THE STATE vs Malik MUKHTAR AHMAD AWAN

ORDER

SAAD SAOOD JAN, J:---This is a petition for special leave to appeal from the order dated 13-1-1990 of the Lahore High Court, whereby the respondent was admitted to pre-arrest bail.

2. On 17-8-1989 at 9.30 a.m. Walayat Randhawa, acting Nazim, Jamiat-i-Tulba Islam, and Behram Khan, a member of the said organization, were proceeding on a motor-cycle from the Government College of Technology, Multan, towards the City. When they reached near Octroi Post No. 14, they were surrounded by a number of persons also riding on motor-cycles. Some of these persons who were carrying automatic rifles opened fire. As a result, both Walayat Randhawa and Behram Khan were seriously injured. Behram Khan died at the spot while Walayat Randhawa was removed to the hospital. Javed Noman, another member of the said organization, who claimed to have seen the firing, presented a written complaint at Police Station, Delhi Gate, at 10.45 a.m. On the same day. On the basis of this complaint a case under sections 302 and 307, read with sections 149 and 120-B, and 148, Pakistan Penal Code, was registered at the said police station.

3. In his complaint, Javed Noman, apart from giving details of the occurrence, also alleged that on 26-7-1989 the respondent called a meeting of the People's Students Federation at his house in Multan when he too was present by invitation. During the meeting the respondent observed that Islami Jamiat-i-Tulba had not yet liquidated despite the policy of his party, that he had prepared a hit list, that it was absolutely necessary to do away with Walayat Randhawa and Behram Khan; that he would provide firearms, that he was assuming all responsibility for their protection; and, that the Government of the Peoples Party would help and reward all those who were involved in the operation. He then appointed one Habib Ullah Shakir as man incharge of the `liquidation operation'.

Immediately thereafter Habib Ullah Shakir distributed Klashnikoves to two persons present in the meeting.

4. The respondent is a Minister in the Federal Government. After the registration of the case on the complaint of Javed Noman, attempts were made to arrest him. He evaded these attempts by keeping himself away from the Province of the Punjab, In the first week of December 1989 he surrendered himself before the Sindh High Court at Karachi which allowed him interim protective bail for a fortnight so that he could approach the Sessions Judge at Multan or any other competent Court to seek relief. Accordingly, the respondent approached the Lahore High Court in the matter.

The learned Chief Justice of the Lahore High Court admitted him to pre-arrest bail.

5. The case of the respondent before the High Court was that he was innocent and was not involved in any manner in the occurrence. He had been implicated in the case entirely on grounds of political considerations.

6. It will be noticed that the charge against the respondent is of being an accessory before the fact inasmuch as he is alleged to be the originator of the criminal conspiracy which led to the attack on Walayat kandhawa and Behram Khan. The only evidence implicating him in the case relates to the meeting which was allegedly held in his house on 26-7-1989. While admitting him to bail the High Court observed: "(4) I have very carefully attended to the submissions made at the bar in the fight of material available on the record. In their lengthy arguments the learned Advocate-General and the learned counsel for the complainant could not answer two very material questions specifically raised by the learned counsel for the petitioner (now respondent), namely, why the complainant and his companion Musharraf Shah, who belong to Jamiat, were invited to the meeting, and if they had really attended it then why they did not disclose the conspiracy to any-one for three weeks. Perusal of the F.I.R. Of this case and F.I.Rs. (Annexures C-2 and C-3) clearly shows that the complainant and his companion Musharraf Shah belong to Islami Jamiat-e-Tulba. It is inconceivable that they would be invited to a meeting called by the opposite party in which kalashnikoves were to be distributed and. a plan was to be chalked out for eliminating the leaders of the Jamiat. Such meetings are not held in the open in the presence of confederates of the intended victims. Learned counsel for the complainant tried to explain that Javaid Numan complainant and Musharraf Shah P.W. Were `sincere comrades' of Rana Afzal etc. And had only a `loose alliance' with the Jamiat.

After making this submission he could not explain why the complainant named Rana Afzal as the principal accused in this case if he was his `sincere comrade'.

(5) The learned Advocate-General and the learned counsel for the complainant also could not offer any reasonable explanation why the complainant and Musharraf Shah P.W. Kept silent for three weeks if they had really seen the petitioner exhorting his companions to kill the two deceased persons. Learned counsel for the petitioner contended with ample justification that if there had been any truth in what the complainant claims to have seen and heard, he would have taken all possible steps to expose the petitioner but he did nothing and for the first time made mention of the conspiracy in the F.I.R. Of this case on 17-8-89. According to the F.I.R. It was not only a verbal conspiracy but a conspiracy in which kalashnikoves were also distributed. It is very strange that the first informant, being a member of the Islami Jamiat-e-Tulba, did not make any report either to the police or to any other authority and even did not bother to issue a press statement. My attention was drawn to the supplementary statement of the first informant dated 17-8-89 wherein he alleged that on 26-7-89 at 10 p.m. He and Musharraf Shah had opposed the move of the petitioner saying that the situation will go worse if violence was resorted to, but the petitioner said that it was a Peoples Party, affair and they need not worry. It is again difficult to believe that the first informant- and his companion had picked up courage to raise protest before a hostile gathering where murders of the leaders of the Jamiat were being planned and arms had been distributed. In the circumstances, I feel inclined to the view that there are no reasonable grounds for believing that the petitioner has committed the offence with which he has been charged."

Although the observations made by the High Court on the quality of evidence so far collected by the investigating agency against the respondent have relevance only in the context of the proceedings pending before, it and would, no doubt, be ignored by the trial Court but it cannot be said that they did not support its finding that there were no reasonable grounds for believing at this stage that the respondent was guilty of the offences of which he had been accused. The learned Advocate-General was unable to persuade us that the said finding was not well founded.

7. The main thrust of the argument of the learned Advocate-General was on the legal plane. He referred to the fact that soon after the occurrence the respondent made himself unavailable to the investigating agency and argued with some force that a fugitive from law was not entitled to the privilege of bail. In support of this contention he referred to a judgment from the Peshawar High Court reported as Muhammad Aslam v. State 1989 P Cr. L J 2026. He pointed out that the Court of Session and the High Court were vested with concurrent jurisdiction in the matter of granting pre- arrest bail to persons fearing imminent arrest and it was an established rule that where two Courts enjoyed concurrent jurisdiction relief should in the first instance be sought from the Court which was comparatively lower in the hierarchy. He stated that a number of bail applications arising out of the present occurrence were already pending in the Court of Session when the respondent moved the High Court for bail. In the circumstances the High Court ought not to have entertained the prayer of the respondent and should have directed him to approach the Court of Session. In this context he relied upon a judgment of the Lahore High Court reported as Zahur Ahmad v. State PLD 1974 Lahore 256.

8. It is unnecessary to examine the contentions raised by the learned Advocate-General at any length, for, in view of the finding of the High Court that there were no reasonable grounds for believing that the respondent has committed the offences of which he was Ding accused, they amount to nothing more than mere technicalities. It may, however, be observed that it is not an absolute rule that a fugitive should under no circumstances be enlarged on bail although, it may be added, abscondence does constitute a relevant factor when examining the question of bail. It is a matter essentially of propriety and not of law that a person accused of an offence should in the first instance move the Court of Session for pre-arrest bail before approaching the High Court.

Considering the circumstances of this case it is not possible to hold that the High Court made an error, requiring interference by this Court, in directly entertaining the application of the respondent.

The petition is dismissed.