' Having been involved in case F.I.R. No,71, dated 26-5-2003 under section 302/34, P.P.C. At Police Station Domail District Bannu, the accused-petitioner applied for his release on bail in the Court of learned Judicial Magistrate, Bannu but his application was dismissed vide order, dated 18-6-2003.
Thereafter he moved the Court of learned Sessions Judge, Bannu, but his application met the same fate when it was dismissed vide order, dated 11-7-2003. Now he has moved this Court for his release on bail.
2. Mansoor alias Masroor on 26-5-2003 reported at Casualty that he along with Mosam Khan deceased were going towards Domail from their village in a Flying Coach which was being driven by Mosam Khan, when they reached near Petrol Pump, Bannu Township, a police party signalled to stop them, but Mosam Khan did not stop the vehicle on which the Police Mobile Party started chasing them. It was near Domail Hospital that the driver of the police Datsun struck his vehicle with the Flying Coach, due to which the Flying Coach turned towards the Kacha Path. Police party deboarded from their Datsun and Hawaldar Driver Amirullah who was known to the complainant ordered for firing on them. Amirullah with Kalashnikov started firing. With his firing Mosam Khan was hit and died after a few moments.., The police constables who were present with Amirullah also fired at the complainant and deceased with their Kalashnikovs, but their firing was ineffective. He charged Amirullah for the murder of Mosam Khan and the other constables for firing at him.
3. Mr. Shakil Ahmad, Advocate the learned counsel representing the petitioner argued that the accused-petitioner was innocent. He was at the relevant time unarmed and was driving the police mobile (Datsun), therefore, he could not make firing at the deceased and the complainant. He referred to Daily Diary Nos.7 and 17 showing that two constables namely Ihsanullah and Saadullah were in possession of official Kalashnikovs. Moreover, the complainant and deceased were absconders in case registered vide F.I.R. No,98, dated 4-4-2003 under section 506/34, P.P.C. At Police Station Cantt. Bannu.
4. It was also argued that the co-accused namely Ihsanullah and Saadullah were released on bail by the Judicial Magistrate, Bannu vide his order, dated 18-6-2003. Bail cancellation application moved against them in the Court of learned Sessions Judge, Bannu was also dismissed vide order, dated 18-6-2003 by the learned Sessions Judge, Bannu, therefore, keeping in view the rule of consistency the accused-petitioner also entitled to be released on bail.
5. It was further argued that there was a counter-version which was incorporated in F.I.R. No,70.
Saadullah, constable had lodged report to the effect that when the police party signalled the deceased and complainant to stop, they did not stop the vehicle, on which they were chased and it was during the chase that someone fired with pistol from the Flying Coach and it was in self- defence that the police party was constrained to make firing. Since there were two counter- versions, therefore, the accused-petitioner was entitled to be released on bail.
6. On the other hand Mr. Asadullah Chamkani, Advocate the learned counsel for the complainant and .Mr. Waheedullah Khan the learned counsel representing the State opposed the grant' of bail on the ground that the police party headed by the accused-petitioner had murdered a young man of 38/40 years for no fault on his part. If the deceased did not stop the vehicle on the signal of the police party, the police officials had no lawful justification to open fire on the deceased and the complainant.
7. It was also argued that the counter-version was concocted because the accused-petitioner is Hawaldar in police, whereas the co-accused were police constables. The preparation of Daily Diary with regard to the handing over the official Kalashnikovs and depositing the same clearly indicate the manipulation by the police officials. Not only a concocted case was registered vide F.I.R. No,70 at the instance of Saadullah constable but the police officials dishonestly shown recovery of pistol and five empties from within the Flying Coach. The licensed pistol of the brother of the deceased was in fact recovered from the house of the brother of the deceased and was wrongly shown having been: recovered from the Flying Coach. It was also argued that though in the Daily Diaries and F.I.R. Lodged by Saadullah he has admitted having fired five shots from official Kalashnikovs but astonishingly not a single empty of Kalashnikovs was recovered from the spot, which also indicates that the investigation in the case was dishonest.
8. If was further argued that the presence of the accused-petitioner and two constables was not denied. Even firing made by them has been admitted. The plea of self-defence is not only concocted but has been taken to save their skins. There was a prima facie strong case connecting the accused-petitioner with the commission of offence, hence the accused-petitioner does not deserve to be released on bail.
9. I have heard the arguments of the learned counsel for the parties and perused the record.
10. In the case in hand a young man namely Mosam Khan aged about 38/40 years was killed. The admitted position is that the accused-petitioner along with co-accused Ihsanullah and Saadullah constables were present at.The spot at the time of occurrence. Firing by police party has also been admitted in F.I.R. No,70 lodged at the instance of Saadullah, co-accused. The contents of F.I.R. No,70 show that the police party had a prior information that Mosam Khan deceased and Mansoor (complainant) who were wanted in a firing case registered in Police Station Cantt., Bannu were travelling in a Flying Coach bearing No,RPT-1765 towards Domail, hence they had placed barricade (Nakabandi) near Small Industry Township. The said pick-up appeared at 13-30 hours which was signalled to stop but the driver did not stop the same and continued driving the vehicle towards Domail on which it was chased and someone fired from the said Flying Coach at the police party with pistol and it was in. The self-defence that the police party also made firing at the tyres of the Flying Coach. Suddenly the Flying Coach came out of control of the driver and turned on the Kacha path near Civil Hospital, Domail. In addition to the said F.I.R. Two entries in the Daily Diary were made. One at Serial No,7 and the other at serial No,17. The question that arises here is as to whether the police party which was headed by the accused-petitioner, who was then wearing the rank of Hawaldar and was assisted by two constables could open fire if the deceased as per police version put forth in F.I.R. No,70 did not stop the Flying Coach when the same was signalled to stop, the answer to this question is in negative. As per subsection (2) of section 46, Cr.P.C. If a person whose arrest is intended by the Police Officer forcibly resists endeavour to arrest him, or attempts to evade his arrest, such Police Officer or other person may use all means necessary to effect his arrest. Subsection (3) of the same section debars the right to cause the death of a person, who is not accused of an offence punishable with death or with imprisonment for life.
11. The perusal of F.I.R. No,70 registered by Saadullah constable shows that the police party, as mentioned above, had prior information that the deceased and complainant of F.I.R. No,71 were only required in a case of "firing" registered under section 506/34, P.P.C. i,e, they were fully aware that neither the deceased nor the complainant was involved in a case which was punishable with death or imprisonment for life. The only sin of the deceased was that he did not care to stop the vehicle when the police party signalled to stop the same. Under no provisions of law the accused- petitioner or the co-accused were authorized to open fire on the deceased and complainant.
12. So far as the question of self-defence put forth vide F.I.R. No,70 is concerned, at this stage this Court would be reluctant to make any observations lest the observations of this Court may not affect the trial, suffice it to state that it shall be seen during the trial as to whether under the circumstances, the plea of self-defence was available to the police party or not.
13. It is by now settled law that right of self-defence can be used as a shield to ward off an unwanted attack to person or property but it cannot be used as a vehicle for provoking the attack.
In other words it is to be exercised as a preventive measure and not for launching an attack for retaliatory purpose. Every Police Officer is supposed to know that in making an arrest he must not subject the person to be arrested to unnecessary brutality what to speak of killing him. No police official has a licence or authority to kill anybody howsoever desperate, dangerous or hardened criminal, the said person may be. He is to be strictly dealt with in accordance with law. Even an encounter will not entitle a police party to kill indiscriminately the persons who were allegedly involved in the encounter because the police personnels themselves cannot be sole arbiter on the question whether the killing of certain persons in an alleged encounter was warranted by the facts of the case but it is for the competent Court of law to decide the above question.
14. Police officials are to act in aid of enforcement of Article 9 of the Constitution of the Islamic Republic of Pakistan which guarantees a fundamental right that no person shall be deprived of life or liberty save in accordance with law, therefore, the public functionaries like police force, are to act in aid of enforcement of above Constitutional provisions rather than to violate the same and to expose themselves to criminal prosecution. Wisdom in this regard has been sought from Ch. Muhammad Yaqoob and others v. The State and others 1992 SCM R 1983.
15. The accused-petitioner has been charged for effective firing. The argument of the learned counsel for the petitioner that the accused-petitioner was at the relevant time driving the vehicle, hence could not make firing has no force because it is in the F.I.R. That after colliding the vehicle (Flying Coach) and pushing it aside the police party deboarded from their official pick-up and started firing with which the deceased was hit and died after a few moments. Specific role has been attributed to the petitioner which finds support from the post-mortem report and other circumstantial evidence. I, therefore, do not feel inclined to release the accused-petitioner on hail.
Resultantly the application in hand is dismissed.