MUHAMMAD NASEEM CHAUDHRI, J.- Zafar Iqbal petitioner-accused armed with automatic rifle along with his co-accused is said to have fired at Mst. Mahwash daughter of Muzaffar Iqbal complainant which hit her right front chest and went through and through. She also received three other fire shots. Faruq Ahmad, a brother of Muzaffar Iqbal complainant, was also fired at which hit his right foot whereby the bone was fractured. Thereafter the accused persons made good their escape.
Faruq Ahmad and Mahboob Alam alongwith Muzaffar Iqbal complainant are said to have seen the occurrence which took place within the area of Nokhar Police Station Kot Ladha District Gujranwala on 9-12-1996 at 7.30 p.m. Muzaffar Iqbal complainant got recorded FIR No. 159 dated 10-12-1996 under sections 324/337-F(iv)(v)/l48/l49 PPC. Both the injured were medically examined. Zafar Iqbal petitioner was arrested on 26-12-1996 who led to the recovery of .222 rifle on 27-12-1996 while under police arrest. He was admitted to bail by the Area Magistrate on 28-1-1997. The complainant made an application before the learned Court of Session at Gujranwala for the cancellation of bail which was accepted on 8-8-1997 by a learned Additional Sessions Judge, Gujranwala with the reasoning that the petitioner has been declared as the assailant accused during the investigation who stood linked with the commission of the crime and that his pre mature admission to bail in an offence falling under prohibitory clause was not justified.
2. The learned Additional Sessions Judge did not pass the order for the arrest of Zafar Iqbal accused after the dismissal of his bail on 8-8-1997 who has not been arrested by the police.
Apprehending his arrest Zafar Iqbal petitioner filed this application on 16-2-1998 for his admission to pre-arrest bail on the grounds that section 324 Pakistan Penal Code is not attracted against him and thus he was not involved in a case falling under the prohibitory' clause and that he was admitted to bail by the Ilaqa Magistrate on the ground that his involvement was a question of further inquiry and thus the bail granted to him on the aforesaid ground could not be cancelled. He prayed for setting aside impugned order dated 8-8-1997 passed by the learned Additional Sessions Judge and for his admission to pre-arrest bail.
3. I have heard the preliminary arguments addressed by the learned counsel for Zafar Iqbal petitioner-accused who mainly canvassed that the attraction of section 324 Pakistan Penal Code is uncalled for and that the bail granted to the petitioner could not be cancelled. He added that the police has proceeded against this petitioner with mala fide intentions and it is a case where honour and reputation of the petitioner may be protected and preserved. It would be a palpable error to agree with him in the canvassing made by him. According to the recitals of the FIR Mst.
Mahwash and Muhammad Faruq were injured with fire-arm. During the investigation Zafar Iqbal petitioner-accused has been held and declared to be the assailant. In addition to the attraction of the aforesaid section 337-F(iv)(v) Pakistan Penal Code with the material collected by the police, Zafar Iqbal petitioner is also prima facie liable under section 324 Pakistan Penal Code keeping in view the law of the land prevalent and operative at present. The fact that both the aforesaid injured received the fire-arm injuries is enough to make me hold that prima facie section 324 Pakistan Penal Code is attracted qua Zafar Iqbal petitioner-accused. If the Area Magistrate has expressed that the involvement of Zafar Iqbal petitioner- accused is that of further inquiry, that is misconceived opinion and the learned Additional Sessions Judge was not bound thereof. Further the aforesaid observation of the Area Magistrate, could not be a hurdle and barrier towards the competence and jurisdiction of the learned additional Sessions Judge to make the analysis and dissection of the merits of the matter. I deem it proper to express that in a case prima facie falling under the prohibitory clause in terms of section 497 of the Code of Criminal Procedure, the grant of bail before the lapse of the period of one year for an offence not punishable with death would be pre-mature. Keeping in view the recitals of the FIR and the material collected by the Investigating Officer which stands projected from making a perusal of the aforesaid order dated 8-8-1997 which has to be adduced in evidence during the trial; I affirm the order dated 8-8-1997 about the cancellation of bail of Zafar Iqbal petitioner by the learned Additional Sessions Judge.
4. At this stage I would express that an accused admitted to bail by the Area Magistrate -whose bail is cancelled by the Court of Session and is not got arrested after the announcement of the order cannot claim unnecessary harassment at the hands of the police for the purpose of his admission to pre-arrest bail so as to avoid his arrest by the police. The order dated 8-8-1997 was passed after hearing the parties and considering all the merits of both the contesting parties. In this suite of affairs the extra-ordinary relief of pre-arrest bail cannot be granted to Zafar Iqbal petitioner as the merits of the matter cannot be analyzed and weighed at this stage. I would be glossing over an important aspect of the matter by expressing that the bail allowed to Zafar Iqbal petitioner-accused on 28-1-1997 was cancelled on 8-8-1997 who was not got arrested by the learned Additional Sessions Judge. He remained inactive to seek further relief and became fugitive of law. He moved this petition on 16- 2-1998 before the High Court for his admission to pre-arrest bail whose application is being disposed of today (16-2-1998) by this Court. An accused of the category/ilk of Zafar Iqbal petitioner, in the circumstances of the matter, cannot claim unnecessary harassm ent at the hands of the police so as to make him entitled to be admitted to pre-arrest bail.
5. At this stage I have to record my surprise as to why Zafar Iqbal petitioner-accused was not got arrested by the learned Additional Sessions Judge on 8-8-1997 after the cancellation of his bail.
Legally an accused who has been arrested in a criminal case, who is bailed out and afterwards whose bail is cancelled has to be sent to the judicial lock up with the direction to b produced before the trial Court on a particular date, it would be instructive to express that the law has to take course in the matter and the subordinate Courts should keep in mind that the law of the land has to steal the eminence and is entitled to paramount consideration. If the Appellate Court/Revisional Court feels that an accused has been admitted to bail without the legal and factual justification the bail has to be cancelled and the accused has to be got arrested to be sent to the judicial lock up. I have to express this aspect of the matter as this type of practice has become quite in rife in the subordinate Courts in view of may on experience which should be avoided. There cannot be any diplomacy in the judicial hierarchy -keeping in view the shape of scale of justice and the fact that the complainant is also not devoid of the justice of the Court even though an accused may be favourite child of law. I am tempted to express that such a working at the end of the subordinate Courts is also one of the reasons for the worsening of law and order situation. The accused of the cases of the instant nature, if not entitled to enjoy the concession of bail, have to be sent to the judicial lock up to face the trial.
6. In view of what has been expressed and held above, I dismiss this petition for pre-arrest bail in limine.
7. Zafar Iqbal petitioner-accused has been put under the custody of the Naib Court after his arrest who shall be sent to the Central Jail, Gujranwala for his detention therein with the direction to the Superintendent of the said Jail to make arrangement to produce him before the learned Area Magistrate Police Station Kot Ladha District Gujranwala on 25-2-1998 and thereafter on every date to be fixed by the aforesaid Magistrate. The necessary warrant shall be got issued from the office.
This petition stands disposed of.