1997 PLP 2658 (MLD)

(1). In the case of Fateh Khan (1973 P.Cr.L.J. 125) reference was Made to the case of Manzoor v. State (PLD 1972 SC 81) wherein the Honourable Supreme Court has observed inter alia that while considering the question of grant of bail, the Court can examine the data available in the case and can also take into consideration the nature and credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence. In my humble view this authority is not applicable so far the facts and circumstances of this case are concerned. (2). In the case of Mehr Ghulam Nabi (1979 SCMR 479) it is held that events giving rise to ground of misuse of concession of bail. Such events taking place after grant of bail. Held these events cannot be made basis of obtaining reversal of bail grant order from Supreme Court. In my humble view this authority is also not applicable so far the facts and circumstances of this case are concerned. (3). In the case of Allah Ditta (1979 P.Cr.L.J. 190) it is held as under: ‑ "As the below caused on the neck of deceased with Kassi is attributed to Allah Ditta petitioner only. It has been argued that even if the prosecution version is correct the part ascribed to Muhammad Said petitioner is exaggerated as there was no need to hold a man who was already asleep so that the other could cause an injury with a Kassi blow on his neck. It is evident that the Kassi blow on the neck of deceased is attributed to only petitioner Allah Ditta. Hence no case for bail is made out, so far as Allah Ditta is concerned. As for Muhammad Saeed petitioner, without commenting on the merits, I admit him (Muhammad Saeed) to bail subject to his furnishing surety in the sum of Rs.30,000 with 2 sureties each in the like amount to the satisfaction of Assistant Commissioner Bakkhar." In the present case of applicant Din Muhammad, the allegation against Mir Muhammad is that he throttled deceased Mst. Sakina and Din Muhammad held the legs of the deceased. No any lethal weapon like Kassi or hatchet is alleged to have been used by Mir Muhammad whereas in the case referred to above a Kassi blow was caused on the neck of the deceased, therefore, case of the petitioner is quite distinguishable from the case referred to above. (4). In the case of Lal Din (1973 PCr.LJ 624) an application for concession of bail to respondent by the learned Sessions Judge Sialkot was agitated and the learned Judge of the Lahore High Court has observed as under:‑-- "The learned Judge further observed that Muhammad Din who lodged the report did" not claim to be an eye‑witness to the occurrence in which Bashir was put to death by the respondents. Counsel for Lai Din petitioner submitted that as the respondents have been committed to Court of Sessions for trial on a charge under section 302/34, P.P.C. they are not entitled to the concession of bail. It is also submitted that the ground which prevailed with the learned Sessions Judge that Muhammad Din was not an eye‑witness to the occurrence, was untenable as it is not necessary for the first maker of the first information report to be an eye‑witness to the occurrence." Whereas in this case complainant Muhammad Yousif has lodged the F.I.R. There is also ocular evidence of Muhammad Haji Khan and Muhammad Siddiq, both of these 2 P.Ws. have prima facie supported the case of the prosecution in their statements, therefore, this authority is not applicable so far the present case is concerned. (5). In the case of Shahid Iqbal (1976 PCr.LJ 758) it is held that a solitary blow allegedly inflicted on deceased by co‑accused while petitioner held deceased by arm needing further inquiry. This authority in my humble view is not applicable so far facts and circumstances of this case are concerned because in the abovereferred case the solitary fatal blow is attributed to co‑accused Zulqarnain which has been inflicted on the deceased. It is yet to be seen whether it was necessary to hold the deceased when other co‑accused allegedly inflicted that one blow. Here in this case the allegation against the applicant is that he held the deceased Mst. Sakina by her legs while Mir Muhammad is alleged to have throttled the deceased. There is no allegation that Mir Muhammad has caused any fatal blow with any weapon on the person of the deceased. (6). The facts of the case of Sher Ali son of Ali Muhammad Malah, in (Cr. Bail Application No.99 of 1994) are quite different from the facts of the present case because learned Judge has held as under:‑ "So far as applicant Hakim, the allegation against him is that he was driving the Car in which co‑accused came and he is even shown empty handed. As to his vicarious liability, would be determined by the trial Court and till then his case in my view would require further enquiry within subsection (2) of section 497, Cr.P.C." The case of petitioner Hakim is quite distinguishable because he was driving the Car and co‑accused Sher Mallah is alleged to have fired at the deceased Muhammad Younis. Therefore, the facts of the case of Sher Malah and Hakim are quite different from the facts and circumstances of the case of present applicant/accused Din Muhammad. 5. ‑ Learned counsel for the applicant has also contended that a cot was lying in the house and that it is an unwitnessed crime.

6. I have heard Mr. Muhammad Ashraf Leghari Advocate who has appeared for A.A.G., who has contended that most of the arguments of the learned counsel for the applicant are based upon improbabilities which can be agitated at the time of trial.

7. There is ocular evidence of complainant, P.Ws. Muhammad Haji Khan and Muhammad Siddiq consisting their 164, Cr.P.C. statements recorded by the Mukhtiarkar and F.C.M. Sakrand on 18‑8‑1994. Though the applicant and co‑accused were provided with an opportunity for cross‑examining the prosecution witnesses but cross‑examination is not done by the accused.

8. That medical evidence is also in support of the prosecution case so also the report of the Chemical Analyser.

9. I have perused the marital on record and have gone through the authorities cited by the learned defence counsel and I have also perused the Modi's Text Book of Medical Jurisprudence and Toxicology.

10. With all my humbleness at my command I am unable to agree with the contention of the learned defence counsel. The name of accused/applicant is mentioned in the F.I.R. and in the further statement of the complainant, Specific role is assigned to him. Medical evidence as well as Chemical Analyser's Report is in conformity with the prosecution case. So far the reference of the learned counsel to the Text Book of Modi is concerned I would like to refer the opinion of the Medical officer which is as under:‑-- "From the external and internal examination of the body of the deceased Mst. Sakina wife of Mir Muhammad I am of the opinion that the death took place due to injury to vital organ as rupture of the spinal cord as result of the throttling of neck."

11. The submissions of Mr. Abdul Ghani Memon, learned counsel for the applicant so far the Text Book of Modi's Jurisprudence is concerned can be considered very well after the evidence is recorded by the trial Court.

12. So far the bail application is concerned advisedly only a tentative assessment of the evidence is to be carried out, therefore, I am not discussing this aspect of the case so that case of the either party may not be prejudiced at the trial.

13. Specific role has been assigned to the present applicant/accused. Prima facie, there is allegation against the present applicant/accused that he actually facilitated co‑accused Mir Muhammad in committing the murder of Mst. Sakina by holding the feet of the deceased while she was asleep. Medical evidence as well as report of the Chemical Analyser are in support of the prosecution case.

14. In view of the facts, circumstances and case‑law discussed above, prima facie, there is sufficient evidence to connect the applicant/accused with the commission of the crime which is punishable with death. As such, the bail application is rejected. H.B.T./D‑136/K Bail application rejected.