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Criminal Miscellaneous Nos. 871‑B and 873‑B of 1987, decided on 15th April, 1987.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S.302/34‑‑Bail, grant of‑‑Further inquiry‑‑Accused not named in F.I.R.‑‑Complainant filing private complaint after 8 days of registration of case‑‑Complainant not satisfied with conduct of police especially mentioning unsatisfactory behaviour of Investigating Officer in complaint‑‑Contents of F.I.R. disowned‑ Prosecution case set forth in complaint, supported by eye‑witnesses‑ Accused ascribed injuries with hatchet to deceased‑‑Case of accused being not that of further inquiry, bail was refused in circumstances.

Shah Ahmad Baloch for Petitioner.

Malik Muhammad Rafique for the Complainant.

Abdul Moeed for the State.

Briefly stated the facts of this case are that on 12‑4‑1986 at about 7‑15 a.m. Faqir Muhammad got a case registered at Police Station Kamalia District Toba Tek Singh under section 302/34, P.P.C. for the alleged murder of his son Sarwar by four unknown persons. In the said F.I.R. he claimed to have witnessed the occurrence alongwith his wife Hashmat Bibi and one Dildar. The occurrence allegedly took place during the preceding night. On 20‑4‑1986 i.e. after about 8 days of registration of the case, Faqir Muhammad filed a complaint under section 302/34, P.P.C. against Basara (Sajjad Hussain) petitioner, Murad, Zafar and Ramzan. The narration of facts in this complaint was similar to the one given in the F.I.R. except that besides the above named eye‑witnesses, he also mentioned that the occurrence was witnessed by Mushtaq Ahmad and Iqbal Bibi. In para. 2 of the complaint it was stated by him that when he had gone to lodge the report at the police station, Ramzan accused was already present at the police station; that the S.H.O. Raja Muzamal Hayat avoided to register the case at his instance; that he was made to wait for about one hour during which period the other accused also arrived there; that he protested with the S.H.O. for not registering the case and that he was slaped by the Police Inspector. The learned Additional Sessions Judge, Toba Tek Singh summoned Sajjad Hussain alias Basara and three other accused after preliminary enquiry to face trial under section 302/34, P.P.C. It was alleged in the complaint that Zafar and Ramzan accused were holding Muhammad Sarwar deceased while Basara and Murad accused caused injuries with hatchets on the person of Muhammad Sarwar.

2. Zafar and Ramzan accused were allowed bail by the lower Court. Sajjad Hussain alias Basara and Murad accused are in lock up. Basara accused filed applications for his bail in the challan as well as in the complaint case. Both the applications were dismissed on 28‑2‑1987 by Additional Sessions Judge. He, therefore, filed Criminal Miscellaneous No. 873‑B of 1987 for his bail in the challan case and Criminal Miscellaneous No. 871‑B of 1987 in the complaint case for his bail. This order will dispose of both these applications together.

3. I have heard the learned counsel appearing on behalf of the parties and have also perused the record. In support of these applications it was contended that the petitioner was not named in the F.I.R. Secondly, that no injury was specifically attributed to the petitioner and that according to police the extra‑judicial. confession was made by Basara accused before Saif Ullah Inspector of Police. It was finally argued that the complaint was filed many days after the occurrence with mala fides and after deliberations.

4. I have considered the above contentions. It is correct that the petitioner or any other accused was not named in the F.I.R. but it will be noticed that Faqir Muhammad filed complaint on 20‑4‑1986 i.e. at the very initial stage of investigation which indicates that he was not satisfied with the conduct of the police. He specifically mentioned the behaviour/attitude of the S.H.O. in para. No. 2 of his complaint. Faqir Muhammad disowned the contents of the F.I.R. This would not mean that this fact makes the case of the accused to be that of further enquiry. The prosecution case as set forth in the complaint is supported by eye witnesses. The petitioner has been ascribed specific injures with hatchet to the deceased. As such I do not consider his case to be that of further enquiry. Both these petitions are accordingly dismissed.

S.A./5‑47/L Bail refused.

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