1. ' GULZAR AHMED, J.---Applicant/ accused seeks bail in F.I.R. No,142 of 2004 registered under section 302/34, P.P.C. Registered at P.S. Sukhan (Malir).
2. ' The brief facts of the case are that Muhammad Hanif son of Muhammad Ali by caste Rajput resident of House No,B-663, Bara Board. Hasrat Mohani Road, lodged his F.I.R. At Police Station Sukhan, stating therein that his younger brother Maqsood Ali about 27 years old was working as a Captain in Rangers F.S. Wing at Sohrab Goath, Karachi, was married one year ago with Shumaila daughter of Umerddin and couple used to fight now and then. About one month back, his sister-in- law Shumaila went to her parents' house on 11-10-2004; his brother Maqsood Ali obtained leave of one day and went to his in law's on 12-10-2004 at about 7-30 a.m. He received a telephone call from Shahid, brother in law of his brother that Maqsood Ali is not feeling well. Later on he made telephone call at the house of Maqsood for knowing Maqsood's condition, then Shahid informed that they are lost then immediately he reached at the house of Maqsood Ali at Bhains Colony, New Abadi along with his family members and saw that many people were gathered there and were weeping. He went inside the house and saw the dead body of his brother lying on a cot; meanwhile his other relatives also reached there and he took the dead body to his house at Orangi Town and when he saw the dead body of his brother he found that there were signs of strangulation on the neck of his deceased brother. His brother was killed . By his brother in law and his wife Shumaila and other inmates of house by strangulating him with a rope. He then informed about this incident to the Rangers Department. The official of his brother also came there, who also inspected the dead body and the complainant along with official of Rangers took. The dead body to Jinnah Hospital for necessary action. He claimed against Shahid and sister-in-law Mst. Shumaila and their family members, who murdered his brother by strangulation due to petty family disputes, after registration of F.I.R., the accused persons, namely Mst. Shumaila daugher of Umer Din and Shahid son of Umer Din were arrested by the police. After usual investigation they were challaned.
3. ' The accused made bail application before the learned Additional Sessions Judge, which was dismissed vide order, dated 22-12-2004. The accused preferred this bail application.
4. ' The applicant has based her application on the ground that the lower Court has not considered the grounds taken by the applicant. Mr. Ali Sher Habibani, learned counsel for the applicant has stressed that this is a case of no evidence, as according to him the incident was not witnessed by any body. All the prosecution witnesses are hearsay witnesses. There is no recovery of incriminating article i.e, rope from the scene and the post-mortem report does not support the version of the prosecution. The learned counsel for the applicant has also stressed that the lower Court has not considered the technical pleas supported by medical jurisprudence and the report of MLO, which considered the case as of strangulation, has not been supported by the report by Special Medical Board constituted under the directions of the Additional Sessions Judge, Malir, which has mentioned that the MLO Report was sub standard and did not reveal any conclusive result. The learned counsel for the applicant has also stressed that the factual position of the dead body narrated by the complainant and apparently mentioned as cause of death are not in consonance with the medical theories. The learned counsel for the applicant has also stressed that there is delay of fourteen hours in lodging the F.I.R., while there is no evidence of common intention and in these circumstances, the accused would have been given at least benefit of doubt.
5. ' Mr. Agha Zafir Ali, learned, A.A-G. Has strongly opposed the bail application.
6. ' Mr. Shaikh Khalid Ali, learned counsel for the .Complainant stood by the side of learned A.A-G.
7. ' Learned A.A-G. Has submitted police file containing material record and has invited Court attention to the photographs of the deceased, wherein marks in the shape of thick lines areapparent on the neck of the deceased. He has also explained delay in lodging the F.I.R., as firstly, the dead body was taken by him from the house of the accused at Bhains Colony to his house at Orangi town and after noting the mark there, he informed the Ranger as the deceased was serving as Captain with the Ranger and thereafter the dead body was taken to JPMC for post-mortem. The learned A.A-G. Has also pointed out that the accused has been named in the F.I.R. And the dead body was also recovered from the residence of the accused. The deceased was young man of 26/27 years. Engaged in active services and was physically very fit and sound and has died in mysterious conditions with a record of tension between spouses. Learned A.A-G. Has stated that although the report of MLO has been termed as sub-standard by the Medical Board constituted by the trial Court but it has not rejected the said report rather has relied upon it. The MLO had opined cause of death is Asphyxia while the Chemical Examiner Report has found Benzodiazepam group in stomach, liver, spleen, lungs and kidney. He has submitted that non-recovery of rope is not of material benefit to the accused as the deceased could be strangulated with any other object resembling rope or the said article might have been destroyed. Learned A.A-G. Has stated that ligature on the neck of deceased in the shape of long lines with thickness upto 2.00 c.m. Like grooves cannot be attributed to any other case but strangulation. He has summed up by saying that apparently in the light of MLO and Chemical Examiner Report, the deceased was firstly administered intoxicant/poison type substance of Benzodiazepam group and when he could not put any resistance, was strangulated as apparently clear from the ligature work around the neck in the shape of grooves with thickness of about 2 c.m.
8. ' I have considered the arguments advanced by the learned counsel for the parties, have perused the material placed on record and have also examined. Chemical Examiner Report and post- mortem report relied on by the applicant as well report of Special Medical Board constituted as per directions of Additional' Sessions Judge, Malir. Findings of Special Medical Board at serial Nos.3 and 4 are as follows:--- "3. Nitro diazepam derivative detected by the Chemical Examiner are considered as safest possible drug as documented by International medical literature, so that cannot be straightaway labelled as sole cause of death.
4. Presently the Resolution of the Board depends upon the presumption that the findings written by MLO are correct in their prospective."
9. ' The above findings of the Board at least find that nitrodiazepam derivative were detected. The Board observations based on the Chemical Examiner Report which has found that from Chemical Examiner of articles, Benzodiazepam group detected. The bottle of substance and a dupatta, an alleged tool of strangulation has also been recovered by the house of accused.
10. ' From undisputed factual position, it is clear that deceased was quite fit and healthy when he reached the house of accused and has died in mysterious circumstances in the night of 11th/12th October, 2004. The complainant has named the accused in the F.I.R. And has stated that the deceased has estrange relation with the applicant, whose character was suspected as the applicant was very close to her brother in law.
11. ' The learned counsel for the applicant has sought from this Court assessment of evidence at this bail stage which is not permissible.
12. ' In view of the above discussion, I am of the considered view that the case is under section 302/34, P.P.C. And punishment is death or more than ten years. The applicant has failed to make out any case for bail, hence the same is rejected. Till now material evidence has not been recorded. The applicant may move bail application after some evidence, specially the medical evidence is recorded.