2012 SCMR 1945 (PLP)

GULZAR AHMED, J.

Petitioner has challenged the order dated 12-6-2012, passed by learned Judge in Chamber of the High Court, by which respondent No.1 was granted bail.

2. It is contended by the learned counsel for the petitioner that respondent No.1 has admitted in his statements under section 161, Cr.P.C., that he was a member of the police party involved in the encounter in which son of the petitioner was killed and that in an application addressed to the District Judge (South) Karachi requesting for granting of bail, the respondent No.1 has again admitted that he was a member of a police party and took part in the encounter in which the son of the petitioner was killed. Learned counsel further submitted that trial in the case has commenced and the petitioner who is complainant has been examined and in his cross-examination on 28-3-2012, the petitioner has specifically named the respondent No.1 to be the member of the police party who picked up his son. Learned counsel also relied upon the counter version recorded by the police of the incident and referred to the F.I.R. No.1441 of 2010 of Police Station Ferozabad dated 28-12-2010 in which the complainant ASI Faisal Jaffery has mentioned the name of the respondent No.1 to be the member of police party who took part in the encounter. Learned counsel stated that there was substantial evidence to connect respondent No.1 with the commission of crime of murder of the son of the petitioner and thus High Court was not justified in granting bail to the respondent No.l.

3. On the other hand, Mr. Abdul Wahab Baloch, learned counsel for the respondent No.1 has contended that the name of the respondent No.1 does not appear in the F.I.R., no role has been assigned to him and his statements under section 161, Cr.P.C. cannot be relied upon for the purpose of considering the question of bail. He further contended that the petitioner in his deposition before the trial Court has named the respondent No.1 as being the member of the police party but beyond that no role has been assigned to him. In support of the submission he has relied upon the case of the State through Deputy Director Anti-Narcotics Force Karachi v. Syed Abdul Qayum (2001 SCMR 14).

4. Learned Additional Prosecutor-General on the other hand, has supported the case of the petitioner and contended that it is a case where bail ought not to have been granted to the respondent No.1.

5. We have considered the submissions of the learned counsel and have gone through the record.

6. Brief facts of the matter are that the petitioner has lodged a complaint at Police Station Baloch Colony, Karachi under sections 302/ 365/109/34, P.P.C. alleging that on 28-12-2010 at 2205 hours his son Muhammad Ali Butt, aged 35 years was present in front of his house and while the complainant was talking with Azhar and Aamir. At about 2215 hours a Mobile Van of Police Station Ferozabad and two Corolla Cars stopped on the opposite road and 10 persons got down, some of whom were in uniform and some in civil clothes. ASI Faisal Jaffery of Police Station Ferozabad caught hold of his son and made him sit in the Police Mobile and took him away. The Motor Cycle of his son was also taken away. The petitioner asked as to where his son is being taken, he was informed to come to the Police Station Ferozabad. The petitioner went to the Police Station Ferozabad where the petitioner was not allowed to enter the Police Station and was asked to come next day. On 29-12-2010 at 1100 hours the petitioner came to the Police Station Ferozabad and met with Incharge/SHO who told him that his son has been killed in police encounter and his dead body is lying at Edhi Cold Room. The petitioner lodged the complaint against ASI Faisal Jaffery and his police party who on the instigation of Muzaffar son of Azhar has murdered his son Muhammad Ali Butt and showed it to be an encounter. The respondent No.1 applied for bail before the trial Court who dismissed the same vide order dated 5-4-2012. The learned High Court, however, by the impugned order has granted the bail to the respondent No.1. The learned High Court has proceeded to extend the bail to the respondent No.1 on the basis that no prosecution witness has implicated him with the commission of offence and there is no material available with the prosecution except the statement of the respondent No.1 under section 161, Cr.P.C. to connect respondent No.1 with the crime, therefore, false implication of the respondent No.1 cannot be ruled out and came to the conclusion that the case is one of a further inquiry. We may note that ASI Faisal Jaffery has himself reported the incident of encounter wherein the son of the petitioner was killed and such was done by way of F.I.R. No.1441 of 2010 of Police Station Ferozabad under sections 353, 324, 186 and 34, P.P.C. in which the name of the respondent No.1 is specifically mentioned to be the one who has taken the injured (subsequently the deceased son of the petitioner) in the Edhi Ambulance to JPMC and it was the respondent No.1, who informed on phone that the injured son of the petitioner has expired. The respondent No.1 has recorded his statement under section 161 Cr.P.C., on 29-12-2010 and another statement on 28-1-2011 copies whereof have been filed at pages 19 and 20 of Part-II of the record in which he has admitted that he was a member of police party, which took part in the encounter in which son of the petitioner was killed. The respondent No.1 along with co-accused HC Shafique Anjum have also filed an application for grant of bail to the learned District Judge (South) Karachi in which they have admitted to have killed the deceased Muhammad Ali Butt in the police encounter. Such application is at page 21 of Part-II of the record. It may be noted that there were as many as 6 police officials who are alleged to have taken part in the encounter, namely, ASI Faisal Jaffery, HC Shafique Anjum, HC Aijaz Ahmed, PC Namoos Khan, PC Mazhar Hussain and PC Abdul Lateef Shar, the present respondent No.l. HC Shafique Anjum has compromised the matter with the petitioner while respondent No.1 was arrested and all other co-accused absconded and are still absconding.

7. The facts and material in the circumstances of the case pre-dominantly show that there was sufficient material available on the record to connect respondent No.1 with commission of alleged crime. Arguments of the learned counsel of the respondent No.1 that the statements under section 161 Cr.P.C. of the respondent No.1 cannot be relied upon and in support of his submission his reliance on the case of Syed Abdul Qayum (supra), we may note that such an argument on its very face is not tenable in that it is not a case in which co-accused or some other accused is being implicated rather respondent No.1 through his own statements is implicating himself in the alleged crime and in such an eventuality, apparently and as a tentative opinion he could not wriggle out of his own statements where he has himself admitted to be a member of a police party involved in the encounter in which the son of the petitioner was killed. Such is also admitted by him in his bail application before the learned District Judge (South) Karachi and also in the counter F.I.R. lodged by ASI Faisal Jaffery. The police officials' job is to maintain law and order and are nowhere permitted by law to transgress their duty and start killing people or even person who may be found to be committing or committed an offence and that in the first instance they have to apprehend the accused unscathed and if there be a resistance then only to take action which may immobilize the resistance and not altogether to do away with the life of an alleged accused said to be committing or committed offence. In the present case, it was not argued before us as to what precise resistance was put up by the deceased rather it was admitted that none of the police officials involved in the encounter has received any injury. Apparently nothing has been shown to us that the deceased has indulged in any overt act of causing harm to the police officials or their property.

8. We are cognizant of the law that once the High Court has exercised his discretion of granting bail to the respondent No.1, there has to be very special and overwhelming circumstances to cancel the bail. In the case of Naseem Malik v. The State (2004 SCMR 283), this Court has cancelled the bail on inter alia, the ground that the accused was specifically named and comprehensively described in the F.I.R. as one of the conspirators and preparators of the crime and his co-accused have also implicated the accused in commission of the crime and it was noted that the statements of co-accused implicating the accused can validly be taken into consideration while deciding such matters. As discussed above there is an apparent connection of the respondent No.1 in the commission of the alleged crime in this case and there is sufficient material to connect him with the same. The High Court apparently has misread the record in this regard in grating of bail to the respondent No.1. We, therefore, do not consider this case was such where the respondent No.1 ought to have been granted bail.

9. After hearing learned counsel for the parties through short order passed today, we have allowed this petition, converted the same into an appeal and cancelled the bail granted by the learned High Court to the respondent No.1 for which above are the reasons. MWA/M-56/SC Appeal allowed.