KHALID MAHMOOD Versus ABDUL QADIR SHAH

ORDER

This petition has been filed by Khalid Mehmood complainant for cancellation of pre-arrest bail granted to respondent No.l by the learned Additional Sessions Judge vide his order, dated 23-12-1992 in a case registered against him and 11 others vide F.I.R. No.360, dated 18-8-1990 for offence under section 365, P.P.C. at Police Station Civil Lines, Rawalpindi. The case pertained to the abduction and illegal confinement of Umar Farooq younger brother of the petitioner, who was subsequently killed and thereafter, the offences under sections 302, 364, 201/109/120-B, P.P.C. were also added.

2. Earlier two petitions (Criminal Miscellaneous No.218/B of 1993 and Criminal Miscellaneous 274/13 of 1994) the former by the Sate and the latter by the present petitioner were filed which were disposed of vide order, dated 19-10-1993 with the observation that the State and the petitioner may file petitions for cancellation of bail before the learned Additional Sessions Judge in the light of the fresh material. Accordingly, the State and the complainant filed two petitions which were dismissed by the Court vide order, dated 22-11-1993.

3. Briefly stated the prosecution case is that Zia Mehmood real brother of Khalid Mehmood complainant is residing at London where he secretly contracted marriage with Mst. Zara, against the wishes of her father, respondent No.l herein. Respondent No.l in different ways pressurised Zia Mehmood to return his daughter and on his failure to do the needful threatened to cause harm to his family members in Pakistan. He hatched up a conspiracy and managed to abduct Umar Farooq, younger brother of the complainant from Ayub Park, Rawalpindi on 12-8-1990 through his disciples, Thereafter, he again pressed the complainant party for restoration of his daughter but on failure to achieve his object, got Umar Farooq killed.

4. Out of the 12 accused persons named in the F.I.R., three accused persons namely Ghazanfar Hussain, Tariq Sarwar afd Haji Manzoor Hussain were allowed bail by this Court in Criminal Miscellaneous No.308/B of 1991 decided on 6-7-1991, Criminal Miscellaneous No.138/B of 1993, decided on 27 4-1991 and Criminal Miscellaneous No.603/B of 1991, decided on 20-11-1991, Tariq Sarwar accused was allowed bail in the sum of Rs.5,00,000 and was directed to surrender his passport. However, he absconded and reportedly went to London. Similarly, Allah Dad accused was allowed interim bail before arrest by the learned Sessions Judge and he also absconded. Five other accused persons namely Naqeeb Shah (son of respondent No.l), Ghazi Altaf Hussain, Raja Rab Nawaz, Qurban Hussain and Fazal Hussain are also absconders. Tthus out of 12 accused, seven are fugitives from the law and only five accused ` including respondent No.l are appearing in the Court.

5. The petitioner's learned counsel streneously urged that there was nothing to show that respondent No.l was sought to be arrested by the police with mala fide intentions or ulterior motives. The police wanted to arrest him in the ordinary course of, investigation of a criminal case. The Court below had no jurisdiction to grant pre-arrest bail in the circumstances' of the case. He submitted that the evidence of motive, statements/affidavits of Mst. Zohra and Zia Mehmood, statements of Akbar Ali, Advocate and the complainant, and the video film provided prima facie evidence to connect respondent No.l with the commission of the offence. He next submitted that respondent No.1 being a highly influential person was constantly misusing his liberty. He pointed out that after grant of interim pre-arrest bail, he managed to prevail upon an important prosecution witness namely Noor Muhammad and obtained his affidavit which was used for confirmation of the pre-arrest bail. He explained that respondent No.l came to Pakistan in early December, 1992 and filed an application for anticipatory bail in which he was allowed interim bail on 9-12-1992 which was fixed for final hearing on 23-12-1992. Prior to that, he managed to win over Noor Muhammad P.W. and obtained his affidavit, dated 20-12-1992 which was utilized for confirmation of the interim bail. He added that Noor Muhammad was a material witness who, had originally made a statement before Ghulam Ghaus Cheema, S.I. on 19-1-1991 and thereafter, before the D.S.P. Crimes Branch on 2-6-1991, fully supporting his earlier statement regarding his telephonic conversation with respondent No.l for parking his Pajero car at some safe place. He also put pressure on Muhammad Asghar P.W. through Maulvi Muhammad Akbar (the Administrator of the respondent's Madrassa Darul Uloom Qadria Gillania, Rawalpindi) and Sabir Hussain Shah co-accused. He was taken to an Advocate at Rawalpindi who prepared his affidavit in which he exonerated the accused. Subsequently, the said witness narrated the matter to the Investigating Officer, who recorded his statement on 22-1-1993 in this connection. He further submitted that in his Zimni No..140, dated 12-10-1993, the Investigating Officer had noted that respondent No. 1 was trying to influence the course of investigation in different ways and that if he remained on bail, he would suborn the prosecution witnesses and thus destroy the prosecution case. He pointed out that respondent No. 1 managed to have the challan file stolen and was putting pressure on prosecution witnesses, the trial Court as well as the investigating Officer. Hence he did not deserve to remain on bail. In support of his contentions, he placed reliance on the following judgments:--

(1) Zia-ul Hassan v. The State P L D 1984 SC 192,

(2) Mohin Raziq v. Shah Muhammad and another 1983 S C M R 1130,

(3) Tariq Mehmood v. The State and another P L D 1962 (W.P.) Lah. 939,

(4) Muhammad Ramzan v. Zafar Ullah and another 1986 S C M R 1380,

(5) Murad Khan v. Fazal-e-Subhan and another P L D 1983 SC 82.

6. On the other hand, the learned counsel for respondent No.l raised a preliminary objection that the private complainant was not competent to seek cancellation of bail granted to an accused person. In this connection, he placed reliance on the case of Nazar Muhammad v. The State and another 1977 P Cr. L J 277. He submitted that there was no evidence of conspiracy against respondent No.l and that the case required further probe and inquiry and at present there was no cogent material to furnish reasonable grounds for believing that respondent No.l had committed the offence alleged against him. He submitted that respondent No.l was a highly respectable and law-abiding citizen and never misused his liberty. He pointed out that the disciples of respondent No 1 who hold him in high esteem might have unilaterally abducted Umar Farooq deceased and later killed him. According to him, respondent No.l was not a party to it. He urged that the affidavits of Mst. Zara and Zia Mehmood were not properly attested and that the video film was not admissible in evidence. He strongly urged that respondent No.l never misused his liberty and had not absconded ever since the grant of bail. Hence, after such a long period, his bail should not be cancelled. To re-assure the complainant party that respondent No.l would not abscond or misuse his liberty, he offered that his client was ready to furnish fresh bail/surety bonds in any heavy amount up to Rs.10,00,000 or more. He placed reliance on the following judgments:--

"Jamaluddin v. The State 1985 S C M R 1949 and Muhammad Ramzan v. Zafar Ullah and another 1986 S C M R 1380."

7. The learned State counsel, the learned Assistant Advocate-General and the learned Advocate-General did not support the petition for cancellation of bail and generally adopted the arguments raised by the respondent's learned counsel. However, the learned Advocate-General submitted that the video film which was prepared through the scientific methods was relevant though it required to be proved. When confronted with the question as to whether the Court had power or jurisdiction to grant bail in the absence of mala fides on the part of the police or the complainant party, the learned Advocate-General sought time for further preparation. Thereafter, another Advocate namely Mr. Pervaiz Inayat Malik appeared on behalf of the learned Advocate-General on 30-3-1994 (when the video film prepared by Mr. Roger Cook was seen on the television through the V.C.R. in the Court, only in the presence of the parties and their learned counsel) and urged that respondent No.l was the main accused and that there was sufficient evidence to connect him with the commission of the offence. He prayed that bail granted to respondent No.l be cancelled. However, on the next date of hearing i.e. 18-4-1994, the same learned counsel appeared on behalf of the learned Advocate-General but did not support the petition for cancellation of bail.

8. In reply the petitioner's learned counsel urged that State has been taking conflicting stands in the matter. He pointed out that earlier the State had filed an application for cancellation of bail (Criminal Miscellaneous No.218/B of 1993) against respondent No.l and Mr. Muhammad Nawaz Bhatti, Assistant Advocate-General had wholeheartedly supported the petitioner's claim for cancellation of bail. However, subsequently for reasons best known to him, he did not support the present application. Similarly, learned counsel appearing on behalf of the learned Advocate-General has been taking conflicting positions before this Court on different dates. He added that the private complainant being the real aggrieved person was fully competent to apply for cancellation of bail.

9. First of all, I would like to take up the preliminary objection regarding competence of the present petition for cancellation of bail, filed by the complainant. Ordinarily, in a proper case, the State should file an application for cancellation of bail. But, experience has shown that in many suitable cases the State shows apathy and does not make a move in the matter of cancellation of bail. In such cases, a private person who is directly interested in the prosecution, i.e. the complainant or the near relative of the deceased or an injured person may legitimately file an application for cancellation of bail granted to an accused person. They being the real aggrieved persons, cannot be debarred from approaching the Court of law for cancellation of bail. I am fortified in any view by the judgments in the cases of Nazir Ahmad v. Latif Hussain P L D 1974 Lah. 476, Saleem Akram v. Muhammad Zakir Khan Changezi and another 1979 P Cr. L J 972 and Dur Muhammad v. Bashir and 2 others 1983 P Cr. L J 2053. In Nazir Ahmad's case, an application for cancellation of bail filed by the husband of the prosecutrix was entertained and allowed by the High Court. It was observed that Nazir Ahmad was a person vitally interested in the case, as apart from being a witness of motive he was the husband of the woman who was said to have been assaulted and dishonoured. In Saleem Akram's case, it was held that ordinarily State had to move for cancellation of bail but in a proper case an aggrieved party could not be prevented from recourse allowed to it by law. In Dur Muhammad's case, it was held that an injured witness though not complainant in the case, being a person vitally interested was entitled to move for cancellation of the bail under section 497(5) of Cr.P.C. The judgment in the case of Nazar Muhammad relied upon try the learned counsel for the respondent No.1 merely emphasises that the provisions of section 497(5) of Cr.P.C. are not available to private parties "llich intend to satisfy their grudge or to use it as a means of wreaking their 1cngeance. It does not altogether exclude recourse to the said provision of law by a person vitally interested in the prosecution in cases where bail has been granted in violation of the law or precedents of the Superior Courts. I respectfully follow the view expressed in the case of Nazir Ahmad and Dur Muhammad and repel the preliminary objection regarding the competence of the present petition.

10. It is settled law that for claiming pre-arrest bail, an accused person is not only required to make out a good prima facie ground but also that his intended arrest was tainted with mala fides on the part of the police or an outcome of ulterior motives of causing harassment or humiliation to him. In the absence of mala fides or ulterior motives on the part of the police, the Court has no jurisdiction to grant anticipatory bail. It was held in the case of Zia-ul-Hassan v. The State P L D 1984 SC 192 that a Court had no power to grant bail before arrest unless all conditions laid down by the Superior Courts from time to time were fulfilled particularly, mala fides of intended arrest which was most essential and had to be specifically stated. In Murad Khan's case P L D 1983 SC 82 the Honourable Supreme Court was pleased to hold that grant of anticipatory bail not being a rule in criminal cases the accused seeking it had to satisfy that he apprehended arrest on account of ulterior motives on the part of the police. Since the High Court failed to notice settled principles regarding grant of pre-arrest bail, the impugned order was set aside by the Supreme Court with a direction to the respondent to surrender to the proper custody. A similar view was expressed in the case of Muhammad Safdar and another v. The State 1983 S C M R 645 in which the Honourable Supreme Court was pleased to hold that in a cognizable case grant of bail before arrest was not a rule and was to be allowed only when it could be shown that the petitioner apprehended arrest due to some ulterior motives on the part of the authorities or other influential persons. While refusing leave to appeal in the said case the Honourable Supreme Court was pleased to observe:-- "an incident has admittedly taken place between the parties in which the petitioners are accused of having caused injuries to Muhammad Sadiq of the opposite party. In the normal course of criminal law the petitioners can legitimately ask for bail only after their arrest and not before arrest."

In the case of Mohib Razaq v. Shah Muhammad etc. 1983 S C M R 1130 the Honourable Supreme Court cancelled the pre-arrest bail on finding that in allowing bail the Courts had not exercised their discretion in accordance with the law as, prima facie, there was no element of mala fides and irreparable harm likely to be caused to the accused.

11. In the present case, there is nothing to show that the police was actuated with malice in the matter of intended arrest of respondent No.l. The police really wanted to arrest respondent No.l to unveil the circumstances which led to the tragic murder of the innocent brother of the complainant. It appears that it was not urged before the learned Additional Sessions Judge that the respondent was sought to be arrested, by the - police with mala fide intentions and ulterior motives of harassing and humiliating him. That is why, this aspect of the matter has not been adverted to in the bail order, dated 23-12-1992. In view of the rule laid down by the Honourable Supreme Court in r the above-referred precedents the learned Additional Sessions Judge had no power to grant pre-arrest bail without an express findings qua mala fides or ulterior motives on the part of the police.

12. The judgments relied upon by the learned counsel for respondent No-1 proceed on their own distinguishable facts. In Jamal-ud-Din's case it was held that the consideration of ulterior motives such as humiliation and unjustified harassment was a valid one for grant of pre-arrest bail. On facts it was noticed that the police being in collusion with the complainant party had in the past illegally taken womenfolk (of the accused's family) to the police station and was bent upon insulting, humiliating and harassing the accused who was empty-handed at the time of the occurrence. Hence it was held that he was rightly granted bail before arrest by the trial Court. In Muhammad Ramzan's case the Supreme Court refused to cancel bail before arrest granted to an accused, on technical grounds, because after arrest he could again be allowed bail on the ground that similarly placed other accused were already on bail. It cannot be readily said in the present case that the petitioner would be entitled to bail after arrest. His case appears to be distinguishable from the co-accused on bail because the motive is directly attributed to respondent No.l (and his son Naqeeb Shah, the absconder) and there is also some evidence to show that he had threatened that in case his daughter was not returned, Umar Farooq would be done to death. In need not dilate upon this question further and leave it to be decided by the Court below in an application for bail after arrest. I may, however, observe that the statements and affidavits of Zia Mehmood and Mst. Zara can also be considered and the hypertechnical objections regarding the mode of recording their statements and attestation of their affidavits cannot be countenanced at this stage.

13. Another important aspect of the case relates to misuse of concession of anticipatory bail by respondent No.l. Since bail of respondent No.l is liable to be cancelled on other grounds, I need not determine this matter at this stage, more so, when its decision is likely to affect the decision of the petition for bail after arrest. The question of misuse of liberty by respondent No.l may be agitated during the course of hearing of petition for bail after arrest and the Court shall decide the same without being influenced by the views expressed in the earlier order, dated 22-11-1993 passed by the learned Additional Sessions Judge.

14. The argument of the learned counsel for respondent No.l that the bail granted. to respondent No.l on 23-12-1993 be not cancelled after such a long time and instead a direction be given to the trial Court to start and conclude the trial expeditiously is not acceptable in the circumstances of the case. After grant of bail to respondent No.l the complainant filed an application for cancellation of bail (Criminal Miscellaneous No.274/B of 1993) on 22-2-1993 at Rawalpindi Bench of this Court. It was returned due to some objections and was refiled on 7-4-1993. Thereafter, it was sent to the Principal Seat vide order, dated 13-4-1993 and was fixed before the Court on 22-5-1993 when notice was issued to the respondent. The petition was finally disposed of vide order, dated 19-10-1993 with the observation that the State or the complainant may file a petition for cancellation of bail of respondent No.l before the learned Additional Sessions Judge in the light of the fresh material. Accordingly, the State as well as the complainant filed applications for cancellation of bail of respondent No.l which was dismissed vide order, dated 22-11-1993. Then the complainant filed the present application in this Court on 8-12-1993. The complainant has been vigilantly pursuing the matter and there is no unconscionable delay on his part which may disentitle him to the grant of relief. The mere fact that about 16 months have passed since the grant of pre arrest bail, per se, is not sufficient to reject the present application. In the case of Mst. Barkat Bibi v. Gulzar Ahmad and another 1979 S C M R 65 the Honourable Supreme Court was pleased to cancel bail granted to an accused 13 months earlier. The relevant part of the judgment is reproduced below:--

"As for the plea that the respondent has been on bail for considerable period, it is to be noted that the petitioner had filed this petition for cancellation of bail on 24-11-1976, i.e. 20 days after the announcement of the impugned order although it came up for hearing before us on 31-1-1978. Since the petitioner promptly filed this petition, no advantage can be taken by the respondent for the delay in hearing this petition." .

15. As mentioned above, the challan file has been stolen from the Court of the learned Additional Sessions Judge. The petitioner's learned counsel pointed out that the petitioner had filed an application before the learned Additional Sessions Judge for holding an inquiry into the matter but the same was returned to him. It is not understandable as to why the learned Additional Sessions Judge had returned the application. Once it had come to the notice of the Court that the challan tile was missing it ought to have ordered an inquiry into the matter to fix responsibility for the loss of this file. The petitioner may repeat his application before the learned Additional Sessions Judge who should initiate an inquiry into the matter if the same has not already been started. Pending the result of the inquiry, the trial Court should take steps to reconstruct the file as per the rules and thereafter, start trial of the accused persons without unnecessary delay.

16. Before parting the judgment, I may observe that the conduct of the State in the present case, to say the least, has been inconsistent. The State ~s not bound to support an application for cancellation of bail or oppose an application for grant of bail and a State counsel or a Law Officer may legitimately take any appropriate position in the light of the facts of a particular case and the letter and spirit of the law. In the present case the State had filed an application (Criminal Miscellaneous No.218/B of 1993) for cancellation of hail of respondent No.l which was argued by Mr. Muhammad Nawaz Bhatti, Assistant Advocate-General who had urged that respondent No.l was connected with the commission of the offence and that he was wrongly granted bail before arrest by the Court below. After the disposal of the said petition the State again made an application before the learned Additional Sessions Judge, Rawalpindi for cancellation of bail of respondent No.l which was dismissed. Thereafter, the State neither filed an application for cancellation of bail of respondent No.l nor supported the present petition filed by the complainant. Even the learned counsel (Mr. Pervaiz Inayat Malik, Advocate) who appeared on behalf of the learned Advocate-General had been taking contradictory positions on different dates. This inconsistency on the part of the State is really deprecable. The State being the most fair litigant ought to remain consistent in the same case so as to inspire confidence of the general public, the parties and the Court.

17. With the above observations this petition is allowed and pre-arrest bail granted to respondent No.l vide order, dated 23-12-1992 passed by the learned E Additional Sessions Judge, Rawalpindi is hereby cancelled. Respondent No.l is directed to surrender to proper custody.

N.H.Q./K-138/L Pre-arrest bail cancelled.