1. ' On 23-9-1983, Muhammad Salim, son of Abdul Ghani, aged 26 years, Arain, resident of 51-Ravi Road, Lahore, was married to Samina Kokab, daughter of Aliuddin, Arain, resident of Kasurpura, Ravi Road, Lahore. On the following day, Valima' party was held, Family members of the bride participated in that. On the same day, at about evening time, the bridegroom, along with his wife, came to the house of his in-laws. This is the usual custom that the bridegroom stays with his wife in the house of his in-laws for some time. Accordingly, the bridegroom stayed with his in-laws for the nights of Saturday and Sunday, the 24.h and 25th of September, 1983. On 26-9-1983, the relations of the bridegroom were to go to the house of the bride to bring her to the house of her husband. This ceremony is locally known, "42,7 uh. L 1 0.0<.4", ' At about 1-00 a.m. On 26-9-1983, Muhammad Khalid, a cousin of the bridegroom, who was then in the house of his in-laws, received a message from Aliuddin, father of the bride, that they should come and see what had happened to Salim. Khalid, alongwith Abdul Ghani. Father of Salim, and other relations, at once, reached the house of Aliuddin. They went to the room on the first floor, where the married couple was saying. They found the dead body of Salim lying on the floor smeared with blood. There was lot of blood on the floor. The blood stains were also on the wall.
2. Throat of Salim, had been cut. Near the dead body, pair of Chappel of Salim and a chhuri was also lying. Khalid suspe,:ted that the in-laws of Salim, or someone hired by theM, had murdered Salim.
3. ' He left father of the deceased near the dead body and himself proceeded to lodge report to the Police Station, Ravi Road, Lahore. It was recorded by Muhammad Riaz, Inspector, S. H.
4. 0., at 2-15 a.m. On 26-9-1983.
5. ' On the basis of the aforesaid report, the police registered a case under section 302, P. P. C.
6. ' Two days after the report, the police arrested the bride, Samina Kokab, and her cousin, Babar Rashid. After the arrest, the two accused were remanded to the police custody for a fortnight.
7. Thereafter, they were sent to judicial look-up.
8. ' Muhammad Riaz, Inspector, started the investigation. On the application of the complainant, Sultan Ahmad, D. S. P., Crimes Branch took over. Thereafter, the investigation was entrusted to Mushtaq Ahmad Khan, D. S. P., Crimes Branch, Lahore.
9. ' On 10-101983, both the accused mosed for bail before the Sessions Judge, Lahore. The application was entrusted to an Additional Sessions Judge, Syed Iftiktar Hussain, for disposal. This was dismissed on 13-11-1983, because the prosecution submitted that the Deputy Martial Law Administrator had taken cognizance and that the trial shall he held by a Military Court.
10. ' On 24-10-1984, the Superintendent of Police, City, Lahore, was informed by the Office of the Deputy Martial Law Administrator that the Military Court was not prepared to proceed with the case. It shall have to be tried by a regular criminal Court.
11. ' On 29-11-1984, Samina Kokab and Babar Rashid, again, applied for bail. The application was marked to the same Addl. Sessions Judge. He merely incorporated the contentions of the counsel and without considering the question of bail in detail dismissed the application, summarily with the observation that the trial was likely to commence in the near future.
12. ' Thereafter, two separate applications have been moved in this Court. One is by Samina Kokab and the other by Babar Rashid. The former is Cr. Miscellaneous 3551/B-84 and the latter Cr.
13. Miscellaneous 3552/ B-84. The two petitioners are represented by two different Advocates. Counsel in Cr. Miscellaneous 3552/B-84 wanted to argue first. Arguments in that petition were, therefore, heard first.
14. ' As both the applications have arisen out of the same F. I. R. I am going to decide both by this order.
15. ' Legally and technically I could have disposed of both the applications by a short order observing that as the Addl. Sessions Judge did not consider the contentions. Nor the grounds, the matter should go back to him so that he should decide the same in accordance with law. Normally this is the proper legal practice. But I thought that this will be a short cut. I, therefore, did not like it, lest it gave the impression that I was trying to avoid to decide the two petitions. Full dress arguments were accordingly heard in both the petitions.
16. ' The judicial record and police file was requisitioned. The D. S. P., Crime Branch, was also sent for.
17. ' Before proceeding to examine the contentions of the learned counsel appearing for the two petitioners, I would like to observe that there is no eye-witness to the occurrence. The entire case depends upon the circumstantial evidence.
18. ' Criminal Miscellaneous 3552/B-84 ' Learned counsel appearing for the petitioner opened his arguments by referring to the statements of Muhammad Khalid, Muhammad Jahangir, Muhammad Yousif and Abdul Ghani P. Ws. These statements, except that of Abdul Ghani, were recorded on 26-9-1983. Abdul Ghani's statement was recorded on 27-9-1983. Later on their supplementary statements were recorded on the following day.
19. ' After taking me through these statements, counsel submitted (without conceding). "Let us believe these statements as they are, even then none of these statements is incriminating". He further submitted that even otherwise whatever was stated in these statements was mere hearsay and, as such, those were not admissible in evidence.
20. ' Learned counsel then referred to the report of the D. S. P., under section 173, Cr. P. C. This too was read out and according to the learned counsel, this was more in favour of the defence rather than the prosecution.
21. ' It was next submitted that the petitioner was not named in the F. I. R. Nothing incriminating was recovered from him or at his instance. No motive had been alleged against him.
22. ' Learned counsel contended that no Nikah Khawan had been cited in the calendar of witnesses by the prosecution. The evidence was necessary because the prosecution alleged that the girl was not willing to marry Salim. She had liking for Babar Rashid. Nevertheless, she succumbed to the pressure of her parents for her marriage with Salim. This delayed marriage ceremony. The best evidence on this point could only be of Nikah Khawan.
23. ' The learned counsel then drew my attention to the report of the Special Medical Board, dated 1-11- 1983. The Board was constituted by the Government of Punjab, Health Department, vide letter No, S.
0. (H & D) 6-5/ 83(P.II), dated 27-10-1983, after the post-mortem examination, dated 26-9-1983; and the body had been buried. Later on the body was exhumed and the Special Medical Board conducted re-post-mortem examination of the deceased. The opinion of the Board was to the following effect :- "13(i). Mr. Muhammad Saleem was in a state of sound sleep under the influence of harbituric Acid at the time of his death 12(1) and 120 (Supra).
24. 13(ii). The alleged weapon of offence could have been used to inflict the cut-throat injury on a drugged person.
25. 13(iii). This is a homicide, not a suicide."
26. ' The report was severely criticised by the learned counsel, who argued that it was of no significance. He submitted that the Board itself observed that the dead body was in an advanced stage of decomposition. All soft tissues had autolysed. Counsel argued that how could then the Board give the opinion referred to above. According to the learned counsel, the possibility could not be ruled out that it was a case of suicide. This meant that there were two versions of the death of Salim. The one favourable to the petitioner entitled him to the concession of bail.
27. ' The sum and substance of the arguments of the learned counsel was that there were no reasonable grounds for believing that the petitioner had committed the alleged offence. On the other hand, there: were sufficient grounds for further inquiry into his guilt. The petitioner, as such, pending such inquiry was entitled to the concession of bail. Reliance was placed on Zahur Ahmad v. The State (1).
28. ' Learned counsel concluded his arguments by submitting that bail- was neither to be withheld as a penalty nor to be refused on the ground that the trial was likely to commence in the near future.
29. In support of the former, he relied on the case of Manzoor and I others v. The State (2).
30. All along his submissions, learned counsel went on reminding me that I should refrain from making any observation lest it might prejudice the case of the petitioner. Even the Assistant Advocate- General and the learned counsel for the complainant took up this stance.
31. I think there was no need to make this submission. It is an elementary principle of law that no opinion is to be expressed on merits at bail stage. It becomes all the more necessary when the charge is of murder and the case is of circumstantial evidence.
(1) 1982 P Cr. L J 1202 (1) PLD 1972 SC 81 ' Criminal Miscellaneous 355I1B-1984 ' Mian Mahmood Ali Kasuri represented Samina Kokab. He adopted all the arguments of the learned counsel for Babar Rashid. In addition to this, he submitted that there was an additional ground in favour of his client and that was that she belonged to the "fair sex". The first proviso to section 497(1), Cr. P. C., extends the concession of bail to persons mentioned therein more liberally than to an ordinary accused.
32. ' Learned counsel conceded that the proviso does not entitle the petitioner to bail as a matter of right. However, he submitted that after taking into consideration all the relevant facts and the contentions of the learned counsel in the connected petition, the proviso to section 497(1), was an additional ground for the petitioner for bail.
33. ' Counsel also showed me photographs of the deceased at the place of occurrence. He submitted that there was no blood on the bed-sheet. This argument was advance in order to refute the allegation of murder against the petitioner.
34. ' The learned Assistant Advocate-General, assisted by the learned counsel for the complainant, opposed grant of bail. He submitted that though there was no eye-witness, there was strong circumstantial evidence which ruled out the possibility of innocence of the two petitioners. Their case, as such, did not fall within the purview of subsection (2) and first proviso to section 497, Cr, P.
35. C. He mentioned certain important features of the case, which according to him prima facie, connected the petitioners with the murder. Those are that the bridegroom was killed in the house of his in-laws, specially in the room where the married couple was staying ; the prosecution has necessary evidence to establish that Samina Kokab and Babar Rashid were fond of each other ; the girl did not want to marry the deceased. She was married against her wishes, ' He submitted that the prosecution was the best judge of its own case and the mere fact that Nikah Khawan had not been cited as prosecution witness would not mean that the entire prosecution case stands demolished.
36. ' Great emphasis was laid by the Law Officer on the report of the Medical Board. He also drew my attention to a blood-stained prescription, recovered from the person of the deceased. Reference was also made to the report of the Chemical Examiner, according to which 2.0 mgm. Barbituric Acid Compound was estimated to be in the liver of the deceased. It was submitted that as a matter of fact large dose must have been administered because before going into the liver it had to pass through many other channels. The learned Assistant Advocate-General submitted that the deceased was first given this drug. He was made to sleep. Thereafter, his throat was slashed. This could not be done by Samina alone, but it was "joint operation" of both the petitioners.
37. ' As already observed by me, both sides wanted me not to express any opinion with regard to the merits. This means that I have to examine their contentions minutely. In a case of this type it become very difficult for the judge to withhold reasons for either allowing or rejecting the bail, because a judicial order must he duly supported by reasons for repelling or accepting the contention of either side. Reasons do contain some expression of opinion. I am aware of this limitation of mine.
38. ' Nevertheless, keeping the same in view I proceed to dispose of the two bail petitions.
39. ' Salim. Alim. It is an accepted principle of law and it has been repeated Undoubtedly, no body had been named in the F. I. R. As the killer of held in number of decided cases by the superior Courts that F. I. R. Is not a substantive piece of evidence. Its purpose is to put the criminal law in motion without any delay. I don't want to say anything beyond this.
40. It is the investigation which provides the necessary evidence to con an accused with an alleged offence.
41. ' In the post-mortem report, in Part VI-Remarks by Medical Officer, after giving his opinion as to the cause of death, the doctor made the following remark :- "The following visceras are preserved and sent to the Chemical Examiner, Lahore for the detection of any poison and to exclude or determine the role of any poisoning in this case : "Bottle No, 1= Stomach with contents. Bottle No, II =Liver, spleen, kidney. Bottle No, III=A portion of small intestine. Bottle No, IV =Preservation."
42. ' The report of the Chemical Examiner, as referred to above, definitely shows that the liver contained an estimated 2.0 mgm. Barbituric Acid Compound. The Chemical Examiner also received three sealed parcels from the Police, One of the parcels contained medicines comprising Dybenol lozenges, Paracetamol tablets, Ledermycin capsules and some `dark brown' capsules. The other two packets contained milk and water, respectively. The Chemical Examiner reported that no Narcotic/Tranquilizer/Sedative was detected in the contents of all the above articles. The report of the Chemical Examiner is dated .5-10- 983.
43. ' It may be mentioned here that the above-mentioned medicines were prescribed by the doctor in the prescription referred to above.
44. ' It is another important piece of evidence. It is not fair on my part to give any finding with regard to the report at this stage. Its effect will have to be examined with other relevant evidence brought on record.
45. ' The argument of the learned counsel regarding the admissibility of statements recorded under section 161, Cr. P. C. And their evidenciary value shall have to be gone into by the trial Court at the proper time. If I were to give any finding at this stage, it is likely to be taken as binding on the lower Court. This would prejudice the case of either side. It is against interest of justice to do so.
46. ' I have seen the prescription and have also noticed the medicines prescribed by the E. N. T.
47. Specialist. Ledermycin is an anti-biJtic and is not a hypnotic drug. Optilets is a multi-vitamin. So is Vivi Optal. Warm Saline Gargle and Dybenol Lozenges are used for sorethroat. Paracetamol is anti- pyratic and analgesic. Whereas Barbituric Acid is an hypnotic drug.
48. I have taken note of the dictum in the cases referred to above. While applying the principles of law laid down in these cases I am equally bound by law to also take into consideration all the relevant and important facts of this case. These principles are not to be applied at random.
49. ' The investigation has been finalized. Complete challan has been submitted. Copies of the statements of the prosecution witnesses have already been supplied to the accused. The trial is to commence on 16-2-1985.
50. ' So far as sub-clause (2) of section 497, Cr. P. C. Is concerned, the expresssion "further inquiry" has been considered and interpretted in number of decisions by this Court as well as by the Supreme Court of Pakistan. Although no case law was cited by the learned counsel, and 1 think there was no need for that, yet in my opinion the expression fur-I there inquiry" is to be construed with reference to the context, specially in E a murder case. Otherwise in every case it can be easily argued that the) matter is of further inquiry.
51. The contention of the learned counsel for Babar Rashid that it is a case of two versions is devoid of force. The plea or defence of an accused in a F criminal case ipso facto does not constitute two versions. Those have to be spelt out from perusal of the prosecution case as it is right from the beginning.
52. So far as first proviso to section 497(1), Cr. P. C. Is concerned, it is a matter of discretion with the Court. I am not prepared to exercise it in] favour of Samina Kokab.
53. ' As observed earlier, the case was kept in the office of the Deputy Martial Law Administrator for approximately one year. It was neither the fault of the prosecution nor of the accused. This was due to the fault of a third party. If it had not been delayed so long the trial by now must have concluded.
54. ' For the reasons given above, I don't think that the petitioners have a case for bail. Both the petitions are, therefore, hereby dismissed.
55. ' The Addl. Judge, who is seized of the matter is directed to proceed with the trial from day-to-day.
56. No unnecessary adjournment shall be allowed.
57. ' I have taken utmost precautions in not making any observation with regard to the merits of the case. But in case there is any such observation, either for or against any party, then that shall. Not be taken into consideration by the trial Court.