' Behind bars since 4-6-2016, Muhammad Asif, petitioner herein, seeks admission to bail in a case of homicide, initially registered under Section 324 read with Section 34 of the Pakistan Penal Code, 1860 with Police Station Mumtazabad on the complaint of Abdul Sattar, a. Painter by profession; it is alleged that on the fateful day i,e, 15-5-2016 at about 2:30 p.m. When he returned home, he found his son Muhammad Aamir, aged 8/9, hereinafter referred to as the deceased, missing and set out in his search in the company of Muhammad Sadiq and Muhammad Aqib, PWs; as they came by a field, they spotted the deceased in injured condition, who informed them that the petitioner accompanied by an unknown co-accused induced him to accompany them in the field where, he dealt him a Churri blow in his abdomen and also burnt his right hand with a match. Motive for the crime is that petitioner's sister visited complainant's house and took away a cell phone SIM (subscriber identity module) and when asked to return, the petitioner extended threats. The deceased, struggling for his life, was rushed to Nishtar Hospital where a formal case was registered at 4:30 p.m. Same day. The deceased succumbed to his injuries on the following day at 12:15 a.m.
According to autopsy ' report, a Horizontal wound on the front and right side of lower abdomen, 5 cm below umbilicus surrounded by burnt area with hyperemia as well as a dry burnt wound on the right upper limb as well as on left side of chest was noted with inter se duration between injury and death as between 2 to 3 hours. The Investigating Officer recorded deceased's statement on 15-5- 2016 before he breathed his last wherein he blamed the petitioner and his unknown companion for the calamity that befell upon him. Pursuant to a disclosure, the petitioner led to the recovery of a blood-stained Churri on 10-6-2016.
2. Heard. Record perused.
3. Bail plea has been agitated primarily on the ground that there is no direct evidence available with the prosecution and the fate of prosecution's case is hinged upon a dying declaration alone which falls short of constituting "reasonable grounds" warranting petitioner's pre-trial detention.
Reliance has been placed in the case of Aziz Khan vs. The State decided by the Hon'ble Supreme Court of Pakistan on 8th June, 2016 in Criminal Petition for Leave to Appeal No, 9-P of 2016, wherein an accused, framed on the charge of homicide on the basis of a dying declaration was released on bail.
' Facts in criminal cases are seldom akin and in view thereof earlier decided cases owing to their diverse nature and distinguishable feature cannot be applied in an omnibus manner with precedential force or uniformity; as each case is decided in the backdrop of its own peculiar facts and circumstances. However, I carefully went through the cited case with profound reverence and while I am certainly better informed and all the wiser, nonetheless, do not find it of much help to the petitioner being based upon facts vastly distinguishable from those in the present case. In the said case, dying declaration relied upon by the prosecution was received with reservation on the ground that occurrence had taken place at midnight with inter se distance of 20 feet between the deceased and the accused, three in number, each saddled with fatal shot, in the absence of any source of light with a solitary entry wound on the back; in the present case, no such dilemma is confronting the prosecution, as the deceased, a next door neighbor, assaulted in broad daylight, unambiguously, pointed his accusing finger on the petitioner; receipt of injuries alleged by the declarant is confirmed by the autopsy report and as such evidentiary value of these formidable pieces of evidence cannot be evaluated within the restricted scope of tentative assessment.
Similarly, argument that the dying declaration is not attested by a Medical Officer and thus liable to be excluded from consideration even at pre-trial stage is also beside the mark; a person under the imminence of his death cannot be pinned down to follow a particular mode or procedure to share circumstances behind his death nor it can be expected that invariably he would depart this world under ideal conditions while observing technical formalities. Various pieces of prosecution evidence, referred to above, cumulatively constitute "reasonable grounds" within the contemplation of Section 497 of the Code of Criminal Procedure, 1898 and the petitioner cannot be released on bail in the absence of any consideration warranting further probe or inquiry.
Consequently, Crl. Misc. No, 3851-b of 2016 is disallowed. Needless to clarify that observations recorded hereinbefore, being tentative shall not impact upon the trial.
(R.A.)