Ali Qasim Gillani vs State etc.

Crl. Misc. No. 3892-B of 2014.

Ali Qasim Gillani etc The State etc.

19.05.2014. Rana Waqas Latif, Advocate for the petitioners and petitioners in person.

Mr. Iftikhar-ul-Haq Chaudhary, APG and Muhammad Irshad, SI along with record for the State.

Mr. Zeeshan Mirza, Advocate for the complainant.

Through this single order, I propose to dispose of all the three bail petitions bearing Crl. Misc. No.3892-B/2014 (Ali Kazim Gillani v. The State etc), Crl.Misc.No.3891-B of 2014 (Ali Qasim Gillani v. The State etc) and Crl. Misc.No.3894-B of 2014 (Ibrar Ahmed Sukhera v. The State etc) seeking pre-arrest bail in case F.I.R. No.1137/13 dated 04.11.2013 registered under sections 337- F(vi)/337-A(i)/337-L(ii) PPC Police Station North Cantt, Lahore.

2.Brief facts of the case as per FIR are that on 30.10.2013 at about 4.30 p.m, the petitioners along with their co-accused persons, while armed with their respective weapons entered into the Office of the complainant. The petitioner Ali Kazim Gillani gave blows with iron rod on the complainant’s head and he tried to stop this blow with his right hand, due to which the bones of his fingers were fractured, whereas the co-accused Kashif gave

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blows with “Butt” of his pistol on his face near eye and nose at left side and in the meanwhile co- accused namely Waseem also gave iron rod blows to him. The accused/petitioners also gave injuries to Umer Munir, cousin and his mother, who were present there, when they tried to rescue the complainant. During the occurrence, the accused/petitioners also took away a sum of Rs.20,000/- from the pocket of the complainant. The occurrence was witnessed by the PWs namely Umer Munir, Yousar Sardar, Khizar Hayat and Haji Asghar Ali etc. Hence, this FIR.

3.The learned counsel for the petitioners contends that the petitioners have been involved in this case falsely with malafide intention and with ulterior motives; that the petitioners have no concern whatsoever with the commission of any offence; that there is unexplained delay of five days in lodging the FIR, which is not explained; that actually the petitioner Ali Kazim Gillani is a lease holder of the banquet Hall at Garison, Gulf and Country Club and the agreement between the petitioner and the Management Committee of the Club is available on the record, which shows that the petitioner Ali Kazim Gillani was owner of the marriage halls; that the petitioner Ali Kazim Gillani and the complainant are business partners but due to the mala fide, he dissolved the partnership with them and due this grudge, the complainant has fabricated the injuries and during the re-

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examination it has been observed that there are discrepancies in the opinion of first medical examiner and radiologist report; that there is contradiction in between the medical evidence and ocular account; that the local police is bent upon to arrest the petitioners and if the police succeeded, their reputation would be suffered adversely; that the offence with which the petitioners have been charged, does not fall within prohibitory clause of Section 497 Cr.P.C and that the petitioners are previously non convict and non record holder so they are entitled to the concession of pre-arrest bail.

4.The learned APG and the learned counsel for the complainant have vehemently opposed the petitions. The learned counsel for the complainant has contended that the petitioners are specifically named in the F.I.R with specific roles; that the petitioners caused injuries to the complainant as well as injured witnesses; that during the course of investigation, the petitioners were found guilty and recovery of crime weapons are yet to be effected from them; that there is no malafide on the part of the complainant to falsely involve the petitioners in this case and that sufficient incriminating material is available on the record against the petitioners to connect them with the commission of offence therefore, the petitioners are not entitled to the concession of extra ordinary relief of pre-arrest bail.

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5.I have heard the learned counsel for the parties and have also gone through the record.

6.Admittedly, the petitioner Ali Kazim Gillani (petitioner in Crl.Misc.No.3892-B/14) is nominated in the FIR with specific role of giving iron blow on the fingers of right hand of the complainant-Faisal Waheed and as a result of the same the bones were fractured and dislocated. The injury attributed to the petitioner is available in the Medico Legal Report as injury No.1, which was declared by the Medical Officer “Ghayr-Jaifah-Munaqqilah” punishable under section 337-F(vi) PPC. During re-examination, the Medical Board opted that certain discrepancies were found between the first Medico Legal Examination and the Radiologist report. The Radiologist did not give the report about the displacement of the bones. The Court also directed the Investigating Officer to produce X-Ray of complainant-injured witness. Today, the Investigating Officer has produced the X-Ray of the complainant, which is available on the police record and according to which no fracture of bones is available. The contents of the first Medico Legal Report, Radiologist report and observations of Medical Board make the case against the petitioner Ali Kazim Gillani one of further inquiry. After going through the record, it is observed that the Medical Officer issued the MLR with mala fide intention and ulterior motive. Therefore, in such like circumstances, it would yet to be seen at the time

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of trial that if the petitioner Ali Kazim Gillani ultimately can be held liable for the offence falling under section 337-F(vi) PPC.

7.The petitioner Ali Qasim Gillani (petitioner in Crl.Misc.No.3891-B of 2014, named as Kashif in the FIR) inflicted pistol blows on the left side of face near nose and eye of the complainant-Faisal Waheed, which were declared as 337-A(i) and 337- L(ii) PPC and both the injuries are bailable in nature. It is also pertinent to mention here that the Radiologist also recommended CT scan of nosal bone of the complainant-Faisal Waheed but the Medical Officer did not get it with the comments that the complainant is non affording, which is against the social status of the complainant, which also shows mala fide of the Medical Officer, who with the connivance of the complainant prepared Medico Legal Report, which also makes the case against the petitioner for further inquiry.

8.As far as the case of the petitioner Ibrar Ahmad Sukhera (petitioner in Crl.Misc.No.3894-B of 2014, named as Jabbar in the FIR) no specific role is attributed to him and collective and general allegation is leveled in the FIR.

9.The petitioners are previously non convict and never involved in any other case of such nature. It is worth mentioning to note that no doubt the mala fide is sine-quo for grant of pre-arrest bail but keeping in view the dictum laid down by the

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August Supreme Court of Pakistan in a case of “Meeran Bux v. The State and another” (PLD 1989 SC 347), it is held that Court while deciding the pre-arrest bail can touch the merits of the case. The Investigating Officer during the course of investigation came to the conclusion that the petitioner Ali Kazim GIllani and the complainant were business partners and when they were discussing about accounts, the serious differences arose and the occurrence took place. From the perusal of the X-Ray available on the police file reflects that no bone of the right hand of the complainant is fractured, whereas Medical Officer declared injury falling under section 337-F(vi) PPC and the Radiologist contradicted the findings of the Medical Officer, which creates doubt about the nature of injury No.1. However, the learned trial court after recording of evidence and going through the medical record will determine whether the petitioners Ali Kazim Gillani & Ali Qasim Gillani are liable for the offence falling under section 337-F(vi), 337-A(i) and 337-L(ii) PPC. Prima facie, mala fide is apparent on the record and due to this reason, sending the petitioners behind the bars will not serve any useful purpose.

10.For the reasons supra, the petition is accepted and ad-interim pre-arrest bail already granted to the petitioners namely Ali Kazim Gillani, Ali Qasim Gillani and Ibrar Ahmad Sukhera vide order dated 21.03.2014 is confirmed subject to their

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furnishing fresh bail bonds in the sum of Rs.1,00,000/- each with one surety each in the like amount to the satisfaction of the learned trial court.

(Aalia Neelum) Judge Tariq

Approved for reporting.

Judge