2004 P Cr (PLP)

KHAWAJA MUHAMMAD SAEED, J.

The supra titled cross-appeals are in respect of the same occurrence, therefore, these shall be decided through this single judgment.

2. The relevant facts are that a case for offences under sections 324, 341, 34 and 337-A/1, A.P.C. was registered on the written application/report of the complainant-appellant, Kala Khan, At Police Station Sehensa on 6-12-2002 against the appellant, Muhammad Jahangir and two other accused persons including Munsif Dad Khan, who is respondent No.1 in Appeal No.66 of 2003. In his application the complainant disclosed that he and accused party are neighbours. On 6-12-2002, the day of occurrence, at 3-30 p.m. Ghulam Abbas, nephew of complainant went to mourn the death in nearby village Plate Pain. When he reached near the house of Muhammad Jahangir, he and other co-accused persons including the accused-respondent, Munsif Dad Khan, obstructed his path with common intention and as a result of premeditation they attacked him. The accused-appellant, Muhammad Jahangir, picked up a brick and pelted same on the forehead of Ghulam Abbas. Ghulam Abbas after receiving the injury fell down. In furtherance to the premeditation, all the accused persons joined hands and started hitting the body of Ghulam Abbas with stones. Ghulam Abbas raised hue and cry which attracted the complainant, Kala Khan, and Kifayat Ali, the brothers of complainant. They rushed to the place of occurrence in order to rescue Ghulam Abbas. When they reached at the place of occurrence, the accused-appellant Muhammad Jahangir inflicted injury on the left eye and temporal region of Kifayat Ali with brick who fell down. The accused-respondent, Munsif Dad Khan, is also attributed to have inflicted injury with brick on the head of Kifayat Ali which hit him above his forehead. On account of this injury, the blood started oozing from his head. Thereafter Muhammad Jahangir is once again attributed to have inflicted injury on the left eye and nose of the victim, Kifayat Ali. As a result of this injury too, the blood started oozing from his mouth and nose. The absconded accused, Dalair Khan is alleged to have raised Lalkara.

3. In the F.I.R. the motive disclosed is old enmity between the parties. Kifayat Ali was taken to the hospital but on account of serious injuries, the local doctor referred him to PIMS Islamabad. He remained under treatment in PIMS for a pretty long time. He was discharged from that hospital on 21-2-2003 and was referred back to Tehsil Head-quarter Hospital Sehensa, District Kotli, A.K. On the discharge certificate issued from PIMS Islamabad, there is a note written in Urdu which reads as follows:--

4. Kifayat Ali after being discharged from PIMS Islamabad directly went to his home and ultimately died on 16-3-2003. Thereafter an offence under section 302, A.P.C. was added. The post-mortem of the dead body was conducted on 17-3-2003. In the post-mortem report the Medical Officer gave following opinion about the death of Kifayat Ali:-- "In opinion of mine, the death was due to injury to brain matter. The whole brain matter was severely damaged due to injury on right eye and front temporal region."

5. In the background of these facts the challan against the accused persons was presented before the District Court of Criminal Jurisdiction Kotli on 5-5-2003. An application was submitted before the said Court by the accused persons for their release on bail on 10-6-2003. The application was dismissed by the Court on 14-7-2003. Munsif Dad Khan and Muhammad Jahangir both filed common revision petition against the order of District Court of Criminal Jurisdiction, Kotli before the Shariat Court which was ultimately decided vide judgment under challenge dated 13-10-2003. The learned Shariat Court enlarged Munsif Dad Khan on boil whereas this relief was declined to accused-appellant Muhammad Jahangir.

6. Mr. Abdul Majid Mallick, the learned counsel for the accused party, argued that the prosecution case, as set up in the F.I.R and supported by four eye-witnesses, is totally inconsistent with the medical evidence. Therefore, the case of prosecution is one of further inquiry and the accused-appellant, Muhammad Jahangir, on account of this reason is entitled to concession of bail. He further argued that the alleged bricks were recovered from the compound of house of Muhammad Jahangir, where the other bricks were also lying. This shows that the prosecution has not narrated the true story. In fact there is every possibility that the complainant party trespassed into the compound of house of Muhammad Jahangir for some ulterior motives where suddenly some incident took place which caused injuries on the person of Kifayat Ali. because there is no medical report regarding Ghulam Abbas showing him injured during the incident. In the opinion of the learned counsel, the offence does not fall within the ambit of section 302 rather it is covered by section 315, A.P.C under which the punishment is Diyat and therefore, in the light of repeated views followed in such circumstances the, accused-appellant is entitled to be released on bail According to the learned counsel the witnesses are related to the deceased and their presence at the place of occurrence is doubtful. He strongly pressed that Kifayat Ali died after three months and 10 days of the occurrence. He was referred back from PIMS to Tehsil Headquarter Hospital, Sehensa, District Kotli, but he did not follow the advice of the doctors and went to his home directly where he died after a considerable period. Therefore, negligence on the part of the complainant party is the main cause of death of Kifayat Ali. Even from this point of view the case of accused-appellant, Muhammad Jahangir and respondent, Munsif Dad Khan, needs further probe. He requested that on account of aforementioned reasons, the order passed by the Shariat Court to the extent of Munsif Dad Khan, respondent, be maintained and the same be set aside to the extent of Muhammad Jahangir, accused-appellant, and he be also released on bail.

7. Ch. Muhammad Azam Khan, the learned counsel for the complainant party, on the other hand argued that all the accused persons are mentioned to the F.I.R. Their identification is not doubtful as the occurrence took place during the broad-daylight in furtherance to Lalkara raised by the absconded accused Dalair Khan. The accused persons pelted bricks on the person of Kifayat Ali who received serious injuries and therefore., was taken to Tehsil Headquarter Hospital, Sehensa wherefrom he was referred to PIMS Islamabad for treatment and was admitted there on 7-12-2003. On 16-3-2003 his death took place as a result of the aforesaid injuries as is clear from the opinion of the doctor. However, according to the learned, counsel, the doctor due to human error mentioned the injury to have been inflicted on the right eye and front temporal region which was described by him the cause of death of deceased, whereas in fact Kifayat Ali had received injuries on the left eye and left temporal region. Therefore, according to the learned counsel, this human error should not be given more importance at the bail stage as that may cause prejudice to the case of the prosecution. He further argued that the bricks used in the occurrence were recovered at the instance of the accused persons. The post-mortem report supports the prosecution version. The mere fact that the death took place beyond the period of three months cannot be regarded a good ground to bring the case, of accused-appellant or the, accused-respondent, as held by the Shariat Court, within the ambit of further inquiry. The bail is a discretionary relief which in the light of peculiar facts of this case was rightly declined to the accused party by the trial Court and this discretionary power was wrongly interfered with by the Shariat Court to the extent of Munsif Dad Khan.

8. According to the learned counsel for the complainant, the accused, Muhammad Jahangir soon after the commission of offence absconded and was arrested after a considerable period whereas the accused-respondent, Munsif Dad Khan, also absconded immediately after the commission of offence who was arrested later on. Therefore, on account of this sole reason both the accused are not entitled to bail. The reliance was placed by the learned counsel on a case reported as Alam Zaib v. Haji Muhammad Ramzan and others 2000 MLD 1718, wherein it was laid down that bail after arrest or before arrest can be refused on the sole ground of absconsion. This was a case of pre-arrest bail: The absconded accused moved pre-arrest bail which was declined to him on the ground that on account of his absconsion he has lost his right of bail. In another case, cited by the learned counsel, titled Arif Majeed and another v. State and another PLJ 1986 SC (AJ&K) 95 it was observed that unless and until absconsion is satisfactorily explained by an accused person, he cannot be released on bail.

9. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. So far as the point of absconsion of accused persons is concerned, it may be stated that mere absconsion is not the conclusive proof of guilt of accused persons. It is only a suspicious circumstance against an accused that he was finding himself guilty of the offence, as such he absconded from the scene of occurrence soon after the commission of crime. However, let us make it clear that suspicions after all are suspicions. The same cannot take the place of proof. We in our life have noticed that some persons who are accused of murder, even if they are innocent, they feel themselves insecure and go away or conceal themselves up to certain limit so that their innocence is established with the police. The value of absconsion, therefore, depends on the facts of each case. We are conscious of the fact that the Courts have ordinarily admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view the overall facts of the case. However, the learned counsel for the complainant is justified that a fugitive from the law loses some of the normal rights granted by procedural and substantive law. In this case we have noticed that while submitting the challan, the police in its report under section 173, Cr.P.C. has mentioned about the abscondence of co-accused Dalair Khan and the steps taken by the trial Court under section 87, Cr.P.C. to secure his presence but no such allegation was levelled against Muhammad Jehangir or Musif Dad Khan. The relevant portion of the report being relevant is reproduced below:-

10. In the F.I R. and the statements of eye-witnesses the accused -appellant, Muhammad Jahangir, is alleged to have caused injuries with bricks on the left eye and left temporal region of the deceased. According to the post-mortem report the alleged injuries, which ascribe the cause of death of deceased, were caused on the right eye and front temporal region of the deceased. We in the earlier part of this judgment have reproduced the opinion of the doctor in extenso. Mr. Abdul Majeed Mallick, the learned counsel for the accused party on the basis of conflict in medical evidence and the case of prosecution has craved for the grant of bail in favour of Muhammad Jahangir, accused-appellant. According to him this conflict is a sufficient ground for grant of bail, whereas it was argued by the learned counsel for the complainant party that while recording opinion, the doctor, on account of slip of pen and due to human error instead of left eye has written right eye in the concluding part of the post-mortem report. We at this stage are not in a position to say as to whether the doctor on account of human error has described injury, caused on left eye, on right eye as cause of death of Kifayat Ali. We have repeatedly laid down that appreciation of evidence available on record and drawing conclusion therefrom is basically the function of the trial Court. Till the time an opinion is formed by the trial Court, the superior Courts cannot anticipate any conclusion on the basis of such evidence that too in an ancillary matter like bail. At bail stage, as we all know, the deep scrutiny of evidence by the Courts is not allowed. However, at the same time the question of bail cannot be decided in vacuum. Therefore, in order to decide as to whether any accused person is entitled to concession of bail, the Courts took at the material available on the record in the shape of F.I.R. medico-legal report, recoveries and other relevant material. However any opinion formed at the bail stage is tentative in nature and is meant only to the question of bail.

11. In the present case from the tentative assessment of the evidence produced by the prosecution against the accused-appellant, Muhammad Jahangir, and other co-accused persons, it is apparent that prima facie the medical evidence is not supporting the specific part, attributed to Muhammad Jahangir and Munsif Dad Khan. The complainant in his F.I.R. and all the four witnesses have stated that Muhammad Jahangir caused injuries on the left eye as well as temporal region of Kifayat Ali which caused his death, whereas in the opinion of the doctor which was relied upon by the prosecution, the injuries caused on the right eye and front temporal region of Kifayat Ali caused his death. The discrepancy in the statements of the prosecution witnesses and the post-mortem report prepared by the doctor at this stage cannot be overlooked. However, during the course of evidence the prosecution may succeed in getting some plausible explanation either from the doctor or from the witnesses and on the basis of that explanation, the trial Court may form an opinion for or against any party. At this stage it will be too early for us to give any finding about this discrepancy. In the same way we cannot express anything as to whether the case falls under section 315 or 302, A.P.C. However, we cannot ignore that Kifayat Ali was referred back to Tehsil Headquarter Hospital Sehensa, District Kotli, and the doctors serving in that hospital were advised to ensure that the medicines of hypertension are properly administered to him and in case his blood-pressure is not controlled, they were advised to adjust the proposed medicines to Kifayat Ali. But Kifayat Ali went his home instead of hospital where after about 25 days he died on 16-3-2003. Whether the negligence on the part of Kifayat Ali is the main cause of his death is a question which cannot be resolved at this stage by us. However, this is a material aspect of the case, .which prima facie brings the case of Muhammad Jahangir within the purview of further inquiry. In a case reported as Syed Abdul Baqi Shah v. State 1997 SCMR 32 there was conflict between ocular and medical evidence. The Supreme Court of Pakistan converted the petition for leave to appeal into appeal and allowed bail to accused person in a case for offences under sections 302, 324, 147, 148 and 149, Penal Code. In the present case the discretion was not properly exercised while refusing concession of bail to the appellant, Muhammad Jahangir. In view of above reasoning, we allow the appeal filed by Muhammad Jahangir. It is, therefore, ordered that he shall be released on bail if he furnishes bail bond and two surety bonds in the sum of Rs.3 lac to the satisfaction of any Magistrate 1st Class, Kotli. So far as the case of Munsif Dad Khan, accused-respondent, is concerned, he is attributed to have caused injury above the forehead of deceased Kifayat Ali. Prima facie even this blame is not supported by medical evidence. The brick used by, this accused is alleged to have been recovered from the compound of house of Muhammad Jahangir. The prosecution case, as disclosed in the F.I.R. and supported by four eye-witnesses, is negated in the post-mortem report of deceased Kifayat Ali. In these circumstances no error was committed by the learned Judge in the Shariat Court while allowing him the concession of bail. In this view of the matte, the appeal filed by the complainant seeking cancellation of bail of Munsif Dad Khan is hereby dismissed. N. H. Q./114/SC(AJ&K) Order accordingly.