IJAZ AHMAD CHAUDHRY, J.- Through this application under Section 497, Cr.P.C, Ghulam Shabhir and Abdul Rehman, the petitioners seek post arrest bail in a case F.I.R No. 32-2007,- dated 07.02.2007, registered under Section 380, P.P.C read with Section 14, Offences Against Property (Enforcement of Hudood) Ordinance, VI of 1979 at Police Station Piplan District Miahwali, on the-statement of Javed Iqbal,, the complainant.
2. The brief allegation against the petitioners as alleged in the F.I.R is that during the night between 3/4-2- 2007 they alongwith co-accused had committed the theft of 2-buffalos valuing Rs. 1,30,000 and 2-cows valuing Rs. 1,05,000/- from the -Dera of the complainant.
3. The learned counsel for the petitioners has contended that the petitioners were arrested on 04.02.2007 by the S.H.O., who were kept in illegal confinement and given severe physical torture for 3/4 days, whereupon Muhammad Akbar, relative of the petitioners moved an application under Section 491, Cr.P.C, on 8.02.2007 for the recovery of the petitioners from the illegal custody of S.H.O, before the leamed Addl. Sessions Judge, Mianwali, who deputed a Bailiff, but the Police having received information about the same to save their skin from the consequences, registered a false ante-dated case on 07.02.2007 and the petitioners were shown to have been arrested on the next date at 8-30 a.m, that an application was also moved on behalf of the petitioners for their medical examination before the learned Judicial Magistrate, who accepted the same and both the petitioners were medically examined on 13.02.2007 and according to the medical report, both the petitioners received injuries on their bodies; that the Police had shown a joint recovery from both the petitioners; that subsequently the petitioners moved an application under Sections 22-A & 22- B, Cr.P.C, for registration of the case against the delinquent Police officers before the learned Justice of Peace, who vide order dated 28.02.2007 issued direction to the D.P.O. Mianwali to register a case against the delinquent police officers, but the D.P.O, "did not take any action so far, which shows the mala. Fide and highhandedness of the Police against the petitioners; that all the cases were registered by the Police against the petitioners after their arrest and some prior- to the occurrence, but the petitioners are not previously convicted in any of the cases; that the alleged recovery of the cattle was planted upon the petitioners to strengthen the case, otherwise no recovery had been effected from their possession, who are in jail since 04.02.2007 and their further detention in jail will serve no useful purpose to the prosecution as nothing is yet to be recovered from the petitioners. Reliance has been placed on Mst. Fahmida vs. The State (1997 S.CMR 947) and Sher Muhammad vs. The State (1997 M LD 2513).
4. The learned counsel for the complainant has opposed this bail petition on the ground that the petitioners are named in the F.I.R, and recovery of stolen cattle has been effected from the petitioners, but there was no motive to falsely implicate the petitioners in the present case by the complainant; that the petitioners are record-holders previously in such like cases, who are desperate and criminal bent of mind and their bail application may be dismissed.
5. I have heard the arguments advanced by the learned counsel for the parties and perused the record with due care and caution.
6. According to the complainant, the incident had taken place during the mid-night between 3/4.02.2007 and in the morning, he found his cattle missing. Then this case was got lodged with the delay of three days without any explanation. The complainant only showed suspicion that the petitioners alongwith others had stolen his animals. On the other hands, record of the Police shows that an application was moved by Muhammad Akbar, the relative of the petitioners before the learned Sessions Judge, Mianwali under Section 491, Cr.P.C, on 8.02.2007. As per allegation, the petitioners were arrested by 5- constables and S.H.O. Police Station, Piplan on 04.02.2007 by raiding at the house of the petitioners, who were confined in illegal custody and during that period they were severely tortured by the Police. It was further claimed that the Police had also -taken away gold ornaments from the house of the petitioners at the time of raid, which were planted upon them in different case. A Bailiff was also deputed, who recovered the petitioners from the Police lock-up, but they were shown to have been arrested on the same date i.e. 8.02.2007 at 5.30 a.m. It is also established from the documents placed on record that the petitioners also moved an application before the learned Illaqa Magistrate for their medical examination as they claimed to have been severely tortured by the Police during the period of their illegal confinement.
Both the petitioners were medically examined on 13.02.2007 and according to the M.L.Rs. Abdur Rehman, petitioner received 9-injuries:ies on his body within blunt weapon during tho said period, whereas Ghulam Shabhir, petitioner received three injuries with the same duration, It is relevant to point out that recovery at the instance of the petitioners had been effected on 15.02.2007 after 2- days of their medical examination and after the report of Doctor that they were severely tortured during the period of their alleged illegal confinement by the Police. The petitioners also moved an application before the learned Justice of Peace for registration of case against the delinquent Police officers, who issued direction to the D.P.O, for taking action against the delinquent Police officers under Article 156-D of Police Order, 2002 and the relevant provisions of P.P.C. For the time being the petitioners have succeeded in making out a case of further inquiry. Merely because the petitioners were previously involved in such like cases, is not sufficient to refuse the bail to them as it is not claimed that they were ever convicted and sentenced in any of the case.
7. As a result of above discussion, the instant application is accepted and the petitioners are admitted to bail subject to furnishing bail bonds in the sum of Rs. 1,0, 000/- each with two sureties each in the amount to the satisfaction of the learned Illaqa/Judicial Magistrate.
8. Before parting from this order, I am constrained to observe that the direction was issued by the learned Sessions Judge, Mianwali to the D.P.O., Mianwali to submit , report after taking necessary action against the delinquent Police officers, but according to the learned counsel for the petitioners, no action has been taken so far. Hence, the D.P.O., Mianwali is directed to submit report regarding the necessary action against the delinquent Police officer? Under Article 156-D of Police Order, 2002 & Pakistan Penal Code, to this Court within a fortnight through the Deputy Registrar (J) of this Court on the receipt of this order.