Allah Ditto, petitioner was arrested in a case F.I.R. to. 309 dated 17.9.2007 under Section 302 P.P. d. registered at Police Station Garh Mahraja, Distt. Jhang. He moved the learned Court of Session, Jhang for his bail unsuccessfully. Hence, this bail petition.
The prosecution case set up in the F.I.R. lodged at the instance of Fayyaz Hussain, complainant, in brief, is that on 17.9.2007 at about 11.45 a.m. his 14 years old son Shehzadder left his house on abicycle to fetch milk. He did not return home as he was killed near the sugarcane crop of one Muhammad Ajmal. Fayyaz Hussain, complainant reached the spot, and found the dead body of his 14 years old son Shehzad Haider. The string of his shalwar was found tied` around his neck. The complainant cast doubt that some one had killed Shehzad Haider after having committed sodomy with him.
3. On 17.9.2007 at 10.00 p.m. the dead body of Shehzad Haider was post mortemed. The post mortem examiner observed a ligature mark all around the neck besides other injuries on different parts of the body. The doctor opined that the deceased was strangulated to death. He also took anal swa bs of the dead body-which on chemical analysis were found stained with semen. In this way it was confirmed that some one had killed the unfortunate 14 years old boy after having committed sodomy with him.
4. Muhammad Nawaz Anjum Inspector took up investigation of the case and arrested Allah Ditta , petitioner-accused. After recording a few meaningless case diaries he declared him as innocent and challaned him to Court on 21.10.2007. The investigator managed an application in the name of the complainant wherein two close relations of the deceased were introduced as eye-witnesses of the killing. The mode and manner of investigation adopted by Muhammad Nawaz Anjum Inspector clearly indicates that he was in hot haste. The available record does not disclose as to what were the circumstances which prompted the investigating officer to close the chapter of investigation in unholy haste without taking effective legal steps for collection-of circumstantial pieces of evidence as it was an un-witnessed killing. The anal swabs of the deceased were found stained with semen. The investigator did not approach the medical examiner or the chemical examiner for grouping of anal swa bs of the deceased and seminal swabs of Allah Ditta, accused. At some belated stage the investigation was made over to Muhammad Hussain, Inspector who took required steps for semen grouping but unsuccessfully because by that time the anal swabs of the deceased had been disintegrated. Had Muhammad Nawaz Anjum, Inspector arranged grouping of anal swa bs of the deceased and the seminal swabs of the accused promptly without wasting a single moment a valuable piece of evidence would have been made available by the serologist.
The most shocking aspect of the matter is that Muhammad Nawaz Anj urn, Inspector/investigator concluded the investigation in favour of the accused secretly. He withheld the case diaries dishonestly. The D.S.P./S.D.P.O. Circle Ahmadpur Sial was also kept in dark. The investigator did not lay the case file before the S.D.P.O. for verification of investigation and instead submitted the challan to Court directly. He provided copies of the case diaries to the D.S.P./S.D.P.O. after submission of the challan in Court. Later on the D.S.P./S.D.P. learned about dishonest investigation by Muhammad Nawaz Anjum, Inspector and made a detailed report to the D.P.O. Jheng on 6.11.2007.The key lines of his report are reproduced below for ready referene.
During the course of arguments, the complainant submitted with tears in his eyes that being poor he could not win the sympathy of the Investigating officer Muhammad Nawaz Anjurn and that he made an application to the D.P.O. with the names of two eye-witnesses on the wrong and dishonest advice of the said investigator. The learned counsel for the complainant frankly stated that it was an un-witnessed killing and that the investigating officer joined hands with Allah Ditta, accused and destroyed the case at investigation stage.
5. When confronted with the above said state of record, the learned counsel for the petitioner has vehemently argued that the prosecution was possessed with no, evidence against the petitioner when he was remanded to judicial custody. He is of the view that unless and until evidence is made available to connect Allah Ditta, petitioner with the charge of murder and sodomy. his detention in judicial lock up would amount to illegal confinement.
6. The learned Law Officer and the learned counsel for the complainant have frankly conceded that at present this is a case of no evidence against Allah Ditta, petitioner.
7. The statements of the two eye-witnesses introduced by the complainant at belated stage are not worthy of credence because the complainant and his learned counsel have stated in clear terms before this Court that it was an unwitnessed killing and that the eye-witnesses were introduced on the dishonest and wrong advice of the first investigating officer. Divorcing said statements of the eye-witnesses, there is not an iota of evidence against the petitioner to connect him with the charge of murder and sodomy. In this view of the matter, this Court is left with no other option but to allow bail to the petitioner with heavy heart subject to his furnishing bail bond in the sum of Rs, 2,00,000/- with one surety in the like amount to the satisfaction of the learned Sessions Judge, Jhang.
8. At the cost of repetition, I must say before parting with this order that this is a case of dishonest investigation. Muhammad Nawaz Anjum, investigating officer played havoc with Administration of Criminal Justice. He destroyed the prosecution case at investigation stage in hot/unholy/indecent haste obviously for some consideration extraneous to the record. I am fully aware that subject of investigation comes within the exclusive domain of the police/investigating agency. But in the given circumstances, this Court is not supposed to leave the aggrieved to the mercy of the police.
Investigation of a criminal case launched mala fidely or dishonestly or for some consideration extraneous to the record is open to correction by the High Court under the inherent and Constitutional jurisdiction. I am supported in my view by the case law laid down in Raja Rustam Ali Khan v. Muhammad Hanif and 6 others (1997 SCM R 2008).
9. After having examined the record, particularly the report of the D.S.P./S.D.P.O. reproduced above, it would not be difficult to say that the investigation conducted by the first investigator was dishonest and tainted with mala fide. In the circumstances, this is a fit case for exercise of constitutional jurisdiction and inherent powers. I, therefore, taking notice under the said jurisdiction; direct the Inspector General of Police, Punjab, Latiore to entrust the investigation of the case to a team of honest and upright senior police officers preferably headed by Mr. Zulfiqar Ahmad Cheema, Regional Police Officer, Gujranwala Range and to initiate legal proceedings against Muhammad Nawaz Anjum, Inspector Police/first investigator. Copy of this order and the police file shall be sent immediately through special messenger to the Inspector .General (By name) for compliance.
10. The challan in the case has already been submitted to the Court of Session, Jhang against Allah Ditta, accused. I have already concluded in the preceding paragraph that the investigator submitted the challan in hot haste without collecting evidence after having joined hands with the accused. In such circumstances, it would be a futile exercise to proceed with the trial of the accused. The proceedings, therefore, shall remain stayed before the Court of Session till completion of investigation as directed above.