' SYED SHAFQAT ALI SHAH MASOOMI, J.---Applicants Hakim Ali, All Anwar, Abdul Razzaque and Wahid Dino have filed this application seeking pre-arrest bail as they are wanted in Crime No,2 of 2009 Police Station, Adilpur District Ghotki under sections 302, 343 and 395, P.P.C. 17/3 EHO.
' Interim pre-arrest bail was granted to the applicants on 9-7-2009. Today they are present on interim pre-arrest bail and their bail application is fixed for confirmation.
' According to F.I.R. Lodged by complainant Sanwan on 1-1-2009 at 1430 hours facts of the prosecution case are as follows:-- ' Complainant has stated that, namely Muhammad Ramzan son of Muhammad Saleh Mirbahar aged about 40 years old is my cousin. On dated 15-12-2008, I along with deceased Muhammad Ramzan,
2. Shahnawaz son of Ghulam Hussain alias Jeevan,
3. Jalal son of Wali Muhammad, 4.
Raza Muhammad alias Gajjan son of Muhammad Paryal Mirbahar went to Chadki for looking after the fish form, after that we returned back, and at about 03-45 pm when reached at Adilpur Town Bus Stop, where Allah Ditto son of Adam,
2. Jamal Din son of Lal Bux met with us we are taking to each on other, in the meanwhile mobile of police party Ghotki appeared there, from which S.H.O.
Ghotki Hakim All Jalbani, HC Wahid Dino Chachar,
3. PC More Chachar,
4. PC Abdul Razzaque Jhatyal,
5. PC Mohammad Anwar Wirand in police uniform stepped down from the mobile and asked us that we are wanted at Police Station Ghotki, on the pretext or search accused took out Rs.1700 from the front pocket of deceased Muhammad Ramzan and Rs.24000 from the pocket of Raza Muhammad alias Gajan, thereafter police party brought us at Police Station Ghotki and interrogated us at different times, on dated, 21-12-2008 at about 9-30 night time S.H.O. Hakim Ali Jalbani accompanied with above accused came at lockup and took out Raza Muhammad alias Gajjan from the lockup and again interrogated him and after that PC More Chachar brought the Muhammad Ramzan from lockup and caused lathi, kicks and fists blows to him for confessing the guilt of crime, during that deceased Muhammad Ramzan raised cries and became unconscious, on the next day morning dated 22-12-2008 at 6-00 am, Muhammad Ramzan died away, thereafter except Raza Muhammad, accused took us and deceased Muhammad Ramzan in police mobile and left us in their village, on the same day at 11-00 am police raided at our houses and took away the licensed weapons belonging to Rasool Bux and Muhammad Sabil, thereafter we brought the dead body of deceased at Taluka Hospital Ghotki for postmortem, where postmortem was not conducted due to influence of accused, thereafter, I filed such petition before the Sessions Court Ghotki, complaint is that above accused with their common intention robbed us, kept us in Wrongful confinement and murdered Muhammad Ramzan. I am complainant and pray for justice.
' Heard learned counsel for the applicants as well as learned State Counsel appearing on behalf of the State and also perused the material available on record.
' Learned counsel for the applicant has stated that specific role of causing lathi injuries to the deceased Muhammd Ramzan is attributed to co-accused PC Mour, while the allegations against the applicants are general in nature, as such the applicants have a good case for grant of pre- arrest bail on merits. He submitted that complainant Sanwar and P.W. Jalaluddin have filed their affidavits before this Court stating that the accused have given the complainant party oath that they are innocent and have not committed the murder of deceased Muhammad Ramzan and they have no objection if the applicants are granted bail before arrest. In the last he has prayed that interim bail earlier granted to the applicants/accused may be confirmed. In support of above contention reliance is placed upon 1991 SCM R 111.
' On the other hand learned State counsel has vehemently opposed to this application stating that the applicants are involved in a murder case of an innocent person. In presence of applicant S.H.O.
Hakim Ali Jalbani, his subordinate PC Mour Chachar who came along with S.H.O. To the lockup and caused lathi injuries to deceased Muhammad Ramzan which has resulted in his death.
' Considered the arguments of the learned counsel for the applicants and learned State Counsel.
The names of the applicants appear in the F.I.R. With specific role and also the presence of the applicants at the place of occurrence, has been established from the A 161, Cr.P.C. Statements of the P.Ws. As well as from the facts narrated in the F.I.R. The applicant No,1 Hakim Ali Jalbani S.H.O., who is wholly solely responsible of all the acts and deeds illegally committed in the premises of the Police Station or in the lockup where the deceased died. In fact there is material evidence which connect the applicant No,1 S.H.O. Hakim Ali Jalbani and all the three applicants, who were also available there and the principal role was assigned to one PC Mour Chacher, who under the directions of the applicant No,1 S.H.O. Hakim Ali Jalbani other co-accused took out Muhammad Ramzan from the lockup of the Police Station and thereafter he was also mercilessly maltreated and the said PC Mour caused lathi injuries and also gave kicks and fists blows due to which Muhammad Ramzan became unconscious and died on 22-12-2008 at about 6 O'clock in the morning. The applicants being police officials have misused and abused their authority and also restrained the complainant party from postmortem of the deceased. However, after about five months of the incident, the dead body of the deceased was exhumed but it was difficult for the Doctor to trace out the marks of violence on the body of the deceased. The complainant after the death of Muhammad Ramzan went to Police Station to lodge the F.I.R. But his F.I.R. Was not registered and thereafter, he filed an application under section 22-A and B, Cr.P.C. Before Justice of Peace Ghotki, which was allowed and F.I.R. Was registered.
For the purpose of anticipatory bail, the conditions for its grant that there would be genuine proof of apprehension of imminent arrest with effect of actual constraint; proof of harassment and humiliation of the applicant on account of the arrest of ulterior motives designed on unjustified arrest of the applicant and power to grant pre-arrest bail should be sparingly exercised and while doing so Court should IC keep in mind a principle for grant of pre-arrest bail are different from principles governing grant of post-arrest bail. All these conditions were not attracted in the present case because these officials were not being arrested since long time as they belong to the police department. The present case has been challaned and NBWs have been issued by the trial Court.
' That so the affidavits sworn by the complainant and P.W. Jalaluddin that they have patched up the accused police officials out of the court, during query they stated that they are not legal heirs of the deceased Muhammad Ramzan; hence accused are not entitled for bail on the basis of their affidavits. The police officials are to act in aid of enforcement of Article 9 of the Constitution of Islamic Republic of Pakistan which guarantees a fundamental right that a person shall not be deprived of life or liberty save in accordance with law. The public functionaries like police force are to act in aid of enforcement of this constitutional guarantee rather than to violate the same law to expose themselves to criminal prosecution. No police official has a license or authority to kill anybody in the police lockup or within the premises of Police Station during investigation therefore maltreatment or torture for which they are strictly dealt with in accordance with law even at the time of police encounter, the police party should have not killed indiscriminately the persons who are allegedly involved in the encounter, the police personnel themselves cannot be sole arbiters on the question whether killing of certain person in an alleged encounter would warrant by the facts of the case. In the present case the applicants have not only violated the Article 9 of the Constitution but have committed the murder of innocent person in such a manner which has lost the confidence of general public on the custodian of life, liberty and property of the people. In the present case the applicants have not successfully proved that they have been involved due to enmity, mala fide or no such offence has been committed in the premises of the Police Station.
Police officials on the contrary are duty bound to prevent and detect crime whereas in the present case the applicants have themselves committed crime of the killing of one innocent person in the police lockup in fact not only the deceased has left this world but he has left his legal heirs, who are dependent upon him and they are now hand to mouth, passing a miserable life.
' The applicants S.H.O. Hakim Ali and others being custodian of law have taken the law in their own hands by committing a murder of an innocent person and all the applicants are equally responsible in the commission of murder. Hence the applicants are not entitled for extending concession of pre-arrest bail. The case-law referred to above does not applicable to the facts and circumstances of the case in hand.
' For the foregoing reasons I see no substance in this application, therefore, the same is rejected.
The interim bail earlier granted to the applicants is hereby re-called and SP (Investigation) present in Court is directed to take all the four applicants/ accused in custody.
' During dictating the order all the four applicants were present in Court when it was announced that their interim pre-arrest bail is re-called. All the four accused tried to escape away but the police encircled them and apprehended applicants/accused Hakim Ali Jalbani S.H.O. P.S. Ghotki, PC Abdul Razzaque Jhatyal PS Ghotki and H. C. Wahid Dino PS Ghotki while applicant Police constable Ali Anwar of Ghotki succeeded in escaping away. Applicants Hakim Ali Jalbani, Abdul Razzaque Jhatyal and Wahid Dino are remanded to jail custody.
' However, the observations made hereinabove are tentative in nature for the purpose of only disposal of bail application and may not influence the mind of the trial Court which is free to appraise the evidence strictly according to the merits of the case.
' Bail Application No, 629 of 2009 stands disposed of.