P L D 1985 Lahore 288 (PLP)

After taking me through these statements, counsel submitted (without conceding). "Let us believe these statements as they are, even then none of these statements i4 incriminating". He further submitted that even otherwise whatever was stated in these statements was mere hearsay and, as such, those were not admissible in evidence. Learned counsel then referred to the report of the D. S. P., under section 173, Cr. P. C. This too was read out and according to the learned counsel, this was more in favour of the defence rather than the prosecution. It was next submitted that the petitioner was not named in the F. I. R. Nothing incriminating was recovered from him or at his instance. No motive had been allr8cd against him. Learned counsel contended that no Nikah Khawan had been cited in the calendar of witnesses by the prosecution. The evidence was necessary because the prosecution alleged that the girl was not willing to marry Salim. She had Iitcing for Babar Rashid. Nevertheless, she succumbed to the pressure of her parents for her marriage with Salim. This delayed marriage ceremony. The best evidence on this point could only be of Nikah Khawan. The learned counsel then drew my attention to the report of the Special Medical Board, dated 1-11-1983. The Board was constituted by the Government of Punjab, Health Department, vide letter No. S. O. (H & D) 6-5/ 83(P.II), dated 27-10-1983, after the post-mortem examination, dated 26-9-1983; and the body had been buried. Later on the body was exhumed and the Special Medical Board conducted re-post-mortem examination of the deceased. The opinion of the Board was to the following effect : `13(i). Mr. Muhammad Saleem was in a state of sound sleep under the influence of harbituric Acid at the time of his death 12(i) and 12(ii) (Supra). 13(ii). The alleged weapon of offence could have been used to inflict the cut-throat injury on a drugged person. 13(iii). This is a homicide, not a suicide." The report was severely criticised by the learned counsel, who argued that it was of no significance. He submitted that the Board itself observed that the dead body was in an advanced stage of decomposition. All soft tissues had autolysed. Counsel argued that how could then the Board give the opinion referred to above. According to the learned counsel, the possibility could not be ruled out that it was a case of suicide. This meant that there were two versions of the death of Salim. The one favourable to the petitioner entitled him to the concession of bail. The sum and substance of the arguments of the learned counsel was that there were no reasonable grounds for believing that the petitioner had committed the alleged offence. On the other hand, there were sufficient grounds for further inquiry into his guilt. The petitioner, as such, pending such inquiry was entitled to the concession of bail. Reliance was placed on Zahur Ahmad v. The State (1982 P Cr .L J? 1202). Learned counsel concluded his arguments by submitting that bail was neither to be withheld as a penalty nor to be refused on the ground that the trial was likely to commence in the near future. In support of the former, he relied on the case of Manzoor and I others v. The State (P L D 1972 S C 81). All along his submissions, learned counsel went on reminding me that I should refrain from making any observation lest it might prejudice the case of the petitioner. Even the Assistant Advocate-General and the learned counsel for the complainant took up this stance. I think there was no need to make this submission. It is an elementary principle of law that no opinion is to be expressed on merits at bail stage. It becomes all the more necessary when the charge is of murder and? the case is of circumstantial evidence. Criminal Miscellaneous 3551/B-1984 Mian Mahmood Ali Kasuri represented Samina Kokab. He adopted all the arguments of the learned counsel for Babar Rashid. In addition to this, he submitted that there was 'an additional ground in favour of his client and that was that she belonged to the "fair sex". The first proviso to section 497(1), Cr. P. C., extends the concession of bail to persons mentioned therein more liberally than to an ordinary accused. Learned counsel conceded that the proviso does not entitle the petitioner to bail as a matter of right. However, he submitted that after taking into consideration all the relevant facts and the contentions of the learned counsel in the connected petition, the proviso to section 497(t), was an additional ground for the petitioner for bail. Counsel also showed me photographs of the deceased at the place of occurrence. He submitted that there was no blood on the bed-sheet. This argument was advances in order to refute the allegation of murder against the petitioner. The learned Assistant Advocate-General, assisted by the learned counsel for the complainant, opposed grant of bail. He submitted that though there was no eye-witness, there was strong circumstantial evidence which ruled out the possibility of innocence of the two petitioners. Their case, as such, did not fall within the purview of subsection (2) and first proviso to section 497, Cr, P. C. He mentioned certain important features of the case, which according to him prima facie, connected the petitioners with the murder. Those are that the bridegroom was killed in the house of his in-laws, specially in the room where the married couple was staying ; the prosecution has necessary evidence to establish that Samina Kokab and Babar Rashid were fond of each other ; the girl did not want to marry the deceased. She was married against her wishes. He submitted that the prosecution was the best judge of its own case and the mere fact that Nikah Khawan had not been cited as prosecution witness would not mean that the entire prosecution case stands demolished. Great emphasis was laid by the Law Officer on the report of the Medical Board. He also drew my attention to a blood-stained prescription, recovered from the person of the deceased. Reference was also made to the report of the Chemical Examiner, according to which 2.0 mgm.%? Barbituric Acid Compound was estimated to be in the liver of the deceased. It was submitted that as a matter of fact large dose must have been administered because before going into the liver - it had to pass through many other channels. The learned Assistant Advocate-General submitted that the deceased was first given this drug. He was made to sleep. Thereafter, his throat was slashed. This could not be done by Samina alone, but it was "joint operation" of both the petitioners. As already observed by me, both sides wanted me not to express any opinion with regard to the merits. This means that I have to examine their contentions minutely. In a case of this type it become very difficult for the judge to withhold reasons for either allowing or rejecting the bail, because a judicial order must be duly supported by reasons for repelling or accepting the contention of either side. Reasons do contain some expression of opinion. I am aware of this limitation of mine .Nevertheless keeping the same in view I proceed? to dispose of the bail petitions. Undoubtedly, no body had been named in the F. I. R. as the killer of Salim. It is an accepted principle of law and it has been repeatedly, held in number of decided cases by the superior Courts that F. I. R is B not a substantive piece of evidence. Its purpose is to put the criminal law in motion without any delay. I don't want to say anything beyond this. It is the investigation which provides the necessary evidence to connect an accused with an alleged offence. In the post-mortem report, in Part VI-Remarks by Medical Officer, after giving his opinion as to the cause of death, the doctor made the following remark : "The following visceras are preserved and sent to the Chemical Examiner, Lahore for the detection of any poison and to exclude or determine the role of any poisoning in this case "Bottle No. I= Stomach with contents. Bottle No. II =Liver, spleen, kidney. Bottle No. III= A portion of small intestine. Bottle No. IV= Preservation." The report of the Chemical Examiner, as referred to above, definitely shows that the liver contained an estimated 2.0 mgm. % Barbituric Acid Compound. The Chemical Examiner also received three sealed parcels from the Police, One of the parcels contained medicines comprising Dybenol lozenges, Paracetamol tablets, Ledermycin capsules and some `dark brown' capsules. The other two packets contained milk and water, respectively. The Chemical Examiner reported that no Narcotic/Tranquilizer/Sedative was detected in the contents of all the above articles. The report of the Chemical Examiner is dated .5-x0-

983. It may be mentioned here that the above-mentioned medicines were prescribed by the doctor !n the prescription referred to above. It is another important piece of evidence. It is not fair on my part to give any finding with regard to the report at this stage. Its effect will have to be examined with other relevant evidence brought on record. The argument of the learned counsel regarding the admissibility of statements recorded under section 161, Cr. P. C. and their evidentiary value shall have to be gone into by the trial Court at the proper time. If I were to give any finding at this stage, it is likely to be taken as binding on the lower Court. This would prejudice the case of either side. It is against interest of justice to do so. I have seen the prescription and have also noticed the medicines prescribed by the E. N. T. Specialist. Ledetmycin is an anti-biotic and is not a hypnotic drug. Optilets is a multi-vitamin. So is Vivi Optal. Warm Saline Gargle and Dybenol Lozenges are used for sorethroat. Paracetamol is anti-pyratic and analgesic. Whereas Barbituric Acid is an hypnotic drug. I have taken note of the dictum in the cases referred to above. While? applying the principles of law laid down in these cases I am equally bound by law to also take into consideration all the relevant and important facts of this case. These principles are not to be applied at random. The investigation has been finalized. Complete challan has been submitted. Copies of the statements of the prosecution witnesses have already been supplied to the accused. The trial is to commence on 16-2-1985. So far as sub-clause (2) of section 497, Cr. P. C'.. is concerned, the expression "further inquiry" has been considered and interpreted in number of decisions by this Court as well as by the Supreme Court of Pakistan. Although no case law was cited by the learned counsel, and I think there was no need for that, yet in my opinion the expression" further? inquiry" is to be construed with reference to the context, specially in E a murder case. Otherwise in every case it can be easily argued that the matter is of further inquiry. The contention of the learned counsel for Babar Rashid that it is a case of two versions is devoid of force. The plea or defence of an accused in a criminal case ipso facto does not constitute two versions. Those have to be F spelt out from perusal of the prosecution case as it is right from the beginning. So far as first proviso to section 497(1), Cr. P. C. is concerned, it is a matter of discretion with the Court. I am not prepared to exercise it in? favour of Samina Kokab. As observed earlier, the case was kept in the office of the Deputy Martial Law Administrator for approximately one year. It was neither the fault of the prosecution nor of the accused. This was due to the fault of a third party. If it had not been delayed so long the trial by now must have concluded. For the reasons given above, I don't think that the petitioners have a case for bail. Both the petitions are, therefore, hereby dismissed. The Addl. Judge, who is seized of the matter is directed to proceed with the trial from day-to-day. No unnecessary adjournment shall be allowed. I have taken utmost precautions in not making any observation with regard to the merits of the case. But in case there is any such observation, either for or against any party, then that shall not be taken into consideration by the trial Court. M. Z . M. ?????? Bail refused.