' Applicants Akbar, Kazim Ali, Muhammad Bux and Ghulam Kadir who are facing trial in Crime No, 80 of 1988, Police Station Daulatpur, under section 302/34, P.P.C. Applied for bail before learned IIIrd Additional Sessions Judge, Nawabshah, but without success. They have now approached this Court with the same prayer.
2. On 4-12-1988 at about 9-30 p.m. Deceased Khuda Bux had gone to applicant Akbar and others to inform them about the water turn which was borrowed by his father Kouro from P.W. Maqbool Bughio. Deceased Khuda Bux did not return till late hours, whereupon his father Kouro went in search of him alongwith Maqbool Bughio and Mir Muhammad. They located deceased Khuda Bux at about 1 a.m. It is alleged that deceased Khuda Bux was then called by applicant Akbar. After a short while Kouro and others heard cries of Khuda Bux. They rushed towards the house of Akbar and found the applicants showering hatchet blows upon Khuda Bux, who died on the spot. All the four applicants then brought deceased Mst. Husna wife of applicant Akbar and she too was axed to death. Complainant Kouro and others tried to intervene, but were threatened. On the same day at 6 a.m. The F.I.R. Was lodged at Police Post Pabjo which was subsequently incorporated in 154, Cr.P.C. Book maintained at Police Station Daulatpur. After usual investigation the applicants were sent up.
3. I have heard Mr. A.Q. Halepota, learned counsel for applicants and Mr. Shaukat H. Zubedi, learned AA.-G. For State. The latter has opposed the bail application.
4. There is direct evidence consisting of complainant Kouro, P.Ws. IA Maqbool Bughio and Mir Muhammad who claim to have identified the applicants on torch light which was produced before the Police Officer during the course of investigation. The crime weapons were also recovered from the possession of all the four applicants at their instance and all the four hatchets had blood marks. The extent to which these witnesses should be believed cannot be determined at this stage.
Where there is prima facie evidence of an offence falling within the prohibitory clause, even though the accused may have a possible defence, it has to be left to be decided by the trial Court at the proper stage.
5. The question that deceased Khuda Bux sustained injuries by sharp-pointed substance and that the prosecution witnesses have suppressed the presence of injuries on the person of applicant Akbar, is again a question of fact which requires deeper appreciation of evidence and cannot be gone into at this stage.
6. An attempt has also been made to make it a case of Karo Kari (Siah Kari), with a view to bring it within a mischief of section 304, P.P.C. The offence C under both the parts of this section again falls within the prohibitory clause of section 497, Cr.P.C. And unless the same is brought out of this clause, the applicants are not entitled to the grant of bail.
7. Mr. Halepota, learned counsel for applicants has invited my attention to following reported and unreported cases in an attempt to make out a case for bail:--
(1) Ali Jan v. The State Criminal Bail Application No, 482 of 1982.
(2) Shehzad Sultan alias Bhola v. The State 1983 P Cr. L J 86.
(3) Gamoo v. The State NLR 1980 Criminal (Lahore) 155.
(4) Rehana etc. v. The State 1984 SCMR 1557.
(5) Mir Hassan v. The State Criminal Bail Application No, 912 of 1987.
8. The cases at Serial Nos. 1 to 3, and 5 are Single Bench decisions and I do not find it necessary to discuss them in detail for the simple reason that besides being distinguishable, it is a question of fact in each criminal case, whether on the evidence available on record, it was a case for bail or not.
9. The case of Rehana etc. v. The State reported in 1984 SCMR 1557 proceeds on different premises. The grounds on which their Lordships of the Supreme Court were pleased to allow bail are as follows:-- "The fact that deceased had an affair with Mst. Fateh Mai, wife of appellant No, 1 is admitted, as also the fact that the deceased had earlier eloped with Mst. Fateh Mai. Then there is the all important fact that the body of deceased was found in the house of appellants and the report of his death was not recorded until 7 p.m."
10. No doubt the dead body of Khuda Bux in this case was also found in the ID house of applicants, but that has been explained by complainant Kouro. At any rate there is no evidence of illicit intimacy between two deceased persons like the one hinted by the Supreme Court.
11. It is a basic principle of the administration of justice that like cases should be decided alike.
However, it is not every thing said by a Judge when E giving judgment that constitutes a precedent.
The judgments must be read in the light of the facts of the cases in which they are delivered. The Supreme Court in the case of Hamida Bano v. Ashiq Hussain reported in PLD 1963 SC 109, have pointedly warned against the indiscriminating use of an observation which may have been made by them in a judgment in a criminal case, because that must be understood with reference to the facts of that particular case. This is what their Lordships said:- "They have supported this opinion by reference to two recent pronouncements of this Court in the cases of Rehmat v. The State PLD 1959 SC (Pak.) 109 and Niaz v. The State PLD 1960 SC 387 and the citation indicates that, speaking with due respect, the learned Judges have not borne in mind the principle the consideration of which governs the use of the decision in one case as guidance in another. Everything said by this Court in a judgment, and more particularly, in a judgment in a criminal case, must be understood with great particularity as having been said with reference to the facts of that particular case."
12. Having regard to the above factual and legal position, I see no merits in this bail application which is accordingly dismissed.