SYED JAHANGIR Versus THE STATE
1. By this Order I propose to dispose of Criminal Miscellaneous Application No. 155 of 1987, Criminal Bail Application No. 615 of 1987, and Criminal Bail Application No. 802 of 1987.
2. The brief facts of the prosecution case are that on 21‑12‑1985, complainant Jehangi'r lodged a report at 1‑30 p.m. which reads as under: ‑‑
3. "I am P.A. of Mashkoor Ahmad in National Bank of Pakistan. On 8‑12‑1985 our Bank's election was held and in that election our union employees front won, and labour group was defeated. Today on 21‑12‑1985 at about 12‑15 hours when I and Gulfraz were sitting in our office one boy gave me information that Nasir, Hanan, Mirza Rafiq Baig, Rehan and Saeed were beating my brother Zahir, my younger brother Asghar was also with Zahir. On this information I and Gulfraz came down from the gate of lift. We saw Zahir and Asghar injured. I and Gulfraz came forward for their rescue, then saw that Nasir fired a bullet shot with a revolver on the temple of my brother Zahir, and Zahir fell down, after this Rehan, Saeed, Sookhi, Nasir, Javed and others whom I can recognize by face started firing and attacked with knives. I received injuries on my rib. Sookhi fired a bullet shot on the back of my brother Asghar. I am filing this case against the above persons that they had injured me and, my brothers with revolver and knives and also they have killed my brother Zahir Ahmed. The statement is correct."
4. On the other hand co‑accused M. Nasir Siddiqui after his arrest lodged a counter‑F.I.R. at 1‑35 p.m. which reads as under:‑‑---
5. "I am residing on the above address and working in National Bank of Pakistan, main branch in Cash Department as a Head Cashier. I am also a worker in Labour Union. On 18‑12‑1985 on Wednesday, I had gone to attend the marriage of Yousuf Bhai in Rangoonwala Mehal Dhoraji Colony, Karachi. Jehangir and others had also come there, Jehangir called me outside the Mehal and told me that I should not work for any union. On this I and Jehangir exchanged hot wards. On this Jehangir fired many shots from revolver on me but I escaped and snatched the revolver from Jehangir and handed over the same to Shakil, the brother of Yousuf. At the time of snatching the revolver, trigger hit my left hand palm and I got an injury on my leak side hand's palm and the people settled the dispute. In that incident one Shahid had received injury from the bullet. Today, i.e. 21‑12‑1986, at about 12‑15 hours, I alongwith Sartaj, Saeed and Rehan etc. were going towards a Pan Shop situated in front of National Bank of Pakistan, we had come from our department, Jehangir, Gulfraz and lg/15 other persons came. They were armed with revolvers and pistols and they started firing on us. Saeed got a bullet injury; a bearded man also fired from the revolver. I snatched his revolver, but the other people attacked us. On this I and Sartaj went inside the Chartered Bank. Police came there and arrested us from there and recovered one revolver and one knife. I am filing this case against Jehangir and Gulfraz and others that they attacked me for the purpose of murder with revolver and knives and also injured my companion Saeed."
6. The police after necessary investigation challaned the two cases before the Court. Co‑accused Sartaj, Saeed Ahmad Khan, Javed Siddiqui, Hannan and the present respondent Mirza Rafiq Baig moved bail application before the trial Judge which was allowed, and they were ordered to be released on bail vide order dated 9‑1‑1986, while accused Rehan was subsequently released on bail on 9‑2‑1986.
7. On a suo motu reference, my learned brother Abdul Qadeer Chaudhry, J. while hearing Bail Application No. 276 of 1986 and Cr. S.M. Revision No. 28 of 1986, set aside the order dated 9‑1‑1986 whereby anticipatory bail was granted to the present respondent and others was re‑called. The relevant observation of the said order are as under:‑‑
8. "I, therefore, set aside the orders passed by the learned Additional Sessions Judge on 9‑1‑1986 and 9‑2‑1986. The bail granted to these respondents are re‑called. However, they shall be at liberty to move fresh bail application before the trial Judge after material witnesses have been examined."
9. That accused Abdul Hannan respondent Mirza Rafiq Baig and Rehan filed petition for Leave to Appeal bearing Nos. 36‑K of 1986 and 74‑K of 1986 before the Hon'ble Supreme Court of Pakistan in which co‑accused Abdul Hannan was granted bail while application of Mirza Rafiq Baig was dismissed as he was arrested by that time and, therefore, the Hon'ble Supreme Court passed order regarding him in the following terms:‑‑
10. "Since we are not considering the request for pre‑arrest bail of petitioner Mirza Rafiq Baig for the reason that he has by now been arrested, and his application for pre‑arrest bail has, therefore, become infructuous, it will be open to him to apply to the trial Court for grant of bail in the normal course under section 497 of the Code."
11. The respondent Mirza Rafiq Baig applied for bail before the IInd Additional Sessions Judge, Karachi, (South), but the same was rejected, hence a bail application was filed before this Court vide B.A. No. 443 of 1987; which was granted by this Court and he was ordered to be released on bail vide order dated 14‑4‑1987. The present Criminal Miscellaneous Application No. 155 of 1987 has been filed by the complainant Syed Jehangir, for the cancellation of bail granted to Mirza Rafiq Baig, while Criminal Bail Application No. 615 of 1987 and 802 of 1987 have been filed for bail on behalf of the applicants, Surtaj Ali and Salim Sabir.
12. I have heard Mr. Sayeed Hamayun, learned counsel for the complainant, Mr. M.A. Kazi, learned counsel for the respondent Mirza Rafiq Baig and Mr. Syed Sayeed Hasan, learned counsel for the applicant Salim Sabir.
13. It was contended by Mr. Sayeed Hamayun, learned counsel appearing for the complainant that Mirza Rafiq Baig did not mention in his bail application that a case under section 506, P . P . C . filed by Shehanshah Khalid was pending against him. That the statement of P. W. Gulfraz was not taken into consideration. It was further contended that the respondent after release on bail has started threatening the witnesses with the result that P.Ws. Shehanshah Khalid, Rashid Farooqui and Jehangir have filed the affidavits in support of the above contention.
14. Mr. Muhammad Ashraf Kazi, learned counsel for the respondent Mirza Rafiq Baig has contended that the application is mala fide and has been moved to harass the respondent. That the case under section 506, P . P . C . referred to by the learned counsel for the complainant has been withdrawn and that none of the witnesses has stated in the affidavit that the respondent had issued any threats to the witnesses and the allegations in this connection were vague. That the application was not maintainable in law.
15. Mr. Abdul Ghafoor Mangi, learned A.A.G. for the State did not support the cancellation application and has contended that the order granting bail to Mirza Rafiq Baig is very elaborate. That the allegations of the witnesses about threats were vague and no time, date and place was mentioned and, therefore, the application may be dismissed.
16. Mr. Muhammad Ashraf Kazi, learned counsel for the applicant Sartaj Ali in Criminal Bail Application No. 615 of 1987 has contended that the name of applicant Sartaj does not transpire in the F.I.R. That according to the allegations in the F.I.R. he was armed with knife and caused knife injuries to Gulfaraz, but surprisingly the police has recovered revolver from him. That co‑accused Nasir has filed a counter‑case and it is yet to be seen as to who was the aggressor.
17. Mr. Syed Saeed Hassan, appearing for applicant Salim Sabir in Criminal Bail Application No. 802 of 1987 has contended that the name of the applicant does not transpire in the latter part 'of the F.I.R. are improvements that Sukhi alias Salim Sabir had fired at the back of Asghar. There is a counter‑case in which accused Nasir and Sartaj are injured.
18. I have considered the contentions of the learned counsel and have gone through the F.I.Rs. and Bail Orders passed by various Courts. As far as Criminal Miscellaneous No. 155 of 1987 is concerned, the affidavits filed by Jehangir complainant, Muhammad Rashid and Shehanshah Khalid do not show that Mirza Rafiq Baig had issued any threats to them after his release on bail. The only relevant allegation in this connection is stated in para. 5 of complainant's affidavit which reads as under:‑‑---
19. "That I say that I have apprehension of my own life to be at the stake of the accused persons who are at present at liberty mainly by the respondent Mirza Rafiq."
20. The allegation in para. 3 of the affidavit of P.W. Shahenshah Khalid is that:‑‑
21. "That the respondent if remained at bail he could cause danger to my life."
22. The third affidavit was filed by Muhammad Rashid Farooqui who is not a witness according to the accused but, however, he has stated in para. 3 of his affidavit that:
23. "That I say I recognise the respondent Mirza Rafiq Baig, who has threatend Shehanshah Khalid in my presence."
24. The contents of this affidavit are in conflict with the affidavit filed by Shehanshah Khalid inasmuch as he does not say that accused had ever threatened him after his release on bail. The above affidavits clearly show that there is no allegation direct or otherwise that respondent Mirza Rafiq Baig had threatened the complainant or witnesses after his release on bail and the allegations are absolutely vague. As far as filing of case under section 506, P.P.C. by P.W. Shehanshah Khalid was concerned, it was withdrawn by the Government vide order dated 7‑2‑1987 and on the basis of this order the learned A.C.M. No. VII, Karachi West was pleased to allow the withdrawal of the above case on 9‑5‑1987. Moreover, there were counter‑cases between the parties and the State did not apply for cancellation of bail in view of the above circumstances. The learned A.A.‑G. who appeared in the bail application had conceded to the grant of bail to respondent Mirza Rafiq Baig, and Mr. Mangi learned A . A . G . who f has appeared for the State in this cancellation application has also supported the order granting bail to the respondent. The bare reading of the F.I.R. will show that there was vague allegation against the respondent, and it was not mentioned as to with what weapon Mirza Rafiq Baig was armed, while the latter part of the F . I . R . does not show that respondent Mirza Rafiq Baig caused any injury to the deceased or he was even present at the wardat. Moreover, the provisions regarding cancellation of bail cannot be made available to private parties to satisfy their grudges against each other or to use as a means of wreaking their vengeance. Reliance is placed on Nazar Muhammad v. The State and others 1979 P Cr. L J 277 in which it was observed that:‑‑---
25. "The provisions regarding cancellation of bail cannot be made available to private parties to satisfy their grudges against each other or to use as a means of wreaking their vengeance. Of course in case where there is a reliable evidence that the accused were misusing the liberty to divert the course of justice, the Court would be competent to deprive him of that privilege. "
26. In view of the above factual as well as legal position, I do not find any ground for cancelling the bail of respondent Mirza Rafiq Baig and, therefore, the application is dismissed.
27. As far as bail application of Salim Sabir bearing No. 802 of 1987 is concerned, the F.I.R. shows that Sukhi and others started firing and attacked the complainant party with knives. It was further alleged that Sukhi fired a bullet shot on the back of complainant's brother Asghar which hit him and this injury has been opined to be grievous. He had moved bail application in the trial Court but the same was rejected. Thereafter, he moved this Court for bail and during the pendency of his bail in this Court it was directed that the Identification Test of applicant Sukhi be held, and the same was held on 19‑9‑1986 in which it was shown that accused Salim Sabir was the person who was referred to be as accused Sukhi. Thereafter, his bail application was rejected by my learned brother Ch. Abdul Qadir, J. vide order, dated 25‑5‑1986 with the following observations:‑‑---
28. "In view of the above, the applicant is not entitled to bail. The application is rejected. The interim bail order is recalled. The applicant may move fresh application after some evidence is recorded."
29. Since the case has not yet proceeded, the applicant was responsible for causing grievous injury to Asghar by a fire‑arm and in view of the observations of my learned brother Ch. Abdul Qadir, J., I do not find any ground for allowing bail to the applicant Sal' m Sabir alias Sukhi and, therefore, his bail application is accordingly dismissed.
30. As far as the applicant Sartaj Ali is concerned, he is said to be armed with a Chhuri and caused Chhuri injuries to P.W. Gulfaraz. He was injured in the fight and was caught at the wardat and was arrested by Eagle Squad and six empty bullets and one live bullet were recovered from him and, therefore, his presence at the wardat is admitted. That some of the accused including the present applicant had approached the Honourable Supreme Court for bail and the relevant observations regarding the present applicant in the bail order are as under:‑‑
31. "It is said that the petitioner Sartaj Ali alongwith others was arrested at the wardat by Eagle Squad Police and six spent bullets and one live bullet were recovered from his person. Since we are considering the question of only three petitioners, Abdul Hannan, Jawaid Siddiqui and Sartaj Ali, the above facts and other facts and circumstances mentioned by the learned Judge in the impugned order rule out of grant of bail to petitioner Jawaid Siddiqui and Sartaj Ali, that the former is assigned specific role by the first informant and the latter's presence on the spot is corroborated by his arrest from there by the police. The order of cancellation of bail by the learned Judge in the High Court so far as these petitioners are concerned, is, therefore, based on sound principle of law and is not open to challenge."
32. In view of the above facts and circumstances, I am of the considered view that the applicant Sartaj Ali is also not entitled to bail and, therefore, his bail application is accordingly dismissed.
33. I had dismissed the above applications on 3‑8‑1987 by a short order and, these are the reasons for the same.
34. S.A./J‑33/K Bail refused.