1988 P Cr (PLP)

The applicant is being prosecuted for an offence under section 302/34, P.P.C. and section 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 alongwith co‑accused Mohammad Younas in the Court of Vth Additional District Judge. Hyderabad. The learned counsel for the applicant made the following submissions: ‑ (i) that the co‑accused Mohammad Younas has been enlarged on bail by this Court on 25‑6‑1987; (ii) that the statement of the complainant Mohammad Ramzan made in the F.I.R. to the effect that he had seen the applicant causing Chhuri injuries to the deceased Abdul Rehman is belied by the statements of P.Ws. Mohammad Bashir and Shamshir under section 164, Cr.P.C. and hence his involvement in the commission of offence requires further inquiry; (iii) that the applicant at the relevant time was admitted as an indoor patient in Al‑Rehman Hospital, Patel Road, Quetta, as per medical certificate dated 14‑7‑1987 issued by Dr. Ataur Rehman, Resident Surgeon of the said hospital; (iv) that the applicant was a minor of 13 years of age on the date of incident as per certificate issued by the Headmaster of Government Middle School Machan (District Pashin) dated 3‑12‑1981 and hence he is entitled to the benefit of the provisions of Sind Children Act; (v) that the P.Ws. Bashir and Shamshir are servants of the deceased and complainant is his brother‑in‑law and that there is not a single independent witness of the locality to support the prosecution version.

2. Mr. Syed Riaz Ahmed, the learned counsel for the State opposed the bail application. He read over the statements of P.Ws. Shamshir and Bashir made under section 164, Cr.P.C. wherein they have categorically stated that the applicant‑accused has caused Chhuri injuries to deceased Abdul Rehman. He also supported the order of the learned trial Court in respect of the pleas of alibi and age, for the same reasons as are given in his order dated 21‑9‑1987.

3. Having considered the arguments of the learned counsel for the parties and upon perusal of the order passed by the learned trial Court on the bail application of the applicant as well as other relevant documents on record I reached the conclusion that this application deserved dismissal. I accordingly passed a short order of dismissal on 10‑12‑1987. I now proceed to record the reasons thereof.

4. In so far as the plea of alibi is concerned it may be stated that it is for the applicant‑accused to prove it. Simply on the basis of the medical certificate allegedly issued by Resident Surgeon Attaur Rehman, Quetta, more particularly when he has not been produced in Court below or even in this Court to depose about the said certificate having been actually issued by him and also with regard to the nature of illness allegedly suffered by the applicant, I do not consider it advisable at this stage to accept this plea. Besides, the two prosecution witnesses namely, Mohammad Bashir and Shamsher have in their 164, Cr.P. C. statements deposed that they had seen the applicant causing injuries to the deceased. It will be duly considered at the regular hearing in accordance with the evidence led before the trial Court in this behalf. In so far as the plea of the applicant's tender age is concerned, it is evidently borne out from the impugned order of the learned Vth Additional Sessions Judge (Hudood) Hyderabad Division that he had referred the applicant‑accused to Civil Surgeon, Services Hospital, Hyderabad, for his examination and a certificate on the point of age. The Civil Surgeon, after physical examination, radiological investigations and general appearance of the accused applicant has reached the conclusion that he is about 22 years old as per certificate issued by him on 12‑9‑1987 to which a reference has been made by the learned trial Court. In this view of the matter, the plea of tender age advanced on behalf of the applicant cannot be accepted at this stage.

5. The learned counsel for the applicant argued that the statement of the complainant that he had seen the occurrence was belied by the two other alleged eye‑witnesses and hence the statements of all the witnesses should be ignored inasmuch as they do not inspire confidence. I am afraid I cannot do so because it would tantamount to forestalling the trial. I feel that there are reasonable grounds for believing that the applicant‑accused is prima facie guilty of an offence punishable with death and no cogent reason has been advanced to grant him bail.

6. In the result the application is dismissed. M.Y.H./M‑465/K Petition dismissed.