Sardar Muhammad Dogar, J.-Petitioner seeks bail in the case registered against him and three others under Sec. 302/34 PPC at Police Station Lytton Road, Lahore.
2. According to F.I.R, the occurrence had taken place in the District Jail, Lahore where the deceased and the accused were detained for different offences. A quarrel had taken place between the deceased and Muhammad Latif alias Chachu accused at 1-30 p.m. On the day of occurrence. The quarrel resuIted from stern advice given by Muhammad Latif alias Chachu accused to the deceased to go to the latrine when he was coughing and vomitting. The same ended on the intervention of other undertrial prisoners. At about 3-00 a.m. The deceased moved to the latrine for urination. Muhammad Latif also went to the latrine. He started abusing Faqir Muhammad deceased. Faqir Muhammad returned the abuses, upon which Muhammad Latif called out his companions, namely Khadim Hussain, Oil Muhammad and the petitioner. They came running and started giving kicks and fist blows to the deceased. The petitioner struck his head on the chest of the deceased. He fell down unconscious and died on the spot. The occurrence was reported by the Deputy Superintendent of Jail.
3. Bail is being sought by the petitioner on the grounds that it does not appear from the post- mortem report that death had resuIted due to violence; that bare reading of the F.I.R shows that there was no mens riea of committing the murder; that all co-accused of the petitioner have already been allowed bail and that the petitioner is in jail for more than eleven months but the trial has not started yet.
4. According to post-mortem report, the deceased was found to have suffered two abrasions on the chest, one 7 cm x 0.5 cm and the other 4 c.m. x 0.25 c.m. According to doctor's opinion the cause of death was " traumatic asphyxia." The viscera was also sent to the Chemical Examiner to rule out the possibility of poisoning. No report was received about the existence of poison in the viscera.
5. Learned counsel for the petitioner argued that it does not appear from the post-mortem report that the doctor had noted any signs on the body or face of the deceased showing that he might have died due to traumatic asphyxia. In that, learned counsel contended that in case of death having occurred due to traumatic asphyxia the tongue of the deceased should have protruded out, his face should have turned blue and the eye-balls should have also extended out to some extent. He also contended that no injury was found by the doctor on the muscles beneath the ribs or the chest, nor any rib was found broken.
6. Learned counsel for the State has not been able to controvert the arguments of learned counsel for the petitioner. AIthough she has not conceded that death did not occur due to violence yet she was not positive in taking stand whether the petitioner really had mens riea to commit the murder.
She took up the stance that this aspect will have to be seen at the trial after the recording of evidence.
7. For the facts and reasons noted above, it is not possible at this stage to say positively whether the death had occurred due to violence or not. This question will have finally to be decided after statement of the doctor is recorded. Of course, the question of commission of a particular offence will also have to be seen by the trial Judge. However, keeping in view that there was lack of material to hold postitively that death had occurred due to the injuries caused by the petitioner, reasonable grounds do not appear at this stage of the petitioner having committed the offence charged with. He is in jail for the last more than eleven months and the case has not been fixed for trial so far. This petition is, therefore, allowed and the petitioner is directed to be released on bail provided he furnishes bail bond in the sum of Rs. Twenty thousand with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Sadar, Lahore