1978 PLP 285 (SCMR)

MUHAMMAD AKRAM, ACTG. C.J.‑This is an appeal by special leave from the order dated 27th of January 1977, passed by a learned Judge of the Lahore High Court at Lahore, by which he dismissed the application of the two appellants herein for bail in a case registered against them along with four others under section 302/ 148/149, P. P. C. In brief the prosecution case as disclosed in the F. I. R. is that .at about 10‑00 a. m. on the 4th of October 1976 Aziz deceased had gone to his fields where his wife Mst. Rashidan Bibi along with their minor daughter Khurshid Bibi were already present cutting grass. At the time Nazir and Mustafa appellants along with four others, namely Wazir, Ghulam, Muhammad Hussain and Hanif also came there. Nazir appellant was armed with a soti while the other accused were empty handed. Nazir went forward towards the decreed and after removing from his shoulder his (deceased's) safa he put it around his neck and dragged him to the edge of a nearby sugarcane field. Wazir and Ghulam tackled him by his legs and felled him to the ground. Nazir and Mustafa appellants then started to strangulate the deceased with the safa around his neck. Muhammad Hussain and Hanif gave hick blows to the deceased on his testicles and when Mst. Rashidan rushed forward to rescue her husband, Nazir appellant inflicted a soti blow at her back. As a result of the strangulation of the deceased, blood started to come out from his mouth and nose and he died on the spot. On the alarm raised by the complainant Shahab Din, Nasrullah and Niaz P. Ws. also came to the scene of occurrence. As to the motive it is alleged that about 314 days before this occurrence Khurshid Bibi, the daughter of the deceased was grazing cattle which had strayed on into the fields belonging to Muhammad Din father of Nazir appellant No. 1 and Wazir and Ghulam co‑accused. On this Muhammad Din abused her and thereupon the deceased and Muhammad Din also exchanged abuses. The accused therefore, entertained this grudge which led to the murder of the deceased at their hands. It appears that S. I. Malik Mahmood Ahmad, S. H. O., Bhai Pheru was on round at the Bus Stand when he learnt of this occurrence. He therefore, proceeded to the spot in village Dina Nath situated at a distance of about six miles from the Police Station and recorded the statement of Mst. Rashidan Bibi at the spot at 2‑00 p. m. on the basis of which the F. I. R. at the Police Station was actually registered at 2.40 p. m. on the same day. The report of the post‑mortem examination reveals that stomach contents had come out from the mouth and nose of the deceased. In the inquest report however, it was stated that blood was coming out from the mouth and nose of the deceased. There were also two head injuries which had led to the fracture of the skull and temporal bone of the deceased. Swelling and contusion marks were also noticed on the scrotum. But there was no mention of any ligature mark on the neck of the deceased in the post mortem report. It is also surprising to find that the police does not appear to have arranged for the medical examination of Mst. Rashidan Bibi com plainant who was alleged to have sustained a stick blow on her back at tae hand of Nazir appellant. All the six accused applied for their bail before the Sessions Judge, Kasur. However, the bail application of Muhammad Hussain and Hanif accused who gave kick blows on the testicles of the deceased was not pressed at the hearing. The learned Sessions Judge was of the opinion that prima facie the blood had started coming out of the mouth and nostrils of the deceased on account of asphyxia and strangulation and that specific acts were attributed to all the remaining four accused as well. He therefore, rejected the bail application of all the six accused before him. Thereafter Wazir, Nazir, Ghulam and Mustafa accused applied to the High Court for hail. On the 27th of January 1977, a learned Judge of the Lahore High Court at Lahore admitted Wazir arid Ghulam accused to bail. But dismissed the application of Nazir and Mustafa appellants. In that connection he observed that the post‑mortem report revealed that stomach contents had come out from the mouth and nose of the deceased. However, in the inquest report it was stated that blood was coming out from the mouth and nose of the deceased. There were two head injuries which bad led to the fracture of the skull and temporal bone of the deceased and there was swelling and contusion marks on the scrotum. There was however, no mention of any ligature marks on the neck of the deceased in the post‑mortem report. In the opinion of the learned Judge in Chambers, the coming out of the food contents or blood as the case may be from the nose and mouth of the deceased indicated that this was "either due to the bead injuries or due to strangulation". The allegation against Nazir appellant was that he had caused the head injuries to the deceased and that Nazir and Mustafa appellants had strangulated the deceased and therefore, he dismissed their bail application. In these circumstances, this Court on the 18th of October 1977, granted leave to appeal from the order refusing bail to the two petitioners‑appellants. We have heard the learned counsel for the parties appearing before us in this appeal in the F. I. R. there is no mention of any head injuries caused to the deceased. Moreover, the post mortem examination of the deceased shows that the doctor did not find any ligature mark on the neck of the deceased and to this extent the F. I. R. is not supported by the medical evidence brought on the record. Even the learned Judge in Chambers was not quite sure and observed, in his impugned order that the coming out of the food contents or blood, as the case may be, from the nose and mouth of the deceased indicated that this was either due to the "head injuries or due to strangulation". From this it would appear that it is a case of further inquiry and the two appellants are therefore, entitled to be released on bail. They are therefore, allowed bail in the sum of Rs. 5,000 each with one surety each in the like amount to the satisfaction of A. C., Kasur. Bail allowed.