' SARMAD JALAL OSMANY, J.--- Both these bail applications arise out of the same crime viz. F.I.R. No,9 of 2004 of Police Station Mehrabpur lodged on 5-2-2004 and hence are being disposed of through this common order.
2. Briefly stated that facts per the complainant Zohra are that in the morning of 4-2-2004 some police constables of Police Station Mehrabpur came to her house in the company of Subedar Khemtio. They inquired about Yaseen. In the meanwhile her neighbour namely Aftab came at the scene who was asked by the complainant that he knew of the absence of Yasin in her house as he had gone to his sister's house. Thereupon Aftab told the complainant that according to the neighbourers some undesirable persons have been visiting her house. However, the house was searched by the police and after being satisfied they had gone away. The complainant came to know that in the evening of the same day that Subedar Khemtio had taken away Yasin from the custody of Hassan Rajpar. On 15-2-2004 Hassan Rajpar had disclosed to the complainant at about 11 a.m. That Yasin had been murdered and his dead body is lying in the hospital, which was confirmed when the complainant went there. Upon inquiry the complainant came to know that Subedar Khemtio had left Yasin there hence the complaint with the allegation that accused Wali and Ghazi had bribed Subedar Khemtio to murder Yasin.
3. Not being satisfied with the registration of the aforementioned F.I.R., the complainant filed a direct complaint being No,7 of 2004 before the learned Civil Judge and Judicial Magistrate-H, Kandiaro wherein different facts were narrated viz. That in the morning of 4-2-2004 the complainant left her house to meet her sister namely Naseem at Akri Village at about 6-00 a.m.
They were informed by one Muhammad Hussain Rajpar that her brother Muhammad Yasin had been arrested by Mehrabpur Police in his land by S.H.O. Muhammad Zaman Rind, A.S.-I. Faiz Muhammad Khemtio W.H.C. Muhammad Moosa Kalhoro, H.C. Muhammad Ashraf Chang and W.P.C. Abdul Majeed Rajper all posted at Police Station Mehrabpur. Thereafter the complainant went to the police station along with her brother Ashique Hussain and sister Aisha as well as Muhammad Hassan where the aforesaid Police Officers demanded Rs,25,000 as a bribe for releasing Muhammad Yasin. The complainant then went back to her house and arranged Rs,5,000 only which she offered to the aforementioned accused persons the next morning but the same was refused by them. At that time they also saw that Muhammad Yasin was hanging in a tree of Baid Mushk and had been beaten and so also electric shocks were being given to him by the accused in their presence at which Muhammad Yasin was crying out in pain. The complainant party then went to the police station whereafter they saw Muhammad Yasin lying in a police mobile and being taken to the hospital at Mehrabpur. The complainant party also went to the hospital and saw the accused S.H.O. Muhammad Zaman Rind, A.S.-I. Faiz Muhammad Khemtio, W.H.C. Muhammad Moosa Kalhoro and H.C. Muhammad Ashraf and W.P.C. Abdul Majeed present in the hospital where they admitted that they had murdered Muhammad Yasin and would compromise the matter with the complainant party and then they went away. After some time Pervez Ahmed Shaikh came there and brought the complainant at police station and informed her that he would register the case against the accused who had murdered her brother. However, he did not do so as per the version of the complainant and registered a false and fabricated F.I.R.
Being Crime No,9 of 2004 nominating only A.S.-I. Faiz Muhammad Khemtio viz. That he had murdered his brother at the instigation of Wali Muhammad and Ghazi.
4. On the basis of foregoing facts, Mr. Shah appearing for the applicant/accused A.S.-I. Faiz Muhammad Khemtio has submitted that the facts as narrated in the F.I.R. In question and in the private complaint are quite contrary to each other, hence this is a case of two versions in which bail is normally granted. Secondly per learned counsel, the direct complaint was filed after issuance of the post-mortem report in order to bring the case in line with the same viz. That the deceased died due to electric shocks and hence the same is mala fide and an afterthought. The next contention of learned counsel is that under section 174, Cr.P.C. Whenever a person dies in police custody an inquiry is to be made by a Magistrate which was not done in the present case and hence the proceedings emanating from the direct complaint are unlawful etc. In support of this proposition he has relied upon Qadir Bux v. D.M. Dera Ghazi Khan PLD 1977 Lah. 1044 and Ghulam Hussain v. D.M. Muzaffargarh 1992 PCr.LJ 1870. Furthermore both the police case and direct complaint are pending and hence according to settled law the direct complaint is to proceed first.
Hence bail is to be given in the police case viz. In the present matter. For this proposition he has relied upon Ansar Ali v. State 2003 PCr.LJ 1957 and Muhammad Afzal v. State 2005 YLR 1812. Learned counsel has also relied upon the affidavits of P.Ws. Muhammad Sultan and Muhammad Hassan according to which they have resiled from their earlier police, statements in support of the complainant insofar as the involvement of A.S.-I. Faiz Muhammad Khemtio is concerned. So also per learned counsel a different version of the case has been narrated by P.W. P.C. Ali Asghar according to whom on 5-2-2005 P.C. Ashraf Chang had brought the deceased to the police station who was present in the cell. When he opened it, he saw the deceased lying on the floor with a bottle of medicine which according to P.C. Ashraf Chang, the deceased had taken. The jail doctor was called who recommended hospitalization which was accordingly done through P.C. Ashraf Chang, W.H.C. Muhammad Moosa and W.P.C. Abdul Majid Rajpar. Then W.H.C. Muhammad Moosa came back to the police station and informed P.C. Ali Asghar that deceased had expired.
5. For all the foregoing reasons, learned counsel for the applicant prays that bail be considered for the applicant A.S.-I. Faiz Muhammad Khemtio.
6. Mr. G.M. Durrani, learned counsel for the applicant W.P.C. Abdul Majeed in Criminal Bail Application No,220 of 2004 has relied upon the arguments of Mr. Shah. He has further submitted that the other accused v. W.H.C. Muhammad Moosa and S.H.O. Muhammad Zaman Rind have been granted bail by the learned trial Court whose case is on the same footing as that of the present accused and hence on this ground alone bail should be granted to applicant W.P.C. Abdul Majeed.
He has relied upon Muhammad Riaz Munna v. State 1993 SCMR 131 and Gulzarnan v. State 1999 SCMR 1271. Finally he has submitted that there is a delay of 35 days in recording of the 161, Cr.P.C.
Statements of the P.Ws. Which causes a doubt in the matter. So also in her further statement before the police authorities recorded on 6-2-2004 the complainant has exonerated Wali Muhammad and Ghazi and implicated W.H.C. Muhammad Moosa, W.P.C. Abdul Majeed and P.C. Ashraf Chang.
In support of his submission learned counsel has relied upon the unreported order of this Court passed in Mir Liaqat Ali v. State Criminal Bail Application No,207 of 2000, Mir Liquat Ali v. State Khamiso v. State 2002 MLD 783; Piral v. State 2003 MLD 1698; Muhammad Javeed v. State 1995 SCMR 1178; Muhammad Rahim v. Baita Gul PLD 1994 SC 86; Tanveer Ahmed v. Muhammad Saqib PLD 1994 SC 88; Ghulam Hussain y. D.M. Muzaffargarh 1992 PCr.LJ 1870; Qadir Bux v. D.M. Dera Ghazi Khan 1974 SCMR 409; Shoaib Mehmood Butt v. Iftikharul Haq 1996 SCMR 1845; Gulzaman v. State 1999 SCMR 1271.
7. Learned State Counsel has opposed the grant of bail on the ground that accused A.S.-I. Faiz Muhammad has been nominated in the F.I.R. As well as in the direct complaint and that the contents thereof have been corroborated by the 161, Cr.P.C. Statements of the P.Ws. And the medical report. So also accused W.P.C. Abdul Majeed is nominated in the direct complaint etc.
8. I have heard all the learned counsel and my conclusions are as follows:--
9. The brief chronology of events is that the F.I.R. Was lodged on 5-2-2004 in which A.S.-I. Faiz Muhammad, Wali Muhammad and Ghazi were named as accused. Thereafter on 6-2-2004, the complainant in her further statement nominated A.S.-I. Faiz Muhammad, S.H.O. Muhammad Zaman Rind, W.H.C. Muhammad Moosa, H.C. Muhammad Ashraf and W.P.C. Abdul Majeed. She then filed an application under section 22-A/B, Cr.P.C. Before the learned Sessions Judge on 10-2-2004 wherein she nominated all these accused. The same was dismissed on 4-5-2004 whereupon the complainant filed a direct complaint before the learned Sessions Judge on 18-5-2005 again nominating all the aforementioned accused. It would be seen that although in the F.I.R. Lodged on 5-2-2004 only accused A.S.-I. Faiz Muhammad is nominated along with Wali Muhammad and Ghazi in the direct complaint filed on 18-5-2004 accused A.S.-I. Faiz Muhammad, S.H.O.
Muhammad Zaman Rind along with Aftab Mallah, W.P.C. Abdul Majeed, W.H.C. Muhammad Moosa and H.C. Muhammad Ashraf have been nominated. It is the case of the complainant in the direct complaint that the F.I.R. In question was not registered according to her version but at the whims of the police authority and hence she was forced to lodge such complaint after her application for lodging a second F.I.R. Filed on 10-2-2004 was turned down by the learned District Judge on 4-5- 2004. This version is supported by the fact that in her further statement recorded on 6-2-2004 the complainant had exonerated accused Wali Muhammad and Ghazi Khan and implicated A.S.-I. Faiz Muhammad, S.H.O. Muhammad Zaman Rind, W.H.C. Muhammad Moosa, W.P.C. Abdul Majeed and P.C. Ashraf Chang. The direct complaint is line with the application under section 22-A, Cr.P.C. And further statement. Consequently, in my opinion the contradiction between the F.I.R. And direct complaint has been explained. It would be also seen that the preliminary enquiry has been held upon the direct complaint and the Sessions Case was instituted against all the accused being No,259 of 2004 entitled State v. S.H.O. Muhammad Zaman Rind. A.S.-I. Faiz Muhammad Khamtio, H.C. Muhammad Ashraf Chang and W.H.O. Muhammad Moosa Kalhoro vide order passed by the learned Additional Sessions Judge, Naushahro Feroze dated 23-8-2004 and the matter is pending thereafter the challan was submitted against these accused. So also the eye-witnesses viz. P.Ws.
Mst. Aisha, Ashiq Hussain and Muhammad Hassan have supported the case of the complainant as per the private complaint in toto. Their version has also been corroborated by the post-mortem examination of the deceased on whose body a number of injuries were found due to electric shock.
Similarly, per this report the deceased was brought to the hospital by W.P.C. Abdul Majeed and W.H.C. Muhammad Moosa. In view of the foregoing facts and circumstances, in my opinion, prima facie, enough evidence is available to connect both A the present accused viz. A.S.-I. Faiz Muhammad and W.P.C. Abdul Majeed to the crime in question and hence no case for bail is made out. As to the submission of Mr. Shah that no enquiry was carried out under section 176, Cr.P.C. By the M'agistrate, it would been seen that per the said provision of law when any person dies while in the custody of the police, the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in section 174, clauses (a), (b) and (c) of subsection (1), any Magistrate so empowered may hold an enquiry into the cause of death either instead of, or in addition to, the investigation B held by the Police officer etc. From the bare reading of this provision of law it would be seen that the enquiry envisaged thereunder is in addition to the investigation held by the Police Officer and the object is to provide a check on the police enquiry and to allay the fears in the mind of the public by reason of unnatural death. However, non-holding of the enquiry is not fatal unless a visible failure of justice has occurred. In the present case it would be seen that besides the police case the private complaint of the prosecutrix has also been entertained by learned Additional Sessions Judge, Naushehro Feroze after holding of the preliminary enquiry. Consequently, in my view the mere factum that the I judicial enquiry has not been held would not defeat the prosecution case in the facts and circumstances of the case.
10. As to the cases cited by Mr. Shah viz. Ghulam Hussain v. District Magistrate Muzaffargarh and Qadir Bux v. D.M. Dera Ghazi Khan (supra) in my opinion these cases only lay down that per section 176 of the Cr.P.C. The holding of judicial enquiry cannot be defeated on a number of grounds.
11. As to the second contention of Mr. Shah that since the direct complaint is to proceed first and hence bail is to be granted in the present case as a matter of right, in my view none of the cases cited by him in support of this proposition do so. Finally, as regards the exoneration by the P. Ws. Of this accused through affidavits filed before the Court resoling from their earlier police statements' implicating him, suffice it to say that such practice has been deprecated by the superior Courts particularly when the accused is a Police Officer. So also in my opinion the 161, Cr.P.C. Statement of P.W. P.C. Ali Asghar narrating an entirely different story cannot be given much weight at this stage in view of the other evidence available particularly the post-mortem report which supports the complainant's version. Consequently as the accused have been found prima facie to be connected to the crime in question. I see no reason to grant him bail only on the ground that the direct complaint should proceed first.
12. Coming now to the case of accused W.P.C. Abdul Majeed in Criminal Bail Application No,220 of 2004, it would be seen that this is on the same footing as that of the other accused as he has been fully implicated by the prosecutrix as well as prosecution witnesses and hence I see no reason to distinguish between the two particularly as per the post-mortem report, the deceased was brought to the hospital by this accused and W.H.C. Muhammad Moosa.
13. Referring to the cases cited by Mr. Durrani in support of his submission it would be seen that in Criminal Bail Application No,207 of 2002 Re: Mir Liaquat Ali v. The State, the same is distinguishable on facts as a learned Single Judge of this Court came to the conclusion that the only evidence available against the accused was that he was the S.H.O. Of the police station where the deceased died and that he had caused injuries to the deceased by using a stick. However, this was not supported by the medical report, according to which, the cause of death was only a possibility that it may be due to cumulative effect of multiple injuries and consequently the case of the applicant was one of further enquiry. Similarly the case of Khamiso v. The State (supra) is distinguishable on the grounds that in such case besides the F.I.R. Two private complaints had been filed by the complainant and in all three different versions were available. Such are not the facts of the present case in which admittedly although there is a different version in the F.I.R. And the private complaint prima facie it can be justified as immediately after lodging of the F.I.R. The complainant had approached the learned Sessions Judge for lodging of another F.I.R. Which application was dismissed whereupon she lodged the private complaint. Similarly the case of Peeral v. State (supra) can be distinguished on the ground that therein the prosecution witnesses had not supported the complainant and so also the case of Muhammad Javed v. State (supra) wherein the Honourable Supreme Court had come to the conclusion that in the further statement the complainant had completely exonerated nominated accused in the F.I.R. And no eye-witnesses of the occurrence were available. Again the case of Muhammad Raheem (supra) is again distinguishable on the facts as therein the complainant had resiled from the F.I.R. And the statement under section 164, Cr.P.C. Nominating another set of accused. In the other cases cited by learned counsel viz. Gulzaman v. State and Shuaib Mahmood Butt v. Iftikharul Haq (supra) the principles of bail are laid down which are well-settled viz. That while appreciating evidence at the bail stage only a tentative sifting of evidence is to be done as distinguished from elaborate sifting etc. Such principles are only too well-known.
14. In view of the foregoing discussion, I am of the opinion that E there is no merit in both these bail applications and hence the same are dismissed.
15. As the case of co-accused S.H.O. Muhammad Zaman Rind and W.H.C. Muhammad Moosa who have been granted bail by learned trial Court is on the same footing as the present accused I would deem it fit to put them on notice as to why their bail should not be cancelled. Order accordingly. To come up on 16-12-2005.