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Petitioner: Malik MUHAMMAD IQBAL and 4 others VS Respondent: STATE
Court Name: Lahore High Court Judge(s): Khawaja Muhammad Sharif, Tanvir Bashir Ansari Title: Malik MUHAMMAD IQBAL and 4 others vs STATE Case No.: Cr. Misc. No, 8382/B of 2004 Date of Judgment:2005-01-26 Reported As: PLJ 2005 Cr.C. (Lahore) 846 Result: Order accordingly
Judgment ORDER This order will dispose of Criminal Misc. No 8382/B of 2004 filed by. Malik Muhammad Iqbal. Ex-DIG, Gujranwala Range. Amjad Javed Saleemi. Ex. District Police Officer, Sialkot, Raja Munawar Hussain DPO, Gujrat, Dr. Syed. Muhammad Firdous, EX-Medical Superintendent and Dr. Sajid Hussain, Consultant. Surgeon, Criminal Misc. No, 8656/B of 2004. filed by Zafarullah Butt, Criminal Misc. No, 8462/B of 2004 filed by Amjad Ali, Shahzad Ahmad. Qaiser Mahmood, Abdul Razzaq and Inam Ullah, petitioners, Criminal Misc. No, 8414/B of 2004 filed by Muhammad Mehmood Butt, Ghulam Sarwar, Qaisar Mahmood, Kamran Ali and Asghar Ali, Criminal Misc. No, 8778/B of 2004 filed by Shabbir Anwar, all petitions for pre-arrest bail. Criminal Misc. No, 7543/B of 2004 filed by Muhammad Akhtar Iqbal and Criminal Misc. No, 8648/B of 2004 filed by Zulifkar Ali Virk (Post-arrest bail petitions). 2. Syed Mazahar Ali Naqvi started the arguments on behalf of the petitioners, in Criminal Misc. No, 8382/B of 2004. Learned counsel submitted that the order dated 12.11.2004 passed by the trial Court/Judge Anti-Terrorism Court No, 1, Gujranwala is not a speaking order; the order which is not speaking is no order in the eye of law; for this proposition of law, learned counsel relied upon PLD 1970 S.C. 713; there was not an iota of evidence on record before the trial Court to implicate the petitioners in the instant case; the petitioners were not named in the FIR, their names were added in the three supplementary statements of the complainant; the name of Raja Munawar, one of the petitioner, does not figure even in the supplementary statements; no credence can be given to the supplementary statement and it is at the most statement under Section 161 Cr.P.C.; elaborating his arguments, learned counsel submitted that the first supplementary statement was made 2 days after registration of the FIR, 'then second was made four days after the occurrence and third on 2.8.2003; for this proposition of law, learned counsel has relied upon PLJ 2000 Cr.C, 991 (DB) and
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2003 SCMR 1419; the order impugned in all the petitions is against the spirit of the remand order passed by this Court in Criminal Misc. No, 3264/BC of 2004; learned counsel has read before us Paras 45, 48, 51 and 52 of the said judgment; Dr. Firdous was Administrative Officer at the relevant time and has been summoned under Section 319 PPC and not under Section 302 PPC; the name of Dr. Sajid Hussain was added with mala fide at the instance of the complainant; explaining his submission, learned counsel submitted that one of the deceased namely Shahryar Bokhari was removed to Punjab Institute of Cardiology where he was operated upon and a patient cannot be operated if he is not fit; learned counsel wanted to submit that proper medical aid was provided to Shahryar Bokhari and ever according to EDO (Health) Sialkot, four ambulances were ready with all equipment of emergency but the injured was removed to PIC by the heirs of the deceased himself; no material whatsoever was available 'With the trial Court for summoning the doctors to face the charge under Section 319 PPC; learned counsel has read before us the definition clause of Section 319 PPC the petitioners have never misused the concession of pre arrest bail and unless the concession is misused, bail cannot be cancelled; reliance has been placed upon PLJ 1989 SC 526 and that the arms and ammunition used in the commission of the offence was supplied in connivance with the jail authorities. Further submitted that the action was taken by the Police not in haste. as alleged by the prosecution, but the same was taken when it was inevitable; the occurrence started at 10.30 a.m. and the action was taken at 5 p.m. suit cannot be said that operation was carried with hurry; as to summoning of Army commandos is concerned, learned counsel has submitted that the District Coordination Officer, Sialkot had made a statement before the Investigating Officer that he established contacts with high ups of the Army including GHQ but his request was not acceded to but learned counsel failed to show the said statement of DCO. Added that there was no order of the High Court in black and white as is being alleged by the complainant in the FIR as also in the supplementary statements for not starting the operation without the commandos of the Army. Learned counsel maintained that there was no private complaint filed, in fact the trial Court on its own after perusing the FIR and statements of the witnesses under Section 161 Cr.P.C. summoned the petitioners; according to learned counsel, two parallel matters are being dealt with by the trial Court, one issued by the trial Court itself under Section 204 Cr.P.C. and the other relates to final report submitted by the Investigating Officer. Learned counsel submitted that the petitioners having acted in discharge of performance of their official duties, their acts are protected under Section 132 of the Cr.P.C. It was -however conceded by learned counsel for the petitioners that the trial Court after having issued non bailable warrant, could not have allowed the accused to go free only after submission of bail bonds: According to learned counsel, this act of the trial Court was illegal and not recognized by any principle of law. A reference was also made to Section 19(3)(6) of Anti-Terrorism Act 1997. According to learned counsel, magisterial powers vests in the Court constituted under the Anti-Terrorism Act, 1997. It was vociferously argued by learned counsel for the petitioners that when a Court summons any person in terms of challan case, then the said person is to be dealt with according to the procedure laid down by in Section 91 of Cr.P.C. Reliance was placed on PLD 2002 S.C. 687 and 2002 SCMR 63. It was also argued by learned counsel that under Section 190 Cr.P.C., the Court can take cognizance of the offence and not of-the offender. A reference was also made to Criminal Misc. Ne. 100/T of 2004 seeking transfer of the case but the said petition was withdrawn on 3.11.2004 and a direction was issued to the trial Court to submit final report under Section 173 Cr.P.C. before the trial Court. Concluding his submissions, learned counsel submitted that the petitioners being Government Servants, there is no question of their abscondence. Malik Amjad Pervaiz, Advocate submitted that FIR, which is basic document, was lodged by an experienced learned Civil Judge and had laid much emphasis on sixth line therefore and also
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submitted that complainant himself stated in the FIR that negotiation failed and it was only thereafter that the Police action was taken. Further argued that it is also admitted by the complainant in the FIR as well as in the supplementary statements that the injured were removed to the hospital with the help of the Police. By this, learned counsel wanted to submit that the Police acted in good faith and quite efficiently. Also argued that there was no material on record before the trial Court to summon the accused-petitioners and since there was no material on record before the trial Court to summon the accused, hence the order of the learned trial Court summoning the accused petitioners was illegal. Learned counsel has read before us the statements of Javed Iqbal Warriach, injured and Shahryar Bokhari, Civil Judge, who later on expired in the hospital. He has also referred to the statement of Sibtain Haider Kazmi, Special Judicial Magistrate who had stated in his statement recorded under Section 161 Cr.P.C. that two accused fired at Asif Mumtaz the deceased Civil Judge, one accused gave him injury with fetters and that Mumtaz and Shahryar were injured due to firing of the Police. Learned counsel also referred to the statements of Mst. Rashida Bibi, Mst. Shanaz, Mst. Naseem Akhtar, Mst. Shah Jehan, who according to learned counsel were independent witnesses and they all have stated that the accused who had made them hostages, had fired at the Judges even before the start of operation by the Police. The statement of Zahid Saeed, who was the DCO at the relevant time made on 2.8.2003 was also read before us to submit that the DCO established contact with high ups of the Army to have the assistance of the Army commando but failed. Much stress was laid on the statement of Muhammad Akram, Constable (Naib Court of Sessions Judge, Sialkot) who had stated that the three Judges were fired at by the accused-prisoners. It was submitted that statements of all the witnesses recorded under Section 161 Cr.P.C. are unanimous that Police started the operation when the prisoners-hostages had already fired at the deceased Judges. It was however, admitted by the learned counsel that Shahryar Bokhari. Judge was injured because of the Police firing. Further submitted that the action was taken by the Police in order to save the lives of 52 hostages and the action of the Police was so accurate and prompt that five accused prisoners were also killed. Elaborating his arguments, learned counsel submitted that since the action was taken of get the hostages released from inside the barrack, so it was not possible for the Police to see as to whom the shot would hit. Further elaborated that it has come on record that all the five accused prisoners had changed their clothes with the Civil Judges and when the clothes of the Judges were changed with the accused, the action of the Police was justified to some extent and was natural. Four persons namely Tariq Mahmood, Civil Judge, Pervaiz Iqbal Butt, Special Judicial Magistrate, Akram, Gunman of the Sessions Judge and Maqsood, Ahlmad were got released by the officials of the Elite Force after putting their lives to danger. A reference was also made to the statement of Tariq Abbass Qureshi, SP (Headquarters) who stated that the operation was started after negotiation in between the DPO, District Nazim and the Sessions Judge. Learned counsel also read before us the statement of Malik Muhammad Iqbal the then DIG, range who stated that if he would not have started the operation, many people must have lost their lives. It was vehemently argued by learned counsel for the petitioners that his clients being members of the Elite Force took part in the operation under the order of the DPO and the DIG of the range and made the rescue of 48 persons at the cost of killing of four judicial officers. On Court question, learned counsel submitted that 3 magazines and 22 live bullets were recovered from accused Shahbaz, three magazines and 23 live cartridges from Ijaz, three magazines and 25 live bullets from Ishaq, three magazines and 18 live bullets from Munir accused, three magazines and 22 live bullets from bath room of ladies barrack and from the spot, 9 empties of rifle G-3, 3 empties of rifle MP-5, 194 empties of klashnikov, lead bullets 70, 34 empties of .30 before pistol, three handcuffs and nine empties of tear gas shell were also taken into possession.
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Reverting to his arguments, learned counsel submitted that it is an admitted position that the Elite Force was called by the DPO. Sialkot; the officials of the Elite Force reached at the spot within 15 minutes, the DPO took the initiative on the telephonic all of the Civil Judge made hostage. the Elite Force kept on waiting till 5.00 pm., the officials of the Elite Force were under the direct command of the DPO Sialkot and DIG, Gujranwala, it is not the case of the prosecution that the officials of the Elite Force had any ill will or mala fide or motive against any deceased, it is also not the case of the prosecution or any of the co-accused that they have not asked the officials of Elite Force to start the operation, the Elite Force is a disciplined force and they being members of the Elite Force are to obey the lawful command of their superiors. If any thing or misunderstanding or confusion was there, that was between the high ups and had no concern with the officials of the Elite Force. It was submitted that his clients who are members of the Elite force had no option but to obey the order of their superiors. Further argued that the petitioners acted in discharge of their official duties under the valid and direct command of the officers so they could not have been made responsible for the job of the officers. Also submitted that the DIG had to take the decision and petitioners are to follow it and as soon as the DIG and the DPO decided to take action, they started the operation. Our attention was also drawn to Section 76 of the PPC and specially illustration (a) thereof to submit that nothing is an offence which is done by a person who. or who by reasons of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be bound by law to do it. Learned counsel maintained that except the solitary statement of Nazir Ahmad, Additional District Judge connecting the petitioners who are the member of the Elite Force, there is no other independent corroboration. It was also argued by learned counsel for the petitioners that Sections 6 and 7 of the Anti-Terrorism Act are not attracted to the facts and circumstances of the instant case and that the petitioners did not commit any offence which created terror in the mind of the public rather they acted to save lives of at least 42 persons who were made hostages. Reliance was placed upon PLD 2003 Lahore 588. Concluding his submissions, learned counsel submitted that the petitioners were not named in the FIR and even their names do not find mention in the report under Section 173 Cr.P.C. Lastly argued that the trial Court should have waited for final submission of the challan instead of proceeding on the basis of reading the FIR and statements of witnesses recorded under Section 161 Cr.P.C. It was at this stage again submitted that investigation having been complete, challan being before the trial Court, no useful purpose will be served by sending the petitioners behind the bars. Mr. Naveed Rasool Mirza, Advocate representing Inspector Zulfiqar Virk submits that there was no material available before the trial Court to summon the petitioner. According to learned counsel, the allegation against him is that he took part in the negotiation with the accused and because of his some act, the accused prisoners became infuriated when according to complainant as alleged in the FIR, the accused had fired at the Sessions Judge but missed. Learned counsel wanted to say that no act of the petitioner became the cause of action of the operation. Further submitted that the name of the petitioner does not find mention in the FIR and his name figured only in the supplementary statement recorded on 1.8.2003. On legal aspects, learned counsel submitted that bail is not to be withheld as a punishment, there has to be some material against the accused, there has to be reasonable grounds to believe that the accused was connected with the crime, the Court is supposed to see all the material collected against accused by the investigation, the petitioner did not take part in rescue operation, he had no enmity with any injured or deceased, it was not a statutory offence in which mensrea is the basic part and there was no mensrea on the part of the petitioner, the petitioner was found innocent by the Police and placed in Column No, 2 of the report under Section 173 Cr.P.C., there was no conscious application of mind by the trial Court
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while summoning the petitioner and that it is bail after arrest and not pre-arrest and consideration for the grant of bail after arrest are totally different to that of pre-arrest. Learned counsel for the complainant submitted that the act of the petitioners comes within the definition of intentional murder and for this purpose had drawn our attention to Section 300 PPC. According to learned counsel, the knowledge of an act is derived from the facts of the case it was in the knowledge of the petitioners that the operation they started may result. to loss of many lives specially when apart from the Judges, there were 43 other under trial prisoners and they resorted to indiscriminate firing. Further submitted that the Police resorted to operation without caring for the orders of the Chief Justice, Lahore High Court, Registrar of the High Court, Sessions Judge, Sialkot. Next submitted that top from the DIG to the lower staff of the Police, they all are sailing in the same boat, the officials of the Elite Force are not bound to obey an illegal order of the commander. when an accused takes a specific plea, then under Article-121 of the Qanun-e- Shahadat Order the onus to prove the same lies upon him, it has come on record that Shahryar Bokhari Civil Judge was hit by the firing of the Police party, it has also come on record that firstly the Police started the operation and it was only thereafter that the accused under trial prisoners fired at the deceased, it was concluded by the Investigating team that the operation was started in hurry (Zimni No, 37) the fourth reason for the episode was action of the Police, Shahryar Bokhari was wearing his own clothes, same was the position of Asif Mumtaz, the deceased and the clothes of Shahid Munir Ranjha and Sagheer Anwer were replaced with those of the under trial prisoners and in this view of the matter it was all the more necessary for the Police not to start the operation, neither the clothes of the deceased Judges nor that of the deceased under trial prisoners were taken into possession by collusion of the doctors and the SHO under the command of the DIG; at the time of start of operation, the Sessions Judge who was in charge of the district was there, second in command was the DCO who was also present there, the Sessions Judge refused to allow the operation, in this regard, learned counsel has read before us the statement of Abdul Sattar Ajaaz, Deputy Secretary, (Prisons) who stated that it was communicated by the High Court that Chief Justice has directed not to start operation without his permission; statement of Faseel Asghar, Additional Secretary (Home) was also read before us to submit that the witness stated in his statement under Section 161 Cr.P.C. that he had asked the DIG not to start the operation as he was reaching within 10 minutes but before his arrival, the operation was started,; when the lawful authorities prohibited the operation, there was no need on the part of the DIG or the DPO to start the operation; a reference was also made to the statement of jail doctor to submit that the accused under trial prisoners after snatching the mobile from him, made a call calling Inspector Zulifqar Virk statement of injured witness namely Javed Iqbal Warriach was recorded on 1.8.2003; the light was switched off before start of the operation so it was in the knowledge of the petitioners that their indiscriminate firing may result to loss of many people; the act of the Police was intentional and deliberate; no weapon of offence used by the Police was taken into possession; as to role of Raja Munawar DPO is concerned, it was concluded by the Investigating team that it was Raja Munawar who called a Nahrah and threw cracker (Zimini No, 26) both the injured witnesses namely Sibtain Raza Kazmi and Javed Iqbal Warriach have fully supported the version of the prosecution in their statements recorded on 1.8.2004: it was very difficult at the time of operation whether it were the Police officials or the officials of the Elite Force who took part in the operation; 14 witnesses namely Saeed Rafique, Muhammad Naeem, Abdur Rehman, Yosuaf Aujla, Zafar Hussain, Rai Naeem Kharal Munawar Hussain Warriach, Mst. Salma d/o Muhammad Sharir, Mst. Salma wife of Hassan Mahmood, Ahsan d/o of Muhammad all under trial prisoners and Nazir Ahmad, Additional District and Sessions Judge as also Faseel Asghar Additional Secretary Home Department; they all have stated that the deceased were killed due to firing of the Police; it was concluded by the Investigating team that operation was started the Police first and then the
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accused acted in their defence; according to statement of Javed Iqbal Warnach, Civil Judge, PW, the atmosphere inside the jail was friendly and the accused did not use any insulting or abusive language towards the Judges; Mahmood Butt. SI, In charge of Elite Force in his statement under Section 161 Cr.P.C. stated that putting off the light was not the part of the operation and that the cracker were thrown by the DPO Gujrat Raja Munawar; none was injured from the side of the Police; so it was not an action to save the hostages but act intending to commit murder of the Civil Judges; the demands of the hostages were to (i) provide vehicle, (ii) security, (iii) not to convict them, (iv) security of the family (v) and to provide arms; there was no such threat to kill the Judges as such there was no justification to start the operation; the presence of the injured witness namely Javed Warriach cannot be denied; he had no enmity whatsoever against the Police-and that there is sufficient evidence on record that the DIG and the DPOs were told about the orders of the Chief Justice and the Registrar of the High Court. It was maintained by learned counsel that as far as question of unlawful assembly is concerned, the accused were four in number so there was no necessity on the part of the Police to use the force. Learned counsel submitted that in the MLR of Shahryar Bokhari his age was give as 45 years when in fact he was aged about 27 years at the time of occurrence; this much difference in the age of the injured cannot be expected from an experienced doctor, it was all with mala fide; it was written on the MLR that the patient was in a shock, if it was so how he could have complained of sever pain, blackening was also shown to be there, the column of weapon of offence used left blank, no x-ray was done, was no fracture on the body of the deceased; he died due to excessive bleeding, the ambulance provided for shifting of Shahryar Bokhari to PIC, Lahore was without any equipment, such as oxygen and glucose etc. Lastly submitted that it was the case of the prosecution that Shahryar was removed to hospital at Lahore by his some relative but till today, as to who took the injured to the hospital even his statement has never been recorded by the Police..." It was argued by learned counsel for the complainant that challan was submitted for the first time on 5.11.2004 against Malik Muhammad Iqbal, Ex-DIG only and that too under Section 319 PPC on the direction issued by a Division Bench of this Court; in the challan Inspector Zulfiqar Virk who remained absconder was placed in Column No, 2 on the basis of statements of his co-accused Malik Iftikhar Superintendent jail and one Moazzam alias Mauji are still absconders; reliance was placed on 1985 P.Cr.L.J. 325, PLD 2001 Lahore 127 and Writ Petition No, 20988 of 2002; according to learned counsel, Section 319 PPC would be read as Section 302 PPC and mention of Section 319 in the report under SectOn 173 Cr.P.C. does not carry any weight; as to mala fide of the Investigating Officer, iearned counsel submitted that in the site-plan, there was no mention of the place where the members of the Elite force were standing and resorted to firing; there being no proper arrangement for medical facility, statements of Sessions Judge, Sialkot, Munawar Warriach, President District Bar Association, Nazir Ahmad Addl: District Judge and Nazir Ahmad driver of Sessions Judge have been read before us which gives the irresistible conclusion that no medical facility was 'available in the jail hospital. Much stress was laid on Sections 32, 33, 35 and 36 of PPC. Learned counsel maintained that Malik Muhammad Iqbal Ex-DIG, did not obey the orders of Hon'ble the Chief Justice, the Sessions Judge, Sialkot, the Additional Secretary, Home Department and in a hurried manner started the operation; the DIG has even no authority to kill the five under trial prisoners; due care and caution was not taken before start of the operation; Reference was also made to Sections 52 and 76 and 79 of the PPC; according to learned counsel, an act which is obligatory is justified by law and act which is not obligatory is mistake of fact; as to act done in good faith, learned counsel has relied upon AIR 1930 Lahore 266 and AIR 1940 Lahore 210; the accused at bail stage cannot take the defence of Section
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76 PPC and it can be pressed into service at the time of punishment and can be considered as extenuating circumstance. The conduct of the accused was also pressed into service. It was submitted that the accused…
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