2008 PLP 501 (MLD)

MUHAMMAD JEHANGIR ARSHAD, J.

As all these bail petitions (Criminal, Miscellaneous No. 3722-B of 2006, Criminal Miscellaneous No. 3870-B of 2006 and Criminal Miscellaneous No.3781-B of 2006) arise out of one F.I.R. No.272, dated 3-8-2005 under sections 302, 148,149, P.P.C., Police Station Sarray Sidhu, District Khanewal, therefore, I propose to decide all these matters through this single order.

2. Petitioners seek their post-arrest bail in the above-mentioned case. The allegation against the petitioners is that they by forming unlawful assembly and in furtherance of their common intention launched attack on the complainant and other members of his family and injured various persons, as a result thereof Shahmand complainant's father lost his life.

3. It is contended by learned counsel for the petitioners that according to the F.I.R. the allegation against Muhammad Rafiq petitioner is that he gave sota blow on the head of Liaqat injured/Complainant's brother, whereas Qaisar petitioner also gave sota blow on the right side of head of Liaqat and according to the F.I.R. Amjad Javed petitioner gave sota blow on the right eye of Shahmand deceased. It is next argued that nature of the injuries attributed to the petitioners have not been specifically determined in the Medico-Legal Certificate, therefore, their vicarious liability cannot be determined at this stage without recording evidence which is only possible during trial.

4. On the other hand learned counsel for the complainant as well as State have opposed this bail application by arguing that in fact the police mala fide registered the F.I.R. by omitting certain very material facts and further all the accused named in the Medico-Legal Certificate were declared innocent although concerned Magistrate did not agree with the findings of the Investigating Officer and vide order, dated 21-9-2005 directed the police to submit report/challan under section 173, Cr.P.C. Further it is argued that complainant dissatisfied with the attitude of the police thought it appropriate to file a private complaint, which is now being filed by a learned Additional Sessions Judge and the trial in the crime case has been stayed in view of the law declared by Hon'ble Supreme Court of Pakistan in Noor Elahi's case (PLD 1966 SC 708). Learned counsel for the complainant further contends that since the F.I.R. did not depict the true story, therefore, the complainant was compelled to file the private complaint being dissatisfied with the investigation and in the private complaint Rafiq petitioner has also been attributed specific role of having caused injury to the deceased, therefore, Rafiq petitioner is not entitled to bail. Similarly, in the complaint a specific injury has been attributed to Qaiser petitioner which he caused on the legs of Mst. Amir Mai deceased's wife and mother of the complainant. However, about Amjad Javed petitioner it is submitted that in the F.I.R. he is attributed one injury to the deceased whereas, according to the complaint he caused two injuries on the person of the deceased.

5. I have considered the arguments of learned counsel for the parties and have also gone through the contents of the F.I.R. as well as the private complaint.

6. The reason for filing of private complaint is given in para. (5) of the private complaint (Annex-G). According to this paragraphs as the police was in league with accused, therefore, neither the F.I.R. was correctly recorded nor the investigation was carried out fairly and honestly, with the result that all the accused despite death of complainant's father Shahmand and presence of injuries on the persons of different persons as well as availability of Medico-Legal Certificates and post-mortem report, were declared innocent, meaning thereby, case was recommended to be consigned as untraced. So far as the reason for filing of private complaint due to mala fide investigation is concerned, I feel there can be no cavil to the proposition that in such-like cases the complainant is always free to file private complaint, but so far as incorrect registration of F.I.R. is concerned, despite my efforts I have not been able to find out even a word in the complaint showing as to which part of the F.I.R. was incorrect. In this view of the matter, I have to come to the conclusion that prima facie discrepancy in the contents of the F.I.R. and the private complaint makes the case against the petitioners one of further inquiry. I therefore, accept these bail applications and admit the petitioners to post-arrest bail subject to their furnishing bail bond in the sum of Rs. 1,00,000 each with one surety each in the like amount to the satisfaction of learned Trial Court.

7. Before parting with this order, I would like to direct the D.I.G. Multan to immediately constitute a Board consisting of three police officers, headed by an officer not below the rank of A.S.P. and two senior D.S.Ps. of the Region not posted within the territorial limits of District Khanewal and the Board shall examine the entire record of investigation conducted in this case so far by different Investigating Officer and to submit its report within three weeks of receipt of the order, to this Court through the Additional Registrar of this Bench, as to how in the presence of Post-Mortem Report and the Medico-Legal Certificates, all the accused could have been declared innocent, as prima facie these findings appear to be mala fide and result of motivation. The report shall be placed in chamber for appropriate orders. N. H. Q. /M-346/L Bail granted.