' Through this petition the petitioner seeks cancellation of ed to respondents Nos.1 and 2 namely Muhammad Aamer Baig and Mirza Asif Baig by the learned Additional Sessions Judge, Multan vide order, dated 4-3-1996 in a case F.I.R. No,412, dated 19-12-1995 under section 302/34, P.P.C.
Registered at Police Station Multan Cantt. Lodged by Malik Nazeer Awan, complainant/ petitioner at 12-10 a.m.
2. Brief facts of the case as narrated in the F.I.R. Are that respondents Nos.1 and 2 were the friends of the complainant's nephews. Some days prior to the occurrence some dispute had taken place between Mirza Aamer Baig and Asif Malik (nephew of the complainant) on account of some transaction, which was subsequently patched up by intervention of Bagh Ali and Mirza Ishaq Baig.
The accused, however, nourished grudge of the said dispute and insult. On 18-12-1995 at about 10- 30 p.m. The complainant and his nephews namely, Manzoor Sultan and Asif Malik came to Holiday Inn (Hotel) in connection with a Waleema ceremony of Tariq Sultan Maral, where respondents Nos.1 and 2 were present armed with pistols. They raised Lalkara that they will not spare Asif Malik today and started firing at him, who tried to take shelter of the nearby building but Aamer Baig stepped forward and further fired at Asif Malik, which hit him on his belly and he fell down on the ground due to the injuries. Thereafter, Asif Malik succumbed to the injuries in the Nishtar Hospital. The occurrence was witnessed by the complainant, Manzoor Sultan, Muhammad Waryam and Manzoor Ahmad. It is also stated that both the accused with their common intention killed Asif Malik.
3. After registration of the case respondents Nos.1 and 2 submitted an application for pre-arrest bail, which was granted to them till 8-1-1996 to enable them to move a bail petition before the Sessions Judge, Multan, but their bail petition had already been dismissed by the learned Additional Sessions Judge, Multan on 24-12-1995. Respondents Nos.1 and 2 again made an application for grant of pre-arrest bail in this Court, which was dismissed by my learned brother Syed Zahid Hussain Bukhari, the then Judge on 9-1-1996 and the accused were arrested.
4. The case was investigated firstly by Rab Nawaz, Inspector/S.H.O., Police Station Cantt. Secondly, the investigation was conducted by Haji Abdul Latif, D.S.P., Range Crime Branch Multan. Third investigation was conducted by Pervaiz Awan, S.S.P. Range Crime, Multan. The investigation of the above said Officers was further endorsed by the D.I.-G., Multan and finally Khawar Zaman Lodhi, Inspector/S.H.O., Police Station, Multan Cantt. Prepared challan against Humayon Baig, Ghulam Farid and Mehboob accused. All . The investigation agencies were of the view that the accused were innocent and in fact Humayon Baig, Ghulam Farid and Mehboob have committed the murder of Asif Malik deceased. It is also asserted by the learned counsel for respondents Nos.1 and 2 that the complainant had recorded his supplementary statement, wherein he stated before the police that the real accused in the present case were the aforesaid three persons. He also produced Khizar Hayat, Ahmad Nawaz and Mukhtar Hussain P.Ws., who also made the similar statement before Khawar Zaman Lodhi, Inspector/S.H.O., who prepared the challan. It is also an admitted 'position that all the aforesaid three persons are absconder. None of them was ever arrested. They have been declared proclaimed offenders: Respondents Nos.1 and 2 have been placed in column No,2 of the challan and after observing formalities under section 512, Cr.P.C. The same is ready for submission to the Court.
5. The Investigating Officer after coming to the conclusion that respondents Nos.1 and 2 are innocent prepared the cancellation report in their favour but the learned Assistant Commissioner disagreed with the said cancellation report lid vide order, dated 8-2-1996 directed the police to submit the challan against the accused/respondents Nos.1 and 2 for trial by the Court of Sessions.
Copy of the said order is attached with the file as Annexure "D". From 8-2-1996 till 10-10-1996 the challan was not submitted and ultimately on 10-10-1996 the supplementary statements were written by Khawar Zaman Lodhi, Inspector/S.H.O. Police Station Multan Cantt. And instead of respondents Nos.1 and 2, three other persons Humayon etc. Were found guilty by him. Challan has not been sent to the trial Court till today in spite of a direction given by the Assistant Commissioner on 8-2-1996.
6. The accused/respondents Nos.1 and 2 submitted an application for grant of bail on 19-2-1996, which was fixed for final hearing on 4-3-1996 before the learned Additional Sessions Judge, Multan.
The petitioner submitted an application on 3-3-1996 before the learned Sessions Judge, Multan for transfer of the bail application from the Court of the Additional Sessions Judge (Mr. Muhammad Aslam Sumra) to any other Court for decision. The said application was also fixed for 4-3-1996 but before the transfer application could be decided, the bail application of respondents Nos.1 and 2 was decided by the learned Additional Sessions Judge vide impugned order. The learned Sessions Judge disposed of the transfer application as having become infructuous as the matter sought for transfer had already been decided.
7. Learned counsel for the petitioner submits that the accused are highly influential persons. One Mirza Amir Baig, a relative of respondents Nos.1 and 2, is serving in Police Department as D.S.P. And because of his influence and that of the then M.N.A. Who is also from their brother prevailed upon the Investigating Agencies and got the result of investigation in their favour. It is also submitted that the learned Additional Sessions Judge in great haste has granted bail to them although it was brought into his notice that an application for transfer of the said bail application has been submitted to the learned Sessions Judge and the same was fixed on the same day i,e, 4-3-1996.
Further submits that in normal circumstances, the learned Additional Sessions Judge should have postponed the decision on the bail application after coming to know about the said transfer application. Learned counsel also stated that the complainant and the eye-witnesses have fully supported the version narrated in the F.I.R. The evidence collected by the Investigating Officers consists of statements of the eye-witnesses, medical evidence motive and the other attending circumstances which fully support the prosecution version but in spite of all that the police has declared respondents Nos.1 and 2 innocent. The findings of the police are not based upon any solid material justifying their innocence.
8. Conversely, learned counsel for respondents Nos.1 and 2 submits that all the Investigating Agencies found both the accused innocent and the real accused have been declared proclaimed offenders. The findings of the Investigating Officers have great weight while considering the application for grant or rejection of the bail. Further submits that principles for grant and cancellation of bail are different and ing order is not to be lightly interfered. Learned State Counsel has supported the arguments of counsel for respondents.
9. I have heard the arguments of the learned counsel for the parties at length and perused the record produced by the Police Officer. The occurrence was witnessed by Manzoor Sultan, Muhammad Waryam and Manzoor Ahmad, who are named as eye-witnesses in the F.I.R. The complainant is also an eyewitness of the occurrence, which has taken place in Holiday Inn Hotel at 10-30 p.m. All the eye-witnesses have supported the prosecution version. Their statements under section 161, Cr.P.C. Were recorded, wherein they have categorically stated that respondents Nos.1 and 2 have fired at the deceased, who died as a result of their firing. Respondents Nos.1 and 2 have been placed in column No,2 of the challah but the Assistant Commissioner vide order, dated 8-2- 1996 refused to agree with the cancellation report submitted by the police.
' The findings of the Investigating Agencies are not based on sound material. The Investigating Officers have relied upon the evidence of some witnesses, who claimed that they were present at the time of occurrence in Holiday Inn Hotel. The police has declared respondents Nos.1 and 2 innocent and involved Humayon Baig, Ghulam Farid and Mehboob in the present case as real culprits. Ipse dixit of the police is not binding upon the Courts.
10. Learned Additional Sessions Judge, also has shown his great haste in granting bail to respondents Nos.1 and 2 knowingly that the application for transfer of the bail petition is pending before the learned Sessions Judge and fixed for hearing on the same day but instead of staying off his hands, he abruptly granted bail to the accused. The judgments reported in Para.4 of the impugned order are distinguishable. Every criminal case has its own facts. The identity of the accused was not in doubt. The occurrence was witnessed by the complainant and other eye- witnesses, and has taken place in the Holiday Inn Hotel, there were full lights at the relevant time.
The F.I.R. Was lodged promptly on the same night at about 12-10 a.m. There is no reason to believe that the complainant would substitute respondents Nos.1 and 2 for Humayon Baig and two others.
The complainant has stated on Holy Qur'an in Court today that supplementary statements dated 10-10-1996 referred by the Investigating Officer are absolutely incorrect and without his knowledge.
He also stated that Khizar Hayat, Ahmad Nawaz and Mukhtar Hussain are neither known to him nor ever appeared before any Police Officer along with him. The alleged supplementary statements are concocted with a view to declare the accused innocent.
11. In nutshell, respondents Nos. I and 2 are accused in a case under section 302/34, P.P.C. Specific role is attributed to them. Eye-witnesses are supporting the prosecution version. The medical evidence also shows that Asif Malik died due to the injuries caused by a fire-arm weapon. In these circumstances, the ing order, dated 4-3-1996 passed by the learned Additional Sessions Judge is hereby set aside and the ed to respondents Nos.1 and 2 is hereby cancelled. The petition is accordingly allowed.
Bail cancelled.