1999 P Cr (PLP)

S. 497/498

Penal Code (XLV of 1860), S.302/34

Bail, grant of- Principle of consistency

Only fatal blow on the head of the deceased was attributed to accused

Case of accused was different to that of the co-accused already released on bail

Principle of consistency being not applicable, bail was refused. Ch. Ghulam Hussain for Petitioners. Muhammad Yaqoob Qureshi for the State. Ch. Haider Bakhsh for the Complainant. A case under section 302/34, P.P.C. is registered against the petitioners and one Umar Hayat for the murder of Ghulam Muhammad at the report of his father Muhammad Ali vide F.I.R. No.281, dated 20-8-1997. According to the F.I.R., the deceased was sleeping in the house that at about 12-00 O'Clock in the night, Muhammad Hayat and Umar Hayat empty-handed while Fayyaz petitioner armed with a "Mungali" entered his house. The aforesaid Muhammad Hayat and Umar Hayat overpowered the deceased, whereas, Fayyaz petitioner gave a "Mungali" blow on his head which resulted into his death. The F.I.R. was registered at Police Station Jhal Chakkian, District Sargodha during the same night at 2-30 a.m. The motive about the occurrence was stated that Muhammad Hayat petitioner had taken 2 Kanals of land of the deceased under illegal occupation. The deceased allegedly asked for return of the possession of the aforesaid land which infuriated the petitioner, who with his co-accused in furtherance of their common intention killed hire.

2. Learned counsel for the petitioners has submitted that Umar Hayat one of the accused who had overpowered the deceased alongwith Muhammad Hayat has been admitted to bail on the ground that he was found innocent during the police investigation. Secondly, it is contended that the last investigation was conducted by Muhammad Akram, D.S.P., Sillanwali who came to the conclusion that the occurrence had taken place during the night and remained to be unwitnessed. According to him also, the case of the prosecution appeared to be doubtful but ultimately, he recommended that the petitioners Muhammad Hayat and Fayyaz be challaned and left to the judicial verdict of the Court. Lastly, it was submitted that the weapon of offence was never recovered at the instance of Fayyaz petitioner and that the same was produced by the complainant before the police and as such, there was no corroborating evidence to link him with the occurrence. As far as Muhammad Hayat petitioner is concerned, he being empty-handed, his case was not distinguishable from that of Umar Hayat, his co-accused who has been admitted to bail by the learned trial Court. It was, therefore, submitted that it was a case of further enquiry and that no body had seen the occurrence as admittedly, the deceased was done to death during the night.

3. Learned State Counsel assisted by learned counsel for the complainant has, however, opposed the bail application on the ground that both the petitioners are named in the F.I.R. and a specific role has been assigned to each of them in killing the deceased. The motive is allegedly attributed to one of them i.e. Muhammad Hayat and as such, though he was shown empty-handed during the occurrence but was not entitled to bail at this stage. Lastly, it was contended that the investigation conducted by the D.S.P. Sillanwali was merely an ipse dixit of police and was not liable to be taken into account at this stage particularly when the D.S.P, aforementioned had not conducted any fresh investigation but had relied upon the investigation, already conducted in the case.

4. In the aforesaid situation, learned counsel for the petitioners has submitted that the D.S.P. had conducted the investigation independently of the previous investigation as he had examined a number of witnesses before coming to the conclusion.

5. I have considered the foregoing submissions and find that one of the assailants namely Umar Hayat having similar role in the occurrence to that of the petitioner Muhammad Hayat, has been admitted to bail by the learned trial Court. In that situation the principle of consistency will demand that Muhammad Hayat petitioner be also admitted to bail: Hence, the petition to his extent is allowed and he is admitted to bail in the sum of Rs.50.000 with two sureties each in the like amount each to the satisfaction of the trial Court,

6. As far as, Fayyaz petitioner is concerned, he has given the only fatal blow on the head of the deceased and, as such, being the principal accused would have no case for bail at this stage. The petition to the extent of Fayyaz petitioner is therefore dismissed. Q.M.H./M.A.K./M-977/L Order accordingly.