1994 P Cr (PLP)

The above is an application for bail moved by the applicant who is involved in a murder case under section 5 of the Islamic Penal Laws Act, 1974.

2. The facts of the case as disclosed in the F.I.R. briefly stated are that Muhammad Habib deceased left his home to attend the marriage ceremony of one Muhammad Khurshid in Village Banjosa Tehsil Rawalakot on 2nd of October, 1991 at 4 p.m. He failed to return to his home till next day when on 3rd October, 1991 at 11 a.m. one Muhammad Bashir son of Ali Hussain resident of the same village informed the mother of the deceased Mst. Fatima who is complainant in the case, that dead body of her son was lying in a nearby graveyard. She was told that her deceased son was stabbed in abdomen and his intestines were coming out of his abdomen. Mst. Fatima made a report to the police about it. She further expressed her apprehension that on account of rivalry of the deceased over love affairs with two village girls, he might have been murdered. The police after registering the case, conducted investigation a during which the blood-stained clothes of the deceased as well as that of the accused-applicant and blood-stained Chhuri, at the instance of the accused applicant were recovered which were sent for determination of blood origin and its grouping to the chemical examiner. In the meantime, the police presented challan before the District Criminal Court, Poonch on 2nd January, 1992.

3. The accused-applicant moved an application for his release on bail before the trial Court but his prayer was declined, vide impugned order, dated 4th March, 1992. He challenged the legality and propriety of the impugned order before this Court without success. However, it was observed by this Court that the applicant may renew his prayer for bail, after receipt of the report of serologist or alter some evidence is recorded by the trial Court. The accused-applicant filed another application for bail in the shape of review petition before this Court on 20th October, 1992 which was rejected on November 4, 1992.

4. The trial Court granted many opportunities to the prosecution to lead its evidence but except two witnesses, no other witness was produced by the prosecution. The applicant, in these circumstances, once again renewed his prayer for bail by filing another application on 3rd August, 1993 which was dismissed, vide order impugned, through the present application, dated 11th November, 1993.

5. I have heard the arguments advanced by the learned counsel for the applicant and the learned Assistant Advocate-General and have very minutely gone through the relevant record.

6. The learned counsel for the applicant, Sardar Muhammad Hussain Khan, contended that there is no eye-witness of the occurrence. It is a blind murder submitted the learned counsel. He further submitted that the evidence which could connect the accused-applicant in the commission of the crime, in the absence of report of serologist, has no evidentiary value. He further emphasized that in this case, two Chhuris have been recovered; one which was lying near the dead body of the deceased and other one which was allegedly recovered at the instance of the accused-applicant. According to the learned counsel the chemical examiner has given opinion that the clothes of the accused-applicant and that of the deceased, alongwith the Chhuris were stained with blood. Certain pieces of scraps of the articles were sent by him to the serologist of the Punjab Government for ascertaining the origin of blood and its grouping. The report of serologist has not yet been brought on the record. Even though a period of about 2 and a half years has elapsed as occurrence took place on the night intervening between 2/3 of October, 1991, which indicates that the report of serologist was not favourable to the prosecution, as such it has not been placed on record till now. He further submitted that till today, even though almost 14 opportunities have been granted to the prosecution for leading its evidence but it is regretful that only two witnesses have so far been produced by the prosecution in support of its version. Out of these witnesses, one is complainant who is also the mother of the deceased and the other is one Muhammad Gulzar Khan who is a formal witness, in whose presence, besides clothes of the deceased and the accused applicant a `Chhuri' lying near the dead body were taken into custody by the police. Both these witnesses have not said anything about the accused applicant.

5. Repudiating the arguments of the learned counsel for the accused applicant, the learned Assistant Advocate-General supported the impugned order passed by the District Criminal Court and argued that on account of heavy work with the trial Court, evidence in this case, could not be recorded expeditiously as was expected. He submitted that prima facie, the facts of the case connect the accused-applicant with the commission of crime that he on account of love affairs with two village girls, committed the offence of murder of the deceased. He in this behalf read out the statements of two girls which were recorded by the Magistrate under section 164, Cr.P.C. whereby one Mst. Sakina had admitted her illicit relations with the accused-applicant. She has further deposed that the accused-applicant told her that the deceased had developed illicit relations with a girl, namely, Mst. Shamim Akhtar daughter of Ashraf, as such he would have killed the deceased. The learned Assistant Advocate sought time to enquire from S.P., Poonch as to whether or not the report of serologist was available with the prosecution. He was given chance but according to him, the prosecution is not in possession of any such report. This reveals that the opportunities granted to the prosecution were squandered by it. In this background, the presumption may be that report of serologist was not helpful to the prosecution as such the prosecution is reluctant to bring the same on record. I have myself noticed that in this case, the prosecution was too slow to lead evidence. It is also noticed that even the statements of two P.Ws. were recorded by the trial Court after endeavouring much in this regard. Previously on two different occasions, this Court directed the trial Court to finalize the proceedings as early as possible. I, therefore, deplore the attitude of laxity displayed by the prosecution as delay in this case, cannot be attributed to the accused-applicant or the trial Court. Therefore, keeping in view the absence of the report of the serologist and a number of opportunities allowed to the prosecution to lead evidence, which were wasted by it, I am persuaded to admit the accused-applicant to bail.

6. It is, therefore, directed that the accused-applicant shall be released from custody on furnishing a bail bond in the sum of Rs.2,00,000 with two sureties in the like amount to the satisfaction of any Magistrate 1st Class, Poonch, if not wanted in any other case. However, the prosecution shall be at liberty to move the trial Court for the cancellation of his bail if some convincing evidence connecting him with the commission of crime is brought on record and in that event, the trial Court, without being influenced by this order, shall decide the application if so moved by the prosecution, by applying its own independent mind to the merits of the case. N.H.Q./41/H.CA. Bail granted.