1. ABDUL RAHIM KAZI, J.---This bail application has been moved on behalf of the applicant Sarwar A.I, who is involved in the case registered at Kharadar Police Station as Crime No.298/93 and sent up to stand trialalongwith the co-accused Abdul Jabbar Qaimkhani and two absconding accused.
2. This bail application was previously placed before a learned Single Judge of this Court and on a technical point the matter was referred to Hon'ble Chief Justice on 8-8-1994 for constitution of a larger Bench to decide the point as the bail to the co-accused Abdul Jabbar Qaimkbani was granted on the ground that the offences with which he stands charged are bailable offences. The learned Chief Justice vide orders passed on 9-8-1994 has sent this matter before this. Bench for deciding the same point as well as the hearing of this bail application.
3. The facts relevant for purposes of this bail application are that the complainant Haji Umer son of Haji Muhammad had moved an application before the Hon'ble Chief Justice to the effect that his son Nazeer Muhammad was taken away by Kharadar police on 19-7-1993 at about 9-30 a.m. From his house and that the deceased was kept at police station for about eight days in wrongful confinement whereafter an F.I.R. Was lodged on 26-7-1993 showing him to be involved in a theft case. It is also alleged in the said application that the deceased was maltreated and tortured till 31-7-1993. It has been specifically mentioned in the application that the police had pulled both the ears of the deceased with a pair of pliers and cut his belly with a blade and sprayed petrol over his body. It is also alleged that the skin of the deceased was pulled and his both arms were injured with a saw and razor blade. It is very categorically said that the private organs of the deceased were also pulled with the pair of pliers so much so the deceased was unable to stand. The complainant has alleged in this application that the police had demanded a sum of Rs.100,000 for the release of the deceased which, the applicant being a poor person, could not arrange. However, on 31-7-1993 the Magistrate, before whom the deceased was produced for further police remand, seeing the injuries of the deceased remanded him to judicial custody to Landhi Jail and directed the Jail Superintendent to provide him treatment but the Jail Superintendent refused to take the deceased and the police lodged him in a police station near the Landhi Jail, where he succumbed to his injuries and such information was given to the Kharadar Police Station and A.S.I. Sarwar A.I, the present applicant, went to that police station with his staff and brought the dead body to Kharadar Police Station and after inserting nails into his head and also cut his body by blade sent the dead body to Civil Hospital saying that be was an addict of heroin and found dead on a footpath. Thereafter the present applicant is said to have come to the house of the complainant in a police mobile and caught hold of his other son Haji Aziz who was beaten and hi, signature was obtained on a piece of paper and informed him about the death of his brother and that the dead body was lying in Civil Hospital from where the complainant brought the dead body and got it buried. On such application, the learned Chief Justice directed the judicial enquiry to be held through IInd Judicial Magistrate, Karachi South Mr. Muhammad Afzal, who also in his report has supported the above contention of the complainant. The F.I.R. Was registered under the directions of this Court and a police investigation was taken up by Deputy Superintendent of Police Khurshid Alam, who in his investigation found the present applicant alongwith the other co-accused involved in the case and after completion of the investigation the challan was put up. The charge was framed by the trial Court under sections 319, 337(H), 337(K), 220, 342 and 34, P.P.C. The learned trial Court recorded the evidence of P.Ws. Farida, Muhammad Ibrahim, a cousin of the deceased, and complainant Haji Umer. The bail application for the applicant was moved before the trial Court which was rejected and, therefore, this bail application.
4. It may be observed that in the bail application of co-accused Abdul Jabbar Qaimkhani, a learned Single Judge of this Court had granted bail by a detailed order. However, the main point which was taken into consideration while granting the bail to co-accused Abdul Jabbar Qaimkhani is that the offences with which the accused was charged were bailable offences. However, subsequently when it was urged before the learned Single Judge that one of the offences was non-bailable and punishable with imprisonment for ten years, a reference was made to the learned Chief Justice.
5. Thus this bail application has come before us for hearing.
6. We have heard Mr. Mansoob A.I Qureshi, learned counsel for the applicant, and Mr. S. Amjad A.I Shah appearing for the State, who is also assisted by Mr. Iqbal Naqi, the counsel for the complainant.
7. The learned counsel for the applicant has argued that, in the first instance, the name of the present applicant was not involved in the case and that the depositions of the three witnesses, copies of which have been placed on record, show that they have not implicated the present applicant. He has also argued that there is a conflict in the post-mortem notes and the report of the medical officer and, therefore, he is entitled to benefit of doubt. As regards the first point, a perusal of the deposition of the complainant would show that in his own plea he has corroborated the contents of the application made by him to the Hon'ble Chief Justice. In his deposition, he has stated that he was informed by his daughter that the deceased was taken away by the police. He has said that at that time he was at Shamspir Island. He has further stated that next morning his daughter came to him and informed him that his other son Haji Aziz has also been taken away by the police. On this, he sent some persons to the police station, who got his other son released. He stated that thereafter he made repeated efforts to meet his deceased son, but the police did not allow him. He, in his evidence, has said that his son was maltreated by the police. It may be observed that the complainant is an old illiterate fisherman, aged about 73 years and in such circumstances the deposition that he has given is to be considered in context with his application before the learned Chief Justice, which is incorporated in the book of F.I.R. Under section 164, Cr.P.C. And produced before the Court as Exh.9. However, it is also an admitted position that two other eye-witnesses Abdul Rasheed and Abdul Aziz, who are also brothers of the deceased have yet to be examined. Of these two witnesses, Abdul Aziz is the one who was again forcibly taken away by the police after the death of the deceased and made to forcibly sign some piece of paper obviously relating to the receipt of the dead body of his brother. These two witnesses are also material witnesses and have yet to be examined. A reference to the certificate issued by the- medical officer would show that, according to his opinion, the death had taken place due to injuries caused 4/5 days earlier, which corresponds the period when the deceased was in police custody. The report of the Judicial Magistrate also corroborates the prosecution case. The post-mortem report also shows that the opinion as to the cause was reserved till chemical report of viscera was obtained from Chemical Examiner. It was after the such report was obtained, that the final certificate was issued by the medical officer which is referred earlier. The cause of death is shown to be the injuries caused to the private organs of the deceased on account of pulling of the same by pliers. A reference may also be made to the order passed by the Magistrate on 31-7-1993 when the deceased was produced before him with the prayer to grant remand in police custody as on that date the earlier remand had expired and the deceased was shown to be arrested in another case. The Magistrate having seen the condition of the deceased has observed in his order that he had marks of violence on his body and also injuries of pulling his skin and organs which included his arms, buttocks and both ears and the private organs and directed the deceased to be sent to Landhi Jail and refused to grant further remand in police custody. All these facts go to indicate that the deceased was subjected to severe torture by the accused when he was in police custody and it is very surprising to note that why the charge of murder has not been brought against the present accused as obviously the act of the accused has led to the death of the said Nazeer Muhammad.
8. Mr. S. Amjad A.I Shah, learned counsel for the State, has vehemently opposed this application and submitted that on the very face of it at least section 316, P.P.C. Would be applicable which is non- bailable and punishable with 14 years' R.I. He has further submitted that the bail applications are not to be decided simply in an orthodox and mechanical fashion but other factors such as public policy in which the offence is committed, mode and manner of the alleged incident are also to be kept in view. He has placed reliance on Abdul Ghani v. Zulfiqar A.I and 3 others PLD 1986 Sh. C (AJ&K) 50.
9. We also feel that this is a case where a citizen has been subjected to extreme torture and his death has been caused in such callous manner by the police officers, who are supposed to provide protection to the citizens and not beat them themselves become the culprits. Before parting with the matter, we would also like to observe that this case smacks of dishonest investigation and obviously the police officers have tried to show leniency to their colleagues. It is, however, for the trial Court to amend the charge if found necessary. With these observations, we dismiss this bail application.
10. We also feel that the bail granted to the co-accused Abdul Jabbar Qaimkhani was riot warranted in law. Accordingly, we direct that show-cause notice be issued to him as to why his bail should not be cancelled. The hearing of show-cause notice to Abdul Jabbar Qaimkhani is fixed on 28-9-1994.
11. The co-accused Abdul Jabbar Oaimkhani to be served with the show-cause notice through the trial Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.