' For the reasons hereinafter stated this petition is allowed and consequently Ghulam Mustafa and Muhammad Ashfaq Hussain petitioners are released on bail in case F.I.R. No,336 of 1993 of Police Station, Phoolnagar of District Kasur subject to each one of them furnishing security in the sum of Rs,10,000 (Rupees Ten thousand only) with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Pattoki.
2. The occurrence in question had allegedly taken place at about 2-00 a.m. On the night between 22nd and 23rd of June, 1993 wherein one Abdul Rashid had been murdered while his mother Mst.
Allah Rakhi had received fire-arm injuries on her person but had survived. The F.I.R. Had been lodged at 3-15 a.m. The same night by Tassaduq Hussain who is a son of a sister of Abdul Rashid deceased alleging therein that the murder and the murderous assault abovementioned had been committed by Mehboob, Jameel, Mahmood and Wakeel and that they had committed this occurrence to avenge the murder of their father who had been killed by Abdul Rashid deceased of the present case and his nephew Ghulam Mustafa who is a brother of Tassaduq Hussain complainant of the said case.
3. The investigation was originally conducted by Muhammad Ali S.I. Of the local police who, finding existence of a prima facie case against the abovementioned four nominated accused persons, arrested them on 11-7-1993. The S.H.O. Namely Mahmood Sardar, Inspector, then took over the investigation himself sand concluded the same on 24-7-1993. He opined that Mahmood and Wakeel abovementioned were innocent and that the ones who had actually killed the deceased were Mehboob and Jameel accused, abovementioned. During the course of investigation the said S.H.O. Had also recovered a rifle at the instance of Mehboob and a carbine at the instance of the said Jameel accused. Saeed Ahmad Khan, the then D.S.P. Of Pattoki approved the findings of Mahmood Sardar, Inspector/S.H.O. And ordered that Mahmood and Wakeel accused should be got discharged while Mehboob and Jameel accused should be challaned. This investigation then got entrusted to Rana Muhammad lqbal Qamar, D.S.P. Of C.I.A. Staff who investigated this case from 15- 11-1993 to 30-11-1993. He, however, found that all the four abovementioned nominated accused persons were guilty and directed that all four of them should be challaned to face the charges in question. Zafar Ullah Khan, the then Inspector/S.H.Q. Of Police Station, Phoolnagar accordingly prepared the challan on 14-12-1993 but before the same could reach the Court, the then D.S.P. Of Pattoki namely Saeed Hassan Shah was asked to investigate the case once again. He was posted at the said sub-division on 26-12-1993 and was entrusted with this investigation the same week.
From the investigation conducted by him it transpires that the complainant party was either not summoned to take part in this fresh investigation or if summoned, they had boycotted the same because this investigation was conducted by this D.S.P. In ,the absence of complainant party and he had recorded the statements only of members of the accused party. Through his findings recorded on 20-1-1994 he gave an absolutely new turn to the case. He declared that the four accused persons nominated in the F.I.R. Were totally innocent and that the ones guilty of the murder of Abdul Rashid deceased and the murderous assault on Mst. Allah Rakhi were Tassaduq Hussain complainant himself, his brother Ghulam Mustafa and one Ashfaq. After recording this finding which was in complete disagreement with the earlier four investigations, he asked Muhammad Mumtaz S.I. To conduct further investigation on the above-noticed lines that this D.S.P.
Had discovered.
4. This Muhammad Mumtaz Si. Elected not to arrest the said Ashfaq in the murder case in question but instead chose to arrest him on 3.2-1994 as an alleged suspect, in pursuance of a secret information received by him relating to a theft case F.I.R. No,222 of 1993 of Police Station City, Pattoki registered for the alleged commission of offences punishable under section 382, P.P.C. And section 14 of Ordinance VI of 1979 and then within only two days the said Ashfaq volunteered to make a confession not in respect of the theft for which he had been arrested but-in respect of the present murder case of Police Station Phoolnagar. He was then allegedly produced before a learned Magistrate 1st Class at Pattoki where he disclosed that it was Tassaduq Hussain and Ghulam Mustafa who had, in his presence decided to murder their maternal-uncle namely Abdul Rashid.
He had added that all three of them then went to the house of Abdul Rashid deceased where Ghulam Mustafa went in and fired the effective shots and that he and Tassaduq Hussian had stood outside to guard against any intrusion. This Mumtaz S.I. Also allegedly recovered a rifle at the instance of the said Ghulam Mustafa and a gun at the instance of the said Ashfaq. Crime empties recovered from the place of occurrence on 23-6-1993 were still allegedly lying in the police station and it was this Mumtaz S.I. Who sent these crime empties and these two weapons to the Forensic Science Laboratory. The report of the Fire-arm Expert is, however, still awaited. Saeed Hassan Shah, D.S.P. Abovementioned then verified the investigation conducted by this Mumtaz S.I. And ordered that the four accused persons nominated in the F.I.R. Should be got discharged and Ashfaq and Ghulam Mustafa accused (the present petitioners) should be challaned.
5. A fresh investigation was once again ordered and this time it was entrusted to Ahmad Khan Chadhar, the then D.S.P. Of C.I.A. Staff. He investigated this case from 16-3-19,94 to 18-5-1994. As a result of investigation conducted by him, he disagreed totally with the results reached by Saeed Hassan Shah, D.S.P. And Mumtaz S.I. And agreed with the earlier four investigations conducted in this case. This D.S.P. Of C.I.A. Concluded that Ashfaq, and Ghulam Mustafa etc. i,e, the complainant party of the present case were not the culprits; that the actual killers were Mahboob and Jameel i,e, two of the accused persons nominated in the F.I.R. And further that the other two accused persons named in the FIR. i,e, Mahmood and Wakeel were innocent. He consequently ordered that Ashfaq and Ghulam Mustafa should be got discharged.
6. The discharge report in respect of this Ashfaq and Ghulam Mustafa was submitted before the learned Ilaqa Magistrate who happened to be the same learned Magistrate who had allegedly recorded the confessional statement of the abovementioned Ashfaq accused on 5-2-1994.
Through his order, dated 30-6-1994 he refused to discharge Ashfaq and Ghulam Mustafa and ordered that the challan should be submitted against these two also.
7. It may be mentioned here that on 13-9-1994 the four abovementioned nominated accused persons of the F.I.R. Filed a Writ Petition bearing No,10644 of 1994 in this Court and prayed therein, inter alia, that the S.H.O. Should be directed to submit a challan against Ashfaq, Tassaduq Hussian and Ghulam Mustafa accused abovementioned in terms of the abovementioned order, dated 3-6- 1994 of the learned Ilaqa Magistrate. This petition is still pending and is being dealt with by my learned brother Muhammad Asif Jan, J.
8. It may also be mentioned here that on an earlier occasion Tassaduq Hussain complainant of the present case had approached this Court through Criminal Miscellaneous No,3708/B-C of 1993 and had sought cancellation of bail allowed to Mahmood, Wakeel, Mehboob and Jameel accused of the F.I.R. And that through my order, dated 6-12-1993 passed in the said petition I dismissed the same to the extent of Mahmood and Waked on the ground that they had not been released on bail and had perhaps been discharged. I had also refused to cancel the bail of Jameel accused of the F.I.R. On the ground that he had been saddled only with firing shots in the air. I had, however, recalled the bail allowed to the abovementioned Mahboob accused because he was the one who stood burdened with firing the effective shots which had resulted in the death of Abdul Rashid and injuries on the person of Mst. Allah Rakhi.
9. During the course of the present proceedings it had also been complained that despite cancellation of bail by me on 6-12-1993 i,e, about 15 months back, Mehboob accused had still not been arrested. Faced with this situation, I issued notices to the then D.S.P. And also to the S.H.Os. Of Police Station, Phoolnagar who had remained posted as such at this police station to show cause why, despite cancellation of his bail Mehboob accused had not been arrested.
' Mr. RA. Awan, Advocate appeared in defence of these police officials. He also made submissions touching upon the merits of the present bail matter because the same were relevant to the defence of the above-mentioned Police officials also.
10. As has been mentioned above, the investigations in this case had been conducted by at least four D.S.Ps. One Inspector and one Sub-Inspector. Out of A these six investigations it was only Saeed Hassan Shah, D.S.P. Assisted by Muhammad Mumtaz S.I. Who had found that Ashfaq and Ghulam Mustafa were the actual killers of Abdul Rashid deceased while the other five Investigating Officers including three D.S.Ps. Had found to the contrary. This fact alone is sufficient to allow bail to Ashfaq and Ghulam Mustafa petitioners herein because the conclusions reached by the abovementioned four Investigating Officers are not without valid foundations and also because certain questions emanating from the investigation conducted by Saeed Hassan Shah, D.S.P./Mumtaz S.I. Do not stand satisfactorily explained.
11. There is no reasonable explanation as to why Mst. Allah Rakhi, who is an injured witness of the occurrence in question and who also happened to be the mother of Abdul Rashid deceased and who persists in accusing the culprits named in the F.I.R. As the killers of his son, should be disbelieved.
12. The most important piece of evidence collected by Saeed Hassan Shah, D.S.P./Mumtaz S.I. Was the confessional statement of Ishfaq allegedly recorded under section 164 of the Cr.P.C. As has been mentioned above, the investigation of the present murder case came into the hands of Saeed Hassan Shah, D.S.P. Perhaps on 1-1-1994 but he commenced the same on 5-1-1994. Having given his above-noticed findings on 20-1-1994 it was on 21-1-1994 that he asked Muhammad Mumtaz S.I. To further investigate the matter. After his abovementioned findings what was there which required further investigation is not understandable. Soon after Mumtaz S.I. Had been handed over the investigation of the murder case in question, the same Saeed Hassan Shah, D.S.P.
Also entrusted to him the investigation of a case F.I.R. No,222 of 1993 dated 21-11-1993 of Police Station City, Pattoki which was a case registered for the alleged commission of offences punishable under section 382, P.P.C. And section 14 of the Ordinance VI of 1979 and in which case no person was named as culprit. (The file of this case F.I.R. No,222 of 1993 was summoned by me and has been perused). Having been entrusted with the investigation of this theft case as has been mentioned above, on 29-1-1994, Mumtaz Si. Arrested Ishfaq petitioner as a suspect in this theft case on 3-2-1994 allegedly in pursuance of a secret information received by him that he was the one who had committed this theft. It may be pointed out here that it was on 20-1-1994 that the S.D.P.O.
Of the area namely Saeed Hassan Shah had opined that this Ashfaq was one of the killers of Abdul Rashid deceased yet, on 3-2-1994, Mumtaz S.I. Arrests him as a suspect in the said theft case and not as a suspect in the present murder case. This is rather intriguing. Be that as it may the physical remand of the said Ashfaq was obtained in the theft case and in the very first Zimini it is mentioned that before disclosing anything about this theft case Ashfaq had confessed having murdered Abdul Rashid deceased alongwith Tassaduq Hussain and Ghulam Mustafa and had also volunteered to make a confessional statement before a Magistrate as a result whereof he was produced before the Ilaqa Magistrate on 5-2-1994 who allegedly recorded his confessional statement on the same day. Having secured this confessional statement nothing was done to question the said Ashfaq accused in respect of the theft in which connection he has been arrested as suspect and the only Zimni recorded is on 8-2-1994 which makes a mention of the said confessional statement and then states that Ashfaq was to be produced before the D.S.P. And further action was to be taken thereafter. The record of this case further reveals that the action taken thereafter was a request for discharge of Ashfaq accused from the said theft case which request was made on 16-2-1994 and was accordingly allowed by the Ilaqa Magistrate. What appears from the above-noticed facts is that Ashfaq accused had been arrested in the guise of this theft case only to procure his confessional statement and that he was discharged from this case after this purpose had been served. It may also be noticed that after his recording of confessional statement, the learned Magistrate had again remanded him to the police custody.
What is the real worth of this confessional statement, could be determined only at the trial if any, held against Ashfaq petitioner, however, for the purpose of present bail petition suffice it is to say that Ahmad Khan Chadhar, D.S.P. Was not impressed with the veracity and worth of this confessional statement and I have not considered it sufficient to stand in the petitioners' way of their release on bail.
13. I also feel compelled to bring on record certain other aspects of this case which have come to my notice and which I have not been able to appreciate and which are as under:--
(a) Some crime empties of .7 mm rifle and some of .12 bore gun had allegedly been recovered during the course of the spot inspection in this murder case on 23-6-1993. These empties had been allegedly deposited in the Malkhana of the police station and were kept there till February, 1994 i,e, for about 8 months without having been sent to the Forensic Science Laboratory. This is a serious lapse on the part of the Investigating Officers and the S.H.Os.
(b) The occurrence in question had taken place on 23-6-1993 which is about two years ago and the matter has still not reached the learned trial Court or even the learned Ilaqa Magistrate. At least six successive investigations were conducted in this case. The superior Courts have time and again depreciated the practice of repeated investigations in the cases which not only delays the commencement and the conclusion of trials but also adversely affects the quality of justice because of the conflicting opinion/findings and the material reached and collected through these different investigations. The Police Department needs to give a serious thought to this practice which is not only improper but also undesirable.
(c) On my question I was informed that the report of the Forensic Science Laboratory in respect of crime empties abovementioned and about the fire-arms sent to them, in February, 1994 was still awaited, despite a lapse of almost 14 months. I was further informed that such is the usual period taken by the Forensic Science Laboratory in submission of their reports. The Police Department who administers this Forensic Science Laboratory needs to take immediate effective steps to ensure expeditious reports from this Laboratory.
14. I am also pained to notice the conduct of the learned Ilaqa Magistrate of Pattoki who had been remanding Ashfaq petitioner to police custody from 3-2-1994 to 16-2-1994 in the abovementioned theft case without even the slightest possible progress having been made in the same. The learned Magistrate also appears to have been oblivious of the judgments of the superior Courts which provide that after an accused has made a confessional statement, he should not be remanded to police custody.
15. This petition stands disposed of in the above terms. A copy of this order shall be sent to the Inspector-General of Police who shall certify to the Registrar of this Court for the information of this Bench that he had received a copy of this order.
16. A notice shall issue to the learned Ilaqa Magistrate (Mr. Sajjad Ahmad, M.I.C.), to show cause why action should not be taken against him for having granted remand of Ashfaq accused to police custody in violation of the law laid down by the superior Courts and the law as it exists in the Cr.P.C.?
17. A notice shall also issue to the Incharge of the Forensic Science Laboratory to appear before this Court on the next date of hearing to explain the inordinate delay being caused in his Laboratory in the matter of submission of reports.
18. Independent files shall be constructed in the matter of these notices which shall be listed for hearing on 26-6-1995.
19. The police file of the present murder case and the case F.I.R. No,222 of 1993 of Police Station City Pattoki as also the original confessional statement of Ishfaq accused brought from the Court of learned Sessions Judge, Kasur shall be returned.