The petitioner who is involved in a case F.I.R. No.312 of 1995 dated 19-10-1995 under section 302/34, P.P.C. Registered at Police Station Sanda, Lahore, has applied for post arrest bail.
2. Briefly the case of prosecution is that at 9-00 a.m. On 19-10-1995, Jamshed, son of the complainant and Mst. Robina Shafi, sister-in-law of the complainant were coming back from the Services Hospital, Lahore on a motor--cycle where Mst. Robina Shafi was employed and when they crossed through Sadaqat Park, Kacha Sanda Road, Dilshad alias Chanda armed with 0.30 bore mauser, Ramzan alias Jani armed with mausar and Fayyaz alias Phajju armed with a mauser confronted them. On the Lalkara of Irshad, Ramzan alias Jani fired a bullet with his mauser which hit Jamshed near his left ear and he felldown. Dilshad also fired at Mst. Robina Shafi which hit on her left temple. Fayyaz, accused made a third fire which hit Mst. Robina on the back of her left and she fell down. Jamshed and Mst. Robina Shafi succumbed to the injuries.
3. Learned counsel for the petitioner vehemently contended that the petitioner has been involved falsely; during the investigation he was found innocent; in fact, the petitioner was for the first time arrested on 8-4-1996 after the change of investigation whereas in the earlier investigation conducted by Inspector Shahid Pervaiz as well as by Inspector Abdul Waheed, the petitioner was found innocent and the challan was submitted in the Court on 24-12-1995 in which it was categorically stated that only Dilshad alias Chanda, brother of the petitioner was involved and the petitioner was involved due to his relationship with Dilshad. No recovery of crime weapon was effected from the petitioner; the petitioner remained associated with the investigation since the date of registration of the case; so many respectables of the area sworn affidavits to the effect that in fact the petitioner was in the house of his uncle Muhammad Bashir Khan, ex-Councillor, Islampura where they were making preparation for a meeting which was to be held in connection with black day against the Government. According to the learned counsel, in the presence of aforementioned material, the case of the petitioner is one of further inquiry, so the petitioner is entitled to the grant of bail.
4. Learned counsel for the State has conceded this fact that during the investigation which was conducted in the mosque of Office of SSP, Lahore on the statements of the Arbitrators appointed from both the sides, the police came to the conclusion that the case against the petitioner is one of further inquiry and he was only arrested after the investigation was transferred to S.P. Saddar who deputed Inspector Irshad Akhtar Gulab, who in the final Zimni opined that let the accused be left at the mercy of the Court as the parties are not agreeing to any arbitration.
5. Learned counsel for the complainant submitted this case has peculiar history and the investigation of this case from the very beginning was partial as the culprits were relatives of Muhammad Bashir Khan, ex-Councillor of Islampura and the case did not meet fair and impartial treatment at the hands of the Investigating Agency. Elaborating his point, learned counsel submitted that the murder was committed at 9-00 a.m. On 19-10-1995 whereas the F.I.R. Was lodged by Abdul Hamid son of Ghulam Nabi at 9-20 a.m. Which completely eliminates the chances of speculation, deliberation and manipulation. Over and above this, Muhammad Ramzan alias Jani, the present petitioner who was armed with mauser has been specifically attributed that he fired at Jamshed which hit on his temple bone and he died at the spot. Unfortunately, Inspector Shahid Pervaiz, the first Investigating Officer instead of making efforts for the arrest of the nominated accused, did his best to record the defence version of the accused and to create alibi on the basis of information which he got from the uncle of the accused who was ex-Councillor; from the spot, the Investigating Officer took into possession crime empty two live bullets and two mutilated/damaged fired bullets but did not send these to the fire-arm expert for comparison, though later on crime weapon was recovered from Dilshad on 23-11-1995. In fact the crime weapon was recovered at the instance of Dilshad alias Chanda on 23-11-1995 but still this was not sent to the Fire-arm Expert; Inspector Shahid Pervaiz, though recorded the statements of four eye- witnesses, namely, Abdul Hamid, Pervaiz Akhtar, Muhammad Tanvir and Muhammad Ashraf, but did not take any pain to arrest the nominated accused and on the contrary vide Zimni No. 2 dated 20-11-1995 recorded the fact that he went to the house of the accused persons and found it locked; vide Zimni No.3, the I.O. Stated that he went near to Noori Mosque and as per information of the ladies of the house, Bashir Ahmed Khan had gone in connection with black day, while Zimni No.4 is to the effect that the accused persons' were not available in their house; no efforts whatsoever were made to find out the accused persons or to take any positive step with the object of collecting evidence and in fact there is no, record what happened to the crime empties recovered from the spot. In Zimni NO.5 dated 26-10-1995 it was recorded that Muhammad Bashir Khan, ex-Councillor came and informed the I.O. That he will produce the accused persons as and when they were made available; again on 28-10-1995 (Zimni No.5-A) Inspector Shahid Pervaiz, SHO without caring to arrest the accused recorded their defence version through the mouth of one Iqbal son of Asghar A.I; placed affidavits of 10 persons on record who were neither the eye-witnesses nor were the friends of the complainant party to show that the version given in the prosecution case is concocted one, false, only one person Dilshad was responsible for the commission of murder. After transfer of Inspector Shahid Pervaiz, the investigation was taken over by Inspector Abdul Waheed, SHO, Police Station Sanda, Lahore who arrested accused Dilshad on 25-11-1995. He also recorded defence version to the extent that it was only Dilshad who was involved and for coming to such conclusion, relied upon affidavits of 11 persons. This officer then vide Zimni No. 19 submitted challan in the Court on 24-12-1995 only on the sole ground that the complainant party did not agree to the nain offered by the accused party; the investigation was then entrusted to SP, Saddar who started investigation vide Zimni No.24 dated 15-2-1996 but entrusted the investigation vide Zimni No.27 dated 27-2-1996 to his staff officer Inspector Irshad Akhtar Gulab who also adopted the course of appointing Arbitrators and on 12-3-1996 two persons from the complainant side and two from the accused side were appointed as Arbitrators while the fifth Muhammad Hussain, ex-Councillor was appointed as "SERPENCH". It was resolved by the Inspector that arbitrators from both the sides will bring their decision and in case there is no unanimous decision, then the majority decision would be adopted; in the meantime, the complainant went to the High Court for relief against the mode of investigation being conducted by the Police. This Inspector appeared before the learned Judge of this Court and after that vide Zimni No. 31, he arrested the present petitioner; from the record, it appears that vide Zinmi No.37 dated 13-6-1996, one Misbah--ud-Din son of Ala-ud-Din was introduced as an eye-witness and his statement under section 161, Cr.P.C. Was recorded after delay of couple of months which remained unexplained; he also stated that Dilshad alias Chanda murdered Jamshed and Robina; the Inspector (Headquarters) submitted his final report to SP, Sadar vide Zimni No.56 declaring Nadeem, accused as innocent. The DSP, Township Circle vide Zimni dated 27-7-1996 directed the SHO, Police Station Sanda, Lahore to submit challan holding Dilshad alias Chanda accused and to leave Irshad Mahmood Khan, Muhammad Ramzan and Fayyaz accused persons at the mercy of the Court.
6. From the above resume, learned counsel demonstrates that the investigation in this case was not conducted in accordance with the provisions of Criminal Procedure Code, the Police Act as there is no scope for arbitration, nain and affidavit in the said Code or the Act. This exercise was done by the different police officers just to spoil the prosecution case and to oblige the ex--- Councillor who is a close relation of the accused. According to the learned counsel, all the Investigating Officers did not care to send the crime weapon and the crime empty at the earliest to the Forensic Science Laboratory; anyhow at a belated stage, these articles were sent to the Laboratory and it was found that the crime empty was fired from the mauser which was allegedly recovered at the instance of Dilshad alias Chanda, accused. In the end, learned counsel for the complainant submitted that the first informant made report within 20 minutes, specific role has been attributed to the petitioner for causing solitary injury to Jamshed which stood corroborated by the medical evidence; hence there was no justification for the Investigating Officers to come to the conclusion that he was innocent; on the contrary, there exist reasonable grounds to believe that the petitioner is involved in a case which falls within the prohibitory clause.
7. I have heard learned counsel for the parties at length and have perused the record. It is the boundened duty of the police to conduct investigation honestly, fairly and with open mind to find out the truth of the matter and to make the investigation in accordance with the provisions of the Cr.P.C. And the Police Rules. The Investigating Officer is expected to inspect the place of occurrence immediately, if any evidence such as crime empties or other material relevant for effective decision of the case is recovered, then he should take step or steps to transmit the articles to the Malkhana of the police without any delay and thereafter if it is a crime empty, he should send the same to the Forensic Science Laboratory without any loss of time, so later on if the crime weapon is recovered at the instance of the accused, it could be matched with the crime empty, already sent to the Laboratory. Unfortunately, in this case, the police from the very beginning did not perform its duties according to dictates of law and did its utmost to spoil the prosecution case; the crime empties and the damaged bullets alongwith two live bullets, though recovered, were not deposited on the same day in the Malkhana of the police. No steps were taken by the Station House Officer, Police Station Sanda, Lahore for the arrest of the nominated accused which shows his inefficiency.
On the contrary, he contacted Bashir Ahmed Khan, ex-Councillor who is the relative of the accused, who assured him that he would produce the accused before him, which leads to the inference that the police officer was in league with Bashir Ahmed Khan and was postponing arrest of the accused deliberately. The new Investigating Officer arrested Dilshad alias Chanda on 25-11-1995 and after making recovery o weapon from him, he did not bother to send the crime empties and the weapon immediately, though at a belated stage, these articles were sent to the Forensic Science Laboratory, and the report is positive. The conduct of the Investigating officers by taking affidavits from certain persons who were strangers to the case and supporters of the accused party is not laudable, unfortunately the superior officers also toed the same line which is not permissible under the law. Inspector Abdul Waheed under the tacet approval of the SSP asked the complainant party to appoint arbitrators and decided the criminal case on the opinion of the arbitrators which is against the scheme of Cr.P.C. The Investigating Officer on the direction of SSP, Lahore took both the parties to the office mosque of SSP where they were directed to take oath on Holy Qur'an, unmindful of the fact that the mosque is House of God and are meant for prayer and spiritual attainment, and cannot be used for mundane affairs such as police investigation. The police has not followed the law as declared by their Lordships of the Supreme Court in PL1 1996 SC 83, 1996 PCr.LJ 130 and Criminal Miscellaneous No.3384-B of 1996.
8. The F.I.R. In this case was lodged by an eye-witness without any loss of time, so it is a case of F.I.R.
Which was lodged with great promptitude. The occurrence took place in broad daylight and the parties knew each other, so it was not a case of mistaken identification. According to the F.LR., the petitioner caused effective sole fatal injury to Jamshed deceased. Thus, there exist reasonable grounds to believe that the petitioner is involved in a case which falls within the prohibitory clause and he is not entitled to the grant of bail, so the petition is dismissed.
9. A copy of this judgment be sent to the Inspector-General of Police, Punjab for information and necessary action. He is directed to issue instructions to police officers that they should conduct investigation according to law, as mentioned above, that they should not take oath on Holy Qur'an in mosque or receive affidavits of the witnesses which is not permissible under the Cr.P.C., Police Rules and Qanun-e-Shahadat.