1990 P Cr (PLP)

Muhammad Ishaq Wahlah for Petitioner. Malik Allah Yar for Respondents. Hafiz Ghulam Bari for the State. Petitioner is seeking cancellation of bail granted to the respondents by learned Additional Sessions Judge, Chiniot on 22-5-1989 in a case registered vide F.1.R. No. 336/88, dated 10-8-1988 under section 302/307/34, P.P.C. at Police Station Bhowana, District Jhang to the effect that on the date of occurrence in the later part of the night, at about 2-00 a.m. while the complainant alongwith his brother Allah Ditta and paternal-cousin Muhammad Nawaz were asleep on the roof, and his two wives Mst. Sughran Bibi and Mumtaz Bibi were sleeping in the courtyard, the respondents respectively equipped with a `Toka' and a .12 bore gun, trespassed into the house, the former inflicted one injury each on the neck of both of the ladies, as a consequence whereof Mst. Sughran Bibi died on the spot while the latter was seriously injured. The post-mortem and the medico-legal report respectively revealed the following injuries: "an incised wound measuring 4/9 cm (not clearly legible) x 2-1/2" on the left side of neck in the middle part. The wound is deep upto cervical vertebrae. The blood vessels i.e. carotid on the left side are cut." "An incised wound measuring cm x 2 cm on the front of left side of chest and base of neck. The clavicle is cut:" Both the injuries were opined to have been inflicted with heavy sharp edged weapon.

2. The alleged motive for the occurrence was disapproval of the complainant's second marriage with the respondent's sister Mst. Mumtaz Bibi, which did not weigh with the learned Additional Sessions Judge, who observed that there was no motive against Sughran Bibi, deceased.

3. Lear ned counsel for the petitioner and that for the State were at one that though the S.H.O., who initially investigated the case opined that the respondents arc innocent, but during reinvestigation, D.S.P. Headquarters, has found them guilty, that the motive is not always relevant, that specific role has been ascribed to the respondents for having caused death of one and grievous hurt to the other on most vital part, consequently, the case falls within the prohibition contemplated by section 497 (1) of the Cr.P.C.

4. On the other hand, learned counsel for the respondents opposed the petition on the ground that they have been found innocent by the first Investigating Officer, who further opined that the complainant and the injured Mumtaz have eliminated the deceased with a view to getting rid of the first wife, that injury to Mumtaz could lx; self-inflicted, and, this petition has been moved out of vengeance, since injured Mumtaz Bibi has met with a road accident, and passed away concerning which a case has been registered under section 304, P.P.C. vide F.LR. No.223 dated 5-6-1989 at Police Station Thikriwala, District Faisalabad, and lastly the case of respondent No.2 viz. Muhammad Yousaf is distinguishable since no active role has been ascribed to him save for presence with the gun.

5. Having considered the arguments canvassed at the Bar, I am of the view that motive is not always the determining factor, specially on the facts of the A present case where specific role has been attributed to respondent No.l for having caused grievous injuries on the neck of two ladies with lethal weapon i.e. Toka culminating into on spot death of one and chopping off the neck and clavicle of the other which stands reaffirmed by injured Mumtaz Bibi (since deceased) in her statement under section 104 of the Cr. P C. Regarding the opinion expressed by the Investigating Officer, it suffices to mention that ipsi dixit of the police is not binding on the Courts. Likewise, the C theory postulated by the respondent's counsel as to self-infliction of grievous injury of the dimension mentioned above does not appeal to reason.

6. In view of the a foregoing, I am of the opinion that there arc reasonable grounds for believing that the case of Gaman, respondent No.1 falls within the prohibition envisaged by section 497(1) of the Cr.P.C., thus is not entitled to the concession, consequently his bail is cancelled. However, the case of respondent No.2 Muhammad Yousaf is that of further inquiry because he is only alleged to E be present at the scene of occurrence with a gun, which was not used, thus has been rightly bailed out. This petition is partly allowed in the above terms. N.H.Q./N-324/L Appeal partly allowed.