1975 P Cr (PLP)

District Magistrate. It is not argued before me that the case was undoubtedly one of murder and there is in the case the evidence of persons who claim to be eyewitnesses and whose depositions have, in fact, been recorded in the preliminary inquiry and that there is therefore reasonable ground for believing that the four accused persons are guilty of an offence punishable with death and that therefore in the ordinary way bail ought not to be allowed to them. It is also argued that these facts were known to the learned Judge when he passed the order and that this was not a case where a person apprehending arrest upon a full charge applied to the Court for bail before arrest but one rather in which the evidence had already been subjected to judicial scrutiny, albeit for a prima facie purpose only.

4. It transpired, however, that the police themselves, or rather the four accused persons who are, of course, police officers, had already reported the matter to the police though they had given a version which suited them and the substance of this can be gathered from the application for bail made in the Court of Session. Paragraph 4 of this application reads thus:‑- "That on the night of 10‑4‑73 at about 12‑15 a.m. while the applicant No. 1 along with his party comprising of the applicants Nos. 2 and 4 was on patrol duty, he reached near Federal Capital Area where he sighted a car standing in suspicious circumstances under the wall of the railway line. Suspecting the bona fides of the presence of a car at such a secluded place during such odd hours of the night, the applicant No. 1 challenged the persons sitting in the car from a distance who on hearing the command started the car immediately and ran in a zig zag manner. The applicant No. 1 ordered his driver of the car to chase the escaping car. When the interception became definite a person from the escaping car started shooting on the police car upon which the Mobile Squad also retaliated in self‑defence. The escaping car after the exchange of bullets stopped suddenly where upon the Police Patrol Party in a cautious orderly manner appre hended the same and found therein one man and a young boy half‑naked. The man was hit by one of the bullets fired by the police party in self‑defence who was immediately removed from the car and sent to Liaquatabad Police Station where a report of the incident was lodged with the Duty Officer vide F. I. R. No. 165/73 dated 10‑4‑

73. P. S. Liaquatabad, Karachi and the injured was sent forthwith to Civil Hospital for medical care and cure. Subsequently during the course of investigation it transpired that the injured who died in the hospital was a police constable of Gulberg Police Station, namely, Abdur Rashid who was absent from duty without authorised leave." The fact that a first information report was lodged as stated is apparent not only from the order of learned Judge who referred to it briefly, but also from the application before me in which it is stated that a false report against the deceased under sections 332 and 307 of the P. P. C. has been lodged. It is to be regretted that counsel for the petitioner did not think it necessary to file a copy of this first information report along with this application nor indeed of the depositions of his witnesses in the preliminary inquiry or even his own statement under section 200 of the Cr. P. C. or the medical report of the doctor, on all of which it is now sought to rely. Learned counsel had with him uncertified copies of all these documents when he was arguing the matter in Court and wished me to refer to them and indeed took it for granted that I was bound to do so. I think it must be clearly understood by petitioners and their counsel that if there have any documents upon which they wish to place reliance it is their duty to file them and not to expect the Court to rely upon passages from their own papers. It was suggested to me that I should in these circumstances call for the record and proceedings of the case but I see no reason why this Court should be expected to fill up gaps in the case of the petitioner occasioned by his own default. It must be m the rarest of cases that a request for summoning the record and proceedings of a pending case can be justified for, in the ordinary way, the proper course to follow must be to obtain and produce certified copies of all such papers as may be required. In those ware cases where it is necessary to summon the record and proceedings the proper course to follow is to make such a request, if not at the time that the matter is admitted to regular hearing, at least as soon thereafter as is practicable. The common but very lax practice of making such a request in the midst of arguments is not only to be deprecated as betraying .a lack of that care which ought to be taken in the presentation by counsel of a party's case but obviously tends to waste the time of the Court in as ‑much as, if the request is granted, of necessity there has to be an adjourn ment. Fortunately in this case it is possible to reach a proper conclusion without the need to summon the record and proceedings.

5. There was clearly in this case evidence of persons who claim to have witnessed the crime and the order of the learned City and Additional District Magistrate clearly shows that she considered that upon these state ments a prima facie case had been made out. It is true that she does not use the words "reasonable grounds to believe" but she was after all dealing with the result of a preliminary inquiry and there was no reason whatever for her to have employed such a phrase. I cannot but think that in the context of the case, unless clearly shown otherwise, this does mean the existence of such reasonable grounds as are contemplated by section 497 of the Criminal Procedure Code.

6. Beside the witnesses actually examined in the preliminary inquiry there were cited others which include a doctor and a ballistics expert. It is now an admitted part of the case that the deceased did die an unnatural death and in fact died as a result of fire‑arm wounds while I am not saying that in .L case of this kind it would never be possible for a Court, particularly a Sessions Judge, to come to the finding that there are no such reasonable grounds as are referred to in section 497 I do think that the presence of this testimony, unless clearly discredited by some other circumstances or at least negative by circumstances which would show that even though the ‑accused persons were responsible for the killing that killing did not amount to an offence, there would be reasonable ground for believing in the guilt ‑of tire accused persons of an offence punishable with death. It would then follow that bail ought ordinarily to be refused.

7. The order of the learned Additional Sessions Judge consists of two paragraphs the first of which recites the facts as they are stated by the accused persons and the fact that warrants had been issued against them. There is no reasoning whatever in this paragraph for justifying the grant of bail but then the learned Judge proceeds in the next paragraph to say:‑ "A case under section 307, P. P. C., was earlier registered against the deceased and the proceedings of the private complaint were initiated much after. The applicants are the members of a police mobile squad and under the circumstances of the case, I consider that it is a fit case for the grant of bail." Interim bail earlier granted is hereby confirmed. I can hardly agree that the mere fact that in earlier first report under section 307 had been registered or that the accused persons were members of a police mobile squed are good enough reasons for granting bail. The reference to "the circumstances of the case" might have bad greater force if the only narration of fact which the learned Judge gave was not the version stated by the accused persons themselves.

8. I cannot help thinking in this case that if the accused persons had been put up on the basis of a police report the presumption would have been, as it should have been, that there were reasonable grounds for believ ing in their guilt unless shown otherwise and I do think that the learned) Judge should have treated a judicial order passed as a result of examining gin witnesses who purported to be eye‑witnesses, at least on a par with police report.

9. Another disturbing feature of the order of the learned Additional Sessions Judge is that, although he clearly knew that the non‑bailable warrants had been issued as the result of a private complaint, he did not think it necessary to issue notice to the applicant who was a complainant in that case. If that had been the only fault that I could find in his order I should have remanded the case back to him for further consideration to after hearing the applicant but, since it is at the instance of the applicant himself that the case is now before me and I have heard him through counsel, I do not think any useful purpose would be served by making such an order. On the other hand the respondents, although served, have chose to be absent.

10. In all the circumstances of the case, therefore, I think that the order granting bail was not justified and I, therefore, reverse it and order that respondents 1 to 4 be remanded to custody pending their committal inquiry and trial if any. Of course if at some future stage it should appear to the learned Magistrate or to the Sessions Court that the stage of evidence is such as does not justify their continued confinement in custody, they will feel free to pass such orders as they think fit and proper. Application allowed.