' This petition for grant of bail is directed against an order of the District Criminal Court, Poonch, dated 10th of August, 1983 whereby application for grant of bail, was rejected.
2. The petitioner alongwith Muhammad Saleem, his brother, is facing trial on the charge of murder of Mst. Jagda Begum deceased. It was alleged that on 30th of April, 1983 at about 4 p. m. Mst.
Jagda Begum deceased, while coming back home with a bundle of leaves (fodder for cattle).
Alongwith Mst. Jan Bibi and Ghulam Bibi, was waylaid by Muhammad Saleem, accused who stabbed in her abdomen. The petitioner-accused was ascribed the role of catching hold of the deceased and facilitating in infliction of stab wounds with knife. The motive for the murder, as mentioned in the report and evidence of the witnesses, was that Muhammad Saleem who claimed his engagement with the deceased, forced her to accompany him without going through the formalities of 'nikah' and 'rukhsati'. On refusal of the deceased to obey the accused, she was killed by the accused-persons. The incident was shown to have been witnessed by Mst. Jan Bibi and Mst.
Ghulam Bibi, companions of the deceased. The deceased alongwith her companions went to the forest for bringing leaves for their cattle. They were coming back when deceased was attacked by the accused persons at the place of incident. The trial Court refused bail to the petitioner on its satisfaction that prima facie, prosecution successfully brought home reasonable grounds connecting the accused with the liability of furtherance of common intention to kill the deceased.
Mr. Mumtaz Hussain Rathore, the learned counsel for the accused, tried to persuade to allow bail as the petitioner was not ascribed infliction of injury to the deceased. It was argued that allegation of mere catching hold by itself was not sufficient to disallow concession of bail. In support of his view, he made references to 1984 P Cr. L J 745 and 2019, 1983 P Cr. L J 2017. Mr. Rafique Mahmood Khan, the learned Additional Advocate-General opposed the petition on the plea that the accused- petitioner was equally liable for the murder of the deceased. In presence of the testimony of two eyewitnesses and keeping in view the conduct of the accused persons, it was suggested that concession of bail may be withheld. In support of the contention, references was made to PLD 1978 SC 236 and 1979 P Cr. L J 29. The material collected by the Investigating Officer and the evidence recorded by the trial Court, prima facie, suggest that the murder of Mst. Jagda Begum, is the result of her refusal to go with the principal accused even without going through the formalities of marriage. The incident took place in 'Jungle' when the deceased was going home with the tree- leaves for her cattle, alongwith the eye-witnesses. According to the prosecution version, Muhammad Saleem, accused forced the deceased to accompany him to his house and on her refusal to obey, he stabbed her. The bundle of leaves on the head of the deceased fell down, on which the accused-petitioner caught hold of the deceased and facilitated infliction of stab wounds. The accused persons, as stated earlier, are the real brothers. The immediate cause of murder as attributed to the accused persons, the conduct ascribed to the petitioner and the place and time of incident, obviously lead to an inference adverse to the case of the petitioner. It is correct that in the case of Matloob Hussain Shah, bail was allowed to him in presence of an allegation of catching hold of deceased, at the time of firing on the deceased by the principal accused, yet the attribution by itself was not considered conclusive to grant the concession of bail.
Such a concession was allowed keeping in view the fashion of incident and the age of the accused in that case. The Court was satisfied that it was a case of further inquiry. Likewise, in the case of Sher Muhammad and others, Yar Muhammad, one of the accused who was attributed the allegation of catching hold of the deceased at the time of occurrence, was released on bail, as question of his vicarious liability, in the circumstances of that case, was considered one of further inquiry. The position of the present case is distinguishable as in the instant case, the trial Court has already recorded the evidence of one of the eyewitnesses.
3. It is necessary to state that the question of further inquiry being a question of fact, rule of bail in the cases of further inquiry, was not an absolute and universal rule. The application of the rule is tested in the light of the facts of each case. It is only in fit and suitable cases where concession of baii is allowed by virtue of rule of further inquiry. It may also be declared that in order to seek the benefit of the rule, onus is placed on the petitioner to satisfy the Court that the ground of further inquiry was not an artificial ground. In absence of discharge of the onus referred to above, concession of bail was not available on such a ground. In the present case, there is no prima facie, satisfactory material constituting the alleged ground of further inquiry. The plea is, therefore, not found sustainable.
4. In presence of the aforesaid position of the case, it is not considered expedient to allow bail at this stage. However, the petitioner shall be free to seek his release on recording of the evidence of the other eye-witness. The trial Court shall equally be free to consider the question of bail of the petitioner irrespective of the finding of this Court. The petition is, therefore, dismissed.