' This is an application for bail made on behalf of applicant Kanwar Khalid Younus who is detained in Crime No,153 of 1992, North Nazimabad Police Station, under section 302/34, P.P.C. As amended.
The bail application made on his behalf was rejected earlier by learned Sessions Judge (Central), Karachi, vide order dated 21-7-1992, although the learned A.P.P. Representing the State had raised no objection to the grant of bail to him.
2. This case is of some considerable importance in itself as it raises a question that needs very careful consideration and so I will give my view of the salient features of the case. It is the case of the prosecution that on 4-5-1992 at about 9 p.m. Complainant Gohar Ali was going towards Hussain D.Silva town in his Suzuki van when there was indiscriminate firing from a jeep and a bulldozer resulting into injuries to Zahoor Rehman who was sitting by the side of complainat Gohar Ali, the driver of the van. Zahoor Rehman was taken to Abbasi Shaheed Hospital, Karachi, where he succumbed to his injuries. On 5-5-1992 at 12-10 a.m. Gohar Ali lodged F.I.R. Against unidentified persons. During the course of investigation the Police Officer examined Idrees and Wazeer Gul and from their statements it transpired that stones were thrown towards the Demolition Squad of Karachi Metropolitan Corporation by the Pathans which annoyed the applicant, the sitting Member of National Assembly of the area, who is alleged to have expressed to the members of Demolition Squad as to why the Pathans were not fired at and this incident was the outcome of that instigation. Nothing happened till 23-6-1992 when Anwar Ahmad Khan, the new S.H.O. North Nazimabad Police Station recorded the statements of Muhammad Ismail, Mir Zaman, Fazal-ur- Rehman, and Ali Rehman who for the first time came out with a new story by stating that the applicant had also fired towards deceased Zahoor Rehman from his T.T. Pistol resulting into his death. It was on the basis of this evidence that the applicant was arrested on 29-6-1992.
3. The applicant who was elected as Member of National Assembly from the platform of Mohajir Quami Movement, commonly known as M.Q.M. (Haq Prast) tendered his resignation alongwith other M.NAs. And M.PAs. Of M.Q.M. He was called by the Speaker of National Assembly and was taken to Parliament House, Islamabad on 6-7-1992 where he confirmed the voluntary character of his resignation. Since the applicant had alleged torture against the concerned police he was referred to Islamabad Hospital, where he is still under treatment and is on remand granted by a Ist Class Magistrate of Islamabad. During this period the investigation changed hands but admittedly the applicant is being detained without submitting the charge-sheet (Challan) against him.
4. I have heard Mr. LA. Hashmi, learned counsel for applicant and Mr. Abdul Hakeem Bijarani, learned AA.-G. For State. The latter has opposed the bail application.
5. Before examining other contentions raised on behalf of applicant I propose to dispose of a legal objection about the wrongful detention of the applicant Admittedly the applicant was arrested on 29-6-1992. Subsection (2) of section 167, Cr.P.C. Makes it clear that the detention of an accused, whether in police custody or judicial custody, cannot exceed fifteen days in the whole. The detention of applicant after 15th July, 1992, in police or judicial custody. Under the orders of a 1st Class Magistrate, Islamabad, without submission of challan against him is thus wrongful and illegal. This question was examined by a Division Bench of this Court in the case of Darshan Singh and others v. The State and others reported in PLD 1957 Kar. 210, wherein it was observed:- "Section 344 says that 'if from the absence of a witness or any other reasonable cause it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial the Court may...' It presupposes the placing of material before the Court so that if the Court refused to grant a further remand it may be able to commence the inquiry. It cannot be gainsaid that an inquiry cannot be commenced unless there is some sort of challan from the side of the police before the Magistrate. The words 'absence of a witness' further clearly show that there should be material before the Court on the basis of which the Court may either commence the inquiry or on account of the absence of a witness or any other reasonable cause adjourn the inquiry. Under section 61, Criminal P.C. An accused person after his arrest has to be produced before a Magistrate immediately after the expiry of twenty-four hours. He cannot be detained by the police on their own authority beyond that period. If the police are not able to finish the investigation within those twenty-four hours, there is a provision under section 167, Criminal P.C. To enable the police to obtain a remand of the accused for a period up to fifteen days on the whole. If after fifteen days the police still feel the necessity of carrying on the investigation further, it is their duty to place before the Court material under section 344, Criminal P.C. To enable the Court to commence the inquiry if it likes. The Court has then the discretion to allow the remand of the accused on any reasonable ground."
' This judgment was approved by a Full Bench of this Court in the case of this Court in the case of The State v. Samiullah Khan and others reported in PLD 1959 Kar. 157, wherein it was held:--- "In short in order to obtain remand under section 344, Cr.P.C. The following conditions require to be fulfilled:-
(1) Some evidence should be adduced before the Court which should be sufficient to raise a suspicion of accused's guilt, and the Court should be assured that further evidence to strengthen suspicion into belief is expected to be collected.
(2) A police report in writing of facts constituting the offence must also be produced to enable the Court to take cognizance of the offence.
(3) If the nature of the case is such that no cognizance can be taken of the offence without previous sanction then such sanction should be produced to enable the Court to take cognizance of the offence."
7. The Supreme Court of India had also examined this question in the case of Ram Narayan Singh v.
The State of Delhi and others reported in AIR 1953 SC 277, wherein it was made clear that detention of a person in custody after the expiry of remand order, without any fresh order of remand committing him to further custody while adjourning the case under section 344, Cr.P.C. Is illegal. It may be added that powers under section 344-, Cr.P.C. Can only be exercised by the trial Court and that too after the receipt of the challan. The 1st Class Magistrate, Islamabad, had, therefore, no powers to remand the B applicant to judicial custody till 19-8-1992. The preliminary legal point, therefore, seems to be well-founded and since the applicant is in wrongful detention he is entitled to be released on this score alone.
8. On merits also the applicant has got a strong case. His name was not disclosed in F.I.R. Which was lodged after three hours of the incident. His name was disclosed for the first time on 9-5-1992 with no specific role. However, on 23-6-1992 the specific role of firing by the applicant and his associates was disclosed by the second set of witnesses. There is nothing on record to even faintly suggest as to why these witnesses were examined after more than 1-1/2 months of the incident and why they kept quiet during all this period. In the case of Shafiq Ahmed v. The State reported in 1990 SCMR 237, the Supreme Court had allowed bail to the accused in somewhat similar circumstances.
9. The perusal of the record also shows that every attempt has been made to improve upon the story by the addition of facts which were not disclosed by the first set of witnesses. The manner in which the .Case was developed, therefore, makes out a case of further inquiry within the meanings of subsection (2) of section 497, Cr.P.C., and in such an exigency the applicant is entitled to the grant of bail. Accordingly, bail is allowed to applicant in the sum of Rs,1,00,000 (Rs, one lac) with P.R.
Bond in the like amount to the satisfaction of the Nazir of this Court.
10. By a short order, dated 16-8-1992 I had allowed bail to applicant and these are reasons for the said order.