' Through the instant criminal miscellaneous application, the petitioner seeks post-arrest bail in case F.I.R. No,498 of 2000 registered at Police Station Ganj Mandi, Rawalpindi under sections 382/411/34, P.P.C. The facts forming the background of the case registered against the petitioner vide the aforementioned F.I.R. Are that the complainant Maqsood Ahmad was crossing the bridge between the City and the Cantonment commonly called "Seerian Wala Pul" on 19-10-2000 at about 8-15 p.m. When he was descending the stairs of the said bridge, he came across a person who was not known to him prior to that day. He tried to engage the complainant in conversation with him.
When the complainant and the said person came down on the ground, they were met by three persons who later appeared to be his companions. The said three persons standing nearby the bridge on the ground asked the complainant where was he taking that other person who descended down the stairs alongwith him. They further said to the complainant that he appeared to them a person of doubtful antecedents. They told the complainant that they were police officials and that they would take the complainant to the police station. The complainant told them that he was a soldier in the Army. On hearing this, the said persons started abusing the complainant and slapped the complainant on the face and said to the complainant that the Military Government was not that of his father and that they very often treated Army Soldiers the way the complainant was treated. The said persons claiming themselves to be police officials searched the complainant and took away from the complainant's custody his pay book, his Cassio wrist-watch worth Rs,600, Rs,150 in cash and his identity card. On the complainant's asking them to return the pay book, the said persons said that the complainant should pay half a salary to them on the first of the month.
One of the said persons posed himself to be an officer while the others posed as his subordinates.
After snatching away the aforesaid articles from the complainant, they let him off. The complainant after the occurrence approached the Ganj Mandi Police Station for the registration of the case but they put off the matter on one pretext or the other. Faced with the said situation, he approached the Army Monitoring Cell and reported the whole matter to it. The Incharge of the Army Monitoring Cell directed the complainant to go to Ganj Mandi Police Station and to get the case registered against the accused persons. Accordingly, the complainant went to Ganj Mandi Police Station for getting the case registered against the accused. While he was there, he spotted one of the police constables of the said police station who was wearing his wrist-watch. He told the Incharge of the police station that the said watch was his and was snatched by the constable from him at the time of occurrence. The police accordingly took the said watch in custody from the said police constable and on the recovery having been effected from the said police constable, the identity of other three constables involved in the matter also became known. Accordingly, a case under sections 382/34/411, P.P.C. Was registered against the accused vide the F.I.R. Aforementioned and the accused arrested.
2. Two of the accused, namely, Talat Mahmood, -Tahir Waseem and the present petitioner Anwaar Ahmad moved a petition for post-arrest bail before the Court of Mr. Javed Iqbal Bussal, a learned Judicial Magistrate at Rawalpindi. The said bail application was rejected by the said Court vide its order, dated 31-10-2000. Feeling themselves aggrieved of the rejection of their bail application by and at the hands of the learned Judicial Magistrate, all the three accused then moved their application for post-arrest bail before the learned Sessions Judge, Rawalpindi which was assigned to Mr. Manzoor Ahmad Mirza, a learned Additional Sessions Judge at Rawalpindi. He too rejected the bail application of all the three accused vide his order, dated 24-11-2000. The present petitioner, namely, Anwaar Ahmad, has now approached this Court with his application for post-arrest bail.
3. Malik Parvaiz Akhtar Awan, Advocate, appeared for the petitioner while the State was represented by Syed Nayyar Hussain Bokhari, Advocate. The complainant was present in person.
4. Learned counsel for the petitioner raised the following contentions in support of his plea for post- arrest bail to the petitioner:--
(i) That the contents of the F.I.R. Make out a case under section 384, P.P.C. Against the petitioner and the other accused and not one under section 382, P.P.C. Under which the F.I.R. Has been registered;
(ii) that there was a delay of four days between the occurrence and the lodging of the F.I.R. Which remained unexplained;
(iii) that the offences even taken on their face value are not punishable with death or transportation for life and the grant of bail in the matter of such-like offences is a rule and refusal of the same is an exception and, therefore, the petitioner is entitled to the grant of bail. The case against the petitioner and the other three accused was registered by the police of Police Station Ganj Mandi on the interference of the Army Monitoring Cell and the Corps Commandar, Rawalpindi. Otherwise no case was made out against the petitioner and the other three accused.
The case was the result of the pressure exerted on the police officials of Police Station Ganj Mandi by the high command of the Army Officers.
5. Syed Nayyar Hussain Bokhari, Advocate, for the State opposed the grant of bail to the petitioner and supported the orders of the Courts below whereby the bail' was refused to the petitioner and his co-accused.
6. I have considered and evaluated the respective submissions of learned counsel for the parties and have gone through the record in particular the F.I.R. Very carefully. Whether the facts as narrated in the F.I.R. Make out a case under section 382, P.P.C. Or under section 384, P.P.C. Is a matter which shall be gone into by the learned trial Court at the time of framing the charge and finally at the time of awarding punishment. Admittedly, the present is not that stage. We have to go by the case as contained in the F.I.R. What is to be decided by the learned trial Court cannot be pre-empted by this Court by making any observation in that behalf. So far as the question of the delay in the occurrence and the lodging of the F.I.R. Is concerned, the same is also explainable. The complainant in the first instance had recourse to the police but the police refused to listen to him. It is a matter of common knowledge that getting a case registered with any police agency is not an easy thing. For reasons well-known to everyone of which judicial notice can be taken, the grievance of the complainant that the police on being approached for the purpose tried to put off the matter on one pretext or the other can be appreciated. When the complainant became convinced that it was beyond his means to prevail upon concerned police to register the criminal case against the accused, he then went to the Army Monitoring Cell. The delay which, occurred in the lodging of the F.I.R. Was on account of none else but the police itself which refused to exercise its statutory duty by registering the case at the instance of the complainant. The delay, therefore, when viewed in the light of these circumstances, becomes not only understandable but also becomes justifiable. It is no doubt true that the offences alleged against the petitioner do not fall within the prohibitory clause of section 497, Cr.P.C. And the grant 'of bail in such cases is a rule and refusal of the same an exception. However, the fact remains that the offences alleged against the petitioner and the co-accused are nonetheless non-bailable. No accused can claim bail in such cases as a matter of right. It is discretionary with the Court to grant or to refuse bail keeping in view the facts and circumstances of a particular case. So far as the facts of this case are concerned, these are peculiar in nature and very serious in the context of the circumstances of this case. All the accused in this case happened to be police officials. Police is a disciplined force whose duty it is to maintain law and order in the country, to preserve peace and tranquillity in the society and to protect the property and to safeguard the life, liberty and the dignity of the citizens. If such disciplined force like police starts itself looting the citizens, question is what shall be the fate of a poor citizen. The police was already known for its notoriety in many other respects. Of late, a new dimension has been added to its notoriety. Under the new garb, they have become dacoits. Thus, persons whose job it is to 'catch hold of dacoits, if themselves assume the role of dacoits, what shall be the fate of the society, can only be imagined. Many instances have come in the press where officials of the police have been found to be involved in the cases of theft and dacoity. Such being the nature of allegations against the petitioner and his co-accused, should they be let off and granted bail for the simple reason that the offences alleged against them are not punishable with death or transportation for life. Meeting to the petitioner and his co-accused this treatment would amount to placing premium on the offences committed by them. They are indeed a black spot on the face of our society which we call an Islamic Society. Can, what the petitioner and his co-accused have done, be said to be in consonance with the traditions and norms of an Islamic Society? Certainly, not. The present, by no means is an ordinary or a simple case of theft. It should open the eyes of everyone as to which direction are we the members of the society going to? It is time for the authorities to think of the ways and means to take strong measures to arrest the decadence of the society before it is too late. Laws are meant for the protection of society and not for its destruction.
It is true that it has been consistently held by the superior Courts that in cases which are not punishable with death or transportation for life, grant of bail is a rule and refusal of the same an exception but when the persons committing the offence are like the present accused belonging to a discipline force, I am of the view that the time has come when this settled rule may be reviewed and in a case such as the present one, it should be the rule to refuse the bail and exception to grant it. I am sorry to say that persons whose faces are painted with blackness have the cheek to talk of the interference of the Army Monitoring Cell. What after all did the Army Monitoring Cell do in this case? Did they ask the Court to punish and convict the accused? The answer is no. All that the Army Monitoring Cell did was to help a poor helpless dejected citizen by taking notice of his grievance for registering an F.I.R. On his complaint. The case in pursuance of the F.I.R. Has yet to proceed and the trial has yet to commence. Of course, the trial shall commence after the submission of the challan in the trial Court. That stage is yet to come. There is, thus, no question of the Army Monitoring Cell telling the trial Court of convicting the accused. The apprehensions of learned counsel for the petitioner in this behalf are totally unfounded, baseless and misconceived.
For, it is not known as yet which Court is to proceed with the trial of the case. Although the offences against the petitioner and the other co-accused are not punishable with death or transportation for life, yet by deviating from the settled rule, I refuse to admit the petitioner to bail for the reasons hereinabove stated. The criminal miscellaneous application seeking post-arrest bail for the petitioner is, therefore, dismissed.