Accused Mohammad Haneef and Fazal-ur-Rehman sons of Ghulam Rasul have obtained bail in a murder case. P.W. Mir Afzal lodged a report with the local police of P.S. Donga Gali on 19-7-1991 at 5.30 p.m. And charged the present accused along with Taj Mohammad, Lai and Karam Dad.
Accused Taj Mohammad had allegedly hit Mirdad deceased in the head region with an axe while accused Mohammad Haneef and Fazal-ur-Rehman caught hold of, him. Accused Taj Mohammad, Mohammad Hanif and Fazal-ur-Rehman afterwards picked the deceased from the ground and threw him down from a height. The medical evidence supports the accusation. The doctor has found a lacerated wound 2" x 1" x 1/2" on the left side of scalp with cuts on the skin and muscles and bone fractured. He also found three abrasions on the left side of back about 3" in length and an abrasion on the left leg and another on the left ring finger. Similarly P.Ws. Mir Afzal and Mohammad Sadiq have been found injured with blunt objects.
2. The learned Sessions Judge while allowing bail to the accused took the view that the present accused are only charged for catching hold of the deceased while accused Taj Mohammad gave him a fatal axe blow. He also observed that Taj Mohammad alone had money dispute with Mir Dad and a motive to kill him. He, therefore, found the case of accused Mohammad Haneef and Fazal- ur-Rehman that of further inquiry and released them on bail without recording a finding that there were no reasonable grounds for believing that the accused had committed a non-bailable offence. The complainant feels aggrieved and asks for the recall of this order.
3. I have heard Mr. Ghulam Mujtaba Khan Jadoon Advocate assisted by Sheikh Zaffar Mahmood Advocate on behalf of the complainant-petitioner and Mr. Mohammad Ayub Khan Tanoli Advocate for the accused-respondents. Mr. Mohammad Aslam Khan, Assistant Advocate General has addressed, arguments on behalf of the State and in support of the cancellation of bail.
4. The presence of accused Fazal-ur-Rehntan on the spot at the relevant time is supported by the fact that he himself lodged a report with the police on the same day and charged the petitioner for giving him an injury in the head region. No fracture was however found during medical examination. The wound received by him might have been the result of stone pelting during the fight as the complainant had himself received one thrown by accused Lal. The accused are not only charged for catching hold of the deceased in the report but also in the statements of the witnesses who happened to be present on the spot at the time of the event. The occurrence had taken place in day time soonafter `Jumma' congregation. The complainant party had been allegedly attacked no sooner they came out from the village mosque after saying prayer.
5. The Supreme Court in the case of Mst. Nasreen v. Fayyaz Khan and another PLD 1991 SC 412 has observed, that there would hardly be a case which would not require further inquiry, therefore, this element by itself is no ground for granting bail under section 497(2), Cr.P.C.; and an order granting bail which does not fulfil the requirement of second condition regarding tentative opinion about the prima facie guilt or innocence of the accused on the very face would be illegal. This view has again been reiterated by the Supreme Court in the case of Mst. Resham Jan v. Abdur Rehman, 1991 SCM R 1849 wherein it has been laid down that in a murder case mere need for further inquiry would not entitle the accused to bail under section 497(1), Cr.P.C. Without there being a finding that, "there are no reasonable grounds for believing that the accused has committed a non-bailable offence".
6. The accused -have also misused the benefit by administering threats to the complainant soon after their enlargement on bail for which a report had been lodged with the police by P.W., Mir Afzal.
In this view of the matter I see that the accused were not entitled to bail in the circumstances. It is accordingly, cancelled. They shall be taken into custody.