Haji MUHAMMAD NAZIR Versus State

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J .---This petition for leave to appeal has been filed against the judgment, dated 11th June, 2004 passed by Lahore High Court, Lahore whereby Criminal Miscellaneous No.3215-B of 2004 filed by petitioners has been dismissed.

2. Facts in brief leading to filing of instant petition for leave to appeal are that petitioners are confined in District Jail, Sargodha being accused for the offences under sections 147, 148, 337-A(i), 337-A(ii), 337-L(b), 337-F(i), 354, 440/149 and 34, P.P.C. in pursuance of F.I.R. No.43, dated 6th March, 2004 lodged with Police Station, Atta Shaheed, District Sargodha . Their initial request for bail before arrest was declined by Additional Sessions Judge, vide. judgment, dated 8th April, 2004 and subsequently prayer for release on bail after arrest was also not conceded to by Additional Sessions Judge on 30th April, 2004, which has also been confirmed by the learned High Court vide impugned judgment, dated 11th June, 2004 against which instant petition for leave to appeal has been filed. Concluding para. from the impugned judgment reads as under thus:---

"6. I have considered the submissions made by learned counsel for the parties with care. As mentioned above, the allegation against the petitioners is that they dispossessed the complainant from the land in question without any warrant of possession. Admittedly, the complainant was in possession of the land in question for the last twenty years. There was no order of competent Court or warrant of possession to get possession from the complainant. It is also admitted that the petitioners/accused are still in possession of the land in question. In these circumstances, it is crystal clear that accused attacked the complainant party in a pre-planned manner obviously with the connivance of officials of Revenue Department (Tehsildar, Naib Tehsildar, Girdawar and Patwari) and local police. The petitioners dispossessed complainant during day light and set an example of lawlessness in the locality. It is well-settled that none can claim bail as of right on non-bailable offences even though the same do not fall under he prohibitory clause of section 497, Cr.P.C. Reliance can be placed upon Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442. As regards cross-case, suffice it to say, that the said case was registered against complainant party when accused/petitioners forcibly dispossessed the complainant party from the suit-land and in consequence thereof they offered resistance. Abdul Hameed Khan, S.P. (Investigation) who is I.O. of this case is present in Court and states that during investigation it was found that accused/petitioners dispossessed the complainant party from land in question illegally and damaged their crops and residential `Dera'. In these circumstances, I do not find it a fit case for grant of bail to the petitioners and application brought by them is accordingly dismissed. It is clarified that observations made in this order or the orders passed by the learned Courts below, would not influence the trial. However, I feel that this is a case in which the trial of the accused should be expedited and I direct accordingly.'"

3. Bone of contention between both the parties is a landed property in respect whereof civil dispute is pending adjudication presently before the High Court in Civil Revision No.1029 of 2003, instituted by the complainant Abdul Haq, against the judgment of District Judge, Sargodha, on 22nd May, 2003. It is pertinent to mention here that on the pronouncement zof the decision by the District and Sessions Judge, the petitioners with the connivance/assistance/facility of the Revenue and police officials forcibly took over the possession of the disputed property from the complainant, which allegedly he was enjoying peacefully for the last so many years. On this, statedly a fight took place between the parties, as such one of the petitioners (accused Muhammad Ismail son of Ali Muhammad) got registered F.I.R. No.81 of 2003, dated 26th May, 2003 against the complainant at Police Station, Atta Shaheed under sections 337-A(ii), 337, 448, 147, 149 and 511, P.P.C. Subsequently, they were released on bail. The complainant party tried its best for lodging report on their behalf in respect of same incident but no one heard them, therefore, they proceeded to approach the Lahore High Court, Lahore for redressal of their grievance but it is stated that Abdul Haq complainant was advised to approach the police authorities and after such direction complainant succeeded in lodging F.I.R. No.43 of 2004 on 6th March, 2004 at Police Station, Atta Shaheed, in respect of incident which took place on 26th May, 2003, as per contents whereof the petitioners with the help/facility and connivance of the Revenue and police officials dispossessed them from the possession of the property in dispute. Relevant portion therefrom is reproduced hereinbelow for convenience:---

It is alleged in the F.I.R. that attack launched by the petitioners upon the complainant party resulted in demolishing the `Kothas'/Building and outrage the modesty of their womenfolk including causing injuries to Abdul Ghafoor and Abdul Hameed sons of Muhammad Bukhsh.

4. After the registration of the case investigation was conducted and petitioners were arrested. Their requests for bail before arrest and after arrest have been declined tip to the High Court, as has been mentioned hereinabove. As such instant petition for leave to appeal has been filed.

5. Learned counsel appearing for petitioners vehemently contended that it is a case of cross-version. The complainant party who were accused in the F.I.R. No.81 of 2003, dated 26th May, 2003 lodged by one of the petitioners Muhammad Ismail, have been released on bail by the Judicial Magistrate. Whereas in respect of the same incident, wherein the complainant party has allegedly sustained identical type of injuries, petitioners are in custody for a period of more than three months. And as the offences charged against them falls within the non-prohibitory clause of section 497, Cr.P.C. as such in view of rule that in such cases grant of bail is a right but the denial is exception, they are entitled for grant of bail. In this behalf reliance has been placed by him on the judgment in the case of Tariq Bashir v. The State PLD 1995 SC 34 and Muhammad Aslam v. The State through A.G. 1997 SCMR 251.

It is also contended by him that challan of the case has been submitted, therefore, no useful purpose will serve by detaining the petitioners in custody as it has been held in the case of Mrs. Manzoor and 4 others v. The State PLD 1972 SC 81.

Learned counsel emphatically arguing the case on merits contended that injuries on the persons of Abdul Ghafoor and Abdul Hameed are self-suffered because petitioners wanted to get them examined through Medical Board duly constituted under the direction of the Court but they did not appear as such merely on the basis of fake medical certificates, prima facie, petitioners cannot be held responsible for causing injuries to attract the provisions of section 337-A(i), A(ii), L(b) and F(i), P.P.C. as such they are entitled for bail.

6. Mr. Fazal-e-Miran Chohan, Additional Advocate-General, Punjab vehemently opposed to grant of bail as according to him petitioners have forcibly dispossessed the complainant from the landed property on the show of force with the connivance of the Revenue and police officials who facilitated them in accomplishment of their object and as the petitioners are involved in the offences which are non-bailable, therefore, notwithstanding the fact that their case falls within the non-prohibitory clause of section 497, Cr.P.C. as a matter of right, they are not entitled for grant of bail. In support of his contention he has relied upon the judgment in the case of Muhammad Siddique v. Imtiaz Begum and two others 2002 SCMR 442. He further stated that learned High Court had declined to grant bail to petitioners by means of impugned judgment with lawful authority and jurisdiction, therefore, no case for interference by this Court is made out.

7. Syed Ehtesham Qadir, Advocate Supreme Court adopted the arguments of the Additional Advocate-General and opposed the grant of bail to the petitioners in view of the facts and circumstances of the case.

8. We have heard the parties' counsel as well as Additional Advocate-General and have also perused the record so made available before us. On the last date of hearing case was adjourned to provide an opportunity to Additional Advocate-General to ascertain as to whether the officials of the Police Department and Revenue Department, allegedly involved in facilitating of taking over possessions of the land, subject-matter of the dispute, from the complainant, have been arrested or not. It is informed that Mumtaz Hussain, Naib Tehsildar, and Muhammad Nawaz Naib Qasid have been arrested whereas Muhammad Qasim Bharwana, Tehsildar has proceeded on leave and Falak Sher, Inspector of Police has passed away, whereas steps are being taken to cause the arrest of the remaining persons.

9. Learned counsel appearing for petitioners candidly conceded that possession of the land in dispute was delivered to the petitioners after taking it over from the complainant party by the officials of the police and Revenue Departments, according to him after the judgment of District and Sessions Judge, dated 22nd May, 2003, the petitioners could have taken over the possession by filing execution application in the Civil Court but they did not file application for execution of order of District and Sessions Judge. In view of his such statement, prima facie, it can be concluded that the officials of Revenue and Police Departments as well as the petitioners with the connivance/assistance/facility of each other illegally took over the possession of the disputed property, during course whereof happening of hurt/trespass etc. was bound to take place. The petitioners must have emerged at the place of incident in association of. Government officials for accomplishment of their object, which gave rise to criminal proceedings against each other but fact remains that petitioners exceeded to their authority and to suppress their illegal act, they succeeded in getting registered a criminal case against the complainant vide F.I.R. No.81 of 2003 because the law-enforcing machinery, i.e. both police and Revenue Departments were on their side. As far as victim party/complainant is concerned, no one listen them as the report being lodged by them was not entertained by the S.H.O. Falak Sher (since dead) and they were taken into custody in the case which was registered on the complaint of petitioner. However, the Judicial Magistrate released them on bail, prima facie, considering them entitled for this concession, in view of the facts and circumstances of the case. This background of the case persuades us to hold that law-enforcing functionaries exceeded to their authority in not entertaining the grievance of the complainant, therefore, having left with no option they had to approach the learned High Court and got registered the case against petitioners on 6th March, 2004, after about ten months from the happening of the incident. This fact itself is sufficient to infer that petitioners on account of their influence succeeded in restraining the machinery of law to help the complainant for the oppressiveness to which they were subjected at the hands of the petitioners.

10. Be that as it may, now it will be examined that as to whether in above background petitioners are entitled for grant of bail? It is true that offences for which petitioners have been charged entails punishment not more than five years, which also falls within the category of non-bailable offence, therefore, they are not entitled as a matter of right for release on bail, notwithstanding the fact that their case is covered under the non-prohibitory clause as defined under section 497, Cr.P.C. as it has been held in the case of Muhammad Siddique (ibid). As far as principle of law being relied upon by the learned counsel from the judgment in the case of Tariq Bashir (ibid) that the grant of bail in offence punishable with imprisonment for less than ten years is a rule and refusal- is exception would not help to the petitioners in view of exceptional and extraordinary circumstances of the case, where the petitioner with the help and connivance of the law-enforcing agencies violated/negated to the rule of law by forcibly taking over the possession of the property from the complainant during course whereof the buildings/Kothas etc. owned by them were also demolished and also humiliated the complainant by causing injuries on some of their party-men by launching attack with good number of accused persons to accomplish the object being duly armed with deadly weapons thereby making each member of unlawful assembly guilty for the commission of the offence.

11. It is well-settled that each criminal case has its own features and is required to be decided on its own merits independently. As far as the principle of law pronounced in Manzoor v. State PLD 1972 SC 81 namely that bail is not to be withheld as punishment, is concerned, there is no cavil with it but as it has been held in the case of Muhammad Siddique (ibid) that in the cases falling within the non-prohibitory clause, the accused is not entitled as a matter of right for grant of bail, therefore, keeping in view the facts of each case, the Courts may not like to extend the benefit of grant of bail to such accused persons. In the instant case as well the learned High Court after having considered facts of the case, inter alia, has held that complainant was in possession of the land in question for the last about 20 years and there was no order of the competent Court or warrants to get possession from the complainant, coupled with the fact that the petitioners-accused are still in possession of the land in question, therefore, for such reason declined them concession of bail.

12. Emphasis of the learned counsel about self-suffered injuries by the injured and non-cooperation of the complainant to appear before the Medical Board merits no consideration firstly for the reason that the petitioners accused admitted to get themselves medically re-examined after about a considerable period from the date of happening of the incident because during this long period healing of injuries cannot be overruled. Secondly the trial Court, before whom the case is pending, so far has not doubted the genuineness of the medical evidence being produced by the complainant against the petitioners, therefore, at the persuasion of the petitioners accused Medical Board was not liable to be constituted. However, on the basis of material available on record i.e. Medical Certificates of both the injured namely Abdul Ghafoor and Abdul Hameed, it can safely be concluded that they sustained injuries, caused to them when petitioners committed the crime being duly armed with deadly weapons.

13. Learned counsel for petitioners lastly contended that without causing prejudice to his above arguments, learned trial Court may be directed for expeditious disposal of the case as perhaps petitioners would avail another chance for their release on bail by repeating their request.

We feel no harm in making such observations i.e. that petitioners after recording of some evidence would be free to file fresh application for grant of bail, the Court shall decide bail application, if filed, on its own merits, in accordance with law and without being influenced in any manner from the present proceedings.

14. It may also be noted that grant of bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever he/they is/are required to be produced. Therefore, we have no reason to differ with the conclusion of the learned High Court that for the reasons disclosed in the impugned order, petitioners are not entitled for grant of bail.

Thus for the foregoing reasons, we see no substance in this petition as such same is dismissed and leave declined.

M.H./M-169/SC Petition dismissed.