Mst. JEWAN MAI vs The STATE and others

ORDER

' ASIF SAEED KHAN KHOSA, J.---Through this petition Mst.Jewan Mai petitioner has sought leave to appeal against the order dated 26-6-2014 passed by Syed Muhammad Kazim Raza Shamsi, J. Of the Lahore High Court, Lahore in Criminal Miscellaneous No.8120-B of 2014 whereby respondent No. 2 namely Umar Draz had been admitted to post-arrest bail in case FIR No. 235 registered at Police Station Waryam, District Jhang on 24-7-2012 in respect of an offence under section 302, P.P.C. Read with section 34, P.P.C.

2. We have heard the learned counsel for the parties at some length and have gone through the record of investigation with their assistance.

3. For admitting respondent No.2 to post-arrest bail the learned Judge-in-Chamber had observed in the impugned order that respondent No.2 had not been nominated in the FIR as one of the culprits perpetrating the alleged murder; the name of respondent No.2 had been introduced in this case as a culprit through a statement made by Mst. Jewan Mai petitioner, mother of Qaisar Abbas deceased, under section 161, Cr.P.C. After six days of the alleged occurrence; the explanation as to why Mst. Jewan Mai petitioner and the other eyewitnesses mentioned in her statement had kept quiet for six days without disclosing the true facts to the police was unbelievable; a private complaint had also been instituted by Mst. Jewan Mai petitioner and in that private complaint the accused persons have already been summoned to face a trial; and in view of the trial being conducted in the complaint case the custody of Umar Draz respondent in connection with the Challan case amounted to custody without a trial and such custody, according to the spirit of the law, was unconscionable. We note that all the said considerations equally applied to the case of a co-accused of Umat Draz respondent namely Rab Nawaz whose petition for post-arrest bail (Criminal Miscellaneous No.3723-B of 2014) had earlier been dismissed by the same Hon'ble Judge of the High Court vide order dated 7-5-2014. A perusal of the said order passed by the Hon'ble Judge shows that Rab Nawaz co-accused had been denied post-arrest bail by observing that Mst.

Jewan Mai petitioner and the other eye-witnesses mentioned by her in her statement recorded under section 161, Cr.P.C. Were consistent regarding participation of Rab Nawaz co-accused in the murder in issue and that the said co-accused was attributed an effective role of causing injuries to the deceased which allegation found support from the medical evidence. It is but obvious that the allegations levelled by Mst. Jewan Mai petitioner and the other eye-witnesses against Rab Nawaz co-accused as well as Umar Draz respondent were almost identical and the circumstances in which the said two accused persons had been implicated in this case were also not dissimilar. It has, thus, surprised us to learn that Rab Nawaz co-accused had been denied post-arrest bail by the same Hon'ble Judge who had admitted Umar Draz respondent to post-arrest bail.

4. We have further noticed that at the time of filing his petition for post-arrest bail before the Lahore High Court, Lahore Umar Draz respondent had failed to mention at the bottom of his application the fact regarding refusal of the same relief to his co-accused namely Rab Nawaz by the same Court only a few days ago. This suppression of a material fact reflected adversely upon bona fide of respondent No. 2 in approaching the Lahore High Court, Lahore, particularly when respondent No. 2 was represented before the High Court by the same learned counsel who had appeared before the said Court in support of the petition for post-arrest bail filed by Raz Nawaz co-accused. The conduct of the learned counsel (Mr. Ghulam Rasool Sial, Advocate) in the matter, thus, cannot be approved by us and we expect him to be careful in this regard in future.

5. Another striking feature of the impugned order, passed by the Lahore High Court, Lahore in the present case is that it had weighed heavily with the learned Judge-in-Chamber of the High Court that Umar Draz respondent had been arrested in connection with the Challan case and proceedings before the learned trial court were presently being conducted in the connected complaint case and, therefore, the learned Judge-in-Chamber was of the view that the Challan case had become dormant and continued custody of Umar Draz respondent in connection with the dormant criminal case was not justified. This aspect of the matter, particularly this kind of approach adopted by the same Hon'ble Judge of the Lahore High Court, Lahore, has already been commented upon by this Court in the case of Ghulam Qammber Shah v. Mukhtiar Hussain and others (PLD 2015 SC 66) wherein this approach has categorically been held to be incorrect. It had been expected by this Court in the said judgment that the Hon'ble Judge of the Lahore High Court, Lahore would be careful in this regard in future. We reiterate the said expectation and caution the Hon'ble Judge of the Lahore High Court, Lahore in this respect.

6. As regards the merits of the case we have noticed that Umar Draz respondent stands duly implicated by Mst. Jewan Mai petitioner as well as the other eye-witnesses in their statements recorded under section 161, Cr.P.C. As the person who had given toka blows to Qaisar Abbas deceased on his head opening up the skull, letting the brain-matter out and causing his death besides causing injuries to Mst. Farzana deceased collectively with his co-accused. The medical evidence prima facie lends support to the allegations levelled against Umar Draz respondent.

During the investigation the said respondent had been opined to be fully involved in the alleged occurrence and consequently a Challan has already been submitted against him before the learned trial court. An offence under section 302, P.P.C. Attracts the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. And the case in hand is a case of double murder.

7. For what has been discussed above we have found that reasonable ground did exist regarding involvement of Umar Draz respondent in the murders in issue and, thus, the learned Judge- inChamber of the Lahore High Court, Lahore was not justified in admitting the said respondent to post-arrest bail and that too on the basis of grounds which were not legally tenable. Apart from that the learned Judge-in-Chamber had adopted discrepant approaches vis-a-vis different accused persons attributed almost identical roles which approach cannot be approved by this Court. It may be pertinent to mention here that Rab Nawaz co-accused had approached this Court through Criminal Petition No.1162-L of 2014 against the order of the High Court refusing bail to him and the said petition had been dismissed by this Court vide order dated 6-2-2015. As the case against Umar Draz respondent is not materially different from the case against the said Rab Nawaz co-accused, therefore, this Court is to be consistent in its approach. This petition is, thus, converted into an appeal and the same is allowed and consequently the order dated 26-6-2014 passed by the learned Judge-inChamber of the Lahore High Court, Lahore in Criminal Miscellaneous No. 8120- B of 2014 is set aside. Let Umar Draz respondent be rearrested and be lodged in jail pending his trial.

It may, however, be clarified that Umar Draz respondent may approach the learned trial Court again for his bail if and when any ground for such relief accrues to him in future.

8. A copy of this order may be sent to the Hon'ble Chief Justice of the Lahore High Court, Lahore as well as to the learned Judge-inChamber of the Lahore High Court, Lahore passing the impugned order for their kind information.

Bail cancelled.