1999 PLP 1974 (MLD)

Ch. Zafar lqbal Sulehri for the State. Raja Abdul Rehman for the Complainant. A case under sections 302/34, P.P.C. was registered against the petitioner and five others for the murder of Rasheed Masih on 26-3-1996 vide F.I.R. No.84 of 1998 registered on 26-3-1998. According to the F.I.R. lodged by mother of the deceased namely Saidaran Bibi, on the fateful night, Rasheed Masih deceased was called from his house by Raja Naveed and Muhammad Tanveer for watching V.C.R. On the night between 25th and 26th of March, 1996 Rasheed Masih in the company of the aforesaid persons proceeded to purchase vegetables from vegetable-market while having a cash of Rs.2,000 with him. When all three of them reached near the grave-yard of 'Darbaar Khawaja Bari' they were confronted by Muhammad Aslam and the petitioner Liaquat Ali, both of them being brother and asked them as to why they were standing in front of their house. They also abused all the above named three persons including the deceased, whereupon, Raja Naveed and Tanveer ran away but Rasheed Masih returned the abuses to the petitioner and his brother which led to a scuffle/fight between them, whereupon, petitioner and his brother Muhammad Aslam started beating Rasheed Masih with 'sotas' and hurled bricks and 'rorhas' (pebbles) upon him. He raised alarm which attracted the complainant and her husband who reached the spot. The aforesaid Muhammad Aslam i.e. brother of the petitioner was also injured during the scuffle. The complainant and her husband intervened to save their son but all in vain. The deceased had one extremely weak and out of weakness, he was almost enable to speak. However the petitioner and his brother forcibly lifted Rasheed Masih in a vehicle and took him to Police Station Race Course, Lahore where he was further thrashed by Muhammad Shafi S.I (since dead) who after planting nut-bolts worth of Rs.500 involved the deceased in a false case of theft of Railway property. The complainant i.e. mother of the deceased allegedly being a poor lady ran from pillar to post to report about the occurrence to the authorities concerned but due to the influence of the petitioner and his brother, she remained unsuccessful as they were in league with the Police Officials, Medical Officer and the Jail Superintendent. Upon her hue and cry, a judicial enquiry was held -and according to the report given by the enquiry Magistrate on 5-11-1998, it was found that the deceased was murdered, before which he was given severe beating by the petitioner and his brother Aslam accused. The police also allegedly connived with the accused persons and the officials in the health and jail departments who also acted negligently which ultimately resulted into death of Rasheed Masih.

2. In view of the judicial enquiry, the present case was registered on 26-3-1998.

3. Learned counsel for the petitioner has submitted that four out of six accused have been found innocent including the Police Officials. Medical Officer and the Superintendent of the jail concerned. However, the petitioner and his brother Muhammad Aslam have been sent up to face the trial. Further, contends that in-fact the deceased was a desperate criminal and was involved in a number of criminal cases. On the night of occurrence, he had stolen the railway material from the railway track for which he was reported upon by the petitioner upon which a case of theft was registered against him; that the petitioner and hi, brother have been implicated in the case falsely with the delay of two years o.: account of registration of theft case against the deceased although they ha i nothing to do with his murder; that the F.I.R. was registered with the delay ct two years and the delay remained unexplained which made the case of the prosecution for further enquiry. The post-mortem was allegedly held after the death of the deceased in which it was found that there were no signs of violence and that the death was caused due to the heart and respiratory failure; that a Medical Board of. Specialists was constituted for re-examination and post-mortem of the dead body of the deceased after the same was disintered from the grave by the order of the District Magistrate. The Board had come to the opinion that since the dead body was in advance stage of putrifaction, therefore, no bony trauma could be observed from the available skeleton. The cause of death could not be commented from the available material. It was, therefore, submitted by learned counsel for the petitioner that the medical evidence was not in accord with the contentions raised in the F.I.R. that the deceased was stoned to death or that he was beaten by the petitioner and his co-accused Aslam thereby, injuring his ribs, etc. that the weapon of offence was never recovered which showed that the case against the petitioner was allegedly highly doubtful. Reliance was placed on Wali Muhammad v. The State reported as 1995 P.Cr.L.J. 310 (Lahore), Nadir and 2 others v. The State cited as 1985 P.Cr.L.J. 247 (Karachi) Walayat Khan, etc. v: The State reported as 1983 PCr.LJ 408 and Muhammad Akram and another v. The State cited as 1985 P.Cr.L.J. 390 (Lahore): It was, therefore, prayed that the petitioner was entitled to bail in the case.

3. The petition was resisted by learned counsel for the state assisted by learned counsel for the complainant on the ground that the petitioner is named in the F.I.R. and a specific role is attributed to him for causing injuries to the deceased. The delay is explained as the complainant being a poor lady was trying to seek justice from the departments concerned which ultimately resulted into the initiation of the judicial enquiry in which it was found that the deceased was murdered. The mere fact that some of the accused had been found innocent during the investigation would not allegedly exonerate the petitioner for role attributed to him during the transaction. Likewise, the alleged involvement of the deceased in some criminal cases would not be relevant at the stage of bail particularly when there is evidence against the petitioner prima facie linking him with the offence punishable with death or imprisonment for life.

4. I have considered the submissions made at the Bar, and find that delay in lodging the F.I.R. is, prima facie, not relevant at this stage as the case was registered after a judicial enquiry. The contention that the medical evidence is in contradiction to the ocular account of occurrence mentioned in the FJ.R would require deeper appreciation at the time .of trial. It is enough to say that the petitioner is named in the F.I.R; he had actively participated in causing injuries to the deceased alongwith his brother Muhammad Aslam who had also received injuries during the occurrence. The mere fact that nothing was recovered from the petitioner would not be relevant at this stage because there were serious allegations against the Investigating Agency as according to the complainant, it also joined hands with the accused in doing away with the deceased by torturing him after involving him in a false case of theft. These things require evidence and deeper appreciation at the time of trial. Any observation at this stage is likely to cause prejudice to the trial which is in progress and the next date of hearing according to the learned counsel for the state has been fixed as 10-11-1998 for recording. the evidence of prosecution.

5. In the light of the foregoing facts, there is no good ground to admit the petitioner to bail at this stage. The petitioner is accordingly dismissed. H.B.T./L-35/L Petition dismissed.