreme Court laid down that the condition of arrest being for ulterior motives, for example, that of humiliation and unjustified harassment was a necessary condition for pre-arrest bail. In the case of Ch. Ameer Muhammad Khan relied upon by the complainant's learned counsel the element of mala fide arrest was not established and apparently for that reason pre-arrest bail was not allowed. The other judgments relied upon by the complainant's learned counsel proceed on their own distinguishable facts and need not be discussed.
8. In the present case Sardar Muhammad Chaudhry petitioner No,2 on the one hand, and Aftab Rabbani the complainant and his near relatives/partymen on the other, are pitted against each other since long. Petitioner No,2 has elaborately given the background of his hostility with the complainant and his partymen in the petition. Petitioner No,2 has filed Writ Petitions Nos. 9505/91 and 10404/1992 against the near relatives of Aftab Rabbani complainant and his partymen in which he has levelled serious allegations of fraud and forgeries against them. Aftab Rabbani, complainant has hinted at the said litigation in the later part of the FIR. He is protecting the interest of his relatives or partymen as their special or general attorney. Due to the steps taken by petitioner No,2 F.I.R. No,25 of 1988 was registered against the relatives/partymen of the complainant. At present, an inquiry is being conducted against them by A.C., Kasur under the orders passed by this Court in Writ Petition No,9505/91 filed by petitioner No,2. Petitioner No,2 has also assailed the validity of power of attorney held by the complainant on behalf of the lessees.
Some lessees have disowned the execution of power of attorney in favour of the complainant and exposed him to hazards of legal action. The complainant had, therefore, become fairly hostile to petitioner No,2 and had a motive to implicate him in the case with mala fide intentions.
9. The material on the record including the statements of eye-witnesses, prima facie, indicate that only one accused had fired at the deceased from a close range. The medico-legal report shows that the deceased had received one bullet injury with blackening and charring around it. The complainant and his brother Pervaiz Rabbani had levelled allegations of firing against both the petitioners. However, Abdul Rahman, the third eye-witness stated in his statement under section 161 of the Cr.P.C. That only one accused came forward and fired at Afreedi Khan. Haqnawaz whose statement under section 161 of the Cr.P.C. Was based on the written statement provided by the complainant, levelled allegation of firing against Malik Noor Ahmad petitioner No,1. He, however, attributed ineffective firing to petitioner No,2. The allegation of ineffective firing against petitioner No,2 stands belied by the statement of Abdul Rehman. Additionally, there is alibi evidence regarding his presence at Kot Addu a place far away from Lahore. The alibi plea of petitioner No,2 is supported by two Civil Judges namely, Sardar Muhammad Babar and Muhammad Afzal as well as by another respectable Government Officer namely Muhammad Ashraf, Project Manager, Kot Addu. Their evidence cannot be lightly brushed aside. True, Sardar Muhammad Babar, Civil Judge is Hamzulf of petitioner No,2 but his statement is supported by two other apparently independent persons. Petitioner No,2 claimed that he was away from Lahore till 7-3-1993 and on his return to Lahore immediately appeared before the DSP, Old Anarkali on 8-3-1993 and advanced his plea of alibi. It may be mentioned that the investigating officer went to Kot Addu and contacted the Civil Judge as well as the Project Manager. They owned their affidavits in support of the alibi of petitioner No,2. However, the investigating officer is keen to arrest him, apparently at the behest of the complainant. Thus the intended arrest of petitioner No,2 seems to be tainted with mala fides.
Petitioner No,2 is a respectable person, an ex-President of Kisan Board and if arrested shall suffer an irreparable loss and humiliation.
10. Therefore, keeping in view the background of hostility against petitioner No,2, possibility of his false and mala fide involvement in the case, the doubt arising from the material on the record regarding his participation in the occurrence and the alibi evidence, I am inclined to confirm the pre-arrest bail allowed to him.
11. So far as Malik Noor Ahmad, petitioner No,1 is concerned there is no direct background of complaintant's hostility against him. The writ petitions referred to in para. 5 above were filed by petitioner No,2 alone. Moreover, Haqnawaz has directly levelled allegation of firing at the deceased against petitioner No,l. Although the statement of Haqnawaz is based on the written statement provided by the complainant its contents were supported by Haqnawaz on being questioned by the investigating officer. I refrain from saying anything more regarding the evidentiary value of the statement of Haqnawaz and leave it to be finally determined by the trial Court. The participation of petitioner No,1 in the occurrence is also supported by the complainant and his brother Pervaiz Rabbani. The other material on the record shows that one accused had fired at Afreedi Khan deceased from a close range. The further question whether the tragic death of Afreedi Khan was result of the shot fired by the petitioner No,1 or by some unknown assailant commissioned by the complainant (as claimed by the petitioners' learned counsel) is left to be probed into and determined by the investigating agency at this juncture and thereafter by the trial Court. The evidence of alibi in favour of petitioner No,1 does not seem to be good enough to be preferred over the prosecution evidence at this stage.f Since the material on the record, prima facia, supports involvement of petitioner No,1 in the occurrence, the question of recovery of crime weapon qua him assumes importance. Hence I do not feel perusaded to confirm anticipatory bail allowed to petitioner No,1.
12. There is no force in the argument raised by the complainant's learned counsel that the plea of alibi cannot be considered at bail stage. The plea of alibi or for that matter any defence plea alongwith its supporting material, can be taken into account at bail stage. In Muhammad Hussain's case bail after arrest was allowed in the light of alibi evidence furnished by 20 advocates. In the case of Ch. Muhammad Shall the order passed by the High Court allowing bail on the plea of alibi was upheld by the Hon'ble Supreme Court. In Akram Khan's case the Hon'ble Supreme Court was pleased to observe that it was not possible to lay a rule of thumb regarding consideration of plea of alibi at bail stage. In this case pre-arrest bail was granted in the light of certificate issued by the competent officer regarding presence of the petitioner on his duty. In the case of Muhammad Roshan v. Ahmad Khan PLJ 1974 Cr1. Cases (Lah.) 185 the learned Sessions Judge granted bail on a letter issued by an Army Major in support of the plea of alibi raised by the accused. The said order was maintained by the High Court. In the case of Khalid Javed Gillan v. State PLD 1978 SC 256 the Hon'ble Supreme Court was pleased to allow bail after arrest on the plea of alibi which was supported by a certificate issued by Medical Superintendent, Mental Hospital, Lahore.
Subsequently, a petition for review of the said judgment was dismissed in the case reported as Muhammad Azam v. Khalid Javed Gillan etc. (1981 SCM R 734). In Khalid Javed Gillan's case the Supreme Cout was pleased to observe that the hostile relationship between the parties is a circumstance not irrelevant to the Courts' assessment of the material produced before it. In the case of Nazir and another v. The State 1978 PCr.LJ 908 it was emphasised that pre-arrest bail was not to be withheld in cases of false involvement of an accused.
13. For the foregoing discussion, the interim pre-arrest bail allowed to petitioner No, 1 is not confirmed and the petition to his extent is dismissed. The pre-arrest bail allowed to petitioner No, 2 is however, confirmed and the petition is allowed qua him.
14.. It may be observed at the end that the observations made above are purely tentative in character and shall not stand in the way of the trial Court or the Investigating Agency in coming to their own independent conclusions in the light of the material placed before them.