' On 18-4-1977, Assistant Commissioner, Lyallpur, sent a written complaint to the Station House Officer, Police Station Kotwali, Lyallpur, about an occurrence alleged to have taken place on the same day at 5-40 p.m. In Bhawana Bazar.
The facts given in the complaint were that on the aforesaid day at 5-40 p.m., a procession of Pakistan National Alliance after passing through different streets, entered Bhawana Bazar. When it came near the house of the petitioner, the processionists started throwing brick-bats on the house.
Brick-batting also started from the top of the house. In the meanwhile someone from the procession fired a pistol shot. The fire was returned from the house; band-grenade was also thrown. Both the parties were given a warning to stop their nefarious activities. Two persons lost their lives and 12 injured as a result of firing which was coming from the top of the house. This information was received by the Control. In the meanwhile, Mahmudul-Hassan petitioner contracted the Control on telephone. His message was received by Col. Nisar Ahmad, Additional Deputy Commissioner (General). Mahmud-ul-Hassan told the Additional Deputy Commissioner (General) that a procession was moving towards his house and he was firing on the procession.
The officer told the petitioner that he should stop firing because effective steps had been taken by the Police and the Magistrate to control the situation. Thereafter, the Additional Deputy Commissioner (G) along with a police party reached the spot. Mr. Muhammad Siddique, Magistrate was also present. On the aforesaid report a case under section 302/307/149/ 148, P. P. C.
Was registered against 11 persons. A few fire-arms, some live cartridges and empties of different bores were also taken into possession.
2. The petitioner apprehending that he would be arrested in connection with the aforesaid incident filed the present application on 13-8-1977 for bail before arrest. When this petition came up for hearing on 16-8-1977, learned counsel informed me that the petitioner had been arrested and that this application be treaed as one after arrest. This request was allowed by me ' and I issued notice to the State and also directed the investigating officer to be present along with the entire record. The case was then taken up on 18-8-1977 and during the arguments it revealed that the Inspector who investigated this case and submitted the report for the discharge of the accused, had been proceeded against departmentally. I directed the Assistant Advocate-General to produce the departmental file and as the investigation had been entrusted to the DSP, he was also summoned along with the entire record.
3. Today full dress arguments was addressed. Mr. Muzaffar Qadir raised number of points. The first point urged by him was that the prosecution case is to be examined from three different positions.
First, as stated in F. I. R. In this, the petitioner was not named as one of the accused persons. The second position emerged when the investigation commenced and the investigating officer found the persons named in the F. I. R. To be innocent and they were discharged by order of the Magistrate dated 6-6-1977. There the petitioner also produced proof of his innocence, because at that time he was not present at the spot, but was in a meeting with Ghulam Kiberya Khan, Ahmad Saeed Awan, Nisar Akbar, Badar Din Chaudhry and Umar Draz Khan, whose affidavits were also produced before the investigating officer. Learned counsel placed on record photostat copies of those affidavits.
' The third position was that the procession constituted unlawful assembly, right from the very beginning it was in a very rowdy mood and the initiative, according to the F. I. R., was taken by the processionists. Learned counsel submitted that it was a case of "free fight" and "free firing" and as such it was impossible to determine the criminal liability of a particular person.
4. The next point taken was that the post-mortem reports of the two deceased were contrary to the version given in the F. I. R. Because according to the medical report there was evidence of blackening; whereas the prosecution version was that the firing took place from a long distance.
' Learned counsel also drew my attention to the supplementary statement of the Additional Deputy Commissioner (G) which was recorded by the D. S. P. This statement, according to the learned counsel, was not incriminating so far as the petitioner was concerned.
' For the foregoing reasons learned counsel submitted that the case of the petitioner falls within the purview of subsection (2) of section 497, Cr. P. C., and as such he is entitled to the concession of bail.
5. State was represented by Mr. Rashid Aziz, Assistant Advocate-General. Rana Abdur Rahim Khan also entered appearance and submitted that he was representing one of the prosecution witnesses, whose brother was shot dead. I do not think, he has any right of audience, therefore, I directed him that whatever he wanted to submit he should do so through the Assistant Advocate- General.
' Learned A. A.-G. Opposed this petition and submitted that the petitioner has been named in the complaint lodged by the Assistant Commissioner, who had no axe to grind against the petitioner.
In the report it was specifically mentioned that the petitioner resorted to firing on the procession. ' the report of the Inspector, learned law officer submitted that the Inspector had been proceeded against departmentally for having acted illegally and in an unlawful manner. Therefore, no importance could be attached to the investigation conducted by him and investigation in accordance with law started when the D. S. P. Took charge of the case. He further submitted that under no circumstance the presence of those persons who were injured could be doubted and the present investigation revealed that the petitioner was connected with the firing. Similarly, about the plea of alibi, it was submitted that the same was not tenable, as it stands contradicted from the contents of the F. I. R.
' Learned A. A.-G. Further submitted that it was neither a case of "free fight" nor that of "free firing", because nobody from the side of the petitioner was injured. The number of dead persons and injured showed that it was one-sided affair.
6. One fact which has been established beyond any doubt is that the case is being now investigated de novo by the D. S. P. Whether the investigation conducted by the Inspector was the result of an error of judgment or otherwise, I do not wish to express any opinion on that. The D. S. P.
Took charge of this case when he obtained warrant of arrest of the petitioner on 13th August 1977 and arrested him on 15th August. So it is from the said date that proper investigation commenced.
The D. S. P. Present in Court submits that the case is still at the investigation stage and is likely to take a week's time or more. Therefore, at this stage I am not inclined to give any finding pertaining to the contentions raised by Mr. Muzaffar Qadir and dismiss the bail application of the petitioner. He will, however, be entitled to repeat his request for bail after the investigation is complete. The D. S. P.
Is directed to complete the investigation without further delay.