1990 PLP 388 (PCRLJ)

Ch. Muhammad Yusuf for Petitioners. M. Nisar Mirza, Addl. A: G. for the State. Malik Muhammad Yusuf and Malik Muhammad Zarait for the Complainant. The accused are facing the charge of attempt to murder and infliction of injuries, etc. under section 15, Islamic Penal Laws Act read with sections 307, 341 and 34, P.P.C.

2. On September, 19, 1989, a report was made by Muhammad Siddique to the effect that the complainant and Muhammad Khalil, his brother were on their way to home at 6 p.m. Muhammad Khalil was carrying a bundle of grass on his head and the complainant was accompanying his goats. On their arrival at the place of incident, Tanveer and Shabbir, accused‑petitioners armed with hatchets, assaulted Muhammad Khalil with the intention to kill him. Muhammad Bashir gave first blow with his hatchet on the right leg of Muhammad Khalil. On his falling down, Muhammad Tanveer gave a blow on his head. Shabbir also joined him in inflicting injuries on his head. Thereafter, all the accused inflicted various injuries jointly on the person of Muhammad Khalil. He was also dragged resulting in numerous injuries.

3. The accused on their apprehension, moved the trial Court for their release on bail but their request was turned down.

4. The learned counsel for the defence suggested that the incident took place in dark hours. The assailants were not identified but the accused‑petitioners were roped in out of previous enmity. Some of discrepancies were highlighted to bring the case within the scope of further inquiry. It was also suggested that in case bail was refused, the accused shall be deprived of their right of proper defence. The contentions were opposed by the learned Additional Advocate General and the learned counsel for the complainant. Reference was made to different authorities from both sides.

5. It is evident from the record placed before the Court that the incident took place at 6 p.m. in the month of September. A judicial notice can be taken of the fact that in September the sun sets at late hours. Therefore, the time of occurrence disclosed in the report was evidently much earlier than the sunset. The accused belong to one village where identification cannot be doubtful. Moreover, it is very exceptional that the substitution is made. In order to avail the ground of substitution, some strong evidence has to be shown in support of suggestion. There is nothing on record to disbelieve the prima facie allegation ascribed to the accused of inflicting injuries to Muhammad Khalil.

6. The report was made by the eye‑witness who happened to be brother of the injured person. Mere relationship of the complainant with the injured person, by itself, cannot be a ground to reject his version. Apart from that, the medico legal report disclosed that Muhammad Khalil suffered three head injuries. Dr. Khaliquz Zaman of Pakistan Institute of Medical Sciences, Islamabad certified on October 3, 1989 that the patient was unable to give any statement at the relevant time. My attention was invited to another report appended with the petition of September 25, 1989, to make believe that the injuries of Muhammad Khalil were healing and improving satisfactorily. There is no dispute with the aforesaid medical opinion, but the fact remains that the injuries were inflicted on the vital part of the body like head. All the accused are ascribed attacking the injured person with their hatchets, while he was on his way to home. I agree with the learned counsel for the defence that there was no injury of sharp‑edged weapon, but at this stage it is not permissible to go into appreciation of prosecution evidence so much so to reject its version on account of bald discrepancy. The other discrepancies highlighted to bring the case within the scope of further inquiry, are not considered material. In view of the place of injuries, vital part of the body like head, and manner of attack it is not considered a fit case for the release of the accused on bail. The prayer is rejected. However, the accused are free to renew their request for release on bail in presence of further evidence favourable to them. N.H.Q./384/H.C.A. Bail refused