1. ' SHAHID ANWAR BAJWA, J.---The F.I.R. No, 28 of 2007 was registered at Police Station Darri on 4-3- 2007 for an offence allegedly committed on 2-3-2007. It was stated by the complainant that Mst.
2. Sanam aged about 19 years was married with present applicant. It was further stated that said Mst.
3. Sanam was beaten and maltreated by her husband, her father and other members of the family.
4. When Mst. Sanam informed her father about it he met the present applicant who told him that. Mst.
5. Sanam is not respectable to her in law's family. On 2-3-2007 the complainant had gone to perform his official duties when he received a phone call from father of the applicant who is stated to have told the complainant that Mst. Sanam in the night was annoyed with her husband because husband was intending to go to Dubai and committed suicide while using a pistol. Complainant came home and took his brother and his brother-in-law to mortuary. After post mortem he received dead body of his daughter and brought it to his house. Complainant's mother informed him that the deceased had injury marks on her body. Thereafter it is stated in the complaint that the complainant was informed that one Nazar Hussain caused torture to the deceased and the present applicant Imtiaz Ali killed her by firing a pistol shot at her. The post mortem report shows the following injuries:-- (1-G) 1.P.W.
6. 1.5 c.m. x 1 c.m. In dia with inverted margins at left temporal region of skull (Entry wound).
1. P.W.7 c.m. x 6 c.m. With irregular margins due to fracture and missing of bone missing at the site of injury with inverted margins at right tempera-fractal region of skull. Pieces of brain make placed out of wound (Exit wound).
(2) Contusion 3 c.m. x 1 c.m. Longitudinal left anterior lateral upper thigh.
(3) Contusion 6 c.m. x 2 c.m. Upper 1/3 rd left ligatured lateral.
(a) Abrasion 3 c.m. x 2 c.m. On dorsal surface and missing of nail tip of medial of big toe of left foot.
(b) Abrasion 2 c.m. x 1 c.m. First finger dorsaly 2 missing nail tip.
(c) Abrasion 1 c.m. x 1 c.m. 2nd finger dorsaly and 1 c.m. x 0.7 c.m. 3rd finger dorsaly left foot.
(d) Abrasion 1 c.m. x 1 c.m. Dorsaly missing of nail tip of big toe. (Partial).
7. ' (6) 1.5 c.m. x 0.8 Abbarasion on dorsaly and missing of first finger (Partial).
8. ' The police while submitting challan declared the present applicant as innocent and let him off.
9. However, the Magistrate did not agree. Meanwhile after being let off by the police the applicant went to Dubai. Proceedings under sections 87 and 88, Cr.P.C. Were initiated against him and he was declared a proclaimed offender. When he came back to Pakistan he filed a pre-arrest bail in the Court below, which application was dismissed by the Court below vide its order, dated 17-10- 2009 for the following reasons:-- "No doubt the name of applicant was kept in Column No,2 of the challan, and the challan was submitted on 7-4-2007, but the learned Magistrate did not agree with the investigation report of Investigating Officer and he was of the opinion that role of Investigating Officer for the negligence, thereafter knowingly that he has been nominated as accused in F.I.R. The applicant fled away to Dubai, whereas his father and one brother were facing trial, but he remained at large on the ground that he has proceeded to Dubai, which does not exclude his liability from commission of his Crime as he has fled away to Dubai after releasing him by police from custody after the incident.
10. The applicant was arrested by police and then he was let off he fled away. He was specifically nominated in F.I.R. For committing murder of his deceased wife by firing at her but applicant/ accused who was husband of deceased has not tried to pursue her case or shown any interest to come to know that how she sustained such injuries on her body in her house, therefore, no reasonable explanation has been furnished for his absonsion. Co-accused was granted bail by Honourable High Court, as he remained in custody and fatal shot is not attributed to him and his father was admitted on interim pre-arrest bail as there was only role of instigation to his father but fatal shot is attributed to the applicant and he remained fugitive from law. The deeper appreciation of evidence is not required at bail stage therefore, the applicant is not entitled for confirmation of bail. The authorities relied upon by learned counsel for applicant are distinguishable and are not relevant with the facts of this case. The applicant is specifically nominated for committing murder of his wife by firing at her with pistol. Applicant/accused was declared proclaimed offender and he cannot claim that he has no knowledge of incident as in the first instance he was arrested in this case of murder of his wife, and his father and brother are facing trial, therefore, that ground is not available to the applicant. Consequently, application merits no consideration, hence dismissed. The applicant/accused was declared as proclaimed offender, he is remanded into custody."
11. ' Thereafter he filed a post-arrest bail application, which application has been dismissed by the learned Court below vide order, dated 23-11-2009 for the following reasons:-- ' I have heard learned applicant's Advocate, DDPP for the State and have gone through the record.
12. The bail application of applicant/accused was dismissed by this Court on 17-10-2009 on merits and applicant/accused was remanded to jail as he was declared proclaimed offender. The learned counsel has repeated this bail application after one month on the ground that this is after arrest bail application which is no fresh ground to repeat the bail application. Therefore, applicant is not entitled for grant of bail on the ground that now accused is in custody since last one month.
13. The offence alleged carries capital punishment and falls within the prohibitory clause. The deceased was brutally murdered, therefore, bail application merits no consideration. Hence rejected.
14. ' Hence this bail application.
15. ' Learned counsel for the applicant made the following submissions:--
(1) That the complainant of the F.I.R. Also filed private complaint in which the version stated by him is materially different from the version in the F.I.R. As in that complaint it was stated that one Mashooq Ali informed him, whereas name of the said Mashooq Ali is not stated in the F.I.R.
16. Moreover, in the complaint there is mention of injury to nails of the deceased whereas no such injury is stated in the F.I.R.
(2) Manzoor Ali, father of the applicant, has been granted bail by the trial Court on the ground that the role assigned to the father is that of instigator. Moreover, co-accused Nazar Hussain has been granted bail by this Court in Criminal Bail Application No, 360/2007 vide order, dated 8-10-2007.
(3) Statement of Mashooq Ali under section 161, Cr.P.C. Was recorded after 33 days of lodging of F.I.R. This inordinate delay has not been explained.
(4) The lathi, by which it is claimed that the deceased was tortured has not been recovered.
(5) Regarding injuries on body of the deceased learned counsel stated that when the deceased was injured she was taken in the rikshaw and due to bumps of roads, the injuries was caused to body of the deceased.
17. ' Learned counsel relied upon case of Shah Murad and others v.The State in Criminal Petition No, 105-K of 2002 decided by the Honourable Supreme Court of Pakistan on 11-12-2002. He also relied upon the Criminal Miscellaneous No,237 of 2009 decided by this Court on 11-11-2009.
18. ' Leaned counsel for the complainant submitted that it is admitted that complainant is not eye- witness to the incident nut name of present applicant clearly and specifically figures in the F.I.R.
19. With specific role. It is not a case of suicide because no blackening of skin on the point of entry wound has been noticed in the postmortem report. He further submitted that Mashooq Ali is the maternal uncle of the applicant. He furthers submitted that the applicant has been fugitive from law for two years and therefore, is not entitled to concession of bail. He also referred to F.I.R.
20. Registered on 4-4-2007 against the said Mashooq Ali for theft and robbery and the F.I.R. Has been lodged by Mst. Zulekha, mother of the present applicant. Learned State counsel submitted that medical evidence clearly supports ocular evidence. He further stated that the pistol and one empty have been recovered.
21. ' Exercising his right of reply, learned counsel for the applicant submitted that Mashooq Ali is also maternal uncle of the deceased and there is no explanation why Mashooq Ali remained silent till 4- 4-2007. He stated that the pistol stated to be recovered is a licensed pistol of father of the applicant. Imtiaz Ali. He further stated that the applicant was not absconder because applicant was let off by the police and in connection with his job he went to Dubai. Learned counsel relied upon the case of Ali Nawaz v. The State (1995 PCr.LJ 1316).
22. I have considered the submissions made by the learned counsel and have also gone through the record. Co-accused Manzoor Ali has been granted bail because his role is stated to be that of instigation only. Co-accused Nazar Hussain has been granted bail by this Court in Criminal Bail Application 360 of 2007 vide order, dated 8-10-2007 and the primary reason that prevailed with the Court was that in the statement under section 161, Cr.P.C. Nothing is mentioned about injuries relating to pulling and breaking of the nails of the body of deceased and accused Nazar Hussain has not been alleged to have caused fatal shot. Therefore, the Court held that case against the accused Nazar Hussain was that of further inquiry. As far as the present accused is concerned, the role alleged against him is that of causing the fatal shot. Therefore, his role is quite distinguishable from that of Manzoor Ali and Nazar Hussain.
23. ' Contention of the learned counsel was that there were two versions one contained in the F.I.R. And the other stated in the complaint. In the F.I.R. Name of Mashooq Ali is stated. In the complainant name of Mashooq Ali is stated and the complaint was dismissed. Dismissal of the complainant has no bearing whatsoever on the criminal case in which cognizance has been taken by the learned Court below. It will be question of deeper appreciation by the learned Court below to tease out the effect of non-mentioning of name of Mashooq Ali and this particular exercise cannot be undertaken at the bail granting stage. Same is the position of question regarding not recovering of the lathi.
24. ' Learned counsel for the applicant seems to be correct in saying that the accused did not abscond as he was let off by the police and thereafter he went to Dubai in connection with his employment.
25. If any proceedings were initiated against him while he was absent from Pakistan in absence of any evidence, he cannot be burdened with responsibility of having absconding.
26. ' The key element is that deceased was wife of the applicant. I have already reproduced above part of the postmortem report where the firearm injuries are described so also injuries to other part of body of the deceased. Learned counsel for the complainant is correct in saying that in the postmortem report no blackening of the skin at the point of entry is stated. The deceased was wife of the applicant and she had severe torture marks on her body. The statement of learned counsel for the applicant that injuries on legs and feet of the deceased were caused when she was being taken to hospital in a rikshaw does not seem credible firstly because no such statement has been made in the bail application and secondly the injuries are too many. Most importantly all injuries are stated in the post mortem report as ante mortem.
27. ' The case of Shah Murad is distinguishable because in Shah Murad's case the Hon'ble supreme Court held that when application for pre-arrest bail is rejected the Court should in first instance issue summons or at best bailable warrants in order to secure the attendance of the petitioners who were not sent up. It would only be expedient to issue coercive process if the petitioners had disobeyed the summons or avoided to appear despite the execution of bail warrants.
28. Consequently, with consent of the parties Supreme Court converted N.B.Ws. Into summons with directions to the petitioners to surrender before the trial Court. This is clearly distinguishable from the present case. No doubt on bail before arrest, learned Court below dismissed the application for bail before arrest and remanded the accused to custody. This order was not challenged and thereafter application for bail after arrest was moved which application was then dismissed vide order, dated 23-11-2009. Learned counsel next relied upon order passed by this Court in Criminal Miscellaneous Application No,237 of 2009. In that case the applicant was one of the accused in the F.I.R. But during course of investigation he was placed in column No,2. The Magistrate did not agree with the police and joined him as one of the accused persons and forwarded the challan to the Court of Sessions. It was stated in the Criminal Miscellaneous Application that Court should have issued notice to the applicant/accused in case he was to be joined as accused as he has been placed in Column No,2 by the police. The above position was conceded by the State. This again is distinguishable for the simple reason that after the accused was taken into custody he filed application for bail and that application has been dismissed by the Court below. Reliance on Ali Nawaz case (supra) does not help the case of the applicant because in Ali Nawaz it was held that rule regarding refusal of bail to absconder is not absolute rule. Exceptions can always be made depending upon circumstances of the case. In the present case the bail application has been rejected mostly on the ground that the accused was in custody for one month and the offence caries capital punishment and not on the ground of his absconsion.
29. Deceased has been murdered in the house of the accused. There are prima facie allegations of severe torture and medical evidence supports the ocular evidence in this regard. If his wife was so severely tortured and was then murdered it was responsibility of the accused to protect his wife.
30. Stand of the accused that she committed suicide is prima facie belied by the medical evidence firstly because there is no blackening of skin around wound of entry and secondly wound of entry is from behind the ear one side and wound of exit is just by the side of eye-brow on the other side.
31. This seems to be un-usual angle for committing suicide.
32. ' For the above reasons, this bail application is dismissed. Needless to observe that the trial Court shall not be influenced in any manner by any observation made above while deciding the guilt or innocence of accused. It is also needless to observe that this order shall not stand in way of the accused if he files bail application after some witnesses have been examined.