' Petitioner is father of late Shuja-ul-Hassan Chohan, who was murdered and case vide F.I.R. No. 284, dated 13-11-1995 under section 302, P.P.C., Police Station Race Course, Lahore on the statement of Abdul Aleem Banday was registered against respondent No.1.
2. According to the petitioner after murder respondent No.1 escaped from the spot and after registration of F.I.R., statement of Abdul Aleem Banday under section 161, Cr.P.C. Was recorded, who supported the version narrated by him in the F.I.R. Implicating respondent No. 1 for murder of Shuja- ul-Hasssa n Chohan, son of the present petitioner, Bashir Ahmad son of Jamal Din and Sabdr Khan were named as eye-witnesses of the occurrence in the F.I.R. Both of them also supported the prosecution story narrated by Abdul Aleem Banday in the F.I.R. And implicated respondent No.1 in their statements under section 161, Cr.P.C. Apart from these witnesses Muhammad Abdullah and Yousuf Hameed, Security Guards of Gymkhana Club were also examined. They also supported the prosecution story nominating respondent No.1 as accused. The case was investigated in absence of respondent No.1 and incomplete challan was submitted by the police on 20-12-1995.
Proceedings under section 87 and 88, Cr.P.C. Were initiated against him and he was declared P.O.
And was sent up for trial which was entrusted to Ghulam Mustafa Shahzad, ASJ, who recorded the evidence under section 512, Cr.P.C. The witnesses were summoned by the trial Court and according to the petitioner Mr. Zafar Qureshi, who was senior police officer #nd brother in law of respondent No.1 started pressurizing the witnesses and under their pressure statement of Abdul Aleem Banday was got recorded under section 164, Cr.P.C. Before a Magistrate of Shandara Town, despite the fact that the case wasregistered at Police Station Race Course, Lahore and investigation of the case was already concluded. The petitioner filed W.P. No. 16017-97 before this Court for registration of criminal case against Zafar Qureshi and two others which is still pending but during the course of hearing, with the concurrence of parties, an inquiry was directed to be held by Civil Judge with the powers of Magistrate 1st Class, Lahore against the police official and enquiry was entrusted to Mian Ghulam Hussain, Civil Judge, Lahore (as he then was) and Abdul Aleem Banday was summoned as Court witness under the orders of High Court and meanwhile accused party by exerting influence won over Abdul Aleem Banday and Sabar Khan witnesses and respondent No.1 appeared before the inquiry Magistrate, who was then promoted as ASJ and obtained interim pre-arrest bail and joined the investigation wherein he was declared innocent and consequently pre-arrest bail was confirmed by Main Ghulam Hussain, ASJ, Lahore vide order, dated 21-2-2003, which has been sought to be cancelled.
3. Learned counsel for the petitioner has argued that supplementary challan was submitted and case was entrusted to Mian Ghulam Hussain, ASJ, who had earlier, conducted an inquiry and he knew that the petitioner is resident of Rawalpindi and has been appearing in the inquiry proceedings before him, without summoning him proceeded with the trial and recorded statements of two eyewitnesses without notice and in absence of present petitioner and without providing him opportunity to engage a counsel and also confirmed the bail vide impugned order, when objection was raised by the petitioner before the learned ASJ about his partial conduct, he sent a reference to the High Court for transfer of case and now the case has been entrusted to another ASJ. Learned counsel for the petitioner has made a reference to "Awal Gul v. Zawar Khan and others (PLD 1985 SC 402) and has argued that accused remained absconder for considerable period after committing murder so he lost normal rights granted by the procedure as well as substantive law and there was no mala fide on the part of the complainant or petitioner for false implication of respondent No. 1 . He was nominated accused in the promptly recorded F.I.R. And respondent No.1 was not entitled for pre-arrest bail.
4. The petition has been opposed by Dr. Khalid Ranjha, Advocate and Mr. Abdul Rehman Assistant Advocate General, Punjab.
5. Dr. Khalid Ranjha, learned counsel for respondent No.1 has argued that after grant of bail, trial of the case has almost been concluded and none of the eye-witnesses have deposed against respondent No.1 and only witness Bashir Ahmad, who is yet to be examined has been appearing before the trial Court and also moved this Court through Writ Petition that he has not seen the occurrence and thathis statement be recorded but the trial is being delayed un-necessarily by the complainant party and at present there is no evidence whatsoever against respondent No.1 for Commission of crime, therefore, at this belated stage bail should not be cancelled.
6. I have given due consideration to the contentions raised at the bar and have minutely perused the record.
7. In the investigation conducted by the first Investigating Officer Abdul Aleem Banday, Bashir Ahmad son of Jamal Din, Muhammad Sabir Khan son of Muhammad Aslam, Muhammad Abdullah and Yousuf Hameed had fully implicated respondent No.1 in their statements recorded under section 161, Cr.P.C. Respondent No.1 was declared proclaimed offender on 19-12-1995 and challan against him was submitted under section 512, Cr.P.C. On 27-12-1995. Respondent No.1 failed to surrender himself before the police or Court till 27-1-2003. He remained proclaimed offender for continuous period of 8 years. Respondent No.1 surrendered himself and obtained pre-arrest bail on 28-12-2002. Thereafter supplementary challan was submitted by placing respondent No.1 in column No.2 of report under section 173, Cr.P.C. Learned ASJ Lahore confirmed the pre-arrest bail vide order, dated 21-2-2003 mainly on the ground that case against the respondent No.1 is that of further inquiry. No mala fide was alleged on the part of police or the complainant. His order is clear violative of principles laid down by the Hon'ble Supreme Court of Pakistan in "Zia-ul-Hassan v. The State" (PLD 1984 SC 192), which reads as under;-- "The Court has no power to grant bail before arrest unless all the conditions laid down by the superior Courts from time to time are satisfied, the most essential of them all being that the intended arrest would be tainted with mala fides which must be specifically stated."
' His also held in "Awal Gul v. Zawar Khan" noted supra as under:-- "It is now well established law that a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law."
Resultantly, I find that learned ASJ, Lahore was not justified in granting/confirming pre-arrest bail to respondent No.1 keeping in view the above-quoted principle of law. He is specifically nominated in the promptly recorded F.I.R. And the eye-witnesses of the case duly supported the prosecution story in their statements under section 161, Cr.P.C. Subsequent conduct of respondent No.1 by winning over the witnesses amount to tampering with the evidence. The argument oflearned counsel for respondent No.1 is that trial almost has been concluded is immaterial as the accused party produced the witnesses without providing opportunity to the petitioner, who under the law is aggrieved party, has not been associated in the subsequent investigations or provided with an opportunity to cross-examine the witnesses particularly when they had earlier supported the prosecution story but made concessional statements before the trial Court. The respondent No.1 failed to furnish any justification for his abscondence for such a long time thus dis-entitled himself for the concession of pre-arrest bail, therefore, I allow this petition and cancel the to respondent No.
1. DPO, Lahore is directed to cause the arrest of the accused and send him in judicial lock up till the decision of the case.
Pre-arrest Bail cancelled.