P L D 1991 Peshawar 39 (PLP)

Mian M. Murad for Petitioners. K. G. Sabir, Bar‑at‑Law for the State. Date of hearing: 9th March, 1991. Muhammad Younas and Fitrat Hussain, petitioners, stand charged with the murder by firing of Mst.Nagina their sister‑in‑law. They seek bail pending trial in this case.

2. Briefly stated, facts of the case are that Mst.Nagina daughter of Mir Aman complainant was shot dead on 20‑6‑1990 at about noon time in the house of the petitioners and her husband Abdul Samad in village Gumbat. The complainant, who is father of the deceased, on receipt of information, lodged the report on the same day at 14‑00 hours and on the basis of which a case was registered against the two petitioners under section 302/34, P.P.C. at Police Station, Saddar, Mardan.

3. Mian Muhammad Murad, Advocate, seeks bail of the petitioners on the grounds: firstly, that there has been delay of more than two hours in lodging the F.I.R. because, according to Nurul Baz brother of the complainant, the occurrence had taken place before noon time, secondly, that it was an unwitnessed occurrence; thirdly, that no incriminating recovery has been effected from Fitrat Hussain petitioner; and lastly, that the role attributed to Muhammad Younas petitioner is merely of catching hold of the deceased which besides sounding unreasonable was also dangerous for him. In support of the last contention the learned counsel relied on (1) Fazal v. The State 1986 P Cr. L J 1023 and (2) Ali Akbar v. The State 1986 P Cr. L J 2874.

4. Mr. K. G. Sabir, Bar‑at‑Law, appearing on behalf of the State, submitted that the petitioners are not entitled to the concession of bail; firstly, because the charring around the only inlet wound on the person of the deceased was confirmatory of the allegation that Muhammad Younas petitioner caught hold of the deceased and was then fired at point blank; secondly, that no empty has been recovered from the spot because there being a single entrance and one exit would on the person of the deceased, no empty could be recovered from the spot; thirdly, that the petitioners had remained in abscondence from 20‑6‑1990 to 23‑8‑1990 which has not been explained; and lastly, that there was no animus for the complainant to falsely implicate the petitioners in this murder which had taken place in their own house.

5. There is apparently no delay in lodging of the F.I.R. and, in any case such a delay per se is no ground for granting bail to the petitioners for an offence involving capital punishment. The objection that no recovery of any incriminating article had been effected from the spot, has been amply clarified by the learned counsel appearing on behalf of the State which is reasonable. No doubt, Mohammad Younas petitioner is charged for catching hold of the deceased and it would have been certainly ridiculous if the firing attributed to Fitrat Hussain petitioner had been made from some distance. In the instant case, the doctor has detected the charring marks around the entry wound. The allegation of catching hold of the deceased is prima facie substantiated by the medical evidence. In any case, sharing of common intention of Mohammad Younas petitioner with Fitrat Hussain petitioner can be appropriately dealt with at the stage of trial and nothing more can be said for or against on this point.

6. The occurrence had taken . place in the house of the petitioners. No report has been made by them to charge any one for this murder. There is C nothing on the record that even a private complaint had been made by any inmate of the house of the petitioners charging some one for this dastardly murder.

7. The two cases cited at the Bar by the learned counsel for the petitioners are not attracted to the facts of the present case because in both the cases facts have not been elaborated so as to make them applicable to the facts of this case. Nonetheless, it has been held in Ghulam Qadir v. The State (PLD 1978 Peshawar 160) that strictly speaking there are no precedents in criminal matters and that each case is to be decided on its own facts. It was also held in that case that general principles of law have to be construed and applied after taking into account the facts of a particular case. I respectfully agree with these observations and hold that the facts of this case are quite distinguishable from the facts of the cases cited above and are not of any avail to the petitioners. 8.???????? In the circumstances, there exist reasonable grounds to believe that the petitioners are guilty of the offence of murder of Mst. Nagina in furtherance of their common intention and, therefore, their case falls within the prohibitory clause of section 497(1), Cr.P.C. The petition is accordingly dismissed. N.H.Q./1182/P??????????????????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.