IJAZ AHMAD TAREEN Versus STATE

ORDER

This order will dispose of two connected bail applications Criminal Miscellaneous hb.380/B of 1994 titled Ejaz Ahmad Tareen v. State and Criminal Miscellaneous No.384%B of 1994 titled Ejaz Ahinad Tareen v. State. Criminal Miscellaneous No.380/B of 1994 has been filed in a complaint case titled Haji Abdul Rahim v. Abdul Rashid arid Ejaz Ahmad offence under section 302/34, P.P.C. and Criminal Miscellaneous No.384/B of 1994 has been filed in challan case F.I.R. No.41, dated 22-5-1993 under section 302/34, P..P:C. Police Station Bhara Kahu, District Islamabad, which cases were pending trial in the Court of Dost Muhammad Khemta, learned Additional Sessions Judge, Islamabad and have now been transferred to the Court of learned Sessions Judge, Rawalpindi, by this Court vide order, dated 26-6-1994 passed in re: Reference No.1 of 1994:

2. One Abdul Latif son of Abdul Majid aged about 37/38 years a businessman of Rawalpindi, while driving from Rawalpindi to Murree in his Toyota-Corola Car IDE No.68, was hit by a fire-arm bullet near the Police Check Post, P.S. Bhara Kahu on 21-5-1994. As a result of which injury he died. At the time of incident he was accompanied by a young dancing girl aged about 14/1-2 years namely Sonia Khan who is a resident of Shahi Mohallah, Lahore, is not related to him and was being taken to Murree by him. The incident was immediately reported at the Police Station Bhara Kahu by Ejaz Ahmad Tareen, A.S.I., who is the petitioner before this Court and who was on duty at Akthe Barrier of Bhara Kahu, Murree Road at that time, on the basis where of case F.I.R. No.40 dated. 21-5-1993 under section 353/186, P.P.C. and Article 3/4, Prohibition (Enforcement of Hadd) Order, 1979 was registered. Subsequently regarding same incident AbdW Rahim real brother of the deceased who is also a complainant in the complaint case, reported the matter to the police station vide his written application on the basis whereof case F.I.R. No.41 under section 302/34 was registered against the petitioner and Abdul Rashid, F.C. on 22-5-1993 at 3-00 p.m. vide Report No.33.

3. As per version of the incident, as got recorded by Ejaz Ahmad Tareen petitioner in F.I.R. No.40 referred to above it has been stated by him that he was on checking duty alongwith Ejaz Ahmad H.C. No.1709, Abdul Rashid F.C. rNo.1570, Qamar-ud-Din F.C. No.2749 at the Barrier of Bhara Kahu, Murree Road when on 21-5-1993 at about 9-00 p.m. a Car IDE No.68 came from Rawalpindi side which was being driven towards Murree by one Abdul Latif. . On the front seat a woman was sitting who told her name as Sonia, a resident of Lahore. The car driver was asked to get his identification papers and the car checked, as a result whereof there was a row and the driver drove away the car hitting him, the Barrier and Abdul Rashid F.C. who fell on the one side and while rising, an accidental fire was shot from his gun, whereafter the car stuck against the blocks of the roadside and stopped at a distance of one furlong. The driver was found injured, hence, he as well as the lady, were sent to the hospital.

4. Version of the incident as contained in F.I.R. No.41 is to the effect that Abdul Latif brother of the informant could not stop his car at the Barrier of Police Station Bhara Kahu, whereupon police officials who were present at the check post opened fire as a result whereof he suffered a bullet injury at his back and hence died. Occurrence is stated to have been witnessed by Messrs Muhammad Hussain and Tariq Mahmood who are resident of Rawalpindi and were driving to Murree behind the car of the deceased and had informed the complainant.

5. Abdul Rashid F.C. was arrested in case F.I.R. No.40 by the police on 21-5-1944 who admitted the version as given in F.I.R. No.40 as correct in his statement made before the police. He also made a similar statement on 22-5-1994 in case F.I.R. No41 and corroborated the version which has been contained in F.I.R. No.40 referred to above. Ejaz Ahmad Tareen was arrested on 23-5-1994 and was sent to the judicial lock-up after completing the investigation. During the course of investigation, statements of Tariq Mehmood and Muhammad Hussain P.Ws. were recorded on 27-5-1994, who stated that the petitioner had raised a Lalkara and had ordered Abdul Rashid F.C. to fire at the driver, while he was forcibly driving away the car. Besides, the statements of other witnesses of the locality, statement of Sonia Khan daughter of Ashraf Khan resident of House No.2280-A, Kharu Building, Shahi Mohallah, Lahore was also recorded under section 161, Cr.P.C. Her statement was also recorded under section 164, Cr.P.C. In her statement under section 164 she has stated that Abdul Latif deceased resisted the search of his car and drove away the same when she heard the sound of gun shot. The Investigating Officer submitted incomplete challan on 15-7-1993. In the report under section 173 he held that the petitioner had not ordered or raised a Lalkara to open fire. Thereafter investigation of the case has been conducted by various Police Officers and ultimately it has been conducted by the A.I.-G. of Police, Islamabad. He has found the petitioner to be innocent and, therefore, on the basis of various investigations wherein the case has been found to be false, discharge of the accused petitioner as well as his co-accused has been prayed for which request is pending for final decision. However, challan against Abdul Rashid F.C. and other co-accused has been submitted in case F.I.R. No.40, dated 21-5-1993.

6. Abdul Rahim the first informant in case F.I.R. No.41 has filed a complaint under section 302/34, P.P.C. against the petitioner and Abdul Rashid his co-accused. In his complaint after recording of preliminary evidence, learned Additional Sessions Judge, Islamabad vide order, dated 3-5-1994 has summoned the petitioner as well as Abdul Rashid F.C. as accused persons under section 302/34, P.P.C. by issuance of non-bailable warrant of arrest which has been executed by Superintendent, Central Jail, Rawalpindi.

The petitioner applied for grant of post-arrest bail in the Court of learned Additional Sessions Judge, Islamabad in both the cases which were dismissed. Consequently two independent bail applications have been filed by the petitioner before this Court, both in the complaint case and the challan case.

6. Raja Abdul Aziz Bhatti, Advocate, learned counsel for the petitioner has vehemently contended that the petitioner is entitled to the grant, of concession of bail on the.ground that he was not specifically named in the F.I.R., that in the statement made by Sonia Khan it has been alleged that it is the petitioner who had raised Lalkara and had ordered Abdul Rashid F.C. to fire at the car; that the so-called eye-witnesses are just passersby and hence, chance witnesses and as they are not relations of Abdul Latif deceased, their conduct as stated by them is absolutely improbable and, therefore, it cannot be said that they were present at the site, hence, no reliance can be placed on their statements which were recorded on 27-5-1993 when the accused were already in police custody, particularly when the witnesses of the locality in question have not supported the version as given by the said eye-witnesses and have rather supported the version as given by the petitioner in case F.I.R. No.40/93; that the petitioner has been found innocent by almost all the Investigating Officers and the prosecution has now recommended the case for cancellation thereof; that only a Lalkara is attributed to the petitioner who is in the judicial lock-up for a period of more than one year, hence is entitled to the grant of concession of bail. In support of his contention learned counsel has placed reliance on cases of Ashraf v. State 1988 P Cr. L J 1255 in which case the bail was allowed to a co-accused to whom no injury to the deceased or a P.W. was attributed and case'of Zaman v. The State 1988 P Cr. L J 1320 wherein a person to whom Lalkara had been attributed was allowed bail.

Learned counsel has also placed reliance on the law declared in cases of Muhammad Ismail v. Muhammad Rafique and another P L D 1989 SC 58 and Naqi Hussain Shah v. The State 1992 S C M R 600 to contend that the opinion of innocence of the accused person given by the Investigating Officer is a strong circumstance for allowing bail to the petitioner.

7. Syed Sajjad Hussain Shah, A.A.-G. as well as Malik Khuda Dad Khan, Advocate who have appeared on behalf of the State have not opposed the prayer for grant of bail to petitioner in both the cases as according to them the petitioner is innocent and the challan case has been recommended to be cancelled and the complaint is filed on the basis of same allegations which have been found false during the course of successive investigations of the case.

8. Sardar Muhammad lshaq Khan, Advocate learned counsel for the complainant however, has vehemently opposed the grant of bail to the petitioner. He has argued that the allegations levelled against the petitioner are fully supported by the two eye-witnesses and it is in fact under the order of the petitioner who had raised Lalkara that Abdul Rashid F.C. fired at Abdul Latif, as a result of which he died at the spot, therefore, it is petitioner who is the main accused in this case and as such not entitled to the grant of concession of Kiil. In support of his contention learned counsel has placed reliance on case of klubarik Shah v. The State 1986 S C M R 1681. Regarding opinion of innocence given by the Investigating Officers, learned counsel has contended that no reliance; can be placed on the said findings as the same are not binding upon this Court particularly when there is allegation of mala fide against the Investigating Officers who conducted the investigations as the accused persons themselves are the police officials. In support of his contention learned counsel has placed reliance on the cases of Imtiaz Ahmad and others v. The State 1981 r C M R 192 and Haji Inayat-ul-Haq v. Said Muhammad Khan and others 1988 S C M R 1743. It is further contended that even if the petitioner is alllowed bail in challan case he is not entitled to the grant of bail in a complaint case inasmuch as there is prima facie findings recorded by the learned Additional Sessions Judge while summoning the petitioner as an accused person that he is guilty of offence under section 302/34, P.P.C. therefore, unless and until there are no reasonable grounds to connect the petitioner with the commission of offence, he is entitled t the grant of concession of bail.

9. I have considered the arguments addressed by the learned counsel for the parties at the Bar have perused 'the record and have also gone through the judgments cited at the bar. Admitwdly the occurrence hail first been report cd by the petitioner vide F.I.R. No.40, dated 21-5-1993 recorded 9-45 p.m. This question is a matter of further examination as to whether subsequent F.I.R. No.41, dated 25-5-1993 could at all be registered regarding the same occurrence? The eye-witnesses mentioned in the F.I.R. are residents, of Rawalpindi and are not natural witnesses. They are also not related to the deceased. Their conduct as reflected in the F.I.R. as well as in their statements if taken into consideration alongwith aforementioned two factors clearly shows that some further probe is necessary in order to accept the statement of the said alleged eye-witnesses as correct particularly when the version as contained in their statement has not been supported by the witnesses who live in the same locality wherein occurrence in question has taken place. Mst. Sonia who was admittedly sitting on the front seat of the car beside the deceased has not A attributed any overt act to the petitioner and has not even stated that the petitioner has raised Lalkara or had ordered Abdul Rashid F.C. to open fire. In her statement under section 164 she has only stated that when the car had been driven away lay Abdul Latif, she had heard a sound of fire-shot from back side. During the course of successive investigation out of, which ultimate investigation has been conducted by the A.I.-G. of Police, Islamabad the petitioner has been found to be innocent. The prosecution has moved for discharge of the accused person in case F.I.R. No.41, dated 22-5-1993 and has come to the conclusion that version of the petitioner as given in case F.I.R. No.40, (fated 21-5-1993 is correct and, hence, a challan has been submitted on. the basis of the said version. There is no cavil with the legal proposition as laid down it t the cases of Imtiaz Ahmad and others v. The State 1986 S C M R 192 and Haji Inayat-ul-Haq v. Said Muhammad Khan and another 1988 S C M R 1743 that opinion of the innocence of an accused person affirmed by the Investigating Authorities is not binding upon the Court yet the same is also not be ignored without any lawful reasons and justification. In case the opinion is based upon evidence and lawful material, it has any important bearing and, B hence, a favourable circumstance for grant of concession of bail to the accused person as held in the following cases:--

(1) Muhammad Ismail v. Muhammad Rafique and another P L D 1989 SC 585;

(2) Haji Inayat-ul-Haq v. Said Muhammad Khan and another 1988 C M R1743;

(3) Naqi Hussain Shah v. The State 1992 S C M R 600.

As regards the argument of the learned counsel for the petitioner regardinf; bail application filed in the complaint case to the effect that the order of summoning of the petitioner as an accused person passed by the learned, Additional Sessions Judge prima facie proves that there are reasonable grounds to believe that he has committed the offence which is punishable with death or imprisonment for ten years, suffice it to say that the argument is misconceived. It is now well-established legal principle that the order of summo ring the accused in a complaint case after recording of preliminary, evidence a which evidence has been recorded in his absence cannot be equated with thr existence of reasonable grounds for believing that accused was guilty of offence punishable for death or imprisonment for ten years. Refer case of Mazhar Hussain Shah v. The State 1986 P Cr. L J 2359. The complaint has been filed on the basis of the same allegations which have been found to be false during the course of investigation of F.I.R. No.41. The only allegation against the petitioner is that he raised a Lalkara although even the factum of raising of Lalkara by the petitioner in view of successive findings by the police authorities during the course of investigation of case F.I.R. No.41 also requires further probe, therefore, taking into consideration, the aforementioned circumstances and the law declared by the superior Courts in this behalf, I am of the view that the petitioner has succeeded in establishing that case against him is of further inquiry and, hence, he is entitled to the grant of concession of bail in both the cases as of right. The discretion exercised by the learned Additional Sessions Judge while refusing the bail is not judicious and is not based upon sound judicial principle laid down in this behalf by the superior Courts and is also not based upon correct appreciation of facts of the case in hand.

10. Resultantly, without expressing my detailed views with regard to the merits of the case, I admit the petitioner post-arrest bail till disposal of both the cases against him referred to above, subject to his furnishing of bail bonds in the sum of Rs.1,00,000 (one lac) with one surety in the like amount, in each case, to the satisfaction of learned Sessions Judge, Rawalpindi to which Court both the cases now stand transferred by the order of this Court, dated 26-6-1994.

N.H.Q./I-107/L Bail allowed