' This judgment will dispose of Writ Petition No,20118 of 1999 and Writ Petition No,22606 of 1999, both filed by Zulfiqar Ali, complainant, to assail the orders of Syed Mohsin Abbas, Judicial Magistrate 1st Class, Lahore dated 23-10-1999 and 13-11-1999 whereby the learned Magistrate allowed bail to Muhammad Rafique, Ahmed Pervez, Maqsood Alam, Muhammad Khan and Muhammad Riaz, respondents in Writ Petition No,20118 of 1999 and Muhammad Jamil, respondent in Writ Petition No,22606 of 1999, respectively.
2. Brief facts of the case as disclosed in F.I.R. No, 135 of 1999 registered on 30-8-1999 under sections 302/148 and 149, P.P.C. With Police Station Johar Town, Lahore are that Zulfiqar Ali, complainant on 30-8-1999 at about 4-45 p.m. When after closing his office was proceeding to his house situated in Shah Di Khoee and reached near the village, all of a sudden, a Police van of Police Station Nishtar Colony reached the haveli of Mehr Muhammad Younas. At the door of the haveli, Muhammad Javed and Muhammad Pervaiz, sons of complainant and Muhammad Younas were sitting.
Muhammad Pervaiz was apprehended by Police and after giving butt of rifles was made to sit in the van. Due to fear, Muhammad Javed, another son of the complainant, started running. He was followed by the Police Officials and they started indiscriminate firing. When Muhammad Javed reached in the field of Muhammad Latif, another private car of Police bearing registration No,7808/LOU (red colour) in which S.H.O. Faisal Town Muhammad Rafi and three Police Constables one armed with .7 m.m. Rifle and others with kalashnikov were sitting, came and they also started firing. Muhammad Javed received their fire shots. He was injured. He fell down but in spite of that Police Officials went on firing. Other son of the complainant, namely, Muhammad Pervaiz who was in the custody of Ahmad Pervez, S.H.O., Nishtar Colony, Maqsood Alam A.S.I. And three Police Constables, started making hue and cry that his brother has been fired at and he was also being abducted. Complainant raised hue and cry that his son may not be killed in a false police encounter. On the cries of complainant and noise of firing, Muhammad Ashraf son of Muhammad Tufail, Manzoor Hussain son of Muhammad Ayub alongwith others inhabitants of the locality reached at the spot and on their intervention, police officials ran away leaving behind sons of the complainant. Muhammad. Javed died due to the injuries allegedly caused by police officials.
3. Respondents in both the writ petitions were arrested in this case on 16-10-1999. Their bodies were handed over to Police on physical remand till 22-10-1999. On 23-10-1999, Investigating Officer appeared before the learned Magistrate with a request that he had to recover the fire-arms on the pointation of accused persons but the learned Magistrate granted bail to the respondents vide orders noted above on the ground that according to opinion of D.S.P. (Legal) no case under section 302, P.P.C. Was made out but in fact, case under section 319, P.P.C. Was made out and that is a bailable one.
4. Learned counsel for petitioner in both the writ petitions submits that order of learned Magistrate which have been impugned before this Court are manifestly without jurisdiction. Further submits that the orders passed by learned Magistrate are illegal and without lawful authority. Adds that in cases which are exclusively triable by Sessions Court, Magistrate had no jurisdiction to take cognizance of the same. Learned counsel has relied on PLD 1986 Lah. 680, 1997 PCr.LJ 56 and PLD 1997 Quetta 69. Learned counsel for petitioner submits that opinion of D.S.P. (Legal) is based on mala fides and ulterior motive because in the instant case Police Officials are involved. Further submits that there was no bail c application on behalf of the respondents before the learned Magistrate when he, exercised his so-called suo motu powers to grant bail to the respondents although a request for physical remand of the respondents was made by the Investigating Officer.
5. On the other hand, learned counsel for respondents in both the writ petitions submits that the writ petitions are not maintainable because petitioner had alternate remedy of filing a criminal revision before the Sessions Judge as the orders impugned in these writ petitions were judicial orders. Further submits that in fact police had received wireless message from D.I.-G. And S.S.P., Lahore that some dacoits were running away after snatching a Suzuki car and he has also referred to case F.I.R. No,369 of 1999 under section 392, P.P.C. Registered with Police Station Factory Area on the same day at 3-30 p.m. Learned counsel submits that police also received other wireless messages and police from whole Model Town sub-division started reaching to the place of occurrence as there was a police encounter between dacoits and the police. He submits that in this regard case F.I.R. No,134 of 1999 was registered on the statement of Farman Ali, A.S.I. Under sections 186/324/ 34/353 and 392, P.P.C. Learned counsel further submits that there was no intention or knowledge on the part of the respondents accused that by their firing an innocent person could have been killed, In fact firing was made at the dacoits but due to mistake, fire hit the deceased and he unfortunately lost his life. He submits that Magistrate was competent to grant bail to the respondents accused because under section 167, Cr.P.C. If he has the power to discharge or refuse remand then he can also grant bail to the accused. Learned counsel has relied on 1993 SCM R 1810.
6. Learned A.A.-G. Very candidly concedes the submissions made by learned counsel for petitioner.
7. I have heard learned counsel for parties at great length and have gone through the record. In the instant case, F.I.R. Was lodged by Zulfiqar Ali, father of Muhammad Javed deceased in which specific allegations were levelled against accused persons which was prompt in nature. Then there are statements of the witnesses recorded under section 161, Cr.P.C. In which they have implicated the respondents as accused. Opinion of the D.S.P. (Legal) is mala fide and based on ulterior motive.
No case under section 319. P.P.C. Was made out. For just decision of cases in hand, section 318, P.P.C.
Alongwith illustrations is reproduced:-- " 318 . Qatil-i-Khat a . --- Whoever, without any intention to cause the death of, or cause harm to a person, causes death of such person, either by mistake of act or by mistake of fact, is said to commit qatl-e-khata.
Illustrations
(a) A aims at a deer but misses the target and kills Z who is standing by. A is guilty of Qatl-e-Khata.
(b) A shoots at an object to be a bear but it turns out to be human being. A is guilty of Khatl-e- Khata.
' A bare perusal of the section and illustrations thereof shows that instant case was not a case which could have been termed as a case under section 319, P.P.C. Furthermore, when the order dated 23-10-1999 was passed by the learned Magistrate granting bail to the respondents the Investigating Officer submitted before him and learned Magistrate also noted as under: ' Although his office had received the opinion of D.S.P./Legal but he has not yet gone through that opinion of D.S.P./Legal. He separately produced the copy of a letter addressed by S.P., Model Town to S.S.P., Lahore in which S.P., Model Town has requested that matter may be kept pending till the conclusion of the investigation."
' It is not understandable why the learned Magistrate was in so haste to grant bail to respondents that he also did not even care for the request of Investigating Officer, as mentioned above. There was no bail application before the learned Magistrate. Over and above all, case being under section 302, P.P.C. Was exclusively triable by Sessions Court and the learned Magistrate had no jurisdiction to grant bail to the respondents accused.
8. So far as, objection of learned counsel for respondents that the writ petitions are not maintainable and the orders of the learned Magistrate, being judicial order, revision was competent before the Sessions Court, is concerned, it is not legally sustainable because revisional jurisdiction of this Court is concurrent with the jurisdiction of Sessions Court. Furthermore, all the jurisdictions are meant to do justice. The governing consideration must always be whether, in relation to the proved facts and circumstances, justice has been done.
' For all what has been discussed above, I am of the considered opinion that the orders dated 23- 10-1999 and 13-11-1999 passed by Syed Mohsin Abbas, Judicial Magistrate, Model Town, Lahore are based on mala fide, without jurisdiction and were passed for some extraneous consideration and the same are set aside. A.S.P. Chung present in Court is directed to take all the accused respondents into custody and proceed strictly in accordance with law, although they have G not appeared in Court today.
' A copy of this order be forwarded to Inspector-General of Police, Punjab for strict action against D.S.P. (Legal) and submit a report to the Deputy Registrar (Judl.) of this Court within 15 days.
' Files of both the writ petitions alongwith order passed by me shall be placed before, my Lord, the Chief Justice for appropriate orders/action against a Judicial Magistrate who has played havoc in this case.
' A copy of this order be also sent to learned Sessions Judge, Lahore.