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Criminal Bail Applications Nos. 867 (Sukkur), and 1530 (Karachi) of 1986, decided do 7th December, 1986.

---S. 498--Penal Code (XLV of 1860), S.304--Bail--Prima facie case established against accused--Complainant made hectic efforts to seek his remedy but police did not register case and it was only on direction of a high ranking police officer that case was registered against accused- Accused held, not entitled to grant of bail in circumstances Order granting interim bail to accused recalled and bail application rejected.

Amir Ali v. The State, Mumtaz v. The State 1973 P Cr. L J205 and Amir v. The State P L D 1972 Sc 277 ref.

Raja Qureshi for Applicants.

Aftab Ahmed Akhound for the Complainant.

Abdul Ghafoor Mangi, A.A.-G. for the State.

Mohammad Siddique S/o Mohammad Ayub Memon lodged a report at Police Post Piryaloi that on the day of incident he had gone to vegetable market in the morning for purchasing vegetable. While he was purchasing vegetable, Qasim, Abdul Qayum, and Karo who had Lathies in their hands, came in the market and immediately after coming Mohammad Qasim gave him abuses. He asked him as to why he was abusing him. On saying so, Abdul Qayum gave him Lathi blow on his head which started bleeding, Karo gave him Lathi blows on his left arm and other parts of the body. He raised cries which attracted his brother Mushtaq Ahmed and other persons who came there and intervened and rescued him. The report was recorded in the station diary as it was non-cognizable offence. It is further stated that however, arrangements are made for sending for the complainant party. According to the prosecution the deceased and his two sons Abdul Qayum and Abdul Khalique were called at the police station. The deceased was tortured by the present applicants as a result of which he died in the police custody. The S.H.O. prepared the inquest report and found 10 injuries on the person of the deceased but the first information report was not lodged on the ground that the same would be done after the post-mortem report. It is the case of the complainant that the local doctor had not performed the pest-mortem and the complainant took the dead body to the Civil Hospital, Khairpur for conducting the post-mortem. The matter was referred to the District Magistrate as there were injuries on the person of the deceased; therefore, a Magistrate was deputed and in his presence post-mortem was conducted and 13 injuries were found on the person of the deceased. The cause of death was not mentioned in the report. Thereafter, on the request of the complainant, the Government constituted a Medical Board. After exhuming the dead body of the deceased, the Board came to the conclusion that there were 13 injuries on the person of the deceased as indicated in the first medical report and the cause of death was those injuries which were sufficient in ordinary course of nature. In the report it is mentioned that the time of death was between 18 to 24 hours which tally with the time of incident. The local police did not register the case and, therefore, the complainant moved the D.I.-G. and on his instructions the report was lodged on 13-6-1985. On the second day of lodging the report, certain witnesses were examined. They fully implicated the present applicants. On the basis of these statements, the applicants were arrested on 8-7-1985. Their bail application was accepted by the learned Sessions Judge, Khairpur, on 27-6-1985. An application for cancellation of bail was moved in the High Court. On 17-12-1985 the High Court remanded back the case to the learned Sessions Judge, Khairpur for reconsideration as at that time second post-mortem report had been received. The learned Sessions Judge, Khairpur, thereafter cancelled the bail of the present applicants but the accused were not taken into custody in spite of the order of cancellation. The applicants moved this Court for grant of bail. The interim bail was granted and now the matter is fixed for confirmation of bail.

The learned counsel for the applicants has stated that on the application of complainant another investigation was started and during that investigation certain witnesses have been examined by the Investigating Officer. These witnesses have stated that the deceased had died his natural death. He was a sick person. The learned counsel has referred to the statement of Dr. Qutab Ali, who has stated that dead body was brought in the hospital but the police had not sent a letter, therefore, he did not conduct the post-mortem.

Lal Mohammad Shaikh in his statement under section 161, Cr.P.C. recorded on 14th June, 1935 has stated that the deceased had approached him and he had given him tablets legamate but in his further statement he has stated that he has not given the tablets t,) the deceased but one Suzuki driver had taken the same from him. He has not stated that the deceased was under treatment or he was suffering from any disease. In the second investigation, the witnesses were examined on 10-7-1986 i.e. after more than one year of the incident. The statements of these witnesses are not material for the present as they have no direct knowledge about the incident and whatever they have said is here say in nature. It appears that they are set up witnesses. It is an admitted position that the deceased was summoned by the police to the police post. He had died in the police custody. There are 13 injuries on the person of the deceased.

It is contended by the learned counsel that challan has been submitted under section :404, P.P.C. The punishment under section 304, P.P.C. is life imprisonment. The learned counsel has further stated that as there are two conflicting versions of the same incident, therefore, benefit must be given to the accused even at bail stage. This contention has no force. The witnesses who were examined after one year were not at police station at the time of incident, therefore, their statements cannot be considered at this stage.

The learned counsel has referred to the cases of Amir Ali v. The State, Mumtaz v. The States 1973 P Cr. L J 205 and Amir v. The State P L D 1972 SC 277. The facts are distinguishable. In the Supreme Court case the plea of self-defence was taken and that defence spelt out from the facts of the case. Prima facie the case has been established against the applicants. It is next urged that report was lodged after delay. The complainant was running from pillar to post to seek his remedy but police did not register the case and only on the direction of D.I.-G. the case was registered on 13-6- 1985.

In such circumstances they are not entitled to bail. The orders, dated 2-10-1986 and 13-10-1986 in which the interim bail was granted to the applicants are recalled. The application for bail is rejected. The applicants were present in the morning. The order is dictated in Court but at this time the accused/applicants are not present. It appears they have run away. Notice to surety to produce the accused.

Any observation on the merits of the case is not binding on the trial Court.

M.Y.H./M-147/K Bail refused.

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