1985 PLP r (PCRLJ)

Talib Hussain Rizvi for Petitioner. Shaukat Ali for the State. Date of hearing: 2nd July, 1985. Petitioner seeks bail in case F.I. R. No. 61, Police Station, Lalamusa, District Gujrat, registered under section 302/34, P.P.C. on the statement of Muhammad Hanif, alias Bhoora.

2. The complainant has stated in the first information report that some eve‑teasers while loitering in his street, used to tease the girls passing by and in spite of warnings they did not desist. He stated that on 27‑2‑1985 at about 12‑00 noon his daughter Mst. Parveen was returning to her house after having met her paternal‑aunt, when Nazar Abbas alias Gandhari, Qamar Abbas alias Gosha sons of Talib Shah and Nasar alias Teady cut indecent joke with her. She narrated the incident on returning home. It is further stated that his brother Muhammad Rashid followed by him went out of the house and scolded the three miscreants. All the three, within his view started grappling with him, and gave him some fist blows. When he went near, Nazar Abbas exhorted Nasar, saying (KAM MUKA BHURA VEE AA GYA EE) whereupon Nasar accused took out a Khanjar from the fold of his Shalwar and gave a blow on the chest of the deceased as a result of which he fell down, whereafter all the three accused ran away. The occurrence, according to him, was witnessed by Muhammad Sharif, Muhammad Yasin and Muhammad Jamil. Muhammad Rashid died shortwhile thereafter.

3. Learned counsel for the petitioner contended that even according to the F.I.R. there is no allegation against the petitioner of having caused any injury to the deceased nor any allegation has been levelled that he was carrying any weapon at the time of occurrence; that there was no previous animosity. Learned counsel for the petitioner further contended that even if the statement of the complainant is taken at its face value, it cannot be presumed that the petitioner had the knowledge that his co‑accused will bring out Khanjar from the fold of his Shalwar and will murder Muhammad Rashid (deceased). Learned counsel vehemently argued that the petitioner is named Mazhar Abbas, and Qamar Abbas named in the F.I.R., is some other person. He has stated that evidence was led during investigation by the petitioner in support of this assertion.

4. Learned counsel for the State has opposed the bail and stated that there was no question of mistaken identity and that the petitioner was found to be the same person, named in the F.I. R., during the investigation.

5. There is, of course, no allegation in the F.I.R. against the petitioner of having caused any injury to the deceased with any weapon. No marks of fist blows were found on the person of the deceased at the time of post‑mortem examination.

6. However, a bare reading of the F.I.R. shows that it is not a case of non‑active participation. The best that can be said for the petitioner is, that he had not caused the death by inflicting a blow to the deceased. Otherwise, the petitioner was an active actor in the whole affair. He was one of those three persons who had teased the niece of the deceased, i.e. daughter of the complainant and when the deceased had gone to lodge protest, on his niece having informed him about the incident, the petitioner joined hands with his co‑accused in manhandling, instead of feeling apologetic or ashamed. This conduct of the petitioner to say the least can easily be termed to be an act of highhandedness.

7. Although in some cases concession of bail has been extended by the superior Court to the petitioner, not alleged, to have caused injuries, either to the deceased or the witnesses, but there can be cases where the actions of a person can be, enough speaking evidence, having facilitated the murder by giving support to his co‑accused. The case in hand, according to my assessment is one of such cases.

8. The fact that the petitioner alongwith others had remained at the spot after the first incident and had joined hands in scolding and giving fist blows to the deceased, speaks of the programme of all the three, including the petitioner; to go to the extreme end. The absence of marks of violence on the dead body as a result of fist blows, cannot be considered as contradiction of the eye‑witness account, as fist blows E might not have left the marks of violence because of the deceased having been dressed up. The belatent and highhanded manner in which the petitioner acted alongwith others during the whole occurrence, does not leave any mitigating circumstance to consider exercise of discretion in his favour. Even otherwise, I feel it is too early to exercise discretion of grant of bail in his favour as the occurrence had taken place recently, i.e. on 27‑2‑1985. In the circumstances, the petition is dismissed. H. A. K. Bail refused.