2000 PLP 754 (YLR)

All the three bail petitions arise out of the same F.I.R. and are, therefore, dealt with together.

2. A case under section 302/148/149, P.P.C., read with section 316/109, P.P.C., was registered against the petitioners and others at Police Station, Kirana, District Sargodha vide F.1.R. No. 148, dated 26‑5‑1997 lodged by Amir complainant.

3. The detailed facts of the case have been given in my order, dated 13‑5‑1998 passed in Criminal Miscellaneous No. 1822‑B of 1998 titled Muhammad, Yar v. The State.

4. Is contended that Muhammad Riaz and Rafaqat Ali were arrested on 18‑7‑1997 and 12‑6‑1997 respectively and as such they ire behind the bars continuously for more than two years, but the trial of the case has not yet opened. As such it is argued that the case of the aforesaid petitioners fall within the 3rd proviso to section 497, Cr.P.C., and they are entitled to bails on statutory ground. On merits also it is contended that they are involved for an offence under section 316, P.P.C., read with section 109, P.P.C., as the challan has been submitted under the aforesaid sections and not under section 302, P.P.C. In respect of Muhammad Yar, it is contended that no positive role is attributed to him in the F.I.R., as he was empty handed and had only raised Lalkara. In this respect, it is submitted that his case is not distinguishable from Muhammad Yar son of Lal, Muhammad Aslam, Muhammad Ashraf and Muhammad Mumtaz, who have been admitted to bails vide order, dated 13‑5‑1998 recorded in Criminal Miscellaneous No.1822‑B of 1998. In addition to that petitioner Muhammad Yar is continuously behind the bars since after his arrest on 13‑6‑1997.

5. The bail applications were opposed by the learned counsel for the State assisted by the learned counsel for the complainant on the ground that on a private complaint filed by the complainant all the accused have been summoned under section 302, P.P.C., and that the case has been sent for trial to the Court of Session alongwith challan case.

6. I have considered the foregoing submissions and find that role of Muhammad Yar son of Salehon cannot be distinguished from Muhammad Yar son of Lal, Muhammad Aslam, Muhammad Ashraf and Muhammad Mumtaz, who have been admitted to bails as aforesaid. The petition to his extent (Muhammad Yar son of Salehon) is, therefore, accepted and he is admitted to bail in the sum of Rs. 50,000 with one surety in the like amount to the satisfaction of learned trial Court.

7. So far as Muhammad Riaz and Rafaqt Ali are concerned, their case is distinguishable as they are police employees, former being Head Constable and the latter being an A.S.I. The motive is clearly against Muhammad Riaz Head Constable who along with aforesaid A.S.I. had given gruesome beating to the deceased Muhammad Hayat with 'Dandas', Chittar and Kicks. Due to aforesaid beating the condition of the deceased badly deteriorated whereupon Rafaqat Ali alongwith other police employees removed him to the office of C.I.A. (HQ) at Sargodha. The deceased was put in the judicial lock‑up in semi‑conscious condition and was giver 2/3 injections by Rafaqat Ali, who‑ also put some material in his mouth thereby causing his death. Both the petitioners had taken law into their own hand and had perished the human life instead of protecting it as is required of them under the law.

8. It appears that investigation in this case has also not been conducted diligently as all the Investigating Officers being police officials had been persistently holding out both the petitioners innocent and deliberately tried to take their case out of the ambit of section 302; P.P.C., by substituting the aforesaid offences with section 316, P.P.C. However, the conduct of both the petitioners being police officials is very cruel, desperate and dangerous to the criminal administration of justice. As such they are not entitled to the provisions contained in 3rd proviso to section 497, Cr.P.C., nor their case is fit for bail on merits as admittedly they have been summoned in a complaint instituted by the complainant under sections 302, 109, 148 and 149, P.P.C. Accordingly the bail petition of Muhammad Riaz and that of Rafaqat Ali are dismissed. N.H.Q./M 153/1. Bail refused