2018 PLP 225 (YLRN)

SARDAR MUHAMMAD SARFRAZ DOGAR, J.

Through this petition, Abdul Hameed (petitioner) seeks post-arrest bail in case FIR No.225/2016, dated 14.6.2016, under sections 302, 34 P.P.C. and private complaint lodged under sections 302, 364, 376 and 201/34, registered, at Police Station Shah Jamal, District Muzaffargarh.

2. Precisely, according to prosecution version as gleaned out from the FIR as well as private complainant registered by Mst. Noor Mai complainant, the allegation against the petitioner is that he along with his co-accused abducted Mst. Tahira Bibi and the petitioner after committing rape with her, committed the Murder of the Mst. Tahira Bibi.

3. Heard. Record perused.

4. Initially, the father Muhammad Sarfraz of the alleged deceased Mst. Tahira Bibi got recorded a rapt No.16 dated 9.6.2016 to the police that his daughter Mst. Tahira Bibi has committed suicide, whose dead body was recovered from the canal. It is also written in the rapt that he has no enmity with anybody and does not want to proceed further against anyone.

5. Thereafter, with five days delay, the complainant Mst. Noor Mai has got lodged the case FIR No.225/2016 by implicating the petitioner along with Mst. Hasina Mai as his accused with two unknown. Being dissatisfied from the investigation of the case, the complainant Mst. Noor Mai filed private complaint under sections 302/364/376/201/34, P.P.C. against the petitioner and others on 23.11.2016, which is after delay of almost five and half months for which no plausible explanation has been rendered by the complainant. In para No.2 of the private complaint, the complainant has levelled specific allegation against the petitioner for committing zina and murder of her daughter Mst. Tahira Bibi deceased on the basis of last seen witnesses namely Allah Wasaya and Ghulam Yasin. It is further stated by the complainant that the petitioner along with his co-accused Muhammad Bilal has made extra judicial confession before the witnesses Allah Wasaya and Ghulam Yasin.

6. It is the allegation against the petitioner that he and his co-accused Muhammad Bilal firstly subjected Mst. Tahira Bibi to rape and then strangulated her to death and threw her dead body in the Hernam Canal. As per Post Mortem Report of the deceased Mst. Tahira Bibi, the symptoms observed before death is Froth and blood mixed in wata oozing from nose. Thereafter, in external appearance, it is opined by the Medical Officer that no mark of ligature on neck hyoid bone seems to be intact. It is further observed by the Medical Officer in Post Mortem Report under the head of Thorax that the deceased's/Mst. Tahir Bibi pleurae/health pale intact, Larynx and Trachea/healthy pale intact, right and left lungs/congested (mildly) and intact and parieardium and heart/filled and blood healthy-intact. Moreover, the stomach of the deceased was opined by the Medical Officer to be filled with water and gasses. Finally, the Medical Officer opined the cause of death is seems to be due to asphyxia. The contention of the learned counsel for the complainant is not believable at this stage because the above said symptoms and observations of the Medical Officer negated the allegation of the complainant for strangulation. I kindly placed my reliance on the Field's Expert Evidence (Expert Evidence and Opinions of Third Person-Medical and Non-Medical) 3rd Edition, wherein; under Chapter XIX-Drowning the sings to be sought for in the drowned are:--

1. Absence of any injury.

2. Cutis anserine and retracted penis.

3. Water and mud in the stomach.

4. Froth in the air passages.

5. Distended lungs.

6. General sings of death by asphyxia. After taking guidance from the above said learned Book, this Court is of the confirmed view that the death is caused due to asphyxia and the observations made by the Medical Officer in the Post Mortem Report clearly indicates the signs as described in the aforesaid Book.

7. Moreover, the allegation of Zina levelled against the petitioner is also denied by the report of Punjab Forensic Science Agency dated 24.11.2016, in which it is clearly stated that no zina has been committed with the deceased Mst. Tahira Bibi.

8. Furthermore, report of Histopathologist dated 2.8.2016 also reveals that no drug/poison is detected in liver, spleen, kidney and stomach, meaning thereby, the death is really caused by way of asphyxia. Moreover, lady doctor also opined that no physical injury is available on the body of the deceased.

9. Liability of petitioner for the said offences would be determined by the learned trial Court after sifting the evidentiary worth of the extra judicial confession and last seen evidence, till then case of accused would be within the domain of section 497(2), Cr.P.C. calling for further inquiry into the petitioner's guilt. Reliance is made upon Ehsan-ullah. v. The State (2012 SCMR 1137), Mitho Pitafi v. The State (2009 SCMR 299) and Qamar alias Mitho v. The State and others (PLD 2012 SC 222).

10. As regards plea of vicarious liability and common intention is concerned, it is settled that the question of vicarious liability of accused and sharing of common intention in the incident could not be decided at bail stage as the same needed evidence. Guidance is sought from Niaz Ali Shah v. The State and another (2015 PCr.LJ 766).

11. As regards findings of Police Investigator regarding involvement of the petitioner, in the occurrence, suffice it to say that ipse dixit of police regarding guilt or innocence of accused could not be depended upon, as the same would be determined by trial court on the basis of evidence, yet to be collected. Guidance is sought from Maulana Abdul Aziz v. The State (2009 SCMR 1210).

12. The petitioner is behind the bars since his arrest. The investigation is completed and he is no more required by the police for any further investigation. He is also stated to be a previous non-convict, which has not been controverted by the other side.

13. In these circumstances of the case, I find the petitioner to be entitled for concession of post-arrest bail. I. therefore, accept this petition and petitioner is allowed post-arrest bail in the sum of Rs.2,00,000 (Rupees two hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.

14. It is, however, clarified that observations made herein are just tentative in nature and strictly confined to the disposal of this bail petition. MQ/A-39/L Bail granted.