1986 P Cr (PLP)

Muhammad Hayat Junejo for Applicant. Abdul Ghafoor Mangi, A.A.‑G. for the State. Applicant, Hassan Jokhio, along with others has been charged for the offences punishable under section 384/307, P.P.C. and such case has been registered at Ferozabad, Police Station, Karachi on the complaint lodged by one Nazim. The case was registered under section 364/307, P.P.C. at 0130 hours on 1‑3‑1986.

2. Brief facts as given in F.I.R. are that on 1‑3‑1986 about 0045 hours a person came in emergency at Jokhio Clinic, A1 Riaz Society Shaheed‑e‑Millat Road, Karachi and asked complainant for treatment of injury on his foot. On this complainant was going to take that man to X‑Ray room and at that time Dr. Lutufullah Baloch, Muhammad Haroon and Ghulam Rasool were with him. That person asked the complainant to enquire his companions. In the meanwhile three persons one with Kalashankov and one with revolver came in side. They forcibly abducted Lutufullah. They while going fired shots due to which glass‑pans of the clinic were broken. They went away in a red colour Jeep and also took Dr. Lutufullah with them. It is stated that they were Sindhi speaking. The descriptions of the accused are given in F.I.R. During the investigation, the police arrested applicant on 2‑3‑1986 and on his pointation Dr. Lutufullah was recovered. On 3‑3‑1986 identification parade was arranged before the Magistrate in which applicant and other accused were correctly picked out by complainant and witnesses. Police also recovered unlicensed pistol from applicant and separate case under section 13D of Arms Ordinance has been registered on 2‑3‑1986. After investigation the case has been challaned. The bail applications in both the cases have been rejected by the learned Sessions Judge (East) Karachi, on 15‑3‑1986.

3. I have heard Mr, Muhammad Hayat Junejo, learned Advocate for the applicant. He contended that in this case ingredients of station 364/307, P.P.C. are missing as there is no evidence that Dr. Lutufullah was abducted with intention to murder. He has also argued that no attempt has been made to commit his murder, therefore prima facie offence does not come under the purview of section 307, P.P.C. It is contended that at the best the offence will fall under section 365, P.P.C. punishable with seven years, therefore, in such cases bail is to be granted as a rule. He has referred to the cases reported in 1969 S C M R 233 and

693. Mr. Junejo submitted that Dr. Jokhio's treatment with patients is always intolerable and his behaviour is such that so many persons have grievance against him. It is also argued that applicant is also Jokhio by caste respectable person and there is background of some enmity between applicant and Dr. Jokhio for which this case has been filed. It is also contended that name of applicant does not appear in F.I.R. and there are discrepancies in the 164, Cr.P.C. statements of the witnesses which were recorded in presence of accused. Mr. Junejo has argued that there is tampering in F.I.R. as offence was shown to have been committed on 1‑3‑1986 at 10‑45 whereas case was registered on 1‑3‑1986 at 01‑30 hours.

4. Mr. Abdul Ghafoor Mangi, learned A.A.‑G. has vehemently opposed the bail and submitted that there is ample evidence against applicant to connect him with guilt. He has argued that Dr. Lutufullah has fully supported the case he has no reason to implicate applicant falsely.

5. This incident took place at Jokhio Hospital in the heart of Metropolan city at 0045 hours and F.I.R. was promptly lodged in which names of eye‑witnesses are given. The descriptions of accused do appear to the F.I.R On the next day i.e. 2‑3‑1986 applicant was arrested and on his pointation Dr. Lutufullah Baloch was recovered, who has fully implicated applicant. Dr. Lutufullah also sustained injuries at the hands of applicant and his version gets support from the medical evidence. The medical certificate shows that Dr. Lutufullah sustained one injury ? x 1/1 below right eye caused by hard and blunt substance. The duration of injury is 1‑2 days. In the identification parade held on the next day, the applicant has been picked out by complainant Nazim P.Ws. Haroon and Ghulam Rasool. They are eye‑witnesses of the incident. The jeep in which Dr. Lutufullah was abducted has also been recovered on 8‑3‑1986. Dr. Lutufullah in his

164. Cr.P.C. statement stated that applicant assaulted him. He was cross‑examined at length but nothing has come out to show that Dr. Lutufullah is falsely implicating the applicant. According to section 364, P.P.C. whoever kidnaps or abducts any person in order that such person may be murdered or may he disposed of as to be put in danger of being murdered shall be punished with imprisonment for life or R.I. for a term which may be extended to ten years. From the tentative assessment of evidence prima facie case for which accused are charged is made out. I do not agree with the learned counsel that offence falls under section 365, P.P.C. Even otherwise B bail is not matter of right though superior Courts have been considering the bail in offences which do not come under prohibition but always there are exceptions looking to the nature of offence and circumstances. I refer to a case reported to 1981 P Cr. L J

379. In case of Sami Nasir Hussain v. The State reported in 1984 P Cr. L J 1553. The offence for which applicant was charged was punishable with five years but considering the facts bail was refused by the Court and Supreme Court also declined to release him on bail. I have verified original F.I.R. There is no tampering but in true copy there is some mistake about the time of incident. In my view, no case for bail has been made out. Application is dismissed. The observations made in this order are of tentative nature and should not be considered by the trial Court while deciding the, case. Before parting with this order, with regret say that District Public Prosecutor, in his arguments has not placed true recorded facts before the learned Sessions Judge. He has wrongly argued that no part is assigned to applicant and witnesses have not implicated. On the contrary witnesses have implicated applicant and they picked out applicant and other accused in identification parade. The case prosecution is that Dr. Lutufullah was abducted by applicant and others, from Clinic and he was all along with applicant and was also beets He has fully implicated and it is always expected from the Law Offices to place facts according to record before the Courts. In the first instance Mr. Junejo rightly argued the bail application on material placed before Sessions Judge when it was pointed out by Mr. Abdul Ghafoor Mangi learned A.A.‑G. that there are other pieces of evidence, thereafter, further time was allowed to Mr. Junejo to make submissions. M.Y.H.??????????????????????????????????? ‑‑‑‑‑???????????????????????????????????????????????????????????????? Bail refused.