(a) Criminal Procedure Code (V of 1898)--
---S. 497 (2)--Bail--Further inquiry--Possibility of further enquiry exists in almost every criminal case but it could not be made a ground for treating matter as one falling under S. 497 (2), Cr.P.C.
Asmatullah v. Bazi Khan and another P L D 1988 SC 621 rel.
(b) Criminal Procedure Code (V of 1898)--
---S. 497--Penal Code (XLV of 1860), S. 302/304--Bail--Police papers revealing that prosecution made out a case against accused for killing deceased in circumstances which showed that accused acted so rashly that offence must fall, if not under S. 302, Penal Code, at (cast under S. 304, Penal Code--Important prior condition that Court taking cognizance of a matter must come. to a definite conclusion on consideration of entire material that there were no reasonable grounds for believing that accused had committed a non-bailable offence had not been fulfilled--Witnesses had not yet been examined and a perusal of statements of witnesses under S.161, Cr.P.C. making out a very serious case against accused and their case not falling under S. 497(2), Cr.P.C.--Bail refused in circumstances.
P L D 1985 Kar. 27; 1974 P Cr. L J 531; 1980 S C M R 784; 1987 P Cr. L J 1371; 1984 P Cr. L J 2013; 1981 P Cr. L J 704; 1972 S C M R 682 and 1984 P Cr. L J 436 ref.
Ibrahim v. Hayat Gul and others 1985 S C M R 382 rel.
(c) Criminal Procedure Code (V of 1898)--
---Ss. 497 & 154--Bail--Mere delay in lodging first information report, not sufficient for grant of bail.
Shah Mand v. The State 1984 P Cr. L J 1919 rel.
Amir Malik for Applicants.
A.G. Mangi AA.-G. for the State.
Muneeruddin AM for Respondent.
MUKHTAR AHMAD VS STATE1989 M L D 4157[Karachi]Before Salahuddin Mira, JMUKHTAR AHMAD and 2 others--ApplicantsVersusTHE STATE--RespondentCriminal Bail Application No.340 of 1989, decided on 15/05/1989.
ORDER
The facts leading to this bail application are that one Imran Younus lodged F.I.R with P.S. Bahadurabad on 23-2-1989 at 11.0 p.m. (FIR No.52/89) in which he stated that at about 11.00 he received a telephone message from his, brother-in-law Yahya that he was informed by Chowkidar Ayaz Gul of Mumtaz that armed dacoits had entered the Bungalow No. 67, Faran Society where Mumtaz lived and where he (Ayaz Gul) was employed as Chowkidar. Complainant Imran Younus thereupon reported the matter at P.S. Bahadurabad where he had gone alongwith his father and two neighbours Ashfaq and Rasheed. On the basis of this report, applicant No.l Mukhtar Ahmed ASI, who was holding charge of Police Station Bahadurabad at that time, took alongwith him Constables Ghulam Mohammad and Ghulam Sarwar and went to Bungalow No.67 Faran Society in the car of Imran Younus. Father of Imran Younus and the two neighbours who had come alongwith Imran Younus to Police Station also followed Imran's car in a Police van. Imran Younus alongwith the police party reached Bungalow No.67, Faran Society, and there they found a black car with one person in it. The engine of the black car was running and on seeing the car of Imran it started moving. Imran Younus was driving his car and at the direction of applicant No.1, he gave chase to the black car which was overtaken near Liberty Chowk, Tariq Road. Applicant No. I signalled the black car to stop but its sole occupant accelerated it whereupon applicant No.1 fired at it from his pistol. Imran again chased the black car which was going at high speed when, suddenly, a white Suzuki van came in its way whereupon the black car braked hard, its driver lost control 'over it and it collidrd with an electric pole. Just at that moment, car of Imran came abreast of it and the two policemen who were sitting on the rear seat of the car and were armed with kalashnikov rifles opened fire upon the black car. At the direction of applicant No.1, Imran stopped his car just ahead of the black car but in a side lane. This happened almost mid-way between Liberty Chowk and Graveyard Chowk on the Tariq Road. After dropping the policemen at the scene, Imran returned to his house. On inspecting the black car, the police party found that its sole occupant was critically injured. In the meantime a police mobile van also arrived at the scene of the incident and the injured occupant of the black car, whose name later on transpired to be Mohammad Akmal, was shifted to the Mobile van and removed to hospital. The police party then returned to P.S. Firozabad where applicant No.l lodged another F I R (FIR No.99/89) under section 307/332/34 PPC. In this F I R in which applicant No.l is shown as the complainant, it is stated that while leaving P.S. Bahadurabad alongwith Imran Younus, applicant No.1 had also called police mobile van which had arrived and which followed, the car of Imran Younus, that when the black car was spotted someone shouted that it belonged to the dacoits whereupon it was chased by the applicants in the car of Imran Younus which was followed by the police van, that at Shaheed-e-Millat Road the police party noticed that a white car was also chasing the police party. Further story in this F.I.R. is the same as narrated above with the exception that applicant No.l in his F.I.R further stated that the white car which was following them fired a Kalashnikov burst at the car of Imran but missed and the burst hit the black car and the police party opened fire at the said white car purely in self-defence, that some shots from the white car also struck the car of Imran Younus, that the white car at this stage turned into a side lane and escaped from the scene and that the police party also came out of the car and took position. It was opined in the FIR that the injured driver of the black car was a companion of the dacoits. Since the incident took place within the jurisdiction of P.S. Ferozabad, the officials of the said police station also investigated in the matter and came to the conclusion that the FIR lodged by applicant No. 1 (FIR No. 99/89) was not based on correct facts and that applicant No. 1 and his two constables had behaved in reckless manner and had unnecessarily fired upon the black car which was being driven by an unarmed young boy. As a result, a third FIR (No. 102/89) was lodged at P.S. Ferozabad by SHO Abdur Rasheed Khan on 25-2-1989 at 15-10 hours under section 304/34 PPC in which it is alleged that the applicant No. 1 and his two constables (applicants No. 2 and 3) unnecessarily tired upon the black car even though its sole occupant driver was unarmed and had offered no resistance to the police party. After necessary investigation the offence was converted from section 304 PPC to section 302 PPC and the applicants were arrested. The case as since been challaned in the Court of Vth Addl. Sessions Judge, Karachi (East) Sessions Case No. 1.70/89).
The applicants moved a bail application before the learned Sessions Judge who vide order dated 11-4-1989 dismissed the same whereafter the present bail application has been moved before this Court. Learned counsel for the applicant and learned A.-A.G. have been heard. Mr. Muneeruddin AM Advocate obtained permission of the Court to appear for the father of the deceased and he was also heard.
Learned counsel for the applicants has pressed this bail application on four grounds. Firstly, that it is a case of further enquiry and in this regard learned counsel submitted a list of thirteen questions which required to be answered which are as to why the deceased was present at the place of incident and why he tried to run away on seeing the car of Imran Younus, why the deceased did not stop when signalled to do so by applicant No.], whether applicants acted in self-?defence, whether the case of the applicants falls under exception No. 3 to section 300 PPC, why the FIR No. 102/89 has been delayed for 39 hours, why FIR No. 99/89 ,was registered under section 307 PPC instead of 302 PPC, why the witnesses given in the challan had not been mentioned in FIR No. 102/89, whether the investigation on the basis of FIR No. 102/89 is proper when the FIR No. 99/89 lodged by applicant No. 1 has not been disposed of under section 173 Cr.P.C., whether the case against the applicants falls under section 302 PPC, 304 PPC or 304-A PPC, whether in view of the fact that no specific fatal injury has been attributed to any of the applicants, can the applicants be held vicariously liable for the death of the deceased and, finally, as to why the statements of Mumtaz Ferozuddin and Ayaz Gul had not been recorded by the police. Secondly, that there are cross-versions of the incident and it is yet to be established as to which of them is correct. Thirdly, that no specific injury had been attributed to any of the applicants and, fourthly, that the investigation in respect of FIR No. 102/89 has not been honestly done inasmuch as Mumtaz and his Chowkidar Ayaz Gul had not been examined by the police under section 161 Cr.P.C.
So far as the question of further enquiry is concerned, a perusal of the police papers shows that the prosecution has made out a case against the applicants for killing Mohammad Akmal in circumstances which shows that the applicants had acted so rashly that the offence must fall, if not under section 302, PPC, then at least under section 304 PPC. Great stress was laid by learned counsel for the applicants that Mumtaz and his Chowkidar Ayaz Gul were material witnesses but they were not examined by the police. Learned counsel was obviously not well informed on the facts since I find that both these witnesses, Mumtaz Ferozuddin and his Chowkidar Ayaz Gul, were examined by the police and their 161, Cr.P.C. statements are available in police papers. Imran Younus, Mohammad Siddique and Hafiz Ghafoor are the main eye-witnesses of the incident. Imran Younus states in his 161, Cr. P.C. statement that when the applicants reached near Bungalow No. 70 Faran Society in his car, they found a black car with its engine running at full throttle whereupon applicants Nos.1 asked him to turn back so that he could check the black car. By that time the black car had started moving and it was followed. Imran Younus further stated that at Mateen Centre, Tariq Road, his car came abreast of the black car whereupon applicant No. 1 signalled the black car to stop but it, instead of stopping, accelerated its speed and went ahead whereupon the ASI who was sitting on the seat next to hum fired a few shots from his pistol. Shortly thereafter both the cars crossed Liberty Chowk and then a white Suzuki van came in the way of the black car which applied brakes, skidded and moved round and its back portion hit an electric pole near Sarwar Square. According to Imran, when his car again passed the black car, the two policemen (applicants No. 2 and 3) opened fire upon it. Then Imran, at the direction of applicants No. 1, took a turn in a side lane and stopped when all the three applicants got down from the car, one went towards Tariq Road and two went towards Sarwar Square. The black car after colliding with the electric pole had stopped for a few moments but at this stage it again moved with a jerk and went away from the electric pole and stopped near a show-room which was nearby. According to Imran, the policemen kept continuous fire on the black car. After waiting at the scene of offence for about five minutes Imran went away from there. The next eye-witness Mohammad Siddique is an employee of "PEE JAYS AUTO MOBILE". He supported the version given by Imran Younus and gave further details. Apart from being employed in the Pee Jays he also slept there at night and he stated that the ASI ?fired from his pistol/revolver from a position taken behind a car parked in front of his show room. He further stated that the ASI then asked Hafiz Abdul Ghafoor, Chowkidar of Pee Jays, to telephone P.S. Bahadurabad and thereafter the ASI again took position behind a charpai; and fired two shots on black car whose driver could be seen lying slumped on the steering wheel. Hafiz Abdul Ghafoor Chowkidar has also supported the version of Mohammad Siddique. None of these witnesses has yet been examined. The undisputed facts emerging out of a perusal of the record are that a police mobile van had reached P.S. Bahadurabad when applicant No. 1 alongwith applicant No. 2 and 3 left the police station in the car of Imran Younus. The proper thing for applicants No. 1 was to go to the alleged scene of dacoity in the police van. There was no sense in going there in a private car, specially when a police vehicle was available. Much fuss is being made as to why deceased Akmal did not stop his car when signalled to do so by applicant No.1. I believe that every sensible man when signalled to stop at the dead of night by a person in a private car will certainly not stop. In fact, he should not stop. In view of the deteriorating law and order situation in the city the deceased could have taken the car of Imran Younus as that of dacoits and it was only natural to expect that he should run away. In view of darkness the deceased cannot be expected to have recognized the person signalling him to stop as a police officer. Besides, the deceased was unarmed and alone and if the idea was to stop him, the police party would have achieved that aim by damaging the tyres of the black car or even its engine by a burst from their rifles. There was no justification for opening fire directly at the deceased. This much for the firing which took place when the chase was on but when the black car collided with the pole and stopped, the police party could very well have overpowered the deceased instead of opening fire at it after taking position as is stated by the eye-witnesses Mohammad Siddique and Hafiz Abdul Ghafoor... Learned counsel for the applicants has relied on a number of authorities including P.L.D 1985 Karachi 27, 1974 P Cr. L J 531; 1980 SCMR 784, 1987 P Cr. L J 1371., 1984 P Cr. L J 2013, 1981 P Cr. L J 704, 1972 SCMR 682 and 1984 PCr.LJ 436. Mostly they are on the point of further enquiry and on the point of existence of two versions. I do not think that the applicants can derive any benefit from them. As held by the Hon'ble Supreme Court in P L D 1988 SC 621 (Asmatullah v. Bazi Khan and another), mere possibility of further enquiry exists almost in every criminal case and it cannot be made a ground for treating the matter as one under section 497 (2) of Cr.P.C. So far as the existence of two versions is concerned, it appears that version given by applicant No. 1 in the FIR lodged by him (FIR No. 99/89) cannot be stated to be another version of the case. Applicant No. 1 had evidently tried to save himself from the responsibility of the death of deceased Mohammad Akmal. I am also of the view that bail cannot be granted under section 497 Cr.P.C. because an important prior condition has not been fulfilled which is that the Court taking cognizance of the matter must come to a definite conclusion on consideration of entire material that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Since this condition has not been fulfilled in this particular case, bail cannot be granted to the applicants and in this regard I rely upon 1985 SCMR 382 (Ibrahim v. Hayat Gul and others). Learned Counsel for the applicants had also pointed out the delay of 39 hours in the lodging of the FIR No. 102/89 but as held in 1984 P Cr.L J 1919 (Shah Mand v. The State, mere delay m lodging FIR is not sufficient for grant of bail. As for the objection that no specific injury had been attributed to any of the accused persons, it is sufficient to state that this is a point which need not be considered at this stage in view of the special circumstances of the case in which all the three applicants appear to be equally involved. As for the investigation being not honest because Mumtaz and Ayaz Gul had not been examined, it has already been pointed that, both these witnesses have been examined by the police. Keeping all these factors in view, I am of the view that at this stage when witnesses have not yet been examined and a perusal of 161, Cr.P.C. statements of witnesses makes out a very serious case against the applicants, their case does not fall under section 497 (2) of Cr.P.C. and they are not entitled to bail. Bail application is therefore dismissed.
M.Y.H./M-833/K
(a) Criminal Procedure Code (V of 1898)--
---S. 497 (2)--Bail--Further inquiry--Possibility of further enquiry exists in almost every criminal case but it could not be made a ground for treating matter as one falling under S. 497 (2), Cr.P.C.
Asmatullah v. Bazi Khan and another P L D 1988 SC 621 rel.
(b) Criminal Procedure Code (V of 1898)--
---S. 497--Penal Code (XLV of 1860), S. 302/304--Bail--Police papers revealing that prosecution made out a case against accused for killing deceased in circumstances which showed that accused acted so rashly that offence must fall, if not under S. 302, Penal Code, at (cast under S. 304, Penal Code--Important prior condition that Court taking cognizance of a matter must come. to a definite conclusion on consideration of entire material that there were no reasonable grounds for believing that accused had committed a non-bailable offence had not been fulfilled--Witnesses had not yet been examined and a perusal of statements of witnesses under S.161, Cr.P.C. making out a very serious case against accused and their case not falling under S. 497(2), Cr.P.C.--Bail refused in circumstances.
P L D 1985 Kar. 27; 1974 P Cr. L J 531; 1980 S C M R 784; 1987 P Cr. L J 1371; 1984 P Cr. L J 2013; 1981 P Cr. L J 704; 1972 S C M R 682 and 1984 P Cr. L J 436 ref.
Ibrahim v. Hayat Gul and others 1985 S C M R 382 rel.
(c) Criminal Procedure Code (V of 1898)--
---Ss. 497 & 154--Bail--Mere delay in lodging first information report, not sufficient for grant of bail.
Shah Mand v. The State 1984 P Cr. L J 1919 rel.
Amir Malik for Applicants.
A.G. Mangi AA.-G. for the State.
Muneeruddin AM for Respondent.
ORDER
The facts leading to this bail application are that one Imran Younus lodged F.I.R with P.S. Bahadurabad on 23-2-1989 at 11.0 p.m. (FIR No.52/89) in which he stated that at about 11.00 he received a telephone message from his, brother-in-law Yahya that he was informed by Chowkidar Ayaz Gul of Mumtaz that armed dacoits had entered the Bungalow No. 67, Faran Society where Mumtaz lived and where he (Ayaz Gul) was employed as Chowkidar. Complainant Imran Younus thereupon reported the matter at P.S. Bahadurabad where he had gone alongwith his father and two neighbours Ashfaq and Rasheed. On the basis of this report, applicant No.l Mukhtar Ahmed ASI, who was holding charge of Police Station Bahadurabad at that time, took alongwith him Constables Ghulam Mohammad and Ghulam Sarwar and went to Bungalow No.67 Faran Society in the car of Imran Younus. Father of Imran Younus and the two neighbours who had come alongwith Imran Younus to Police Station also followed Imran's car in a Police van. Imran Younus alongwith the police party reached Bungalow No.67, Faran Society, and there they found a black car with one person in it. The engine of the black car was running and on seeing the car of Imran it started moving. Imran Younus was driving his car and at the direction of applicant No.1, he gave chase to the black car which was overtaken near Liberty Chowk, Tariq Road. Applicant No. I signalled the black car to stop but its sole occupant accelerated it whereupon applicant No.1 fired at it from his pistol. Imran again chased the black car which was going at high speed when, suddenly, a white Suzuki van came in its way whereupon the black car braked hard, its driver lost control 'over it and it collidrd with an electric pole. Just at that moment, car of Imran came abreast of it and the two policemen who were sitting on the rear seat of the car and were armed with kalashnikov rifles opened fire upon the black car. At the direction of applicant No.1, Imran stopped his car just ahead of the black car but in a side lane. This happened almost mid-way between Liberty Chowk and Graveyard Chowk on the Tariq Road. After dropping the policemen at the scene, Imran returned to his house. On inspecting the black car, the police party found that its sole occupant was critically injured. In the meantime a police mobile van also arrived at the scene of the incident and the injured occupant of the black car, whose name later on transpired to be Mohammad Akmal, was shifted to the Mobile van and removed to hospital. The police party then returned to P.S. Firozabad where applicant No.l lodged another F I R (FIR No.99/89) under section 307/332/34 PPC. In this F I R in which applicant No.l is shown as the complainant, it is stated that while leaving P.S. Bahadurabad alongwith Imran Younus, applicant No.1 had also called police mobile van which had arrived and which followed, the car of Imran Younus, that when the black car was spotted someone shouted that it belonged to the dacoits whereupon it was chased by the applicants in the car of Imran Younus which was followed by the police van, that at Shaheed-e-Millat Road the police party noticed that a white car was also chasing the police party. Further story in this F.I.R. is the same as narrated above with the exception that applicant No.l in his F.I.R further stated that the white car which was following them fired a Kalashnikov burst at the car of Imran but missed and the burst hit the black car and the police party opened fire at the said white car purely in self-defence, that some shots from the white car also struck the car of Imran Younus, that the white car at this stage turned into a side lane and escaped from the scene and that the police party also came out of the car and took position. It was opined in the FIR that the injured driver of the black car was a companion of the dacoits. Since the incident took place within the jurisdiction of P.S. Ferozabad, the officials of the said police station also investigated in the matter and came to the conclusion that the FIR lodged by applicant No. 1 (FIR No. 99/89) was not based on correct facts and that applicant No. 1 and his two constables had behaved in reckless manner and had unnecessarily fired upon the black car which was being driven by an unarmed young boy. As a result, a third FIR (No. 102/89) was lodged at P.S. Ferozabad by SHO Abdur Rasheed Khan on 25-2-1989 at 15-10 hours under section 304/34 PPC in which it is alleged that the applicant No. 1 and his two constables (applicants No. 2 and 3) unnecessarily tired upon the black car even though its sole occupant driver was unarmed and had offered no resistance to the police party. After necessary investigation the offence was converted from section 304 PPC to section 302 PPC and the applicants were arrested. The case as since been challaned in the Court of Vth Addl. Sessions Judge, Karachi (East) Sessions Case No. 1.70/89).
The applicants moved a bail application before the learned Sessions Judge who vide order dated 11-4-1989 dismissed the same whereafter the present bail application has been moved before this Court. Learned counsel for the applicant and learned A.-A.G. have been heard. Mr. Muneeruddin AM Advocate obtained permission of the Court to appear for the father of the deceased and he was also heard.
Learned counsel for the applicants has pressed this bail application on four grounds. Firstly, that it is a case of further enquiry and in this regard learned counsel submitted a list of thirteen questions which required to be answered which are as to why the deceased was present at the place of incident and why he tried to run away on seeing the car of Imran Younus, why the deceased did not stop when signalled to do so by applicant No.], whether applicants acted in self-?defence, whether the case of the applicants falls under exception No. 3 to section 300 PPC, why the FIR No. 102/89 has been delayed for 39 hours, why FIR No. 99/89 ,was registered under section 307 PPC instead of 302 PPC, why the witnesses given in the challan had not been mentioned in FIR No. 102/89, whether the investigation on the basis of FIR No. 102/89 is proper when the FIR No. 99/89 lodged by applicant No. 1 has not been disposed of under section 173 Cr.P.C., whether the case against the applicants falls under section 302 PPC, 304 PPC or 304-A PPC, whether in view of the fact that no specific fatal injury has been attributed to any of the applicants, can the applicants be held vicariously liable for the death of the deceased and, finally, as to why the statements of Mumtaz Ferozuddin and Ayaz Gul had not been recorded by the police. Secondly, that there are cross-versions of the incident and it is yet to be established as to which of them is correct. Thirdly, that no specific injury had been attributed to any of the applicants and, fourthly, that the investigation in respect of FIR No. 102/89 has not been honestly done inasmuch as Mumtaz and his Chowkidar Ayaz Gul had not been examined by the police under section 161 Cr.P.C.
So far as the question of further enquiry is concerned, a perusal of the police papers shows that the prosecution has made out a case against the applicants for killing Mohammad Akmal in circumstances which shows that the applicants had acted so rashly that the offence must fall, if not under section 302, PPC, then at least under section 304 PPC. Great stress was laid by learned counsel for the applicants that Mumtaz and his Chowkidar Ayaz Gul were material witnesses but they were not examined by the police. Learned counsel was obviously not well informed on the facts since I find that both these witnesses, Mumtaz Ferozuddin and his Chowkidar Ayaz Gul, were examined by the police and their 161, Cr.P.C. statements are available in police papers. Imran Younus, Mohammad Siddique and Hafiz Ghafoor are the main eye-witnesses of the incident. Imran Younus states in his 161, Cr. P.C. statement that when the applicants reached near Bungalow No. 70 Faran Society in his car, they found a black car with its engine running at full throttle whereupon applicants Nos.1 asked him to turn back so that he could check the black car. By that time the black car had started moving and it was followed. Imran Younus further stated that at Mateen Centre, Tariq Road, his car came abreast of the black car whereupon applicant No. 1 signalled the black car to stop but it, instead of stopping, accelerated its speed and went ahead whereupon the ASI who was sitting on the seat next to hum fired a few shots from his pistol. Shortly thereafter both the cars crossed Liberty Chowk and then a white Suzuki van came in the way of the black car which applied brakes, skidded and moved round and its back portion hit an electric pole near Sarwar Square. According to Imran, when his car again passed the black car, the two policemen (applicants No. 2 and 3) opened fire upon it. Then Imran, at the direction of applicants No. 1, took a turn in a side lane and stopped when all the three applicants got down from the car, one went towards Tariq Road and two went towards Sarwar Square. The black car after colliding with the electric pole had stopped for a few moments but at this stage it again moved with a jerk and went away from the electric pole and stopped near a show-room which was nearby. According to Imran, the policemen kept continuous fire on the black car. After waiting at the scene of offence for about five minutes Imran went away from there. The next eye-witness Mohammad Siddique is an employee of "PEE JAYS AUTO MOBILE". He supported the version given by Imran Younus and gave further details. Apart from being employed in the Pee Jays he also slept there at night and he stated that the ASI ?fired from his pistol/revolver from a position taken behind a car parked in front of his show room. He further stated that the ASI then asked Hafiz Abdul Ghafoor, Chowkidar of Pee Jays, to telephone P.S. Bahadurabad and thereafter the ASI again took position behind a charpai; and fired two shots on black car whose driver could be seen lying slumped on the steering wheel. Hafiz Abdul Ghafoor Chowkidar has also supported the version of Mohammad Siddique. None of these witnesses has yet been examined. The undisputed facts emerging out of a perusal of the record are that a police mobile van had reached P.S. Bahadurabad when applicant No. 1 alongwith applicant No. 2 and 3 left the police station in the car of Imran Younus. The proper thing for applicants No. 1 was to go to the alleged scene of dacoity in the police van. There was no sense in going there in a private car, specially when a police vehicle was available. Much fuss is being made as to why deceased Akmal did not stop his car when signalled to do so by applicant No.1. I believe that every sensible man when signalled to stop at the dead of night by a person in a private car will certainly not stop. In fact, he should not stop. In view of the deteriorating law and order situation in the city the deceased could have taken the car of Imran Younus as that of dacoits and it was only natural to expect that he should run away. In view of darkness the deceased cannot be expected to have recognized the person signalling him to stop as a police officer. Besides, the deceased was unarmed and alone and if the idea was to stop him, the police party would have achieved that aim by damaging the tyres of the black car or even its engine by a burst from their rifles. There was no justification for opening fire directly at the deceased. This much for the firing which took place when the chase was on but when the black car collided with the pole and stopped, the police party could very well have overpowered the deceased instead of opening fire at it after taking position as is stated by the eye-witnesses Mohammad Siddique and Hafiz Abdul Ghafoor... Learned counsel for the applicants has relied on a number of authorities including P.L.D 1985 Karachi 27, 1974 P Cr. L J 531; 1980 SCMR 784, 1987 P Cr. L J 1371., 1984 P Cr. L J 2013, 1981 P Cr. L J 704, 1972 SCMR 682 and 1984 PCr.LJ 436. Mostly they are on the point of further enquiry and on the point of existence of two versions. I do not think that the applicants can derive any benefit from them. As held by the Hon'ble Supreme Court in P L D 1988 SC 621 (Asmatullah v. Bazi Khan and another), mere possibility of further enquiry exists almost in every criminal case and it cannot be made a ground for treating the matter as one under section 497 (2) of Cr.P.C. So far as the existence of two versions is concerned, it appears that version given by applicant No. 1 in the FIR lodged by him (FIR No. 99/89) cannot be stated to be another version of the case. Applicant No. 1 had evidently tried to save himself from the responsibility of the death of deceased Mohammad Akmal. I am also of the view that bail cannot be granted under section 497 Cr.P.C. because an important prior condition has not been fulfilled which is that the Court taking cognizance of the matter must come to a definite conclusion on consideration of entire material that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Since this condition has not been fulfilled in this particular case, bail cannot be granted to the applicants and in this regard I rely upon 1985 SCMR 382 (Ibrahim v. Hayat Gul and others). Learned Counsel for the applicants had also pointed out the delay of 39 hours in the lodging of the FIR No. 102/89 but as held in 1984 P Cr.L J 1919 (Shah Mand v. The State, mere delay m lodging FIR is not sufficient for grant of bail. As for the objection that no specific injury had been attributed to any of the accused persons, it is sufficient to state that this is a point which need not be considered at this stage in view of the special circumstances of the case in which all the three applicants appear to be equally involved. As for the investigation being not honest because Mumtaz and Ayaz Gul had not been examined, it has already been pointed that, both these witnesses have been examined by the police. Keeping all these factors in view, I am of the view that at this stage when witnesses have not yet been examined and a perusal of 161, Cr.P.C. statements of witnesses makes out a very serious case against the applicants, their case does not fall under section 497 (2) of Cr.P.C. and they are not entitled to bail. Bail application is therefore dismissed.
M.Y.H./M-833/K
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