This is an application for cancellation of bail of respondent in case F.I.R. No.86, dated 30-6-1994 under section 302/201/34, P.P.C. P.S. Sadar, Haroon Abad granted by learned Additional Sessions Judge, Bahawalnagar vide his order, dated 9-10-1994.
2. Prosecution story as narrated in the F.I.R. Lodged by petitioner/plaintiff is that on the night of 30- 6-1994 at 1-30 a.m. His son Noor Muhammad-did not return home till late and he went out in his search. He was old that his son was seen going towards the Dera of Akbar brother of the respondent. As the complainant went towards the sail Dera and passed through the graveyard, he heard a gun fire and the voice of his son Noor Muhammad who was calling for help. He went there and saw in the moonlight that Anwar co-accused fired a second shot which hit the deceased on his chest and he died at the spot. The petitioner/complainant tried to go near the dead body but Muhammad Anwar co-accused pointed out gun at him and said that Noor Muhammad has been killed and that he had killed Mst. Sughran also and if he tried to come near the dead body he would be killed. In the meanwhile, respondent also came there and both of them dragged the dead body of his son Noor Muhammad and Mst. Sughran deceased towards chaff and put them on fire. The motive of the alleged crime is that the accused and the respondent toad a suspicion that Mst.
Sughran deceased who was wife of the brother of the respondent had illicit relations with the son of the petitioner/plaintiff namely Noor Muhammad deceased.
3. During investigation, the supplementary statement of the complainant was recorded the same day, statements of P.Ws. Zafar Iqbal and Zafar Hussain were also recorded. They stated that respondent caused hatchet injuries on the dead bodies and thereafter both the accused burnt the dead bodues.
4. Learned counsel for the petitioner/complainant has sought cancellation of respondent's bail on the following grounds:---
(i) That there is evidence on record that respondent caused injuries on the dead bodies of Noor Muhammad and Mst. Sughran;
(ii) that blood-stained hatchet was recovered from the respondent;
(iii) that prosecution evidence qua Asghar respondent is corroborated by medical evidence inasmuch as the post-mortem report indicates that both the deceased had sharp-edge injuries;
(iv) that the respondent is connected with the motive part of the prosecution story.
5. Learned counsel for the respondent/accused has opposed the prayer for cancellation of bail and has made following submissions:---
(i) That the sharp-edged injuries on the, person of the deceased were post-mortem as per the opinion given by the Doctor who conducted post-mortem examination;
(ii) that there is no mention of the sharp-edged injuries on the dead bodies in the inquest report;
(iii) that the case qua . Asghar respondent is doubtful and in any case the same falls outside the prohibitory clause of section 497, Cr.P.C.
6. Learned Assistant Advocate-General appearing on behalf of State has not supported petitioner's prayer for cancellation of bail as according to him, there is no mention in the F.I.R. About the respondent being armed with a hatchet or his causing any injury to the dead body, that the F.I.R. Is inconsistent with complainant's supplementary statement and that the medical evidence to the extent of respondent does not corroborate the prosecution story.
7. I have heard, learned counsel for the parties as also learned AA. -G. And have perused the record.
8. The F.I.R. Was lodged by the petitioner/complainant who is father of Noor Muhammad deceased.
In the first part of the F.I.R. He does not mention about even the presence of Asghar respondent.
According to F.I.R. Asghar respondent came to the spot when his co-accused Anwar had already killed Noor Muhammad deceased: The only allegation levelled m the F.I.R. Against the respondent is that he came later in time and assisted his brother co---accused Anwar in lifting the dead bodies, putting it on chaff and for having burnt the dead bodies. The inquest report is silent about the sharp-edged injuries having been caused on the dead bodies. The Doctor who conducted the post-mortem has, opined that the sharp-edged injuries on dead bodies were s not ante-mortem.
The question of respondent's involvement 'and his vicarious liability under section 302, P.P.C. Would call for further inquiry and the offence under section 201, P.P.C. Does not fall in the prohibitory clause of section 497, Cr.P.C. Even otherwise this is a petition for cancellation of bail and there is no allegation that the respondent misused the concession of bail or attempted to subborn the prosecution evidence.
9. For what has been discussed above, I am not inclined to allow this petition which is hereby dismissed.
10. Needless to observe, the observations contained in his order shall not affect the case of either side before the learned trial Court.