1969 P Cr (PLP)

One Maqsood, a student of the Intermediate Classes oh the National College, Karachi was allegedly wounded at the hands of the petitioners and others on 23‑6‑1968 at about 10‑30 p.m. in the Model School Park P. E. C. H. S. area Karachi. The F. I. R. was lodged with the police in this regard by his brother Mahmood at 1‑55 a.m. in the Jinnah Hospital where he was removed soon after the occurrence and was examined by Dr. Izhar‑ul‑Haq, whose medico‑legal report, dated 23‑6‑1968 (11‑15 p.m.) which is Exh. A‑2, revealed three injuries of which injuries Nos. 1 and 2 were incised wounds on the left thigh and number three was a stab wound on the back of the chest, all having been inflicted by a sharp‑edged weapon, Subsequently on the basis of the Radiologist's report a supplemen tary report A‑4 dated 14‑7‑1968 was given according to which injury No. 3 on the back of the chest was declared simple injury No. 2 which had resulted in left drop foot causing more or less a permanent disability was declared grievous while injury No. 1 was declared simple. The petitioners who are also students of the National College, studying in the Intermediate classes, submitted a bail application on 26‑6‑1968 in the case which had been registered under section 307, P. P. C. The learned Magistrate called for a report from the surgeon regarding the condition of the injured person which was submitted by Dr. Abubakar on 27‑6‑1968, and is Exh. A‑3 on the record. According to this report the patient was completely out of danger and presumably on the basis of this report the learned trial Magistrate allowed bail to the petitioners. Subsequently on 13‑7‑1968 Maqsood left the Hospital against medical advice and a few days later on 17‑7‑1968 expired at 7‑00 a.m. Conse quently the offence under section 307, P. P. C. was converted into one under section 302, P. P. C. The post‑mortem examination was conducted by the police surgeon, Dr. Muhammad Urnar, who for the first time detected an old septic incised wound i n the middle of the right buttock with six stick marks, in addition to the three injuries detected by doctor Izhar‑ul‑Haq in the first instance. According to the statement of the latter appearing as P. W. 1 at the inquiry this injury was not noticed by him and as such did not correspond to any of the three injuries mentioned by him in his report A‑

2. The cause of death its given in the post‑mortem report Exh. A‑5 was hypostatic, pneumonia and severe anaemia. On the conversion of the offence from one under section 307, P. P. C., the bail already allowed to the petitioners was cancelled and they were taken into custody on the 17th of July 1968, i.e. the date of the expiry of the deceased.

2. Having already failed in this Court, the petitioners have now filed this second application for bail, the previous having been dismissed by my learned brother, the late Justice I. B. Khamisani on 21‑10‑1968.

3. It may be pertinent to observe that at the time of the dismissal of the earlier application the three medico‑legal reports, the post‑mortem report and the statements of the two doctors, Izhar‑ul‑Haq P. W. 1 and Muhammad Umar P. W. 2, were already available on the record and were presumably perused by his Lordship. Subsequently, however, Dr. Izhar‑ul‑Haq was recalled and was cross‑examined further with a view to resolve or explain away the conflict in medical evidence in particular the existence of a grievous injury on the buttock of the deceased which was held responsible for causing his death. It was on the basis of this supplementary statement of Dr. Izhar‑ul‑Haq that the present application was admitted to a full hearing by my learned brother Faizullah Khan, J. vide his Lordship's order, dated 27‑1‑1969.

4. The learned counsel for the petitioners have raised the following contentions before me :‑ (1) that from the entire medical evidence brought on the record it was clear that the allegedly fatal injury on the buttock of the deceased was it' all in existence at the, tune of its first examination, an old injury which could not be attributed to the petitioners and as such no reasonable grounds could be spelt out in favour of the belief that they were guilty of an offence punishable with death or transportation. (2) that according to Moeen P. W. 4 who is the only eye witness of the occurrence mentioned in the F. I. R., Races petitioner was not one of the assailants and further that the deceased has also received a deep injury in the neck which is in open conflict with the medical evidence. (3) that the petitioners being youngsters of about 18 years of age each and students of Intermediate classes, have already remained in jail for a period of more than a year in a case in which there are no immediate prospects of the conclusions of inquiry.

5. As against the above contentions, the learned counsel for the State has strenuously urged that in fact all the material available on the record had been properly considered by Late Mr. Justice I. B. Khamisani in his Lordship's order dated 21‑10‑1968 by which the previous bail application was dismissed and that on a closer examination the so‑called freshly dis covered fatal injury on the persons of the deceased could be reconciled with injury No. 2 on the medico‑legal report of Dr. Izhar‑ul‑Haq Exh. A/2. It is further contended that the explanation given by the latter did not carry conviction and it was inconceivable that this injury was not in existence at the time of the first examination of the deceased. It is argued that the cause of death namely severe anaemia and hypostatic pneumonia were the direct and inevitable consequence of the buttock injury sustained by the deceased which could not have been dealt by anybody except the petitioners who alone wielded knives, according to the F. I. R.

6. Having considered the contentions raised by learned counsel for the parties. I am inclined to think that all the relevant material which could be helpful in the determination of the question of bail was before my learned brother, the late I. B. Khamisani, J., when his Lordship dismissed the previous application filed by the petitioners. Having gone through the supplementary statement of Dr. Izhar‑ul‑Haq. I am not satisfied that a case is made out for enlargement of the petitioners on that score alone. No doubt the inquiry has been A hanging fire for more than a year which the learned trial Magistrate has to explain but this would not per se be good enough to justify an order of enlargement. However, in order to obviate any further delay in the conclusion of the inquiry, it is directed that it should be expeditiously disposed of even if a day to day hearing is needed and should not be allowed to linger on beyond the month of February 1969. In con sequence the petition fails and is hereby dismissed.

7. This also disposes of Criminal Bail Application No. 26/ 1969. Petition dismissed.