1987 P Cr (PLP)

6. In the third case P L D 1968 S C 349 learned counsel for the applicant invited my attention to the observation of Supreme Court appearing at page 352, which reads as follows:‑‑ "However, if it is found that the charge is groundless i.e. to say unsupported by any evidence or instead of the grounds being reasonable, their absurdity stands exposed on a plain view, or the charge on its face value is reduced to a minor one which is not punishable with death or transportation for life, as for example where it is a case of accidental and unintended death caused by simple hurt, the limitation on the Courts and discretion is removed which must then be freely exercised in favour of the grant of bail. Similarly where reasonable grounds are not disclosed but grounds do exist for a further investigation and inquiry into the guilt of an accused person, the case will fall under section 497(2) of the Cr.P.C., in which case again bail should not be withheld:" The observations of the learned Supreme Court referred to above are in the nature of laying down certain principles for the guidance of the Courts. The relevant portion relied on by learned counsel states, firstly, a case, by way of example, where it is a case of accidental and unintended death caused by simple hurt, and, secondly, if it is found that the charge was groundless. Considerations as to causing simple hurt and the charges being groundless are not available in the instant case.

7. In the fourth case 1985 P Cr. L J 1024 which is a Full Bench judgment of our own Court, the learned counsel referred to the following passage appearing at page 1029:‑ "If on perusal of all the facts the Court comes to the conclusion that in this case a sentence of death or imprisonment for life or 10 years, would not be called for. This would mean that if on consideration of all the material a Court comes to the conclusion that the case exhibits such features as negative prospect of a severe sentence then bail could be granted:" The point for consideration was as follows:‑‑ "If in a particular case, the Court is in a position to come to a conclusion on the data placed before it even at bail stage, that the prosecution case taken to its extreme would not entail the maximum punishment, it would go out of the prohibition. The Court would then have the jurisdiction to grant or refuse bail in exercise of its discretion:" The relevant paragraph as relied on by the learned counsel in the above judgment, which referred to Amir v. The State 1973 P Cr. L J 205, does not also support his contention, inasmuch as it cannot be said, at this stage, when the case is yet to begin that there will be a lesser punishment than which has been provided under the provision of law, because the observation of the Full Bench is to be read in full, as it has been specifically stated that mere fact of an offence being punishable with death or imprisonment for life or 10 years would not be sufficient to refuse bail if on perusal of the facts the Court comes to the conclusion that in this case a sentence of death or 10 years would not be called for. At this stage, it will amount to pre‑empting the trial Court to say so, which, in the absence of any material on the record, except the alleged lack of intention, I am 'not inclined to make any observation in the case on this point at this stage.

8. The last case 1985 P Cr. L J 2619 relied on by the learned counsel for the applicant is that of a Division Bench of Peshawar High Court. He referred to the following observation appearing at page 2624:‑‑ "The consensus of opinion seems to be that where a single knife blow is inflicted without premeditation in a sudden quarrel and it is not shown that it was the intention of the assailant to cause death, the offence committed by him would be culpable homicide not amounting to murder. The fact that the assailant had not taken undue advantage nor had acted in a cruel or unusual manner is also to be taken notice of. Thus, taking into consideration all the facts and circumstances we are of the view that the provisions of exception 4 to section 300, P.P.C., are attracted to the instant case and the offence committed by the appellant falls within the ambit of section 304, Part I (second portion), P.P.C:" The above case is also of no avail to the learned counsel as it has been decided after conviction in an appeal.

9. Syed Sarfraz Ahmad, learned A.A.‑G. has referred to the cases of Shami v. The State 1972 P Cr. L J 149 and Abdul Rashid v. The State 1974 P Cr. L J Note 167 at p.

103. Both the cases are distinguishable inasmuch as both the cases do not relate to bail. However, in the first case it was observed that "This would certainly negative any element of preparation on his part of intention to cause her death as he seems to have picked up this Danda in the heat and excitement of the moment. In these appellant would not be held guilty of murder in this case. We are, therefore, not inclined to maintain his conviction under section 302, P.P.C. and the death sentence awarded to him is accordingly not confirmed. The appellant could not, however, escape the responsibility for the death of Mst. Amiran as in inflicting blows with Danda P.1. on the vital part of her body he could safely be saddled with the knowledge that his act was likely to cause death. We, therefore, alter his conviction to that under section 304, part It, P.P.C. and sentence him to R.I. for 10 years". In the other case also it was observed that the "accused getting provoked on account of deceased's (his wife's) refusal to let him have access to her grappling with her, trying to strangulate her and then picking up a hockey stick and giving her one blow on head such blow proving fatal. The accused held, could at most be held liable for having knowledge that his blow would cause death and not for having intention to cause death. Conviction was thus altered from section 302 to section 304, Part II:" The learned counsel for the applicant emphasised that it was a Lathi blow which was not capable of causing death as ordinarily the Lathi blow does not cause death, but Mr. Sarfraz Ahmad submits that Lathi has been held to be a deadly weapon and for this he placed reliance on Khalid and others. v. The State 1975 S C M R 500, wherein it was found that the accused had struck the blow on the top of the head of his victim with such force that his skull was fractured and fronto‑parietal suture was opened up on the left side. The death was almost instantaneous. This decision is distinguishable firstly, as the case was decided after conviction in an appeal and, secondly, the Lathi was wielded with an iron shod.

10. In fact, it is the force with which a Lathi is used which; in the circumstance, can be said to have resulted in as deadly or otherwise. It is noticed that a man of 80 years of age as alleged by the applicant and found to be of 62 years of age on medical examination has used such force which has resulted into instantaneous death of the deceased, who is said to be a woman of 45 years of age. The medical report describes lacerated wounds 2.5 c.m. x 2 c.m. and skull deep on the right side of temporal region, between the right eye and right ear. There was bleeding from nose and ear. There was swelling around the right eye and fracture of right temporal bone.

11. For the reasons discussed above, the application for bail is dismissed.

12. Before parting with this case, I would like to add that the observations made hereinabove are without prejudice to the merits of the case and will, in no way, affect the trial of the applicant/accused. S.A./G‑9/K Bail refused.