1984 P Cr (PLP)

S. 497(2) read with Penal Code (XLV of 1860), S. 302-Bail, grant of--[Murder-case)-F.I.R. lodged with inordinate delay of seven days-No post-mortem examination of deceased carried out nor any report available to establish factum of his death-Alleged injured eye-witnesses giving in writing in hospital to have received injuries as a result of fall from a horse-cart-Held: A case of further inquiry as contemplated by cl. (2) of S. 497, Cr. P. C.-Bail allowed, in circumstances. Ch. Iftikhar Ahmed for Applicants. A. A. Muhammadally Asstt. A. G. for the State. The facts according to F.I.R. lodged at P. S. Mangho Pir, Karachi on 22nd March, 1984 by one Lal Zarin alias Master son of Mehrab Khan caste Pathan, are that the complainant was working as contractor at the Crush Machine of Nasim Baloch. It was at about 8-00 a.m. on 16th March, 1984, when Bukht Munir, Gul Munir, Bahadur Khan and Rahimullah Khan went to Banaras Colony for shopping and they returned after some time. Thereafter at about 10-00 a.m. about 100/150 persons including Nasir Qalandarani, Noor Muhammad Brohi. Wali Muhammad Brohi, Baba (brother of Noor Muhammad Brohi), Hanif Baloch Hotelwala and driver of a private Taxi No. 152-112 namely Sar Ahmed came there in a truck and in a private taxi. Most of these persons were armed with kul haris and dandas in their hands. Nasir Qalandarani, out of them, disclosed that Bukht Munir, Gul Munir, Bahadur Khan, and Rahimullah Khan have quarrelled with Sar Ahmed over a taxi fare amounting to Rs. 5 and have beaten him. The complainant, Bukht Munir, told Nasir Qalandrani that he was prepared to pay Rs. 1,000 instead of Rs. 5 but there should be no quarrel with them. On this Nasir Qalandarani and his companions attacked Dera of Bukht Munir with Kulharis' and `Dandas' and they injured the complainant Bukht Munir, Bahadur Khan, Gul Munir and Rahimullah Khan who fell down, and Nasir Qalandarani went away with his companions in the truck and taxi. Mashoor Khan took all the injured to Abbasi Shaheed Hospital, where also Nasir Qalandrani's people followed them, and therefore, due to their fear they did not inform the Doctor about the real incident. The Doctor, however, on account of head injury, referred Gul Munir to Jinnah Hospital Karachi, where he died at about 11-00 p.m. His dead body was taken from the Jinnah Hospital to the house of Bahram Khan, a contractor of Subzi Mandi, where facts were narrated to him. Bahram Khan advised them not to report to the police about the incident because they were in large numbers and in case of report they would harm them in future, Bahram Khan arranged for transpor tation of the dead body of Gul Munir to his native place and the dead body was accordingly sent to native place of Gul Munir by a Wagon on 17th March, 1984. Bukht Munir, Bahadur Khan, Rahimullah Khan, and 2/3 persons of Bahram Khan also went with the dead body: The complainant kept silent on account of the fear of the other party as they were large in number and did not report the matter till this date. He consulted the respectable persons about the incident and they advised him that this matter should be reported to the police because a murder had taken place, otherwise he would be held responsible for such incident. The police during the course of investigation have arrested the applicants. The applicants moved the bail application before the Third Additional Sessions Judge, Karachi who by his order, dated 3rd May 1984 rejected it. Mr. Ch. Iftikhar Ahmed, the learned counsel for the applicants con tended that there was delay of seven days in lodging the F. I. R., which too has been registered after consultations, therefore, possibility of false implication cannot be ruled out, moreover the alleged injured eye-wit nesses had given in writing in the hospital that they received the injuries as a result of a fall from the horse-cart. He has produced the photostat copy of the record of the hospital in support of his contentions. He has further contended that there being no medical report in respect of injuries on person of alleged eye-witnesses except of course the complainant, they could not be connected with the alleged offence. He has also pointed out that the factum of death of the deceased has also not been established as no post-mortem report was available with Investigating Officer, who went with object of having the post-mortem carried was refused permission to enter Tribal areas. His last contention that the case under no circum stances would fall under section 302, P. P. C., therefore, the applicants' case comes within the provisions of section 497 (2), Cr. P. C. for further enquiry. The learned counsel for the State opposes the grant of bail to the applicants though he does not refute the above facts: His contentions are that the incident being of a broad daylight, the accused have been named in the F.I.R., with a clear motive of committing murder and the injured eye-witnesses support the prosecution case. I have heard the learned counsel for the applicants as well as State. There being inordinate delay in lodging the F. I. R., failure to carry out post-mortem examination of deceased, statements of the alleged injured eye-witnesses in Abbasi Shaheed Hospital in writing are such factors which require further enquiry as contemplated by clause (2) of section 497. Cr. P. C. However, the observations given above, are of tentative nature and shall not affect the merits of the case in the trial Court. I, therefore, allow this application and grant bail to the applicants who shall be released on their furnishing solvent surety in the sum of Rs. 20,000 each with P.R. Bond in the like amount, to the satisfaction of the trial Court. S. G. D. Bail allowed.