1999 PLP 370 (YLR)

Mr. Abdul Fatah Malik learned counsel for the applicant/accused contends that recovery is not effected from the accused/applicant; that ocular testimony is not consistent with the medical evidence; that in fact Punhal deceased while' jumping from the tractor fell down and sustained these injuries; that there is no motive against the present accused/applicant; that vicarious liability is yet to be established after the evidence is recorded by the Trial Court; that police also got recorded statements of independent persons Abdul Malik, Hafizullah, Ghulam Rasool and Muhammad Azad and other persons under section 164, Cr.P.C., who have exonerated the applicant/accused from the commission of this crime. Police also recorded statements of Adit and Hussain Bux Mazari who have also exonerated the applicant/accused. In support of his contentions learned counsel has relied upon the following case- law: (i) Amjad and another v. State (1982 SCMR 955). (ii) Ajmal Khan v. Liaqat Hayat and another (PLD 1998 SC 97). Mr. Sher Muhammad Shar learned A.A.‑G. points out that applicant/accused is assigned specific role of causing Lathi blows on the person of deceased Punhal which is supported by medical certificate as well as post‑mortem notes; that no doubt police got recorded 164, Cr.P.C., statements of Abdul Malik, Hafizullah, Ghulam Rasool and Muhammad Azad but their names are not mentioned by the complainant in F.I.R., that incident is of daytime, that motive for commission of murder in any case is not necessary. According to evidence collected by police applicant/accused has rightly been charge‑sheeted by the police to face the trial. So far the points of vicarious liability and the enmity between the parties are concerned, the same are to be decided after the evidence is recorded and that ocular testimony is also consistent with the medical evidence. In the background of the above facts and circumstances and contentions of the learned counsel for the parties I would like to discuss case‑law referred to by Mr. Abdul Fatah Malik. 1982 SCMR

955. In this matter their Lordships of the Supreme Court have observed that version given in the F.I.R., found to be false with regard to majority of accused already allowed ball, co‑accused attributed only one injury on the leg of deceased were granted concession of bail whereas in this case applicant/accused has been assigned the part of causing Lathi blows which resulted in the death of Punhal. The role assigned to him is supported by the medical evidence in the shape of medical certificates and post‑mortem notes relied upon by the prosecution Incident is that of daytime. PLD 1998 SC

97. In this authority also their Lordships have observed that every hypothetical question which can be imagined would not make it a case of further inquiry simply for the reason that it can be answered by the Trial Court subsequently after evaluation of evidence. I am afraid that this authority is not applicable to the case of the present applicant/accused when specific role is assigned to him which gets support from the medical evidence and the incident being that of daytime, the applicability of vicarious liability is to be considered by the Trial Court after the evidence is recorded. Medical evidence is consistent with the ocular testimony collected by the prosecution. The police had produced Abdul Malik, Hafizullah, Ghulam Rasool and Muhammad Azad before a First Class Magistrate where their statements were recorded but it is strange to note that names of these persons are not mentioned in the F.I.R. Therefore, mere recording of their 164, Cr.P.C. statements in the case does not absolve the applicant from commission of the crime. The upshot of the above discussion is that prima facie there are reasonable grounds to believe that the applicant/accused is guilty of the offence for which he has been charge sheeted. Resultantly this application is dismissed. Bail refused Q.M.H./M.A.K./A‑326/K