This is an application for bail on behalf of Muhammad Ashraf alias Achhu and Muhammad Javed petitioners in a case under section 302/34, P. P. C. Registered at Police Station Dunyapur.
2. The prosecution case is that the petitioners in furtherance of their common intention have caused the death of Khalid Mahmood by administering poison to him. On 14th April, 1980, Farzand Ali, father of the deceased made a report at Police Station Dunyapur wherein he stated that on 12th April, 1980 at about Assar time, the deceased went out of his house and thereafter did not return.
On 14th April, 1980 the dead body, of Khalid Mahmood was found lying in a wheat field. This information was recorded by the Police in a roznamcha.
The Police took the dead body into possession, sent the same for post--mortem which was conducted on 15th April, 1980. On external examination no injury was found. The visceras were sealed into bottles and sent to the Chemical Examiner, Punjab, Lahore. His report shows that the contents of the packets were as follows :-
(1) One sealed bottle said to contain kidney, lung, liver and heart.
(2) One sealed bottle said to contain stomach.
(3) One sealed bottle said to contain small and large intestines.
(4) One sealed bottle said to contain spirit methylated as a pre--servative."
The result is as follows :- "Barbituric acid compound is detected in all the above visceras." The report thus clearly shows that it is a case of death by poison.
On 18th April, 1980 at 12 noon on the written report of Hoshiar Din, cousin of the deceased, the F. I. R.
Was recorded at P. S. Dunyapur. The motive alleged therein is that 23/24 years before the occurrence Jabbar, Aziz and Maqbool uncles of the deceased had murdered Muhammad Siddiq uncle of the petitioners and in order to avenge the murder of Muhammad Siddiq, the petitioners had caused the death of the deceased by administering poison. It is alleged in the F. I. R. That on 12th April, 1980 at evening time one Habib had seen Ashraf petitioner taking away the deceased with him. During, the investigation the Police collected the following categories of evidence :--
(1) Motive supported by Hoshiar Din and Farzand Ali P. Ws.
(2) Last seen evidence supported by Zaki P. W.
(3) Extra-judicial confession by Ashraf petitioner before Haji Muhammad Akram and Jaffar Hussain P. Ws.
(4.) Extra judical confession by Javed petitioner before Subedar Jaffar and Rashid P. Ws.
(5) Recovery of some bottles.
3. Learned counsel for the, petitioners submits that :-
(i) the motive as alleged by the prosecution is not plausible ;
(ii) there is delay of 6 dais in lodging the F. I. R ; (iii). Habib the alleged witness of last seen evidence has not appeared before the Police to support the prosecution ;
(iv) in the context of enmity the deceased would not have accompanied the petitioners to their house ;
(v) the prosecution story is contradictory and false one ;
(vi) the alleged witnesses of extra-judicial confession are related to the deceased ; and
(vii) the recoveries were effected after considerable time.
4. As against this, learned counsel appearing for the State argues that there are reasonable grounds for believing that the petitioners in furtherance of their common intention have caused the death of the deceased by administering poison to him and sufficient evidence has been collected which prima facie connects the petitioners with the commission of the alleged crime:
5. I have considered the submissions of the learned counsel for the parties. I find that the explanation for the delay in lodging the F. I. R. Has been given in the F. I. R. The prosecution intends to produce; Zaki P. W. To prove last seen evidence and the other objections raised by the learned counsel for the petitioners cannot be resolved by a tentative assessment and in fact need deep appreciation of evidence which is not permissible at this stage. It should be noted that in the petition, the alleged extra-judicial confession has not been challenged at all.
I find that .The Police has collected sufficient evidence to corroborate the alleged extra-judicial confession. I am of the opinion that it is a case of believing or not believing of the evidence and this question should not be gone into by this Court at this stage particularly when the case is being fixed for hearing as stated by the learned Additional Sessions Judge in his order dated 29th March, 1981.
Not a fit case for grant of bail. Dismissed.
6. Needless to add that expression of opinion if any, would not prejudice the merits of the case.