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Criminal Miscellaneous No. 2347/B of 1983, decided on 19th December, 1983.

---S. 498 -Penal Code (XLV of 1860), Ss. 302 452, 148 & 149--Pre-arrest bail--Deceased allegedly dying due to torture exercised by accused/police officials--Plea of accused persons that deceased died on account of fever, belied by Medical evidence--Medical evidence indicating that deceased died as a result of violence--Magistrate who conducted judicial inquiry, viz., inquest under S. 176, Cr.P.C., also finding that deceased died as a result of torture while in police custody--Local police, conducting investigation, not recording statement of any witness, named in F.I.R. and neither declaring accused persons to be innocent during period of 41 months--Plea of pre-arrest bail declined in circumstances.

---S. 498--Penal Code (XLV of 1860), Ss. 302, 452, 148 & 149--Deceased allegedly dying due to torture exercised by accused/police Officials--Local Police not caring to record statement of any witness under S. 161, Cr.P.C. during period of about 4J months, although names of a few alleged eye-witnesses having been mentioned in F. I. R.--Explanation of -police that witnesses were not prepared to appear and make statement before local police--Investigating Officer, held, could have recourse to exercise measures for summoning a witness to record his statement--Plea of police for not recording statements of witnesses under S. 161, Cr.P.C. rejected--Medical evidence and inquiry held by Magistrate supporting contents of F.I.R--Bail declined in circumstances.

---S. 497--Penal Code (XLV of 1860), Ss. 302, 452, 148 & 149--Pre-arrest bail--Deceased allegedly dying due to torture exercised by accused/police Officials--- Accused, a Police Officer, not found to be present at Police Station when alleged torture was exercised on deceased--Bail granted to said accused in circumstances.

Sardar Muhammad Latif Khosa for Petitioners.

Muhammad Ramzan Khokhar for the State.

Date of hearing: 19th December, 1983.

The petitioners, Mehr Muhammad S.I., Haji Muhammad Akram, A.S.I., Azmat Ullah Khan, M.H.C., Ghulam Hiader Shah, Ali Akbar Shah and Jacob Ijaz, Foot Constables, of Police Station, Miani, District Sargodha, who are involved in a case under section 302/342/148/149, P.P.C., arising out of F.I.R. No. 52, dated 5-8-1983 of Police Station, Miani, District Sargodha, have sought to be released on pre-arrest bail.

2. It is alleged in the F. I. R., which is based on a written application addressed by one Abdul Ghafoor, a Councillor and resident of Miani, to the S.H.O. that on 3rd of August, 1983, two Constables made Mushtaq Ahmad deceased to accompany them to the Police Station, where Sardar Nasrullah Khan, P.W. was already present. In the Police Station, Muhammad Akram A.S.I., Muharrir, Haider Shah, Naib Muharrir, Akbar Ali Shah and Ijaz Constables exercised torture on Mushtaq deceased. Professor Zakir Ali, Muhammad Khan, and Mansab son of Sonday Khan, saw the torture being exercised by the aforesaid officials on the deceased. As a result of torture, the deceased is said to have expired on 5th of August, 1983.

3. The petitioners were admitted to interim anticipatory bail on 25-9-1983. It has been contended on behalf of the petitioners that they had no hand in the demise of the deceased and the complainant, who was not related to the deceased, has falsely involved the Police officials in the case because Mehr Muhammad, S.I., petitioner No. 1 registered cases under Hudood Laws and other offences, against the complainant and his close relatives on different occasions.

4. It has further been urged on behalf of the petitioners that Mushtaq deceased in fact died in the Civil Dispensary, Malikwal, on 5-8-1983 at 12-15 noon where he was taken by his father Muhammad Yamin. He was found to be suffering from high fever. The Doctor Incharge of the Dispensary did not notice any mark of violence on his body. It has also been pleaded that the report of the post-mortem examination which was conducted by a Board of Doctors also did not connect the petitioners with the death of the deceased.

5. In this case, the death of Mushtaq is alleged to have taken place on 5-8-1983. Since then, the local Police including the DSP/SDPO have not cared to record the statement of any witness under section 161, Cr.P.C. although names of a few alleged eye-witnesses have been mentioned in the F.I.R. It has been stated on behalf of the Police that the witnesses were not prepared to appear and make statement before the local Police. Under the Criminal Procedure Code and the Police Act, the Investigating Officer can have recourse to coercive measures for summoning a witness to record his statement. It has not been done in the present case.

6. The Police was directed to produce the out-door patients register of Malikwal Civil Dispensary bearing entries on 5th of August, 1983 and the Medical Officer who examined the deceased on 5-8-1983. Instead of out-door register, they have produced register of indoor patients of the said dispensary. Entry regarding Mushtaq Ahmad son of Muhammad Yamin appears at serial No. 56. It is entered against this entry "expired 12-22 p.m. 5-8-1983." A chit has been pasted on the page bearing entries for the month of August, 1983. As per contents of this chit "Mushtaq Ahmad son of Muhammad Yamin of Miani arrived at 12-15 p.m. on 5-8-1983 (Friday) temp-108 F.O. Pt. is unconscious. Vomit out contents are present on the face. Pulse irregular." This chit bears the signatures of Ilyas as the Medical Officer, Civil Dispensary, Malikwal, and also thumb-impression of Muhammad Yamin.

7. During the post-mortem examination, however, three abrasions of different sizes were noticed on the front of the left knee. One abrasion was noticed on the right knee and one abrasion on the lower dorsal spines. Besides the above-mentioned three abrasions, "a small quantity of blood in pontine and cerebral region with the congestion of these organs-congestion was mere marked in cerebral region" was also noticed.

8. Final opinion was postponed till after the receipt of the report of Chemical Examiner. That report in the meantime has been received and no poison has been detected in the viscerae and other contents of the stomach, sent to the Chemical Examiner

9. After the report of the Chemical Examiner, the Medical Board has opined that the deceased had died of cerebral haemorrhage as p result of direct/indirect head injury.

10. Thus the medical evidence is indicative of the fact that the deceased died as a result of violence and not on account of fever simpliciter. The Magistrate who conducted the judicial enquiry, viz. Inquest under section 176, Cr.P.C. has also found that Mushtaq deceased died as a result of torture while in Police custody.

11. The local Police which is currently investigating this case, as already observed, has not so far recorded the statement of any witness, and has neither declared the petitioners to be innocent so far.

12. It has, however, come on the record that Mehr Muhammad, S.I., petitioner No. 1, was not present at the Police Station when the alleged torture was exercised on the deceased as a result of which he died. There is no such exculpating material in favour of the other petitioners.

13. In the above circumstances, interim bail already allowed to Mehr Muhammad, petitioner No. 1, is confirmed while the plea for pre-arrest bail of other petitioners is declined and the interim order, dated 25-9-1983 whereby they were allowed interim anticipatory bail is hereby recalled

14. Before parting with this order, I would like to observe that in view of inaction on the part of Sargodha Police for a period of 4 months, as noticed above, the Government/Inspector-General of Police, Punjab, shall consider the desirability of entrusting the investigation in this case to some independent agency like Provincial Crimes Branch.

H. A. K. Bail allowed to one accused and refused to others.

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