1990 P Cr (PLP)

S. 497

Penal Code (XLV of 1860), 5.302/34

West Pakistan Arms Ordinance (XX of 1965), S.13-D

Bail, grant of

Evidence of witnesses was assailed

Court had only to form a prima facie opinion at bail stage

Angle of consideration and approach under section 497, Cr.P.C., should be wholly different from the approach by the trial Court at the conclusion of trial

Bail was refused in circumstances. Muhammad Afzal Soomro for Applicants. Zawar Hussain Jafferi, A.A.-G. for the State. Applicants Buxal and Laik alias Latif, who are detained in Crime No. 31 of 1989, Warah P.S., under section 302/34, P.P.C., and section 13-D of the Arms Ordinance, 1965. applied for bail before learned Additional Sessions Judge, Larkana, but without success. They have now approached this Court with the same prayer.

2. Deceased Abdul Fateh son of complainant Mst. Alam Khatoon was suspected to be in toe with Mst. Sodhi wife of one Mangan, and although Abdul Fateh had taken holy oath denying having such an affair, but still it was being given out that he would be killed. Due to fear Mst. Alam Khatoon shifted to village Sachedino Marfani alongwith her son deceased Abdul Fateh. On 2-3-1989, Mithal son-in-law of complainant Mst. Alam Khatoon had come to her house alongwith his wife for Gadjani. They had a talk till late hours. Mst. Alam Khatoon who had a stomach disorder could not sleep due to pain when at about mid-night time she saw the present applicants alongwith Hazro Khan. They came near the cot of deceased Abdul Fateh and after removing the quilt from his body both the present applicants fired at him causing him immediate death. Besides Mst. Alam Khatoon, the incident was witnessed by P.W. Mithal. Both these witnesses are said to have identified the culprits on torch-light flashed by Mst. Alam Khatoon. On the same day at 5-15 a.m., Mst. Alam Khatoon lodged F.I.R. at Gaji Khuhawar P.P.

3. I have heard Mr. Muhammad Afzal Soomro, learned counsel for applicants and Mr. Zawar Hussain Jafferi, learned AA.-G. for State. The latter has opposed the bail application.

4. Mr. Muhammad Afzal Soomro, learned counsel for applicant who has presented the case with ability has contended with force that identification of applicants on torch-light, which was not produced during the course of investigation, constitutes a ground of further inquiry within the meanings of subsection (2) of section 497, Cr.P.C., entitling the applicants to the grant of bail. Reliance is placed upon two unreported orders of this Court in Criminal Bail Application No.679 of 1986 and Criminal Bail Application No. 53 of 1989, in which one of the grounds for the grant of bail was identification on torch-light, which according to learned Judges could not be readily relied upon. A careful examination of the above orders will show that besides this ground, there were other factors which prompted the learned Judges to exercise discretion in favour of the accused. Even otherwise generalisations on matters which primarily rest' on discretion and the attempt to discover a computerised formula of universal application when facts of each case are bound to differ, are likely to frustrate the very purpose of conferring discretion under section 497/498, Cr P.C. Every ruling in a criminal case, therefore, governs its own facts.

5. An attempt has also been made to show that the medical evidence was at variance with the ocular account furnished by Mst. Alam Khatoon and Mithal. This theory was perhaps developed on the assumption that the fatal shots were fired point blank and since no charring or blackening was noticed by the Medical Officer who conducted the autopsy on the dead body of Abdul Fateh, it was taken for granted that the medical evidence was in conflict with the eye-witness account. This observation is based on mere surmise and not on any evidence. A surmise is a slender foundation for recording a conclusion.

6. Mr. Muhammad Af7al Soomro, learned counsel for applicant has also endeavoured to assail the evidence of witnesses in an attempt to show that they had no occasion to identify the culprits. At this stage the Court has only to form a prima facie opinion. The angle of consideration and the approach under section 497, Cr.P.C. must be wholly different from the angle and approach of this consideration by the trial Court at the conclusion of trial.

7. Lastly it was half-heartedly suggested that both the mashirs, namely Roshan Ali and Muharram, having filed their affidavits in support of the applicants have made the grounds of bail certain. It is difficult to be patient with argument of this kind. The evidence of these mashirs, even if accepted on the lines as deposed by them in their affidavits is hardly going to make a material change.

8. No case for bail is made out and the application is accordingly dismissed. S.A./B-168/K Bail refused.