MULAZAM HUSSAIN Versus THE STATE

ORDER

The petitioner Mulazam Hussain has moved this petition for bail after arrest under section 497/498, Cr.P.C. in a case registered against him and others under section 307/506/148/149, P.P.C. read with section 76 of the Punjab Local Government Ordinance, 1979, at Police Station Katha Sagral, District Khushab, vide F.I.R. No. 118, dated 30‑11‑1987.

2. In brief, the case is that on 30‑11‑1987 election of the Local Council was being held wherein Malik Rab Nawaz and Malik Muhammad Bashir were the candidates for membership of District Council Khushab. In Ward No. 6, Malik Muhammad Bashir had lesser number of voters. One Shaukat Husain was acting as polling agent on behalf of Malik Rah Nawaz, whereas Sikandar Khan was the polling agent of Malik Muhammad Bashir in the above‑referred Ward. In the adjoining room polling pertaining to Ward No. 5 was going on and in the said election of the ward Feroze Khan brother of the complainant, retired Subedar Malik Nazar Hussain was the candidate for membership of Union Council Padhrar. On an objection over a vote, Sikandar Khan abused Shaukat Husain and also gave a slap on his face. On the alarm of Shaukat Husain, Feroze Khan came from the polling booth of Ward No. 6 and Ghulam Abbas threw a stone at him which hit him on the mouth. Similarly, GhuIam Husain pelted a stone which hit him on his head. Muhammad Afzal and Khadim Husain were also injured by stone pelting. On account of the quarrel, the polling was stopped. Ghulam Muhammad son of Fateh Muhammad, Ghulam Raza son of Fida Hussain, Ghulam Abbas son of Sanwal Khan, Muhammad Sarwar son of Karam Bakhsh, Muhammad Adam son of Captain Fateh Khan, Feroze Khan son of Muhammad, Ghulam Abbas son of Alam Khan, Mulazam Hussain son of Ghulam Muhammad, Muhammad Akbar, Nazar Husain, Maula Bakhsh sons of Khuda Bakhsh, Sadiq Hu‑ain son of Ata Muhammad, Ata Muhammad son of Lal Khan, Noor Alam son of Ali Muhammad, Anwar Khan son of Muhammad Khan, Zafar Abbas son of Munawar Khan, Sajjad Husain son of Fida Husain, Ata Muhammad, Sabir Husain son of Maula Bakhsh, Sadiq Husain son of Noor Alam, Munawar Khan son of Mansab Khan, Jahangir Khan son of Akbar Khan, Muhammad Akbar, son of Muhammad Sharif, Nazar Husain son of Sarada and Muhammad Newaz son of Paitam Khan started pelting stones on the complainant party. The complainant concealed himself behind the wall of the hospital. The hospital building and the various vehicles were also damaged because of stone throwing. In the meantime, the petitioner Mulazam Hussain armed with .12 bore gun fired at the complainant whereby Muhammad Sher son of Mehdi Khan a weaver of Padhrar village was injured on his leg and on the receipt of the injury he fell down or: the ground. Mulazam Hussain son o Ghulam Muhammad, Maula Bakhsh son of Khuda Bakhsh, Muhammad Feroze son of Ilahi Bakhsh, Shah Muhammad son of Fateh Sher, and Muzaffar Khan son of Sher Muhammad were also armed with .12 bore guns and they started firing with their guns from the drawing room of Nadir Khan. Fateh Khan, son of Lal Khan, Ghulam Hussain son of Fateh Sher, Ghulam Husain son of Nazar Husain, Ata Muhammad son of Muhammad Khan, Mansab Khan son of Muzaffar Khan, Nadir Khan son of Mian Khan, Murid Husain son of Haitam Khan, Sher Muhammad son of Maula Bakhsh and Karam Bakhsh son of Khuda Bakhsh armed with 7 m.m. rifles started firing from the hill side. Muhammad Aslam and Mahbub Khan both were armed with Kalashnikoves and they were in the company of 10 to 15 persons who also possessed Kalashnikoves and G‑3 sten guns. All of them went upto the hill and started firing on the complainant party which continued for about 3/4 hours. During firing the Superintendent of Police and Deputy Commissioner of Khushab reached the spot and they themselves saw the occurrence. However, the polling was directed to be resumed by the Deputy Commissioner. Several voters on account of fear of firing went away without casting their votes. Feroze Khan, Muhammad Afzal, Khadim Husain, Muhammad Razzak, Munawar Khan and Muhammad Sher while in injured condition were brought to District Council Civil Hospital, Jauharabad.

3. The petitioner alongwith the co‑accused made an application for bail before arrest in the above‑referred case. The learned Sessions Judge, Khushab granted bail before arrest to all the co‑accused vide his order, dated 23‑12‑1987 but the bail petition of the petitioner was rejected. The petitioner was taken into custody on 23‑12‑1987. Learned counsel moved the post arrest bail petition before‑this Court directly on the ground that the Area Magistrate as well as the learned Sessions Judge, Khushab were on vacation.

4. Mr. Rafique Ahmad Bajwa, learned counsel for the petitioner and Kh. Sultan Ahmad, learned State counsel have argued the bail petition forcefully on a number of dates. The main contentions raised by learned counsel for the petitioner are that the solitary injury by fire‑arm was on the non‑vital part, namely, the leg of Muhammad Sher. The injury has been declared simple. No pellets were recovered from the injury and admittedly there was no corresponding cut on the Shalwar of the victim. The F.I.R. was lodged after the delay of 24 hours and no explanation whatsoever has been given by the prosecution. The medical examination of the victim was not done in the nearest hospital. Learned counsel argued that in view of the special background of the case, the possibility of the injury being self‑suffered could not be ruled out. As many as five persons on the petitioner side were injured and one of them has received a grievous injury at the hands of the complainant party. Dying declaration of Ghulam Abbas was recorded which showed the commission of an offence by the complainant party. Learned counsel stressed that despite the clear orders of the Inspector‑General of Police and the D.I.‑G. of police, no criminal case was registered against the accused persons because of their considerable influence over the local police. Three L.G. pellets were recovered from the body of Ghulam Abbas injured. Learned counsel maintained that medical certificates of five injured persons were produced and relied upon by the petitioner side for the registration of case. It is stated that the persons who caused these injuries on the complainant party were not made to join the investigation and they are still at large. Learned counsel urged that the registration of the above case against the petitioner is mala fide on the face of the record inasmuch as the local administration including the concerned police failed to follow the orders of the higher police officers. Learned counsel submitted that in fact the occurrence is one which should have been the subject‑matter of F.I.R. No. 116/87 and purposely one transaction has been bifurcated in order to make a case for F.I.R. No. 118/87. Learned counsel argued that the writ petition of the petitioner for the registration of a case against the complainant party is still pending adjudication before the High Court. Learned counsel also mentioned that all the co‑accused person have been allowed bail in the case. It is disclosed that Nadir Khan and Muhammad Anwpr were the candidates in the election who are the accused persons in F.I.R. No. 116/87. Nadir Khan is also an accused in F.I.R. No. 118/87. Both the above‑referred persons were arrested on 23‑12‑1987 with an ulterior object that they may not be able to cause their votes. Learned counsel submitted that the learned Sessions Judge, Khushab ordered that Muhammad Anwar and Nadir Khan both be allowed to poll their votes. Learned counsel contended that both the above‑referred persons were shifted to a far away place at a distance of 100 miles so that they may not be‑ able to poll their votes. Particularly the learned counsel brought this fact to the notice of the Court that the concerned S. H .O . was present when the learned Sessions Judge passed the above‑said order. The copies of the orders of the learned Sessions Judge were despatched to the S.S.P. as well as the District Magistrate for information. Learned counsel also argued that the provisions contained in section 307, P.P.C. are not attracted to the facts and circumstances of the case inasmuch as there is nothing on the record to show that the petitioner aimed to kill the injured. If at all the petitioner is alleged to have aimed, he aimed at the leg of the victim and not on the vital part. The learned counsel lastly argued that obviously a fight between the parties had taken place suddenly without any premeditation on account of the election referred to above. Learned counsel states that ultimately the case of the petitioner shall be tried by the Magistrate with section 30 powers whose powers are to sentence an accused person upto seven years' R.I. and not beyond that. On that basis learned counsel stated that the case of the petitioner shall not fall under the Prohibitory clause. In support of his contentions the learned counsel has cited a number of authorities:‑

Haji Muhammad Khan etc. v. The State 1968 S C M R 1388, Muhammad Shafi v. Muhammad Siddiq 1971 P Cr. L J 596, Muhammad Sadiq etc. v. The State N L R 1987 Criminal 74, Safdar Ali v. The State 1987 PCr.LJ 525, Bashir Ahmad v. The State 1987 PCr.LJ 686 and Ahmad v. The State 1987 P Cr. L J 1405.

Learned counsel for the State submitted that there is nothing on the record to show that in fact one occurrence had taken place. Regarding the writ petition, he submitted that the matter is still sub judice and nothing could be said at this stage. Learned counsel maintained that there is no evidence whatsoever regarding the alleged mala fide on the part of the local police. Learned counsel stated that there is no clear cut order issued by the Inspector‑General of Police and the D.I.‑G. Police for the registration of a case. He submitted that the direction of the Inspector‑General of Police is in the nature of a letter. Learned counsel raised an objection that the learned trial Court as well as the learned Sessions Judge are now functioning and as such, the petitioner should not be entertained and should be rejected as the petitioner has not moved the learned Magistrate and the learned Sessions Judge first. Learned counsel submitted that the direct post‑arrest bail petition moved by Nadir Khan and Muhammad Anwar was entertained and decided because they were the candidates in the election and as such, there is a clear distinction and that there is no such urgency involved in this case. Learned counsel heavily relied upon the provisions contained in section 307, P . P . C . He submitted that per chance the fire‑shot hit the leg and if the same had hit the chest or some other vital pari, death of the victim was certain. He, therefore, submitted that the intention of the petitioner‑is clear. Hurt has been caused and, therefore, the petitioner is not entitled to be released on bail. Learned counsel in support of his contentions relied upon Arbab Ali v. Khamiso etc. 1985 S C M R 195; Ibrahim v. Hayat Gul etc. 1985 S C M R 382 and an unreported judgment of the Supreme Court Shakil Asghar v. Nazir Ahmad etc. (Criminal Appeal No. 55 of 1986).

5. I have heard learned counsel foxy the parties and have perused the record very carefully. Without expressing any opinion on the merits of the case lest it may prejudice the case of either party, I proceed to allow bail to the petitioner. Admittedly the injury on the person of Muhammad Sher is simple and that too on his non‑vital part. No pellets were recovered from the injury, nor the Shalwar of the victim had the corresponding cut. It is also conceded by learned counsel for the State that as many as five persons from the petitioner side were injured and Ghulam Abbas received a grievous injury. I have carefully gone through the contents of the F.I.R. No. 118/87 and I do not find the mention of the injuries on the bodies of five persons on the petitioner side. The complainant party should have given explanation of these injuries. Prima facie no such explanation has been given. I do not agree with the contention of learned counsel for the State that the direction of the Inspector‑General of Police was in the shape of a letter and that it was not an order. I have seen the direction of the Inspector‑General of Police. It appears to me a clear order and in my view this order has not been followed by the local administration. Similarly, the D.I.‑G. of Sargodha Range also passed an order directing that a criminal case be registered. I fail to understand as to why these orders of the. higher police officers were not followed in letter and spirit by the local police. Learned counsel for the petitioner contended that there is delay in lodging the F.I.R. and that the two transactions pertain to the same occurrence and that the registration of the subsequent F.I.R. No. 118/87 is not based on bona fides on the part of the police. The learned State counsel has contended that the incident having taken place vide F.I.R. No. 118/87 is' wholly a separate and independent occurrence which has got nothing to do with the earlier occurrence. I cannot give any opinion one way or the other on all these contentions. What I find is that the facts, circumstances and evidence available on record show that the petitioner side was also injured and these injuries received by the petitioner side have neither been explained nor mentioned in the F.I.R. in hand. According to learned counsel for the petitioner this has created considerable doubt in; the truthfulness of the prosecution version. The learned State counsel argued that the petitioner has not moved the learned trial Court and the learned Sessions Judge for bail. It is true that the petitioner failed to move the learned Magistrate first. However, the special circumstances of the case do justify the filing of the bail petition directly in the High Court. In the case of Muhammad Anwar and Nadir Khan relief was allowed to them in a direct post‑arrest bail petition having been moved by them in the 'High Court. This matter is a connected matter with that matter. Additionally, the learned counsel for the parties have argued this case on several dates and have thrashed the case‑law on the subject thoroughly. In view of the special situation of this case, I am of the view that this is a fit case in which bail petition of the petitioner be entertained and disposed of on merits directly. I, therefore, repel the contentions of the learned State counsel and proceed to dispose of the petition on merits.

6. The upshot of the above discussion is that in view of the convincing and weighty contentions raised and the case‑law, produced and relied upon, I admit the petitioner to bail in the sum of rupees two lacs with two sureties each in the like amount to the satisfaction of A.C., Khushab.

M.Y.H./M‑546/L Bail granted.