1985 P Cr (PLP)

A.A. Muhammadally A. A.‑G. for the State. Date of hearing: 28th August, 1984. The two applicants alongwith Sibte Hasnain, Akhlaq Hussain and Muhammad Sibtain (since deceased) are alleged to have committed murder of one Zawar Hussain son of complainant Asghar Hussain. This incident had taken place on 25‑6‑1984 at 8‑30 p.m. in Jaffar‑e‑Tayyar Society Malir, Karachi. The report of the incident was lodged by Asghar Hussain at 6‑00 a.m. In fact his statement was recorded in the hospital at 4‑30 a.m. by the S.H.O.

2. In the F.I.R. the complainant stated that the two applicants alongwith Sibte Hasnain, Akhlaque Hussain and Muhammad Sibtain armed with Hockey sticks and knives attacked his son Zawar Hussain and killed him. He further stated that the incident was seen by one Hassan Abbas and other Muhallah people.

3. However, in his 161, Cr.P.C. statement, Hassan Abbas does not implicate the applicants. On the contrary he has given quite different story and stated that Muhammad Sibtain deceased and Zawar Hussain deceased had attacked each other with knives, as a result of which both of them died.

4. In this case further statement of the complainant was also recorded in which the complainant retracted from the story which be had given in the F.I.R. and said that Muhammad Sibtain deceased and Zawar Hussain deceased had attacked each other with knives as a result of which both have died. He does not implicate Tanveer Hussain in his further statement. But so far as Tauqeer Hussain is concerned, it is alleged that he had thrown stone which hit deceased Zawar Hussain.

5. The other Mohallah people who have not been named in the F.I.R. were examined by the Police during investigation. They are Iqbal Raza, Saghir Ahmed, Qamar Zaidi and Alamdar Hussain. They have corroborated the further statement of the complainant, according to which only the two deceased persons had attacked each other with knives. So far as Tanveer Hussain is concerned, only Lalkara has been attributed to him and Tauqeer Hussain is said that he had thrown stone at the deceased Zawar Hussain.

6. The medical report shows that the deceased Zawar Hussain had died of knife injuries on his abdomen. So far as Tanveer Hussain is concerned, only Lalkara has been attributed to him and the question whether he had any common intention to commit murder of the deceased, is a question of further inquiry. According to the eye‑witness Hassan Abbas, who had seen the incident, even Lalkara has not been attributed to this applicant. So far Tauqeer Hussain is concerned, it is alleged that he had thrown stone at the deceased Zawar Hussain, which hit the deceased at his ear. The Medical Officer had found one lacerated wound on the ear of the deceased, but this was not fatal injury. According to the Doctor, this was simple injury.

7. From the statement of Hassan Abbas and the other Mohallah people, who are alleged to have seen the incident, the involvement of the two applicants in this murder case is prima facie doubtful. The learned A.A.‑General, therefore, does not oppose the bail application.

8. So far as Tanveer Hussain is concerned, only Lalkara has been attributed to him which is not sufficient to saddle him with any liability of common intention as held in 1979 P Cr. L J 975.The role of Tauqeer Hussain in this incident is also a matter of further' inquiry because only throwing a stone and causing simple injury to the deceased is attributed to him, but from the version given by the eye‑witness Hassan Abbas and the other Mohallah people it does not prima facie transpire that there was any common intention on his part to kill the deceased. The bail application is, therefore, allowed. The two applicants shall be released on furnishing sureties in the amount of Rs. 20,000113 and P.R. in like amount each to the satisfaction of Sessions Judge, Karachi. The observations made in the above order about the merits of the case are of tentative nature and shall not prejudice the trial Court in coming to its own conclusion about the nature of the offence, if any, committed by the applicants after recording prosecution evidence. M.Y.H. Bail granted.