' SAJJAD ALI SHAH, J.--- Applicants Muhammad Aslam Khan, Superintendent of Police Liyari Task Force, Irfan Ali Bahadur Deputy Superintendent of Police Liyari Task Force and Syed Safdar Ali Shah, Inspector of Police seek bail in Crime No,101 of 2006 of Police Station Sakrand under sections 364, 302, 342, 201, 202 and 34, P.P.C.
2. The facts per F.I.R. Are that:-- "One Mst. Lal Bibi wife of late Rasool Bux Brohi, on 21-7-2006 at 1915 hours lodged F.I.R. Stating therein that she is a maid works in different houses and lives at Village Qadan Shoro, Taluka Kotri, District Jamshoro. On 7-7-2006, her husband along with his cousin Muhammad Siddique came down to the village and disclosed that one Khadim Brohi of Hub Chowki has promised that he will be coming after them and would arrange for a surety from Sakrand for the bail of his father Muhammad Ismail, brother Mir Hassan and uncle Muhammad Ibrahim, as they are in Central Prison, Hyderabad, on account of murder charges. On 8-7-2006 Khadim Brohi contacted her husband on mobile and stated that he along with Muhammad Siddique should reach Sakrand where he will meet them, consequently, they left for Sakrand. On 10-7-2006 at about 9-30 her husband contacted his nephew Rafique on his mobile and stated that he wants to talk to his uncle Hashim and further directed to arrange Rs,2,000, it was also informed that Khadim Brohi has arranged a surety by the name of Nazar alias Nazroo Khaskheli and he along with Muhammad Siddique and Nazar Khaskheli would be coming to Hyderabad by bus. At about quarter to ten, Rafique at the request of her father Hashim dialed her husband's mobile, but his mobile was switched off. On that date in the evening Khadim Brohi called Rafiq from Sakrand and told that in the morning Rasool Bux, Muhammad Saddique and Nazar Khaskheli were boarded by him on Bus No,P-0118 for Hyderabad and in that bus Sahib Khan son of Khadim Chandio was also travelling, who has informed Ghulam Qadir Brohi that the guests, who were boarded along with Nazar Khaskheli for furnishing surety were got down from bus near Mir Khan Bokhari by Police personnel as well as persons in civil dress and after having them blind-folded, were taken away in a private car followed by a police mobile. He further stated that he has made necessary inquiries and Rafique should also make inquiry. While complainant was making inquiries that on 13-7-2006 her husband's photograph was published in a newspaper with a news item that he was killed by the Liyari Task Force Karachi, which was headed by applicant/accused No,1 along with his team taking him to be a dacoit. After watching this photograph the complainant along with her mother-in-law Pathani and maternal- uncle of her husband Ghulam Hussain came to Karachi and went to Edhi Centre, Sohrab Goth and found the dead body of her husband Rasool Bux in mortuary. They asked the Edhi Centre to hand over the dead body to them, but they asked for police permission. They contacted police, who said that the body can only be handed over if complainant party admits that the body is of Mashooq Brohi, but the complainant party insisted that the dead body is of Rasool Bux Brohi. Police refused to hand over dead body. The complainant party thereafter again went to Karachi on 18-7-2006, this time the police personnel handed over the dead body of complainant's husband Rasool Bux and the complainant brought it to her village and after burial of the dead body, on 21-7-2006 complainant along with her relative Ghulam Qadir and Ghulam Habib appeared at police station and lodged the complaint that Chaudhry Muhammad Aslam along with his team has kidnapped her husband Rasool Bux Brohi along with his cousin Muhammad Siddique and Nazar with intention to kill and after keeping her husband confined for two days and after torturing him by taking him to be dacoit Mashooq Brohi, have killed him by firing. The whereabouts of his two companions are not known. She prayed for justice."
3. Messrs Raja Qureshi and Aamir Mansoob Qureshi, learned counsel for the applicants while giving the background of the case have 'contended that prior to the above F.I.R. Wherein the applicants seek bail, another F.I.R. Also bearing No,101 of 2006, but of Police Station Gadap was lodged by the applicant/accused No,1 on 12-7-2006, wherein the applicant stated that:- "He received spy information that accused Mashooq Brohi who is wanted in cases of abduction for ransom and other heinous offences to Sindh Police for whose arrest the Government of Sindh has announced an award, was coming. He along with his team reached at Konkar Road, Dagara Hotel and surrounded the area. When at about 7-30 a.m. Accused Mashooq Brohi with his three companions driving a silver colour car, bearing number ADG-648, came and upon pointation by the spy were given signal to stop. Mashooq who was sitting on the driving seat, suddenly along with his companions opened fire with intention to kill. Firing was so severe that if not countered there was serious apprehension of loss of lives, therefore, in self-defence firing was countered.
Mashooq Brohi was injured while his companions escaped. From the possession of injured Mashooq Brohi one klashnikov without number and ten live loaded rounds, one pistol without number with six live loaded rounds were recovered and from the front seat of car one repeater with five live rounds, and from the back seat one magazine of SMG with 28 live rounds was recovered.
Mashooq Brohi was arrested in presence of Inspector Muhammad Ishaque Lashari and Inspector Nasirul Hassan. The arms recovered were sealed at spot. Mashooq Brohi was sent for treatment through Inspector Sarwar Khan and other police personnel along with special spy. The names of absconding accused were known as Yameen and Siddique Abro, who can be identified. The car of the accused persons bearing Registration No,ADG-648 ,Honda Civic was taken in possession."
4. It was submitted that after the applicant/accused No,1 had lodged the aforesaid F.I.R. a Human Right Case bearing No,3861-K of 2006 was filed before the Honourable Supreme Court, which was disposed of on 27-9-2006, after a statement by the learned Additional Advocate-General that the investigations (of the case wherein applicants/accused seek bail) have been completed and challan has been submitted. It was pointed out that the apex Court while disposing of the said case observed:-- "the trial Court to proceed with the matter independently without being influenced in any manner from the present proceedings."
5. It was next contended by the learned counsel that the case of the prosecution as evident from the F.I.R. Is totally based on circumstantial evidence, in support whereof prosecution has recorded the statements of seven witnesses connected with such narration (1) Azeem, the driver of bus (2)
All Hassan, the Conductor of the bus (3) Nazro Khaskheli, the surety, (4) Muhammad Siddique who was accompanying the deceased (5) Sahib Khan who travelled in the same bus in which deceased was boarded, (6) Ghulam Qadir to whom Sahib Khan told that deceased along with Nazro Khaskheli and Muhammad Siddique were got down from the bus and (7) Khadim Hussain who had arranged for the sureiy Nazro Khaskheli. Learned counsel while referring to the statement of the above referred prosecution witnesses contend that none of the P.Ws. Except Muhammad Siddique have implicated the applicants, whereas P.W. Siddique who had recorded his 164, Cr.P.C.
Statement in support of the F.I.R. Has retracted and had filed constitutional petition stating therein that his statement under section 164, Cr.P.C. Was got recorded by police under coercion. It was also pointed out that Muhammad Siddique also made such statement before the Sessions Judge who is seized of the case. In the circumstances it was pleaded that the statement of Muhammad Siddique under section 164, Cr.P.C. Has lost its sanctity and cannot be relied upon. In support of such contention learned counsel has placed reliance on the cases of (i) MI:to-mad Nawaz alias Nazoo v. The State 1991 SCM R 111, (2) Zahid Ali v. The State 1993 PCr.LJ 1489, (3) GuI Hassan v. The State 2002 M LD 1502 and (4) Wajid Ali v. The State 2006 SLJ 739, wherein the principle that in cases where the eyewitnesses file exonerating affidavit, the case become one of further inquiry entitling the accused to the concession of bail, was consistently reiterated.
6. Coming to the statement of P.W. Khadim Hussain learned counsel has contended that the statement of P.W. Khadim Hussain belies the entire narration of the F.I.R. As per Khadim Hussain, Sahib Khan and Nazro Khaskheli were informers of police and that deceased Rasool Bux and Muhammad Siddique never boarded on Bus No,P-0118. Additionally the D.N.A.- report concludes by recording that Mst. Pathani and Muhammad Ismail Brohi are the biological parents of the deceased Mashooq Brohi and not Rasool Bux. In the circumstances it was contended that it is a case of no evidence and of course requires further inquiry and consequently the applicants are entitled to the concession of bail.
7. Mr. Aamir Mansoob, learned counsel while adopting the submission of Mr. Raja Qureshi has contended that the F.I.R. Was lodged after 8 days of the incident and the delay has not been plausibly explained. He has further contended that the F.I.R. Is based on circumstantial evidence of 7 persons out of which six resiled before filing of challan and the seventh has filed affidavit resiling from his earlier statement as well as the petition before the Honourable High Court asserting therein that his statement under section 164, Cr.P.C. Was recorded under coercion, in the circumstances per learned counsel there exist no reasonable grounds to believe that the applicants are guilty of an offence punishable with death or transportation of life and therefore, are entitled to the concession of bail.
8. Mr. Anwar H. Ansari, State counsel has not opposed the grant of bail to the applicants, on the contrary, has submitted that the only prosecution witness namely Muhammad Siddique who has implicated the applicants has resiled, therefore, the case becomes one of further inquiry, which entitles the applicants to grant of bail. It was further contended that the present case at the most is of mistaken identity and therefore, according to him even if it is presumed that instead of Ashique Brohi, Rasool Bux was killed, even then the offence would not fall under section 302, P.P.C. But at the most under section 318, P.P.C. And consequently the applicants are entitled to bail.
9. On the other hand, Mr. 'Riazat Ali Sahar, representing the complainant has vehemently opposed the grant of bail and has contended that the applicants being very influential persons have tampered with the prosecution witnesses and on this ground alone they are not entitled to the concession of bail. It was pointed out that P.W. Muhammad Siddique in his statement under section 164, Cr.P.C. Had fully supported the _ F.I.R. And had implicated the accused and despite lengthy cross-examination by the counsel for the applicants/accused his statement under section 164, Cr.P.C. Could not be shaken, and therefore, the alleged exonerating affidavit as well as constitutional petition are indicative of the fact that the applicants/accused have prevailed and pressurized P.W. Muhammad Siddique to file such petition. Learned counsel further argued that there was no occasion for prosecution witness Muhammad Siddique to get his statement recorded before the trial Court as reflected from the order sheet dated 13-12-2006, placed on record by the applicants/accused and this clearly spells out the pressure exerted on the prosecution witnesses to change their version and if, concession of bail is allowed the applicants/accused definitely would destroy the remaining prosecution evidence. Learned counsel in support of his contention that the exonerating conduct of P.W., Muhammad Siddique in the circumstances, is liable to be ignored has placed reliance on the case of Naseer Ahmed v. The State PLD 1997 SC 347 wherein the Honourable Supreme Court after laying down the fine Distinctions between the tentative assessm ent and actual evaluation of evidence held that, it is the mind of the Court which is to be satisfied where about-turn of some of eye-witnesses shakes up the entire prosecution case.
10. It was next contended that the statement of Khadim Hussain who arranged for the surety and Muhammad Siddique who accompanied the deceased are absolutely consistent, which reflects that neither the deceased along with Khadim Hussain was boarded on Bus No,P-0118, nor Sahib Khan and Nazru Khaskheli were there, as they were the touts of police and therefore, their' statements denying the incident 'is of no consequence. It was further contended that an Inquiry Committee consisting of three Deputy Inspector-General of Police, one Senior Superintendent of Police and one Taluka Police Officer, was constituted to ascertain the ground reality, who after investigation have given report that the encounter dated 12-7-2006 wherein Rasool Bux was killed, was a staged encounter as the person killed was in police custody since 10-7-2006.
11. Learned counsel further invited my attention to the D.N.A. Report, which reflects that Mst. Pathani and Ismail are the biological parents of the deceased. It was lastly contended that there is sufficient material on record to connect the applicants/accused with the commission of an offence punishable with death and/or transportation of life therefore, the applicants/accused are not entitled to the concession of bail.
12. I have heard the learned counsel for the respective parties and have gone through the record as well as the case-law cited at bar.
13. Taking up the first contention raised on behalf of the applicants to the effect that the prosecution witnesses have not supported the version as narrated in the F.I.R. It may be correct that out of seven prosecution witnesses whose statement was recorded under section 161, Cr.P.C., five have denied the knowledge of the incident, however, at the same time the prosecution witness Muhammad Siddique who was accompanying the deceased and is an eye-witness has in his 164, Cr.P.C. Statement categorically stated that the F.I.R. Contains wrong number of the bus, as he along with the deceased never boarded in the said bus and further that neither Sahib Khan nor Nazru Khaskheli were present in the said bus, similar is the statement of P.W. Khadim Hussain who boarded the deceased along with P.W. Muhammad Siddique on bus. Consequently, the statements of these four prosecution witnesses namely Muhammad Azeem the bus driver, Ali Hassan the conductor, P.W. Sahib Khan and Nazru Khaskheli who were 'stated to have been sitting in the bus are to be evaluated accordingly.
14. It is further important to observe that the statement of Muhammad Siddique recorded under section 164, Cr.P.C., despite opportunity could not be shaken by the applicants/accused during the cross-examination. A perusal of the statement reflects that he has fully implicated the present applicants/accused. It reflects the manner in which P.W. Muhammad Siddique along with deceased Rasool Bux was abducted by police personnel in uniform and in civil dress, then blindfolded and were kept in illegal confinement, maltreated/tortured for 2-3 days, repeatedly asked to admit that deceased Rasool Bux was Mashooq Brohi and thereafter taken to some unknown place where Rasool Bux was killed by the applicant/accused No,1 and others, whereas P.W. Muhammad Siddique was released after two weeks of the incident, during which period F.I.R.
Was lodged by the widow of the deceased upon the information gathered by her.
15. The applicants/accused in support of their plea that the prosecution witness Muhammad Siddique has retracted from his 164, Cr.P.C. Statement have produced (a) affidavit of Muhammad Siddique dated 16-11-2006 filed before Sessions Judge (b) Constitutional Petition bearing No,S-500 of 2006 along with supporting affidavit dated 20-11-2006 filed by Muhammad Siddique (c) the statement of Muhammad Siddique recorded by Sessions Judge in open Court on 13-11-2006. The tentative assessm ent of these exonerating affidavits reveals that in para.4 of the constitutional petition, Muhammad Siddique has referred to the deceased as Noor Muhammad alias Nooral alias Rasool Bux alias Mashooq Brohi whereas in his statement recorded before Sessions Judge on 13-12- 2006 he has specially stated that deceased was not Mashooq Brohi.
16. After tentatively assessing the statement of Muhammad Siddique, I am of the view that despite exonerating affidavit, such statement cannot be ignored altogether and one of the reasons for holding such view being that the applicants/accused are Police Officers of high ranks and it would be very difficult for the prosecution witnesses to stand by their statements.
17. It is also worth recording that P.W. Muhammad Siddique in his affidavit filed along with the constitutional petition referred to by the learned counsel for the applicants/accused as exonerating affidavit, while retracting from his statement has averred that his earlier statement was recorded under the pressure of police, but nothing was brought on record to substantiate enmity between the applicants and .The police nor any reason for exerting such pressure was asserted. The applicants/accused themselves being Police Officers of high rank, therefore, the question of exerting pressure by the police upon P.W. Muhammad Siddique to record his statement under section 164, Cr. P.C.Against the applicants/ accused i.e. Their own colleagues does not arise.
18. From the material placed on record it emerges that the deceased was shot in an encounter by the applicants/accused resulting in his death, per their own version as recorded by the applicants/accused in F.I.R. (101 of 2006) of Police Station Gadap, showing him as Mashooq Brohi, whereas per F.I.R., in which the applicants/accused seek bail, deceased is named Rasool Bux and was killed while in police custody.
19. In the circumstances, the admitted position being that the deceased was killed by the applicants/accused and therefore, an Inquiry Committee was constituted to ascertain as to whether the deceased was killed in a genuine or staged encounter and further as to whether the deceased was arrested by the police a few days prior to encounter. Such inquiry was conducted by the five police officers of high ranks, three being Deputy Inspector-General of Police, fourth Senior Superintendent of Police and fifth Taluka Police Officer and it was concluded that the deceased was arrested few days prior to the alleged encounter and was killed in police custody by staging an encounter.
20. From the tentative assessm ent of the material as placed on record I am of the view that it is not a case of no evidence as pleaded by the counsel for the applicant/accused, but on the contrary it appears to be a case of tampering with prosecution evidence. At this juncture there ,are reasons to believe that the applicants/accused committed murder of Rasool Bux in a false encounter by declaring him to be Mashooq Brohi. No enmity or mala fides have been brought on surface against the police and there is sufficient material to connect the applicants/accused with the commission of offence punishable under section 302, P.P.C. I am, therefore, not inclined to enlarge the applicants/accused on bail and consequently, reject this bail application.
21. The observations made above are tentative in nature and would not affect the merits of the case. The applicants/accused further would be at liberty to move fresh bail application, after the prosecution examines its material witnesses including Muhammad Siddique and Khadim Hussain.