This is an application for bail before arrest on behalf of Ijaz Ahmad Petitioner Ex-S.H.O. Police Station Jaranwala.
2. F.I.R. In this case was lodged by one Zafar A.I complainant on 19-5-1999 about an occurrence which took place on 15-5-1999.
3. Brief facts of the case were that present petitioner Ijaz Khan S.H.O. Alongwith other police officials, who are named in the F.I.R. On 15-5-1999 at 3-30 p.m. Came to Adda Awagat, Jaranwala in two cars and forcibly took into custody complainant's brother Pervez A.I alias Mutal. And Imtiaz A.I.
When the complainant asked the reasons for the arrest of his brother, he was told that he should come to the police station, thereafter, complainant alongwith one Pervez Akhtar went to police station reached there at 4.30 p.m. And saw that his brother Pervez A.I, alias rfital was hanged by a tree with a rope while Ijaz Khan S.H.O. Constables namely Nazir Jut, Nazir Phelwan, . Razzaq, Tariq and one unknown police official were physically torturing him; when the complainant inquired from Ijaz Khan S.H.O., he was turned out from the Police Station. Again on the next day, complainant alongwith said Pervez Akhtar reached police station at 4.00 p.m. He again witnessed that the above said police officials were committing torture oil the person of his brother and were asking him to hand over the foreign made pistol; complainant's brother Pervez Akhtar was in a semi--conscious position at that time; when again complainant tried to go near his brother, Ijaz Khan S.H.O. Present petitioner turned him out. Then on 17-5-1999 complainant went to give breakfast to his brother, he came to know that his brother has expired, he came back to his house and informed his relatives.
On the request of the complainant party dead body of the deceased was handed over to them on 18-5-1999 and the same was taken to the village. It is further stated in the F.I.R. That a Seiko Watch, golden ring and some amount were with the deceased which were taken into possession by the police.
4. Having failed to get the relief of bail before arrest from the Court of learned Sessions Judge, Faisalabad, Petitioner had applied for .Bail before arrest before this Court on 5-9-2000 which was granted to him till today.
5. Learned counsel for the petitioner submits that petitioner has been falsely implicated in this case, that deceased has met his death due to heart failure, that deceased was a person of bad character and he was involved in 19 Criminal cases of different nature, that offence has been amended from section 302, P.P.C. To section 322, P.P.C. During the course of investigation. He further submits that petitioner was ready to pay "Diyat", amount to the complainant under protest. Adds, that no case whatsoever is made out against the petitioner and his case is covered by subsection
(2) of section 497, Cr.P.C. Which requires further inquiry into his guilt and he'is entitled to this extraordinary relief.
6. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that petitioner is named in the F.I.R., that post-mortem report corroborates the ocular account, that there was no previous background of enmity between the parties, that considerations for the grant of bail before arrest and after arrest are totally different.
7. I have heard learned counsel for the parties. In the instant case, though the F.I.R. Was- registered on 19-5-1999 but sufficient explanation of delay in lodging the F.I.R. Has been given. The contention of learned counsel for the petitioner that during the course of investigation offence was altered from section 302, P.P.C. To section, 322, P.P.C. And according to section 322, P.P.C. Punishment is only "Diyat". I would, like to mention here section 321, P.P.C. Alongwith illustration which is reproduced below:
321. Qatl-bis-sabab.---Whoever, without any intention to cause death of, or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, -is said to commit Qatl-bis-Sabab. "
Illustration.
"A unlawfully digs a pit in the thoroughfare, but without any intention to, cause death of, or harm to; any person. B. While passing from there falls in it and is killed. A has committed Qail-bis-Sabab."
The punishment of Qatl-bis-Sabab .Has been given in section 322, P.P.C., the commentary is also given there, which is reproduced as under.
"322. Punishment for Oatl-bis-Sabab.---Whoever commits Qatl-bis--Sabab shall be liable to Diyat."
COMMENTARY "Killing by rash and negligent driving by accused who was not 'licensed driver would be Qatl-.Bis- Sabab under section 322. Accused in such case cannot claim bail on ground that punishment for offence under section 322 is only Diyat."
The bare perusal of the above said sections illustration and commentary prima facie shows that offence is not covered by section 322, P.P.C. Read with definition and illustration of section 321, P.P.C.
Petitioner was Incharge of the said police station. F.I.R. Starts from his name, he alongwith police officials forcibly took the brother of the complainant namely Pervez Akhtar alias Mutal in custody and there are eye-witnesses, who have seen the police officials committing torture on the person of Pervez Akhtar alias Mutal. Petitioner belongs to disciplined force and he should have been more careful in such-like matters. According to the F.I.R. Anti statements of the P.Ws. Offence which is made out is under section 302, P.P.C. And not under section 322, P.P.C. The submissions of learned counsel for the petitioner that deceased was a person of bad character and I was involved in 19 cases of different nature, although complainant's counsel has submitted that at the time of death of the deceased, he was 19 years of age and police involved him in 19 cases from 1993 to onward when he was 13 years of age but only in two F.I.Rs. He was named while in the rest of the F.I.Rs he was not named, it may be correct but police has been given no licence to kill a person though he is involved in criminal cases. Case of the petitioner is covered under the prohibitory clause of section 497 (1), Cr.P.C. Moreover, consideration for the grant of bail before arrest and after arrest are totally different. This is not a case of bail before arrest. Dismissed.