' This order will dispose of Criminal Miscellaneous No,975-B and Criminal Miscellaneous No,1201-B of 2002 titled as Muhammad Saleem ullah v. The Siate and Tariq Rafique and others v. The State. Both these applications are for bail before arrest.
2. Brief facts of the case are that Muhammad Anwar lodged complaint at 9-15 a.m. About the occurrence which took place on the same day, at 8-30 a.m. While the formal F.I.R. Was lodged at 9- 35 a.m. The distance between the Police Station and the place of occurrence was 6 k.m. According to the F.I.R. The complainant is a Zamindar. He has got six brothers and they all had purchased the land measuring 117 kanals in an open auction through Banking Court No,3 Lahore. They had sown the paddy crop which they had already cut. On 1-12-2001 in the morning the complainant along with his sons Muhammad Ansar, Muhammad Mazhar, Muhammad Azhar, brothers of the complainant namely, Muhammad Sarwar, Khurshid Ahmad and nephew Jamshed Ahmad and Intizar Wali went to their above said land along with tractors. One tractor was being driven by Intizar Wali while other was being driven by Muhammad Azhar son of the complainant. At about 8- 30 a.m. After plugging two acres of land son of the complainant namely Muhammad Ansar proceeded to his other field on foot. When Zahid Saleem along with 24 others who were named in the F.I.R. Armed-with different firearms and three unknown persons who were also armed with fire- arms came from the side of the Dera of Muhammad Riaz. When all these accused persons came near Zahid Saleem who was armed with G-III Rifle, raised Lalkara on which Tahir Saleem fired a shot with his 8 mm Rifle on Muhammad Ansar son of the complainant which hit on his chest near heart.
In the meanwhile Zahid Saleem etc. And other accused who were coming from the side of village, started firing with their respective weapons Muhammad Ansar after receiving fire-arm injuries fell on the ground and due to fear of firing all the members of the complainant party laid down on 'the ground. All the accused persons went on firing about half an hour. Thereafter, they ran away from the spot. When the complainant and his other companions reached near the said Ansar, he had already died. The occurrence was witnessed beside the complainant by his brothers Khurshid Ahmad, Muhammad Sarwar, Muhammad Azhar, Muhammad Mazhar sons and Intizar Wali and Jamshed Ahmad nephew.
3. The motive behind the present occurrence was that complainant party had purchased the land in an open auction through Banking Court No,3, while the accused persons wanted the complainant not to plough the said land. It was further stated in the F.I.R. That this occurrence had taken place on behalf of Muhammad Saleem son of Ghulam Rasool, petitioner in Criminal Miscelleouneous No 975-B of 2002 and Tariq Rafique and Sohail Rafique sons of Muhammad Rafique petitioners in Criminal Miscelleouneous No 1201-B of 2002. According to the narration in the F.I.R., on 26-11-2001 all the three accused mentioned above while standing outside the Court of my learned brother Mian Hamad Farooq, J, stated that if Court decided the matter in favour of Muhammad Anwar etc., even then they would not allow the complainant party to plough the land.
This conspiracy which was hatched by the above said three accused persons, was heard by Jamshed Ahmad nephew of the complainant and one Muhammad Ashfaq son of Bashir Ahmad.
4., Learned counsel for the petitioners in support of both these petitions submits that the petitioners have been falsely implicated in this case, that they were not present at the spot, that for the murder of one person 43 persons have been named in the F.I.R., that the net has been spread very widely, that all the petitioners are respectable, well-educated and law abiding citizens, that Tariq Rafique and Sohail Rafique were present at Lahore and they never conspired with each other, especially, as alleged by the complainant, at Saleem Ullah is uncle of Tariq Rafique and Sohail Rafique, he was present at Hafizabad at the time of occurrence in connection with some funeral prayer, that many persons had appeared before the police in his defence to prove his plea of alibi, that both Sohail Rafique and Tafiq Rafique never met Saleem Ullah on 26-11-2001, outside the Court of my learned brother Mian Hamad Farooq, J. That they have been found innocent by the police, that nothing has been recovered from them, that their case is of further inquiry falling under subsection (2) of section 497, Cr.P.C. Mr. Ijaz Hussain Batalvi, Senior Advocate and learned counsel for Tariq Rafique and Sohail Rafique petitioners submits that Masood Shorash Kashmiri, Aamar Raza, Ch. Manzoor Hussain, Malik Arshad, Advocate and Mr. Tariq Shabbir, Advocate have given their affidavit about the innocence of the petitioners, that all the three petitioners have been declared innocent by the police officer who is the rank of DSP, that no useful purpose can be served by not, confirming the interim bail granted to them. Learned counsel for Tariq Rafique and Sohail, Rafique also submits that they were allowed protective bail before arrest vide Crl.Misc. No,7347-B of 2001 by this Court on 11-12-2001 for 4 days i,e, till 15-12-2001 to approach the learned Sessions Judge, Sialkot. Learned counsel submits that they filed the said application for bail before arrest at Sialkot on 7-1-2002 for the reason that the police told them that as they have been found innocent so the police officials were not going to arrest them, that for this reason the delay of 22 days took place in filing the applications at Sialkot. Lastly he submits that if the petitioners are arrested they shall suffer irreparable loss to their life, liberty and reputation, that case against the petitioners is full of mala fide and with ulterior motive of the complainant, who in connivance with the local police has lodged this false case against the petitioners. Learned counsel for the petitioners also submits that from 26-11-2001 to 1-12-2001 before lodging of the instant two witnesses of conspiracy namely Jamshed and Ashfaq never reported the police about this conspiracy which creates about the prosecution story.
5. On the other hand learned counsel for the State assisted by the learned counsel for the complainant submits that petitioners are named in the F.I.R., that considerations for grant of bail before arrest and after arrest are totally different, that there is no mala fide or ulterior motive either of the police or of the complainant party, that the Investigating Officer, i,e, D.S.P is conniving with the petitioners and without any material or basis he has declared them innocent, that the motive is also attributed to the petitioners, they were aggrieved persons so they conspired with each other to commit the murder of the deceased. Learned counsel for the complainant has also relied upon PLD 1984 SC 192 and PLD 1983 SC 82, Learned counsel for the complainant has also criticised the conduct of Tariq Rafique and Sohail Rafique. He submits that both of them were granted protective bail before arrest on 11-12-2001 up to 15-12-2001 but they did not intentionally appear before the learned Sessions Judge in order to file an application for bail before arrest but the same was moved after 22 days i,e, on 7-1-2002. Adds that the offence falls within the prohibitory clause of section 497(1), Cr.P.C. And they are not entitled to the grant of bail.
6. I have heard the learned counsel for the parties. In the instant case Mr. Sabir Mir, D.S.P the present Investigating Officer has appeared before the Court along with record. It may be noted here that occurrence had taken place at 8-30 a.m. On 1-12-2001 and matter was reported to the police by Muhammad Anwar complainant father of the deceased on the same day before Ghulam Alunad, S.I. Of Police Station Satrah at 9-15 a.m. At Bhikhi Sindhwan while formal F.I.R. Was lodged the same day at 9-35 a.m. It was a case of promptly lodged F.I.R. In which names of the accused persons and the, roles which they played, were mentioned specifically. The motive is also attributed .To the present petitioners because the land which was purchased by the complainant party in an open auction. Through Banking Court No,3, Lahore belonged to the petitioners and about the said land a Writ Petition No,10436 of 2001 was pending and was fixed for hearing before my learned brother Mian Hamad Farooq, J, on 26-11-2001, moreover the conduct of the two petitioners namely Tariq Rafique and Sohail Rafique in the instant application is not above board. It is a case under sections '302/148/149/109, P.P.C. Punishable with death or imprisonment for life, if proved during the trial. Both Tariq Rafique and Sohail Rafique were allowed extra ordinary concession of protective bail by this Court in Crl.Misc.No 7347-B of 2001 on 11-12-2001 up to 15-12-2001. They did not apply for bail before arrest till 7-1-2002 before the learned Sessions Judge, that 22 days after granting protective bail, they approached the learned Additional Sessions Judge who granted them bail before arrest on 7- 1-2002 and when the matter came up for confirmation of bail on 29-1-2002, they both Tariq Rafique and Sohail Rafique did not appear before the said Court so their pre-arrest bail application was dismissed and bail granting order was recalled and show cause notice was issued to the sureties of the petitioners for 15-2-2002. The conduct of the petitioners as mentioned above entitled them for grant of extra-ordinary concession of bail before arrest. It may also be noted here that two witnesses of conspiracy namely Ashfaq and Jamshed are still supporting the prosecution case. In the F.I.R., date and place of the conspiracy has also been mentioned by the complainant along with witnesses of the conspiracy. The arguments C of the learned counsel for the petitioners that a wide net has been spread by the complainant in the instant case has no legs to stand because perusal of the judicial and police file shows that 143 empties of different fire-arms, i,e, .12 bore, 303 bore Rifle, .44 bore Rifle, 8 mm rifle, klashinkov, G-3 Rifle and 222 Rifle, were recovered from the spot, it means that accused were in large number. Against Sohail Rafique and Tariq Rafique petitioners non bailable warrants of arrest were also issued against them from the Court of Mr. Hassan Ahmad, Magistrate, Daska on 14-12-2001 for initiating the proceedings under sections 87/88, Cr.P.C. The said learned Magistrate also issued proclamation on 22-12-2002. For the first time the present petitioners Tariq Rafique and Sohail Rafique appeared before Sabir Mir, D.S.P the present Investigating Officer on 14-1-2002. Then again on 18-1-2002 Tariq Rafique petitioner appeared before the said D.S.P. Perusal of police file also shows that on 28-1-2002 Tariq Rafique and Sohail Rafique petitioners appeared before the D.S.P. Namely Sabir Mir and they produced some certificates issued by Ch. Shafaat Hussain, Ch. Muhammad Akram, Ch. Manzoor Hussain, Ch. Naseem Manzoor and Masood Shorash Kashmiri to the effect that both these petitioners are respectable citizens. On 16-2-2002 Tariq Rafique and Sohail Rafique petitioners after being allowed interim bail by this Court again appeared before Sabir Mir, D.S.P alongwith affidavits of Tariq Shabbir, Mian Arshad, Advocates, Masood Shorash Kashmiri, Aamar Niazi and Ch. Manzoor Hussain.
According to the affidavits the above said persons have stated that they were present outside the Court of my learned brother Mian Hamad Farooq, J on 26-11-2001 and no conspiracy between them and Saleem Ullah petitioner took place. Without prejudice the case of any party I may state here that these above said persons including two Advocates never appeared before the police for one month and 15 days about the fact that what they stated in their affidavits. It may also be mentioned here that during the course of arguments learned counsel for Saleem Ullah petitioner has submitted before me that learned Additional Sessions Judge who has dismissed his application has not used his judicial mind because he has stated in paragraph 4 of his impugned order dated 29-6-2002 that Saleem Ullah has stated in the following terms:-- "The perusal of the record shows that Shahid Saleem, Aamar Saleem, Aurangzeb, Shafqat Ullah, Saj ad Khan, Zahid Khan, Shahid Razzaq, Nadeem Zahid, Saleem Muhammad Ishaque son of Sharif, Muhammad Saleem Ullah (present petitioner) Muhammad Riaz son of Ameen, Muhammad Akram, Muhammad Sadiq petitioners are named in the F.I.R. With specific role. They all were armed with deadly weapons."
' Learned counsel for the petitioner submitted that Saleem Ullah was never present at the spot. He was an accused of abetment and the learned trial Court did not take into consideration this fact of the matter in his judgment and so he did not use his judicial mind about the role of Saleem Ullah petitioner. In this regard learned counsel for the complainant has read out before me the ball before arrest application of Saleem Ullah which he submitted before the said learned trial Court in which the petitioner had stated in the same manner about his role as stated by the learned Sessions Judge in paragraph 4 as mentioned above.
7. At this stage I would aid lice to condemn the attitude of Sabir Mir, D.S.P who was present in Court along with the record, because when he was questioned about the result of his investigation , he submitted that all the three petitioners in both the petitions are innocent,' then Court asked him that what was ' the material available before him for declaring them innocent. He sought time for half an hour which was granted to him too through the file. In fact he was given three opportunities to explain the basis and material on which the present petitioners were declared innocent by him, in the presence of learned counsel for both the parties. His reply was not satisfactory one. In my view he had not conducted the investigation himself nor he had written the case diaries himself. He even did not know what was written in case diaries. He even did not come to this Court after going through the file of this case and for that reason I had to reserve the judgment in this case in order to go through the same and other relevant material available on the record. It has also been brought to my notice by the learned counsel for the complainant that an application was also submitted to I-G and other Higher Officers for the transfer of investigations from Sabir Mir, D.S.P to some other impartial police officer. His conduct in the instant case is not above board. On the one hand a young man has lost his life while there is matter of life and death of 40/43 accused persons in this case and this was not a proper, way in which the investigation was being conducted by Sabir Mir, D.S.P. The conduct of said D.S.P. Is very deplorable. The copy of this order be sent to the I- G, Punjab. I may also state here that opinion of the police officers is not binding on the Court. Court has to see the material available on the record on which an accused is declared innocent by the Investigating Officer to which I am not satisfied in the instant case.
8. After having heard the learned counsel for the parties, going through the police record, I am of the considered opinion that it is not a case of bail before arrest because considerations for grant of bail before arrest and after arrest are totally different. In this view of the matter, both the petitions are dismissed and bail granting orders to the petitioners are withdrawn. Disposed of.
Pre-arrest .