1. On the refusal of the learned Sessions Judge, Quetta to relea--se the petitioners on bail this court has been approached. The event which led to the registration of the case against the petitioners an their involvement in an offence under section 302, P.P.C., are that on 16th March, 1984 the dead body of one Muhammad Aslam a native of village Vehari District (who at time was putting up in Qazifi Hotel Prince Road Quetta alongwith the accused) was brought to the Civil, Hospital and on the external examination it was found that the dent was caused due to electric shock. The dead body was allowed to be removed and taken to the native place of the deceased on the application made in that behalf by the present petitioners. It was also prayed that application moved before the Additional District Magistrate that no poet-mortem was necessary. It is the case of the prosecution that the burial at the village was hurriedly performed in the absence of the father and the close relatives of the deceased. Sometime thereafter the father of the deceased suspecting foul play approached the Superintendent Police, Multan and the matter was also brought to the notice of the Quetta Police and whereupon the dead body was Exhumed and the contents from the stomach were taken in the presence of the witnesses and on the chemical analysis poison was detected in the viscera. The police during the investigation has examined persons before whom the accused are alleged to have confessed their guilt and the matter for reconciliation before a Punchayat was taken. The Advocate-- General informed me that the complete challan is ready to be filed in court, an interim challan having been previously filed soon after the rejection of the bail application by the Sessions Judge, Quetta.
2. The learned counsel appearing for the petitioners has canvassed Before me the following grounds in support of his prayer for the release of the accused on bail:- (i)that none of the petitioners was found present in the vicinity of the Khokha where the deceased Muhammad Aslam was found dead.
2. (ii)that in the belated F.I.R. There is no overt act ascribed to the present petitioners and there is no evidence about the administration of poison by the accused persons. According to the learned counsel the "mydriatic poison" allegedly found in the viscera as per certificate by the chemical examiner is not a known type of poison.
3. (i.e)That there is no common intention on the part of the accused persons.
4. (iv)That there is no motive for the commission of the offence and the one assigned by the father of the deceased is a very far fetched and that too has not been substantiated through any evidence.
5. I am afraid I am not called upon at this stage to give any positive finding on the merits of the case.
6. What I am required at this stage is to find, from the material collected by the police during the investigation, for a prima facie satisfaction that some tangible evidence can be offered which if left un-rebutted may lead to the inference of the guilt. The learned counsel for the petitioners has contended that Quetta Police during the inquiry conducted under section 174, Cr.P.C. Has come to the conclusion that it was a case of electrocution and the cause then found was only electric shock. This, according to him, is contradictory to the stand now being taken, thus the police record contains two versions and it is a case of further enquiry and in such circumstances the petitioners are entitled to be released on bail as contemplated under section 497 (I) .Cr.P.C. And has placed reliance on the following cases:- PLD 1972 SC 81; 1977 P Cr. L J 445; 1978 SCMR 360; 1983 P Cr. L J 2374 and PLD 1979 Quetta 148.
7. I must straightaway state that the considerations which should be taken into account by the court while exercising the judicial discretion must necessarily depend upon the facts and circumstances of each cast and no hard and fast rule can ever be laid down nor there can be any rule of practice upon the basis of which such a discretion can be judicially exercised, for, rarely will there be two cases in which facts are alike. Reverting now to the arguments advanced before me I propose to examine them and the reliance---s referred above. On the close scrutiny of the cases it is found that none of them could be applied in the instant case. In PLD 1972 SC 81, the complainant had made a grievance that the police was attempting to shield the real accused. In 1978 SCMR 360 the prosecution witnesses were found not supporting the prosecution version and the Investigating Officers had made contradictory reports; one in favour of the accused while the other against the accused.
8. For the reasons given above I find no justification for the release of the petitioners at this stage, the bail application, therefore, is dismissed.