1. Heard Mr. Mehmood A. Qureshi for the applicant Atif Khan, Ms. Cookie Rawat for the State and Mr. Shahadat Awan for the Complainant.
2. Complainant, Mst. Nasim Akhtar, lodged F.I.R. at Kalakot Police Station on 15-2-2004, Bearing No. 37 of 2004, stating therein that she was residing with her children in Street No.3, Juman Shah Plot, Kalakot, Karachi; on 3-2-2004 in between 10-00 p.m. and 11 p.m. she heard knocks outside of the door of her house, which was still open, S.H.O. Naeem (co-accused) and applicant/accused Atif Khan entered the house while her deceased son Yousuf alias Kala was watching television inside the room of the house. Both the accused asked his son Yousuf to go with them on the pretext that they had some work to do with him; then, some children informed the complainant that the Police Officers put her son Yousuf in police mobile vehicle and took him away; after a short while she went to Kalakot Police Station where S.H.O. Naeem informed hes that seven Purees of heroin powder were recovered from the possession of her son and demanded illegal gratification amount of Rs.30,000 from her for his release; she replied that nothing was recovered from the possession of her son Yousuf. She was refused to even see her son. S.H.O. Naeem asked her to meet him in the Foot-ball Ground of KW where she went and found many people sitting there while S.H.O. Naeem was drinking alcohol.
3. The complainant entreated the S.H.O., Kalakot Police Station to the maximum possible extent to release her son but he refused for the same. The complainant's daughtej Rukhsana was also with her. They both returned to their house. while weeping. On the same night at about 3-00 a.m. accused/applicant, A.S.-I. Atif Khan called the complainant by phone asking her to go to him for the purpose of "Jor Toe; she also heard the noise of weeping of her son Yousuf. Hence, she took an amount of Rs.10,000 to him, and asked applicant/accused A.S.-I. Atif Khan as to where Yousuf was and was replied by him that Yousuf was in Lyari General Hospital and that F.I.R. was registered against him at the police station, telling her that some material was recovered from his possession by the police officials, but he assured her not to worry and that the matter will be alright and asked her to offer prayer (Namaz); as such, the complainant again returned back to her house while weeping.
4. During the morning she went to Kalakot Police Station and some police officials informed her that her son Yousuf was detained in Baghdadi Police Station, she went to the said police station where she was informed that S.H.O. of Kalakot Police Station had forbidden them from allowing her to meet with her son Yousuf. Hence, she again went to Kalakot Police Station where S.H.O. Naeem told her to go away, as he never listened to women. Hence, she started weeping and went to Baghdadi Police Station where she was again informed that they were not permitted to allow her to meet her son Yousuf and, therefore, she returned back to her house.
5. On 4-2-2004, at about 11-00 p.m. she again went to Baghdadi Police Station where she found her son Yousuf in the lock-up while S.H.O. Naeem and accused/applicant Atif Khan and police officials of Baghdadi Police Station were standing near the gate of the lock-up; complainant was accompanied by her daughter Rukhsana. They were not allowed to go near the lock-up. S.H.O.
6. Naeem pushed both the complainant and her daughter Rukhsana while complainant's son Yousuf was calling her and her daughter (his sister) from inside the lockup on which they both kept standing. Yousuf informed them that while the police officials threw him inside the police mobile vehicle one of his ribs got fractured and further stated that S.H.O. Naeem and A.S.-I. Atif Khan caused severe maltreatment to him. He further informed that two boys were already available in the police mobile vehicle when he was thrown therein from whose possession three packs of heroin were recovered but they were released on receipt of amount of illegal gratification from them, and instead he (Yousuf) was falsely implicated in the case and confined in the lock-up. He also informed the complainant that the S.H.O. demanded from him that he should ask his mother to pay an amount of Rs.30,000 to the police officials otherwise all the three packes of heroin were to be foisted on him. Yousuf further cried that the S.H.O. and accused/applicant Atif Khan would definitely kill him during the night and took the oath of his own deceased father for such eventuality and that the complainant was to take his dead body during the morning time.
7. Then, the S.H.O. as well as accused/applicant Atif Khan pushed the complainant and asked her to go away and to offer prayer (Namaz). Hence, the complainant returned back to her house while weeping:-During the morning she went to Baghdadi Police Station but the police officials closed its gates stating that meeting of Inspector-General Police and Deputy Inspector-General Police was to take place and, therefore, the complainant should go to her house; she kept standing for two hours outside the premises of Baghdadi Police Station and nobody informed her as to the whereabouts of her son Yousuf. At about 12-00 noon, she submitted a complaint in the office of the Town Police Officer and again went to office of Town Police Officer with her daughter Ghazala at about 3-30 p.m. The Town Police Officer asked her if the boy was the same who died during the morning, whereas the officials of the Baghdadi Police Station had earlier informed her in the morning that Yousuf was alive and had been taken away to Kalakot Police Station and further that when she went to Kalakot Police Station she was informed that Yousuf was alive and had been taken ,to the Civil Hospital by S.H.O. Kalakot Police Station.
8. The police officials, then, informed her that the dead body of her son Yousuf was lying in the mortuary of the hospital. She went to the Civil Hospital mortuary and found the dead body of her son Yousuf lying naked and blood having come out from the injuries which appeared to have been caused, during the violence caused to the body of her son. She was informed by, the officials.of the Civil Hospital that the dead body was brought there at about 4-00 a.m. After the post-mortem examination was, carried out, the dead body was handed over to her at about 12-00 mid-night and was buried on 5-2-2004, which was a Friday. Then she made complaint against the accused, persons to the higher police authorities. Hence, on 4-2-2004, D.I.-G. Tariq Jameel directed Town Police Officer, Lyari Town to register F.I.R. of the complainant and then the TPO called her by phone and her F.I.R. was registered on 15-2-2004 wherein she gave the names of S.H.O. Naeem and accused/ applicant Atif Khan for having murdered her son Yousuf by means of causing violence on his person. Hence, the accused/applicant filed the application under Section 498, Cr.P.C. read with Section 561-A, Cr.P.C. with a prayer to admit him to bail before arrest before the learned Sessions Judge, Karachi-South which was heard by Vth Additional Sessions Judge, Karachi-South, who vide his order, dated 16-8-2005, dismissed the same, whereafter the accused/applicant filed the present application for bail before arrest before this Court. '
9. Learned counsel for the accused/applicant ASIP Atif Khan argued that while the applicant remained posted at Kalakot Police Station he provided help to S.H.O. Naeem towards restoration of law and order situation in the said area and proved to be "strong hand of S.H.O. Naeem against the narcotics dealers of the area" and conspiracy was hatched in connivance with the "narcotics lords" of the area against the accused/applicant and the said S.H.O. to falsely involve them in this case with ulterior motive to cause harassment and humiliation to them and "also to teach him lesson for his active participation against the narcotics dealers of the area"; it is further argued that co- accused Naeem has been granted bail before arrest by learned Sessions Judge vide order, dated 9-6-2004 and that the present accused/applicant is entitled to the grant of bail on the rule of consistency.
10. Learned counsel further argued that though the incident allegedly took place on 3-2-2004 while the F.I.R. was lodged on 15-2-2004 i.e. after a delay of 12 days and that the deceased was arrested on 3.2.2004 at 2345 hours from Faqir Dura Khan Road near Ali Bagh graveyard by the, police party headed by accused ASIP Atif Khan and recovered seven grams of heroin powder from his possession, whereafter he was taken to the police station and a case under Sections 3 and 4, Prohibition (Enforcement of Hadd) Order, 1979 was registered against him bearing F.I.R. No.28 of 2004, and then the deceased was kept in Baghdadi Police Station lock-up as the same was not available at Kalakot Police Station, while the custody of the deceased was entrusted to SIP Lal Dino, who took the same to Baghdadi Police Station and handed over the custody to the concerned police officials, where the deceased Yousuf remained confined till his death; it is further argued that the deceased was addicted to narcotics and was provided necessary medical aid from Lyari General Hospital having been taken there by ASIP Javed Iqbal on 4-2-2004; further that the deceased was involved in another narcotics case bearing F.I.R. No.289 of 1996 prior to the said F.I.R.
11. Hence, the complainant party was in connivance with the narcotics peddlers/dealers of the area/opposite group of the police officials involving the - accused/applicant falsely in this case and with mala fide intention and ulterior motives.
12. It is further argued that the inmates of the said lock-up, namely Noor Khan, Muhammad Younus, Sikandar, Shahzeb and Khalid Hussain, have not supported the version of the complainant, in their respective 161, Cr.P.C. statements recorded by the Investigating Officer and that of Medical Officer Mahesh Kumar, who issued medical certificate which belied the version of the complainant and her witness that the deceased suffered some injuries while he was in the custody of the accused/ applicant; it is further argued that the accused was shown as absconder in the challan sheet submitted before the competent Court of law but proceedings, under Sections 87 and 88, Cr.P.C. did not take place; before that, the applicant/accused surrendered himself before the competent Court of Session.
13. Learned counsel for the complainant argued that the statements of the complainant himself and those of her daughter Mst. Ghazala Bashir clearly prove that the deceased had told them that the accused/applicant had caused severe maltreatment to his person and thereafter they were determined to kill him; the learned counsel further argued that the post-mortem notes prove that the deceased suffered as many as eight injuries on his person and then the medical board was also constituted who also confirmed that the death of the deceased occurred due to the said injuries. Learned counsel for the complainant further argued that the diary sheet maintained by the learned trial Court in the case in question clearly mentions that the accused/applicant was first shown as an absconder and then he filed an application before the Court of Session for bail before arrest and that he being a fugitive from law at that stage of the case, was not entitled to grant of pre-arrest bail; learned counsel further argued that the Mashirnama of arrest clearly mentions that the deceased having been shown to have been arrested by the accused/applicant in a recovery case, but no injury was found on his person, as the contents of Mashirnama of arrest do not make mention of any such injuries.
14. Learned counsel for the complainant cited the case of Murad Khan v. Fazle-e-Subhan and another PLD 1983 SC 82 and has argued that conditions for grant of pre-arrest bail being ulterior motive at the hands of the investigation agency/prosecution, motivated by motives so as to cause irreparable injury to reputation and liberty of the accused, and the applicant having not satisfied such conditions of mala fides of the intended arrest, the accused is not entitled to grant of bail before arrest.
15. Learned counsel cited the case of Muhammad Azim u. The State PLD 1988 SC 84 wherein it was held that mere fact that a person who should not have been allowed bail but was allowed bail in the same case does not justify grant of bail to a co-accused who is otherwise not entitled to it.
16. Learned counsel further cited Ghulam Raza Soomro v. The State 2000 SCM R 1645 wherein it was observed that "it is established that the deceased had expired because of the injuries, which he had sustained when he was in custody. Involvement of the petitioner/accused in the said crime is evident. There are reasonable grounds to believe that the petitioner was guilty of the offence" and, therefore, bail was declined to the accused petitioner of the said reported case.
17. In Qama Bhugio u. The State 1993 PCr.LJ 2135, Honourable Mr. Justice Nazim Hussain Siddiqui (as his Lordship then was) recorded an observation that rule of consistency is not absolute and inflexible and can be applied only when a person is entitled to bail on merits and further that if a thing is not permitted to be done directly, it cannot be allowed to be done indirectly and application for bail was not allowed.
18. Learned counsel for the State adopted the arguments of the learned counsel for the complainant and opposed grant of bail before arrest to the accused/applicant.
19. It is a settled principle of law that for the purpose of bail before arrest an accused/applicant has to prove that the complainant party and investigation agency were carrying mala fide intentions/ulterior motives to get him falsely implicated in the case. Such intentions are not available on the file of this application for bail before arrest. On the other hand, the complainant and her daughter Mst. Ghazala Bashir, have fully implicated the accused applicant for the injuries caused on the person of deceased Yousuf who went on raising cries to inform both the ladies i.e. his mother and sister, that he was severely maltreated by accused/applicant and the co-accused apparently for the reason to knock out illegal gratification amount from the complainant viz. mother of the deceased; the post-mortem notes also prove that eight injuries were suffered by the deceased on his person and the medical board constituted by the competent authority confirmed such post-mortem notes. The Mashirnama of the arrest of the deceased conclusively proves that when the deceased was arrested no injury was found on his person and prima facie the deceased suffered injuries while he was in custody of the accused/applicant in this case and succumbed to the same and died while so being in custody. Hence the accused is not found entitled to the bail before arrest; this bail application was dismissed vide a short order, dated 6th November, 2006, by recalling the interim order of bail before arrest; above are the reasons for the said short order..