1. ' MUHAMMAD ROSHAN ESSANI, J.-- By this application under section 491, Cr.P.C., the applicant Abdul Karim has sought the following relief: -- ' "To issue rule nisi, directing the respondent 3 to produce the detenu namely Imdad Ali son of Abdul Ghani by caste Solangi before this Honourable Court and thereafter this Honourable Court may further be pleased to set him at liberty according to law."
2. ' The brief facts as disclosed in the application are that Imdad Ali son of Abdul Ghani is nephew of the applicant, was wrongfully detained on 17-1-2001 by the respondent 3 without any lawful justification. One Shah Bux son of Muhammad Bux and Mir Hassan son of Shah Bux were also wrongfully detained by respondent 3 and both of them were let off by respondent 3 against valuable consideration on 25-1-2001 at about 4 p.m.
3. ' It is further stated that since the present detenu was unable to meet the demand of respondent 3, he was maltreated, humiliated and has been wrongfully detained. On 17-1-2001 respondent 3 raided the house of the detenu and buffaloes and goats were taken away by the subordinates of the respondent 3. On 23-1-2001 again the respondent 3 raided the house of detenu and took away diesel engine of Biko Company 16 H.P., fans of water pumps, drums of diesel, golden ear ring, cash of Rs,11,500 and one licensed SBBL gun. The source of the water of applicant was tampered and flow of water was stopped by putting the bricks in the watercourse in order to destroy the standing crop of the applicant: On 24-1-2001 a telegram was sent by Ghulam Akbar Solangi and others to, various high ups but no heed was paid to it.
4. ' It is further averred that in the year 1991, the respondent 3 murdered son of the maternal-uncle of the applicant and in that case the present applicant acted as witness against the respondent 3 and his father. The case was subsequently compromised on the intervention of notables of the area. The respondent 3 bore grudge, therefore, he detained the son of the applicant's brother with threats of dire consequences to the family.
5. By order, dated 26-1-2001 rule nisi was ordered and Deputy Registrar of this Court was appointed as Commissioner to ascertain the factum of the detention of the detenu. The latter visited the Police Station Khadehri on 26-1-2001 and found the present detenu detained at the police station without any entry in the Daily Diary. The report of the Commissioner is reproduced hereinbelow in extenso:-- ' "I had visited Police Station Khadehri on 26-1-2001 in company of applicant Abdul Karim. The building of the police station is situated on the bank of the Ghotki Feeder nearby a Regulator. Only W.P.C. Ahmed All was there. I examined the Roznamcha and its 1st entry related to 12-00 noon carrying serial No,5. It was initiated by tne. There was no entry of detenu Imdad Ali in the Roznamcha and the W.P.C. Also could not give any particulars about detention of the man at the police station. He only said that it was under orders of his superiors. Imdad Ali was seen sitting at the police station alongwith one Iqbal son of Dilsher Bhero. Imdad Ali on enquiry stated that he had been taken into custody 11 days back by S.H.O. Ghulam Sarwar Deho from Village Khadehri and was detained without obtaining any remand. He was once produced before D.S.P. Ghulam Nabi Almani when he was maltreated and even once he was beaten by S.H.O. Sarwar Deho at the police station.
6. There were no marks of violence on his body.
7. ' Iqbal Bharo was also detained without any authority. I directed W.P.C. Ahmed Ali Abbasi to inform S.H.O. Police Station Khadehri to produce both the detenus in Court on 29-1-2001 alongwith original Roznamcha at 8-30 a.m.
8. ' The W.P.C. Could not give details of any crime wherein detenus were detained or if they had been sent there by police of any other police station. Obviously both persons were in unlawful custody of the police.
9. ' The applicant also pointed out 5 Biko machines (water machines) and 2 drums of diesel which were lying at the police station under shade."
10. ' The learned Assistant Advocate-General, Sindh has placed on record the report of respondent 3 wherein it is stated that the detenu was required in Crime No,3 of 2001 of Police Station, Jhangro under sections 17/3, Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The S.H.O., Police Station, Jhangro after the arrest of detenu handed over the custody to S.H.O., Police Station Khandehri and he proceeded for investigation in Crime No, 2 of 2001 under sections 457 and 380, P.P.C. Read with section 14, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 of Police Station, Jhangro. Such letter was given by S.I.P. Moula Bux to the S.H.O. Police Station, Jhangro. It was Friday and time of Jumma prayer was approaching, A.S.-I. Muhammad Suleman and W.H.C. Hidayatullah Bullo went away for offering Jumnia prayer, therefore, no entry was made in the Station Diary.
11. ' The learned A.A.-G. Has placed on record memo. Of the identification parade of the detenu held by Mr. Iqbal Hussain Maitlo, Judicial Magistrate, Rohri which shows that the detenu was identified by P.C./24 Sono Khan, P.C./187 Muhammad Qasim and P.C./2301 Ghulam Murtaza who are said to be the police constables working within the jurisdiction of Police Station, Jhangro. It is also stated by the Magistrate that the accused complained that the Police Constables had already seen him.
12. ' The F.I.R. In Crime No,3 of 2001 has been read out in Court by the learned Assistant Advocate- General, Sindh which shows that three persons i.e, one Hidayatullah and Mumtaz Solangi were identified to be the culprits whereas the third person was not identified but it is claimed that on seeing him he could be identified. The allegation is that they robbed one Muhammad Hanif Abbasi, a cabin-holder. No identification test was held through the aggrieved person Muhammad Hanif Abbasi. The name of the detenu does not transpire in the F.I.R. As one of the accused. Moreover, his identification test was not held through the aggrieved person Muhammad Hand- Abbasi who was allegedly robbed. No doubt ordinarily we do not consider the bail plea of any person in proceedings under section 491, Cr.P.C., particularly when he is involved in a substantive offence but this case is of peculiar facts and circumstances which reflects upon the credibility of the Investigating Agency.
13. ' Consequently, detenu Imdad Ali son of Abdul Ghani Solangi is granted bail in the sum of Rs,two lacs and P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court. He is directed to participate in the investigation of the alleged crime. Call Iqbal Hussain Maitlo, Judicial Magistrate, Rohri on 13-2-2001.
14. ' The present application stands disposed of.