MUHAMMAD ARIF Versus STATE

ORDER

Muhammad Arif son of Muhammad Ashiq seeks bail in case registered vide F.I.R. No.418 with Police Station Saddar, Sheikhupura on 3‑6‑1998 under sections 364/ 302/148/149 read with section 201, P.P.C. for the murder of one Zishan.

2. The bail application was earlier dismissed by my learned brother Asif Saeed, Khan Khosa, J., on 18‑5‑2000. Muhammad Arif filed Criminal Petition No.301‑L of 2000 before the Supreme Court of Pakistan which was heard on 10‑7‑2000 and the case was remanded to this Court for a fresh decision. The Hon'ble Judges held that it would be appreciated if the case is enlisted before the Bench who had earlier disposed of the bail application, since Mr. Muhammad Latif Khan Khosa, learned Advocate represented the petitioner Muhammad Arif my learned brother Asif Saeed Khan Khosa, J., expressed his difficulty in hearing the case on the ground that post‑remand proceedings presented a difficult predicament for the Bench as well as for the learned counsel for the petitioner due to ':is close kinship with learned Judge and due to earlier order cases of Sardar Muhammad Latif Khan Khosa, Advocate were not fixed before my learned brother. Matter was placed before the Honourable Chief Justice who was pleased to fix the case before this Bench.

3. The Honourable Supreme Court tabulated the following three points forming basis of post‑remand hearing:‑‑

(i) Merits of the case to be considered;

(ii) Impact of submission of challan to be taken into consideration; and

(iii) Detail of murder cases in which the petitioner is involved to be kept into account for the purpose of coming to prima facie, conclusion whether in such like situation the accused can be considered to be a desperate and hardened ' criminal to refuse the concession of bail to him.

4. Prosecution version divulged in the F.I.R. authored by Muhammad Saleem son of Jiwan Khan is that on 28‑5‑1998 he was proceeding from his village in the company of Muhammad Boota son of Feroze Din, Abdullah son of Wazir Ali at 6‑00 'p.m. towards Sheikhupura and after attending to their errands they were returning home and when they reached Chungi situated on the Gujranwala Road at 9‑15 p.m. his nephew and son in law Muhammad Zishan working at the Chungi was performing duties with Amar Raza when a tractor trolley came from Gujranwala side and stopped at the Chungi Ghulam Muhammad and Rehmat Ali sons of Ibrahim, Akbar son of Sher Muhammad, Rafique son of Ismaeel, Ghulam Rasool son of Yousaf, Sher Muhammad son of Khair Din, Abdul Ghafoor, Muhammad Ayub and Masood sons of Sardar Muhammad, Iftikhar son of Abdul Ghafoor and Rehmat Ali son of Siraj all armed with fire‑arms accompanied by five unknown persons also carrying fire arms alighted from the tractor and immediately thereafter Ghulam Muhammad son of Ibrahim raised a Lalkara that Zishan should be abducted to teach him a lesson for killing their comrades, upon which all of them lifted Zishan from the Chungi, placed him in the trolley and drove the tractor trolley towards Sheikhupura and took him to the house of Muhammad Arif the present petitioner. Complainant stated that he alongwith other employees of the Chungi raised hue and cry but the opponent being armed with fire‑arm nobody dared to intercept them for rescuing Muhammad Zishan. He was of the belief that Zishan must have been murdered by the accused named in the complaint in connivance with Muhammad Arif Virk.

5. Motive for the occurrence is stated to be that on the same day i.e. 28‑5‑1998 three persons were murdered in Mauza Hardev, Tehsil and District Sheikhupura and it was suspected by the accused that Zishan's father Muhammad Akram and others were responsible for the murder. It is for this reason that he was abducted for the purpose of murder. Apart from him Muhammad Boota son of Feroze Din, Abdullah son of Wazir Ali and employees of the Chungi Pervaiz Shah and Aamar Raza saw the occurrence. Despite their repeated requests to return Zishan the accused persons finally refused to accede to their demand, therefore, the complaint was registered on 3‑6‑1998.

6. Post‑arrest bail was earlier declined try the Additional Sessions Judge, Sheikhupura on 5‑4‑2000 and thereafter by this Court on I8‑5‑2000 as mentioned earlier.

7. Learned counsel appearing for the petitioner contended that only evidence appearing against him is statement of Zahid Mehmood and Mushtaq recorded on 3‑7‑1998 whereby both the witnesses deposed that on 28‑5‑1998 at 10‑15 p.m. they heard shouts from the shop of Arif where they went and saw Ghulam Muhammad, Akbar, Ameen, Ghulam Rasool, Slier Muhammad, Abdul Ghafoor, Muhammad Ayub and others alongwith five unknown persons who were giving beatings to Zishan son of Muhammad Akram. He alongwith Mushtaq tried to the rescue of Zishan but they were threatened by the perpretrator of the crime that in case they intercede, they would be murdered. However, within their sight Arif and Ashiq with their weapons fired upon Zishan whereas Muhammad Akram and Sher Muhammad slaughtered Zishan with their knife. After murder of Zishan, hip dead body was taken. Out of fear both the witnesses ran away. Learned counsel elaborating his arguments stated that Zahid Mehmood was real brother of Maqsood accused and first cousin of Ehsan whereas Mushtaq was uncle of Imran Nazeer accused and Khawar Rasheed was an absconding accused in F.I.R. No.400 registered on 28‑5‑1998 by Iftikhar an injured witness against the accused named therein for the murder of Abdul Sattar brother of Arif the present petitioner, Atta‑ur‑Rehman and Shoaib. In the occurrence it is stated that Iftikhar author of F.I.R. No.400 was also injured. Taking his argument to its logical conclusion learned counsel submitted that if on 28‑5‑1998 Zahid and, Mushtaq came to know about the murder of Zishan at the hands of Arif and Ashiq, etc., why did they keep mum for more than a month when their statement was recorded on 3‑7‑1998 and secondly the instant F.I.R. was lodged on 3‑6‑1998 by Muhammad Saleem the question which bewildered the mind was as to why the two witnesses namely Zahid and Mushtaq failed to inform Muhammad Saleem son of Jiwan Khan author of F.I.R. No.418 to enable him to get this information, deposed to by the two witnesses, recorded in the complaint.

8. As regards the submission of challan in the Court the same was admitted but reliance was placed on the case of Muhammad Ismaeel v. Muhammad Rafique and another, reported in PLD 1989 SC 585 wherein it was held that provision of section 497, Cr.P.C., cannot be taken to be subservient of the filing of challan in the Court and if accused is entitled the bail, facility would be extended to him irrespective of the proceedings before the trial Judge. Lastly learned counsel submitted that made petitioner was accused in criminal case arising out of F.I.R. No.210, lodged with Police Station Factory Area Sheikhupura on 10‑4‑1999 under sections 302/109/34, P.P.C. in which the role attributed to him was that of having abetted the murders of Razzaq, Imran and Waheed. In this case it was stated that bail was allowed by this Court in Criminal Miscellaneous No.4175‑B of 1999.

9. Learned counsel for the complainant emphasized vociferously that not only challan was submitted in the Court and trial has commenced but on 30‑8‑2000 three prosecution witnesses two of whom were eye witnesses were examined and their cross examination was reserved as counsel for Muhammad Arif and other co‑accused was not available. Once again on 11‑10‑2000 five prosecution witnesses were present but the proceedings could not make head away because of absence of the defence counsel. Resultantly the case before the trial Judge now stands adjourned to 18‑10‑2000. Learned counsel relied upon Mahmood Ahmad and others v. The State reported in 1995 SCMR 1242 and submitted that rule expounded by the apex Court in Muhammad Ismaeel v. Muhammad Rafique and another (PLD 1989 SC 585) was reviewed in the precedent case of Mahmood Ahmad and others v. The State (supra), the Sessions Judge allowed bail on the ground that name of the accused was placed in Column No.2 of the challan and no overt act has been attributed to him during the occurrence. On the application moved by the complainant, High Court cancelled the bail. The Supreme Court while hearing the petition for leave to appeal concluded that since the trial had commenced and two witnesses were examined, therefore, it was not proper to consider the question of bail lest the observations made may influence the trial Court in one way or the other. Further reliance was placed in the case of Ajmal Khan v. Liaqat Hayat and another reported in PLD 1998 SC 97, wherein it was held that Supreme Court normally does not interfere with the order of the High Court regarding bail in cases in which either the challan has been put up in the Court and the trial is likely to commence shortly or the trial has begun. Reliance was also placed on Muhammad Sadiq and others v. The State, reported in 1980 SCMR 203.

10. As regards third point respecting the case registered against the petitioner learned counsel pointed out that the petitioner was an accused in F.I.R. No.504 registered with Police Station 'B' Division, Sheikhupura in the year 1994 for the murder of Muhammad lqbal. It was stated that the case ended in compromise and the petitioner was acquitted. Again the petitioner was accused in F.I.R. No.920 registered with Police Station Saddar, Sheikhupura in the year 1989 in which it was alleged that the petitioner Arif fired on Muhammad Boota and killed him. In this case too the matter was compromised which ended in acquittal of the petitioner. In F.I.R. 750 registered with Police Station Saddar Sheikhupura on 22‑8‑1998 two Klashnikov alongwith a large number of bullets was stated to have been recovered from the possession of the petitioner. This case was pending adjudication. Lastly as F.I.R. No.210 of 1999 registered with Police Station Factory Area in which the petitioner had abetted three murders, mention of which made in the earlier part of this order, was also a case pending against him.

11. I have given serious consideration to the arguments advanced by the respective counsels and have also adverted to the record available. I am of the considered view that the trial has commenced, two witnesses have been examined and their cross‑examination stands reserved as the defence counsel was absent. Once again on 11‑10‑2000 five prosecution witnesses were present but they could not be examined due to non‑availability of the defence counsel. At this stage any decision regarding the merits of the case has to be seriously avoided lest it may prejudice the case, of either of the parties before the trial Judge where trial has already commenced. It is pertinent to mention that the delay in trial present is being occasioned due to the conduct of the defence counsel. He was not present on 30‑8‑2000 when two witnesses were examined and their cross‑examination was reserved. Again on 11‑10‑2000 five witnesses were present in Court but they could not be examined due to absence of their defence counsel; so much so that the counsel for the complainant has volunteered that he is prepared to examine all the witnesses within a fortnight if defence counsel does not adopt an evasive attitude which he has taken so far. The only point on merit which needs examination is the impact of the delayed statements of Zahid and Mushtaq implicating the accused with the commission of offence of murder of Zishan, part from the allegation levelled by Saleem in the F.I.R. that Zishan was taken' to the Dera of, the petitioner. Any expression of opinion on this point is definitely going to affect the merits of the case which the trial Judge is seized of, therefore, I am reticent to embark upon such course of action.

12: As far as the involvement of the petitioner in criminal cases two of which have been pointed out by the learned counsel for the complainant the petitioner stands acquitted. One case under the Arms Ordinance is pending against' him. Since I intend to dismiss 'the application following the rule propounded by the apex Court in the case of Mehmood Ahmad and another v. The State reported in 1995 SCMR 1242, I need not to enter the controversy whether two cases now pending against the petitioner brings him within the ambit of the term "Desperate and Hardened Criminal".

13. Since the trial has commenced, witnesses of the prosecution have been examined the petitioner instead of pursuing the instant application for bail should monopolise his full attention towards the progress of his case before the trial Judge. Application for bail, therefore, stands rejected.

H.B.T./M‑829/L Bail Application rejected,