1997 P Cr (PLP)

Muhammad Hamza Khan for the Complainant. Ghulam Moinuddin Balouch for the State. Date of hearing: 26th June, 1994 This order will dispose of Criminal Bail Application No. 165 of 1994 and Criminal Miscellaneous Application No.52 of 1994 as they relate to the same transaction relating to an incident arising out of an F.I.R. No. l of 1994, Police Station Shikarpur, District Hyderabad.

2. As per F.I.R., complainant Muhammad Irshad lodged a report on 17-11-1994 at Police Station Sakhi Pir under sections 337-A(i), 337-F(i), 504, 34, P.P.C. which was entered in the Station Diary stating therein that "on account of certain matrimonial disputes Ali Jan, his brother Jamil and one another person, whose name was not known to him but he was the worker of Jamil Ahmed reached near the under construction building of Ali Sher (the brother-in-law of the applicant) at 11-00 hours and started abusing and giving him fist and kick-blows. Jamil Ahmad gave head blows on the forehead of Ali Sher who raised cries on which Abdul Ghafoor son of Abdul Majid Arain and Bundoo son of Waheed Qureshi came there and rescued Ali Sher who had become unconscious. He was taken to hospital. He was shifted to Cardio Vascular Hospital in Karachi where he died on 19-1-1994. Hence F. I. R. No. 1 of 1994 was registered under section 316, Qisas and Diyat Ordinance. Both the reports pertaining to Entry No. 12, dated 17-1-1994 and Entry No.29, dated 19-1-1994 were incorporated in the F.I.R.

3. The learned 1st Additional Sessions Judge, Hyderabad vide his order, dated 7-3-1994 released Ali Jan on bail by taking into consideration several grounds. There was inconsistency between the medical evidence and the ocular evidence. As per F.I.R. the deceased was given several blows of fists and kicks but as per medical report only one swelling (haematoma) circu4~else 2 c.m. in diameter was found on the forehead with swollen eye. Moreover, one P.W. Zaheer Ahmed in his statement under section 161, Cr.P.C. did not implicate him for causing any injury to the deceased. Treating his case to be falling in the ambit of further inquiry, he was considered to be entitled to the concession of bail. Bail of accused Jamil Ahmed was refused on the ground that the only injury found on the person of the deceased was specifically attributed to him.

4. Hence Bail Application No. 165 of 1994 was moved on behalf of Jamil Ahmed for grant of bail to him while Criminal Miscellaneous Application No.52 of 1994 was moved by the complainant for cancellation of bail granted to Ali Jan by the learned 1st Additional Sessions Judge, Hyderabad.

5. The learned counsel for the complainant in Criminal Miscellaneous Application No.52 of 1994 has assailed the order of the learned Additional Sessions Judge on the grounds, that the facts and circumstances mentioned in the F.I.R. do not bring the case within the ambit of further inquiry. As both the accused had common intention, therefore, section 34, P.P.C. was attracted in the case. Moreover, when the case of one accused, namely Ali Jan was observed by the learned Additional Sessions Judge to be out of the ambit of further inquiry, then it was not justified to put the case of the other accused, having common intention with the other accused within four corners of further inquiry. Hence he prayed that bail granted to Ali Jan be cancelled.

6. The learned counsel for the accused Jamil Ahmed in Criminal Bail Application No. 165 of 1994 has contended that death of deceased was not due to the injury found on his forehead, hence, he would not be refused the concession of bail. He produced three photostat copies of medical reports which are not specifically denied by the learned counsel for the complainant. The first report dated 17-1-1994 mentions only one injury, which was reserved. Second Medical Report is from National Institute of Cardio Vascular Disease, according to which, the deceased was admitted in the Institute on 18-1-1994 and died on 19-1-1994 on account of cardiac disease. Final medical certificate issued by L.M.C.H., Hyderabad to the S.H.O. Sakhi Pir, on the basis of second report of the C.I.V.D., Karachi shows that death took place due to Myo Cardial Infraction (Generally known as M.1). However, the most important portion of final report is reproduced as under:-- "The reserved nature of injury is a simple and not sufficient to cause death in ordinary course of life. However, it can aggravate (enhance) ' the symptom in cardiac patient." This final certificate from medico-legal section also brings the case of the applicant Jamil Ahmed within the ambit of further inquiry to find out whether the said injury had aggravated the symptoms of cardiac disease or not. If the final opinion in this final report had stated with certainty that the cardiac disease was enhanced due to the injury caused by accused Jamil Ahmed, then it could be assumed that he was guilty of section 316, Qisas and Diyat Ordinance. On account of such uncertain final report, there exist no reasonable grounds to exclude case of the applicant from the ambit of further inquiry.

7. On the facts, circumstances and the material available on record, I am of the considered opinion that the evidence against Ali Jan is very meagre qualitatively and quantitatively and the order of learned 1st Additional Sessions Judge is well-founded. Hence I do not consider it proper to disturb the order, as the learned 1st Additional Sessions Judge has exercised his discretion properly. Resultantly Criminal Miscellaneous Application No.52 of 1994 stands dismissed. And the matter of applicant Jamil Ahmed has fallen within the ambit of further enquiry after the final medical report hence he is ordered to be released on bail on furnishing solvent surety in the sum of Rs.1,00,000 (Rs. one lac) and P.R. bond in like amount. Criminal Bail Application No. 165 of 1994,' thus, stands allowed. The surety be furnished before the trial Court. N.H.Q./J-188/K Order accordingly.