Find a Lawyer

Criminal Miscellaneous No.1719,‑B of 1985, decided on 5th October, 1985.

‑‑‑S.498‑‑Penal Code (XLV of 1860), S. 307/264/325/326/452/109/148/ 149‑‑Bail before arrest, grant of‑‑Alleged abductee released by accused on the very day of occurrence within an hour or so and such abductee not supporting F.I.R. nor same found to be true on more than one aspects by a gazetted Police Officer‑‑Possibility that petitioner was involved due to enmity, also not ruled out‑‑Petitioners allowed bail, in circumstances.

Sh. Rafiq Ahmad Bajwa for Petitioners.

Mian Abdul .Qayyum Anjum for the State:

Ch. Muhammad Tufail Basra for the Complainant,.

Petitioners seek anticipatory bail in case F. I. R. No. 158 registered at Police Station Naushehra Virkarr, District Gujranwala, on 22‑6‑1985, under section 264/307/325/326/452/109/148/149, P.P. C. , on the statement of Muhammad Yusaf son of Abdul Latif.

2. According to the complainant, on 22‑6‑1985, at 11/12 a.m., when he was present in his saw mill alongwith his brother Muhammad Ahmad and servant Rehmat Ali. Khalid Javed son of Muhammad Ghaus, came in a car alongwith five others. The complainant came out, on his call. Javed told him that they will teach them a lesson for moving no‑confidence motion. The complainant went back and narrated the incident to, his brother Muhammad Ahmad. In the meantime, Khalid drove the car and stopped at a distance of about 100 yards, where some armed persons were present in a trolly attached with a tractor. They also joined Khalid and his companions. On their query they were told that Hafiz Muhammad Ahmad was, in. All of them entered the premises of saw mill and started beating Muhammad Ahmad. Abbi son of Ghaus, gave a Kulhari blow on his left leg. Nasrullah gave a Kulhari blow on the right leg from its blunt side, Saifullah gave a Sota blow on his head ‑‑‑‑ Muhammad Ahmad fell down. Whereafter, Parvez gave a butt blow with his gun, which struck the eye, Muhammad Asghar, Muhammad Rafiq, Siddique, Yusaf son of Siddique, Shafqat, Nasrullah son of Muhammad Khan, armed with Sotas, Yusaf son of Haider, Azam and Faqir Muhammad, armed with Dangs, caused him injuries with their respective weapons. Muhammad Mansha fired a pistol shot. Muhammad Yusaf son of Allah Ditta was armed with a gun. The accused armed with Sotas were causing injuries, the accused armed with fire‑arms continued firing, saying that if anybody came near them, they would kill him.

Motive for the occurrence was that on 3‑6‑1985, Muhammad Ahmad had got moved a no‑confidence motion against Rehmat Ali, Chairman. The other motive was that in a case registered under the Hudood Ordinance, against the accused party, the complainant party was helping the victim (girl), as she belonged to their Beradari.

It is also stated in the F.I.R. that after having beaten, Muhammad Ahmad, he was taken away by the accused in the trolly.

3. Learned counsel for 'the petitioner contended:

(a) That the petitioners have been involved falsely ;

(b) that the statement of the abductee which was recorded on 2‑7‑1985 is contradictory on many points with the F . I . R . ;

(c) that the petitioners are innocent. They have been involved because of party faction and political rivalry, and

(d) that in case the petitioners are arrested, they will suffer, an irremediable loss.

4. Learned counsel for the State /complainant have opposed the grant of bail.

5. The undisputed facts, between the parties, are:‑‑

(i) that during investigation by the D.S.P., Khalid Javed, Parvez, Yusuf son of Siddique, Yusuf son of Haider, Rehmat Ali Nasrullah, Shafqat, Riaz, Faqir Muhammad and Mansha petitioner were declared innocent;

(ii) that Khalid Javed, Parvez, Rehmat, Yusuf son of Siddiq, Yusuf son of Haider, Muhammad Riaz, Shafqat and Nasrullah, have been granted pre‑arrest bail by the Additional Sessions Judge, Gujranwala and no petition for cancellation of bail was either moved by the State or by the complainant;

(iii) that Nasrullah son of Ahmad Khan, Azam, Faqir Muhammad and Muhammad Rafiq have been granted bail after arrest by the trial Court; ,

(iv) that the Investigating Officer came to the conclusion that Munawar, Irshad son of Rehmat, Muhammad Munir, Muhammad Tufail, Abdur Razzaq, Muhammad Afzal another Irshad, Muhammad Nazir and Munir Ahmad son of Ammi (not named in the F.I.R.) had also participated in the occurrence;

(v) that Hafiz .Muhammad Ahmad had been let off by the assailants on the same day and he had got himself medically examined from the Medical Officer, Rural Health Centre, Nausheran Virkan, at 12‑45 p.m. on the same day.

(vi) that in spite of the orders passed by the Ilaqa Magistrate and the Additional Sessions Judge, for re‑examination of Hafiz Muhammad Ahmad by the Medical Superintendent, he had not submitted himself for re‑examination. In this regard learned counsel for the complainant submitted that the injured had not appeared before the M:S. as second examination could only be conducted by Surgeon General of Punjab;

(vii) that Hafiz Muhammad Ahmad in his statement recorded on 2‑7‑1985 had named only Nasrullah son of Ahmad, Saifullah, Abid alias Abbi, Azam and Mansha petitioners as his assailants. In addition he had named one Jagga (not named in F.I.R.). Apart from this he had stated that he would be able to identify the others and that in all 15/16 persons had attacked him;

(viii) No identification parade was held.

(ix) that Hafiz Muhammad Ahmad, instead of corroborating the F.I.R. about the allegation of Abid alias Abbi having caused, injury to him with his hatchet on his leg, he stated that Abid alias Abbi had given injury on his face with the Butt of pistol, while he was being taken in the trolly. About Saifullah, he stated that‑‑‑ he had lifted him and placed him in the trolly. while it is stated in the F.I.R. that Saifullah had caused him an injury on his head at the spot. About the injuries on his legs, he stated that they were caused by Azam while he was being carried in the trolly. In the F.I.R. injuries on the legs have been assigned to Abid alias Abbi and Nasrullah.

6. Learned counsel for the State/ complainant while opposing the grant of bail laid stress against Abid alias Abbi and Saifullah only. In this regard learned counsel for the complainant particularly submitted that both these petitioners have been assigned specific role of having caused injuries in the F .I . R. , as well as in the statement made by Hafiz Muhammad Ahmad. It has been vehemently contended by the learned counsel that the petitioners do not deserve the concession on grant of pre‑arrest bail by any standard.

7. The facts noted above apparently support the contention of the learned counsel for the petitioners that the complainant, had other considerations in view, that the actual reporting of the occurrence. I have recorded this observation on the basis, that the F.I.R. was neither corroborated by the abductee (the star witness) nor was found to be true on more than one aspects, by the D.S.P., who had investigated the case.

Out of the five petitioners before this Court, three have not been named by Muhammad Ahmad, in his statement. Yet the other thing which strikes most important is that Muhammad Ahmad injured was released by the accused on the day of occurrence within an hour or so. His statement was not recorded till 2‑7‑1985, i.e. about ten days after the occurrence, and even in that statement he did not support the F.I.R. either in the matter of naming the assailants or in the matter of the assailants (including the petitioners) having been assigned roles, in the narration given in the F.I.R. The investigation from the very beginning was conducted by a senior Police Officer i.e. D.S.P.

I am abstaining from recording any adverse inference on non‑subjection of Muhammad Ahmad for re‑examination by the Medical Superintendent, in spite of orders of the Ilaqa Magistrate and the Additional Sessions Judge, however, I would like to note that the objection raised by the learned counsel for the complainant, is, without any basis because there is no such law that second examination can only be conducted by Surgeon General Punjab. there may be some letter by the Health Department but that cannot be termed as law. The Courts are competent in directing re‑examination of injured by any competent senior doctor.

8. The facts noted above and the contentions raised by the learned counsel for the petitioners tentatively makes out a case that the petitioners might have been involved due to enmity. As such, I feel that a case for confirmation of interim pre‑arrest bail, granted by this court vide order, dated 15‑7‑1985. is made out. The interim pre‑arrest bail is therefore, confirmed, subject to the order that the petitioners shall file fresh bail bonds in the sum of Rs.20,000 each, with one surety each, in the like amount to the satisfaction of Assistant Commissioner, Gujranwala.

S.G.D. Bail confirmed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.