2006 PLP 3007 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

Learned counsel for the petitioner, in support of this bail petition contends that the occurrence has taken place during the dark hours of the night and actually it was an un-witnessed occurrence; that the story of the F.I.R. is improbable because according to the complainant, the petitioner was sitting on the chest of the deceased but there is no injury on the front side of the body; that the doctor has given duration between the time of death and the time of post-mortem examination as 18-20 hours while according to complainant he had seen the occurrence at 5-00 am. which does not fit in with the prosecution case; that there is seven hours delay in lodging the F.I.R.; that a Punchayat was convened which exonerated the petitioner, Imran was declared innocent by the police while co-accused Shahzad was placed in column No.3 of the challan; that the eye-witnesses despite close relationship with the deceased, did not try to save him; that the F.1.R. was registered after deliberations and consultations; that the case of the petitioner is one of further inquiry and that the petitioner is entitled to the concession of bail.

2. On the other hand, learned counsel for the State submits that the petitioner is named in the F.I.R.; that a specific role is attributed to him; that weapon of offence i.e. Danda was recovered from him; that the fatal injuries on the head of the deceased are attributed to the petitioner; that the petitioner has been found guilty during the investigation; that there are 29 injuries on the person of the deceased and that the petitioner is not entitled to the discretionary relief of bail from this Court because the case falls within the prohibitory clause of section 497(1), Cr.P.C.

3. I have heard learned counsel for the parties, have given consideration to the submissions made at the bar and have also gone through the record.

4. In the instant case three accused were named in the F.I.R. Two co-accused are Shahzad and Imran. According to the F.I.R., the deceased was taken away from his house on the night between 1st/2nd December, 2004 at 1-00 a.m. as he was cable operator on the pretext of setting the cable in order, the deceased did not return home, then the complainant along with his brother Ghiasuddin went to the cable centre of Rohail Abbas, on the way Shahid Hussain also met them, when they reached the cable centre, they found the main door was closed from inside but electric bulb was on, they saw through the window that co-accused Imran caught hold of deceased from his legs, Shahzad co-accused was giving blows on the person of the deceased with a cable wire while the present petitioner was sitting on the chest of the deceased and was giving Danda blows on his person, the complainant and others got the door opened whereupon the accused ran away, they entered into the room and saw that Azhar deceased had died in consequence to the above injuries. The motive alleged was that few days prior to the occurrence, there was an altercation between the petitioner Rafique and the deceased, the matter was patched up through intervention of the respectables of the locality.

5. In the instant case, there are 29 injuries on the person of the deceased. Learned counsel for the petitioner has himself placed on record the copy of the post-mortem report of the deceased which is at page 17 of the file, according to which, there are ten injuries on his head while the remaining are on the thigh and back of the deceased. According to the opinion of the doctor, the death was due to injuries Nos.1 to 5, which are on the head, he declared Injuries Nos.12 to 28 fell under section 337-L(2), P.P.C. while he declared Injuries Nos.7, 8 and 11 as Shujah-e-Khafifah, the time between death and the post-mortem examination was given as 18-20 hours. The contention of the learned counsel for the petitioner that the time between the death and the post-mortem examination does not coincide with the time of occurrence, as stated by the complainant, is a question which cannot be gone into at this stage and has to be answered by the learned trial Court after appreciation of evidence on record. Moreover, the ocular evidence in the form of three eye-witnesses is available and no comments can be given on the merits of the main case so that it may not prejudice case of either side during the trial. Sufficient it to say, the Danda has been recovered from the petitioner, he is named in the F.I.R., he is attributed Danda injuries on the head of the deceased which, according to the opinion of the doctor, were fatal and resulted into the death. Moreso, petitioner has been found guilty by the police. So far as decision of the Punchayat is concerned, criminal cases cannot be decided on the basis of Punchayats and the offence falls within the prohibitory clause of section 497(1), Cr.P.C. In the afore-referred circumstances, while dismissing this bail petition, reliance is placed on Sardar Munir Ahmad Dogar v. The State PLD 2004 Supreme Court 822, wherein, while declining bail after arrest sought on the ground of "further inquiry", at page 828, apex Court of the country in the judicial hierarchy commented as under: "

10. It may be noted that now it is a settled principle of law that if an accused succeeds in making out a case of further inquiry, he is entitled for grant of, bail because invariably such plea is available in every case. Reference in this behalf may be made to the case of Asmatullah Khan v. Bazi Khan PLD 1988 SC 621 and Nasreen v. Fayyaz Khan PLD 1991 SC

412. Relevant para. from the latter judgment is reproduced herein below:-- "Lastly, the question of prima facie, opinion about the guilt of the accused under subsection (1) of section 497, Cr.P.C. or subsection (2) thereof has not been properly examined in the impugned order. The easy contrivance of further inquiry against positive rulings of this Court explaining the provisions of section 497(2), Cr.P.C. was pressed into service. It has been observed time and again that there would hardly be a case which should not require further inquiry, therefore, this element by itself, is no ground for granting bail under subsection (2) of section 497, Cr.P.C. Such orders are on their very face illegal which do not fulfil the second condition regarding tentative opinion about the prima facie guilt or otherwise of the accused." With reference to above principle, this Court in the case of Shohaib Mehmood Butt (ibid), which has been relied upon by the learned counsel for the petitioner, has held that every hypothetical question, which can be imagined, would not mean that it is a case of further inquiry simply for the reasons that it can be answered by the Court subsequently after evaluation of evidence. Broadly speaking, the condition laid down in clause (2) of section 497, Cr.P.C., is that there are sufficient grounds for further inquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that the accused is not guilty of the offence with which he is charged. (emphasis supplied). H.B.T./M-1279/L Petition dismissed.