Mst. QUDRAT BIBI vs MUHAMMAD IQBAL and another

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition for leave to appeal has been filed against order dated 10th May, 2002 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi whereby Criminal Miscellaneous Application for cancellation of bail of respondent No,1 instituted by petitioner has been dismissed.

2. The prosecution case as disclosed in F.I.R. Is that on 15-12-2001 Mst. Qudrat Bibi was proceeding for the house of Mst. Shahin whereas Muhammad Rafiq was returning back from the house of Mst.

Raj Bibi. When Muhammad Rafiq reached near the Haveli of Muhammad Riaz, at about 3-30 p.m.

Manzoor Hussain and Muhammad Iqbal (respondent No,1) both armed with a hatchet, Muhammad Miskin son of Shah Nawaz and Muhammad Nazar son of Muhammad Iqbal emerged out from the Haveli of Sarsa Khan. Muhammad Nazar raised a Lalkara that Muhammad Rafiq should not be spared. Thereafter Muhammad Miskin caught hold of a stone and pelted it at Muhammad Rafiq, which hit him at his forehead. Manzoor Hussain inflicted two hatchet blows, which hit Muhammad Rafiq at left side of his head as well as left side of neck. Muhammad Iqbal inflicted a hatchet blow, which hit Muhammad Rafiq on right side of neck. Thereafter, accused person fled away.

Muhammad Rafiq died at the spot. The motive as disclosed was that three years earlier Munir Hussain brother of Manzoor Hussain co-accused was murdered and Muhammad Rafique deceased was challaned in that case. However, at the trial he was acquitted of the charge, therefore, due to said grudge the incident took place. The F.I.R. Was lodged at about 4-30 p.m. On the same day at the instance of petitioner who is sister of the deceased.

3. Pending investigation of the case learned Sessions Judge, allowed ad interim pre-arrest bail to respondent No, 1, which was confirmed on 2-3-2002. The petitioner filed Criminal Miscellaneous Application No,277/B/C of 2002 for cancellation of bail which has been dismissed by learned Single Judge in Chambers of Lahore High Court vide impugned order dated 10-5-2002. As such instant petition has been filed for leave to appeal.

4. Learned counsel contended that learned High Court has granted concession of bail before arrest on accepting the opinion of the Investigating Officer qua the testimony of ocular evidence furnished by four witnesses duly corroborated by the medical evidence contrary to the recognized principle for allowing anticipatory bail to an accused person.

5. On the other hand learned counsel for respondent/accused Muhammad Iqbal contended that before the Investigating Officer respondent examined good number of witnesses who in unequivocal terms deposed that he has been falsely involved in the commission of offence. He further stated that involvement of respondent in the case is in pursuance of a growing trend of involving as many as male members of a family in the commission of offence so no one could pursue the case effectively.

6. We have heard both the sides and have perused the record including the police file carefully.

Mst. Qudrat Bibi sister of deceased lodged report in respect of incident of murder of Muhammad Rafiq which took place at about 3-30 p.m. At Police Station Kallar Kahar situated at a distance of 15 miles from the place of incident at 4-30 p.m. Therefore, report was lodged with promptitude; In F.I.R.

M/s. Manzoor Hussain son of Soba Khan, Muhammad Iqbal son of Baz Khan both armed with hatchet, Muhammad Miskin son of Shah Nawaz and Muhammad Nazeer son of Muhammad Iqbal were nominated as accused. So far as respondent Muhammd Iqbal is concerned he was attributed specific role of causing injuries with hatchet on the neck of deceased Muhammad Rafiq. Similar role was assigned to Manzoor Hussain son of Soba Khan as he also caused injuries with hatchet on the person of the deceased. It is equally important to note that in the F.I.R. Muhammad Sarwar son of Muzzaffar Khan, Sher Bahadur son of Sultan Bakhsh, Ahmad Khan son of Lal Khan were shown to be the witnesses of the incident. The Investigating Officer recorded their statements' on the same day and undisputedly they fully subscribed to the prosecution case as it was disclosed in the F.I.R.

By petitioner Mst. Qudrat Bibi being herself witness of the incident. Surprisingly no effective steps were taken by the Investigating Officer to cause arrest of respondent Muhamamd Iqbal and other co-accused. Contrary to it he started recording statements of witnesses produced by accused party to prove that Muhammad Iqbal respondent is innocent.

7. A perusal of impugned judgment reveals that Investigating Officer instead of adopting normal course of investigation to find out as to whether prima facie respondent is involved in the commission of offence adopted a novel procedure during course whereof perhaps he had been conducting secret investigation and subsequently started recording statements of defence witnesses towards 29th December, 2001 towards 2nd June, 2002 with an effort to exonerate the respondent from the commission of the offence and on basis of such information/evidence so collected by him, he opined that respondent is innocent and has been falsely involved in the commission of the offence. Such opinion of the Investigating Officer had been accepted by learned Sessions Judge while considering the request of the respondent for bail before arrest as well as by the High Court while declining cancellation of bail on the request of the petitioner. In such view of the matter first of all it is to be seen whether after having registered the case and collecting incriminating evidence immediately produced by the complainant side the Investigating Officer was justified in examining defence witnesses after about 12/13 days of the incident because first statement in this behalf, was recorded on 29th December, 2001. Answer to this query could not be else except that such attempt was made with a view to cause serious prejudice to the case of the complainant or prosecution. Even if it is said that the attempt was made by the Investigating Officer to record statements of the defence witnesses with ulterior motives it would not be inappropriate. This Court in the case of Syed Saeed Muhammad Shah and another v. The State (1993 SCM R 550) has declined to accept the statements of prosecution witnesses recorded under section 161, Cr.P.C. With delay unless cogent and convincing explanation is offered, then how it is possible that ignoring the statements of prosecution witnesses who were examined immediately after commission of the offence the statements of defence witnesses recorded after about 12/13 days from the date of incident would be acceptable in order to prima facie form opinion at the investigating stage that the respondent is not involved in the commission of the offence. As it has been observed hereinabove that after 29th December, 2001 the Investigating Officer had been continuously examining witnesses by procuring their attendance through loudspeaker of the mosque and in this way successfully arranged a good number of persons against the prosecution and in favour of defence to the effect that the respondent is not involved in the commission of the offence. It would not be out of context to note here that when an accused is charged for capital offence it is not difficult for him to produce a good number of witnesses in his favour to show that he is not involved in the case. But this procedure is not akin either to any provision of Criminal Procedure Code or Police Rules, rather it reflects about the conduct of the Investigating Officer who instead of completing investigation within the stipulated period as prescribed under section 173(1), Cr.P.C. And submit interim or final challan had started justify with ulterior motives that the respondent is not involved in the commission of offence. Be that as it may, this Court in the case of Manzoor and 4 others v. The State (PLD 1972 SC 81) has held that ipsi dixit opinion of the Investigating Officer cannot be accepted to exonerate the accused from the commission of the offence. Surprisingly learned High Court as well as Sessions Judge ignoring the law laid down in this reported case accepted the opinion of the Investigating Officer expressed by him in favour of respondent.

8. A perusal of record indicates that respondent did not fulfil the condition laid down by this Court in the case of Muhammad Safdar and others v. The State (1983 SCM R 645) and Ajmal Khan v.

Liaquat Hayat and another (PLD 1998 SC 97). In these judgments this Court prominently has pointed out that concession of bail before arrest is granted to an accused if it is established that his involvement is based on mala fide by the prosecution. Admittedly no mala fide has been prima facie established against petitioner to involve the respondent alongwith others to be the accused for the commission of the offence. Muhammad Rafiq deceased is brother of petitioner Mst. Qudrat Bibi, therefore, she could not possibly involve the respondent falsely in the commission of the offence because how it is possible that a sister who has seen happening of incident of murder of her brother in her presence would allow the real culprit to escape and will falsely involve some one else in his place. Even otherwise phenomena of substitution is very rare in this part of the country. In view of above discussion we are of the opinion that at a stage of admitting to an accused on bail the Court should not stamp the prosecution witnesses who have recorded their statements promptly to be false witnesses and accept the statements of defence witnesses whose statements are recorded after considerable period by the Investigating Officer from the happening of the incident to conclude that the respondent is innocent. Therefore, the reasons prevailed upon learned High Court as well as Sessions Judge, Chakwal are not acceptable being contrary to the principle of law laid down by this Court as it has been pointed out hereinabove.

9. Learned counsel for respondent contended that once an accused has been admitted to bail and the challan of the case has been submitted, then concession of bail normally is not withdrawn. In support of his contention he relied upon Muhammad Sadik and others v. The State (1980 SCM R 203) and Allah Ditta and others v. The State (1990 SCM R 307). These judgments are not helpful to him because Ghulam Ali, Sub-Inspector, Acting S.H.O. Who produced the record categorically made statement at the bar that so far challan has not been submitted in the Court and it is lying on the file of District Attorney. He also made reference to the case of Razi Khan y. Muhammad Mushtaq and another (1996 SCM R 984). There is no cavil with the proposition of law discussed therein that strong and exceptional grounds would be required for cancellation of bail. In our opinion in view of above discussion there are strong and exceptional grounds available on record to warrant cancellation of bail, therefore, this judgment has not rendered any help to the learned counsel for the respondent. He further relied upon the judgment of Muhammad Hussain v. State (1996 SCM R 73). In our opinion the facts noted in this judgment are distinguishable from the facts of the case in hand. In the instant case an overt act of causing injury with hatchet blow has been attributed to the respondent which gets corroboration from the medical evidence, therefore, the rule laid down in this judgment is of no help to the learned counsel.

10. We have noted with great concern that learned High Court has made categoric directions to the Investigating Officer for submission of challan but so far challan has not been submitted as stated by Ghulam Ali, S.-I. Meaning thereby that Investigating Officer Jawwad Akram, Inspector has not only defied the direction of High Court but of this Court as well because it has been held in the case of Hakim Mumtaz Ahmad v. The State (PLD 2002 SC 590) that under section 173(5), Cr.P.C. Challan is to be submitted within stipulated time of 14 days and a copy of this judgment has also been circulated to all the Inspectors-General of Police with a view to issue directions to their subordinates to submit challan within the stipulated period but it is not known that how the Investigating Officer had not submitted challan in this case so far. Therefore, we direct Inspector- General of Police, Punjab to look into the matter and ensure full implementation of the directions contained in Hakim Mumtaz's case (ibid) and at the same time he will initiate departmental proceedings against the investigating officer Jawwad Akram as well as Ghulam Ali, S.-I who despite holding charge on behalf of S.H.O. As per his admission has not complied with the directions of the High Court as well as this Court and failed to submit challan. The result of the action initiated against both of them shall also be intimated to the Registrar of this Court for our perusal in Chambers and action, if any ' The above are the reasonings of our short announced order on 19th July, 2002, which is reproduced hereinabelow:-- "For the reasons to be recorded later on, petition is converted into appeal and allowed as a result whereof impugned order dated 10th May, 2002 is set aside and to respondent accused is recalled.

Mr. Ghulam Ali, S.-I., present in Court is directed to arrest him immediately so he may face trial. In respect of the conduct of Investigating Officer and S.-I. For not submitting challan within stipulated period, separate observations will be made in detail order."

11. Needless to say that observation made hereinabove while cancelling to respondent are tentative in nature, therefore, he will not be precluded from making request to trial Court for his release on bail after arrest in accordance with law.

Pre-arrest bail cancelled.