P L D 1993 Lahore 489 (PLP)

Having been accused, alongwith two others, of an offence punishable under section 302/34, P.P.C. vide, F.I.R. No.119 dated 30-3-1992, Ashraf petitioner approaches this Court for his release on post-arrest bail.

2. Thv facts alleged through the above mentioned F.I.R., which had been recorded at the instance of the father of Munir deceased, are that the complainant was residing in a rented house in MOHALLAH MURAD ABAD; that about rive days prior to the occurrence in question, he was coming home alongwith Abdul Majid and Yunis PWs; that just as they had reached the door of their house, they heard shrieks of Munir deceased coming from inside the house; that they rushed into the house and witnessed Riasat Ali accused and two other unknown persons whose description had been mentioned in the F.I.R., inflicting injuries on the person of Munir deceased. The said deceased was then rushed to the hospital in an injured condition where he died on 30-3-1992 i.e on the fourth day of the said occurrence. The complainant had disclosed that Riasat Ali accused suspected that Munir deceased had teased his daughter and it was for this reason that Riasat Ali accused and his companions had done the deceased to death.

3. The learned counsel for the petitioner has produced before me a report of the medico-legal examination of one Mst. Kaniz Bibi who is the daughter of Riasat Ali accused above mentioned and who was eight years old at the time of this examination which had been conducted on 7-4-1992 at D.H.Q. Hospital, Faisalabad. According to this report, the hymen of Mst. Kaniz Bibi was torn. Tears were seen all around the orifice and these tears bled on touch. Vaginal swabs of Mst. Kaniz Bibi which had been taken at the time of the examination were stained with blood due to the tears in the hymen and vagina. The Senior Medical Officer who had examined this child was of the opinion that the said child had been subjected to Zina-bil Jabr.

4. This medical report is not being disputed or denied by the police officers present in Court. They also admit that according to the investigation conducted in the above mentioned F.I.R. No.119 and another F.I.R. bearing No.205 which the police had registered at Police Station Ghularn Muhammad Abad almost after three months of the occurrence in question i.e. on ~5-6-1992 on a written application of Riasat Ali accused ,with respect to the commission of Zina-bil-Jabr as abovenoticed, Mst. Kaniz Bibi had been subjected to rape on 26-3-1992 in the evening, on which day Munir deceased had been murdered.

5. It may be mentioned here that the condition above noticed of Mst. Kaniz Bibi and as found by the Medical Officer was the condition after at least twelve days of the act in question having been committed on her.

6. The learned counsel for the petitioner submits that the true story had been mentioned in the above mentioned F.I.R. No.205/92 according to which Munir deceased was living in a part of the house of Riasat Ali accused which had been rented out to the father of the said deceased; that Munir deceased who was about 25 years of age had taken away Mst. Kaniz Bibi who was an eight years old daughter of Riasat Ali accused in his room where he committed Zina-bil-Jabr on her as has been evidenced by the above-mentioned Medico legal Report; that on the alarm raised, the inhabitants of the Mohallah gathered at the spot and in the. fury caused by the inhuman act of Munir deceased, these people beat up the said deceased who was then carried to the hospital where he finally succumbed to these injuries on the fifth day of the said occurrence. 7. 1 am being informed by the police officers present in Court that this F.I.R. bearing No.205/92 which was ultimately registered on the written orders of S.P. City of Faisalabad on 25-6-1992, had been filed as untraced on account of the death of the accused person i.e. Munir deceased.

8. According to the police file of murder case bearing F.I.R. No.119/92, the two unknown persons mentioned in the above-mentioned FIR, had been nominated as Ashraf and Akbar by the two alleged eye-witnesses of the said murder i.e. Abdul Majid and Yunis Ali who were allegedly accompanying Nazir complainant and had witnessed the occurrence.

9. The F.I.R. regarding the murder of Munir deceased had been recorded after five days of the occurrence. There is no reasonable explanation for this inordinate delay. Abdul Majid and Yunis PWs who were allegedly accompanying Nazir complainant and had witnessed the killing of Munir deceased had made statements on the very day of the registration of the F.I.R. and had ultimately described Ashraf and Akbar accused in their statements recorded under section 161, Cr.P.C. These two witnesses were, according to the investigation, and then as per the F.I.R. friends and associates of Nazir complainant. It is surprising that they did not disclose the description of the two strangers mentioned in the F.I.R. to the complainant during these five days that had elapsed between the occurrence and the registration of the F.I.R.

10. These two witnesses are residents of Rehmat Town which according to the police officers, about 1-1/2 miles away from the place o occurrence. No explanation exists in the police file for these two having accompanied the complainant to the place of occurrence.

11. Manzoor Hussain S.I. who was then posted as an Addl. S.H.O. of S.P. Ghulam Muhammad Abad submits that despite a mention having been made teasing of the daughter of Riasat Ali accused, he never checked up with the said accused about this daughter or her condition till 21-5-1992 when the was suspended on account of his alleged misconduct in the investigation and the handling of this document.

12. The. Above mentioned facts and circumstances noticed by me do demonstrate plausibility and reasonableness of the defence explanation of the occurrence in question. In the circumstances, this application is allowed and Muhammad Ashraf petitioner is admitted to bail in the sum of Rs.10,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Faisalabad.

13. On my inquiry, the police officers present in Court, state that Riasat Ali accused, the father of the above-mentioned Mst. Kaniz Bibi and Akbar Ali, another co-accused with the same allegation and circumstances as noticed above in the matter of Ashraf Ali's case, are still in custody and have not approached any Court for their release on bail.

14. Whatever be the reasons for such a conduct on their part in view of what has come to my notice, I direct that both these accused i.e. Riasat Ali and Akbar Ali shall also be released on bail subject to their furnishing security in the sum of Rs.10,000 in the case of Akbar Ali and Rs.5,000 in the case of Riasat Ali to the satisfaction of A.C. Duty Magistrate, Faisalabad.

15. On my further inquiry Manzoor Hussain SI states that after his suspension on 21-5-1992, he was restored to duty sometimes in August, 1992 and is presently working as Addl. S.H.O. of P.S. Chak Jhumra.

16. A copy of this order shall be sent to the Inspector-General of Police who shall look into the matter and the conduct of Manzoor Hussain S.I. and shall report the final action taken by the said authority to this Court for the information of this Bench. N.H.Q./M-1027/L Bail allowed.'