2006 PLP 3185 (YLR)

NADEEM AZHAR SIDDIQI, J.--Granted subject to all just exceptions.

2. The applicants are facing trial under sections 302, 201, 364-A and 34, P.P.C. read with section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979, in crime No.2 of 2005 of Police Station Badah. The allegation against the applicants are that on 10-1-2005 they along with co-accused Ramzan and Babar after committing forcible Zina with a 6/7 years-minor boy, namely, Rifaqat Ali, the son of complainant, killed him in their house. Bail application was moved before the trial Court, which was dismissed on 29-10-2005 on the ground that the dead body of deceased Rifaqat was recovered from the house of applicants and sufficient material is available on record to connect the applicants/accused with the commission of the offence and the case of co-accused Babar Ali, who was granted bail, does not appear on same footing. The learned counsel for the applicants has submitted that the only role assigned to the applicants is of helping the co-accused in suppressing the facts. According to the learned counsel, the offence if any committed by the applicants is falling under section 201, P.P.C. and the punishment prescribed is seven years, and the same is not falling within the prohibitory clause of section 497(1), Cr.P.C. He further submits that body was not recovered on the pointation of the applicants and no incriminating material was recovered from them. He further submits that it is an unseen incident and there is no eye-witness of the alleged occurrence: He further submits that. the other accused Ramzan has in his statement before the police as well as in his judicial confession made before the Civil Judge and J. M., Dokri has accepted his guilt exonerating the other accused persons. He further submits that this is a case of two versions and a case of further inquiry has been mad out and the applicants are entitled to the concession of bail. He relied upon the following reported cases:-

1. Mumtaz Ali Sheikh v. The State (1993 PCr.LJ 1919)

2. Muhammad Mumtaz v. The State (1993 PCr.LJ 1170). The learned State Counsel, Mr. Muhammad Ismail Bhutto, has opposed the grant of bail on the grounds that the names of the applicants are appearing in the F.I.R., dead body of the deceased was recovered from the house of the applicants, who are brothers inter se, and that the applicants were last seen in the house from where the dead body was found. I have heard the learned counsel for the parties, perused the record made available before me and the judgments cited at the bar. The allegations against the applicants are of committing Zina with a minor boy of 6/7 years and then killing him. The complainant has seen both the applicants in the house, from where the dead body of his son Rifaqat was recovered. Applicant Muhammad Ramzan has taken upon himself the responsibility of committing Zina and killing Rifaqat. The possibility that accused Ramzan has taken upon himself the entire responsibility to exonerate his two brothers cannot be ruled out and at this stage only on the basis of the confession of co-accused the applicants cannot be allowed concession of bail. At this stage, without examining the medical officer it cannot be decided whether the officer it cannot be decided whether the Zina was committed upon the deceased by one or the more persons. At bail stage deeper appreciation of evidence is neither 11 allowed nor permissible and for deciding whether Zina was committed by one or the more persons whole material available on record is to be scrutinized. The judgments cited by the learned counsel for the applicants are not directly applicable to this case. Furthermore, there is no rule of universal application of case laws in criminal cases and each case has to be decided on its own merits. The case reported as Mumtaz Ali Sheikh (supra) relates to the case registered under the Explosive Substances Act, 1908 and the bail was granted in that case on the ground that the only evidence available with the prosecution against the accused was the confession of co-accused. In the other case of Muhammad Mumtaz (supra) cited by the learned counsel for the applicants, the accused was acquitted on the ground that neither ocular testimony nor any evidence of last seen was available to prove the prosecution case and the extra-judicial confession made by accused was not the type of evidence warranting conviction against him on a capital charge. In the present case, the evidence of last seen was available and the dead body was recovered from the House of the applicants, which itself is sufficient to connect the applicants with the commission of the crime. In this case it cannot be said that there are no reasonable grounds for believing that the applicants are not guilty of the offence falling under the prohibitory clause of section 497(1), Cr.P.C. In view of the above, the application is dismissed. H.B.T./M-132/K Bail refused.