1. ' This application has been moved for cancellation of bail granted to respondent No,1 by the District and Sessions Judge, Umerkot in Criminal Bail Application No,14 of 1994.
2. ' Briefly the facts are that on 2-12-1994 one Hareesh son of Sarang Ram lodged an F.I.R. With Kunri Police Station under section 302, P.P.C. To the effect that his cousin deceased Mahesh was servant of respondent No,1 and resided in his Otak. According to the F.I.R., on the given date at 9-00 a.m. The complainant learnt that respondent No,1 had given a beating to deceased at his shop whereupon the complainant along with his nephew Bheero went to the shop of respondent No,1 where the deceased was also available. On enquiry the respondent No,1 informed the complainant that deceased had stolen Rs,300 from his shop and it was therefore that he had given him a beating and said that he will take the deceased to his house for getting further admissions from him. The complainant and P.W. Bheero then went to the Otak of respondent No,1 along with the deceased where, the deceased was asked to confess about his theft or he will be handed over to police. The complainant and P.W. Bheero then went away but again returned at 1-30 p.m. Where they were informed by the respondent No,1 that the deceased had given about 2/3 others such admissions and that the respondent No,1 would ask for a Faislah on the arrival of Sarang Ram, the father of the complainant. The complainant than left asking the respondent not to further maltreat the deceased. However, at 5-00 p.m., Garesh, the Munshi of respondent No,1 came to the complainant and told him that he had been sent by respondent No,1 as the deceased was not well and had become unconscious. The complainant, his father Sarang Ram and Bheero went to the Otak of respondent No,1 where they were informed that Mahesh had died. The complainant and the 2 other witnesses went and saw the deceased lying on the floor. It is categorically mentioned in the F.I.R.
3. That there were no visible marks of injury on the body of deceased but he had an injury on his tooth and the blood had oozed from his nose. The complainant then lodged the said F.I.R. The usual investigation was done by the police and the case was sent up for trial. The bail application was moved on behalf of the respondent No,1 which was granted in the above terms. Being aggrieved, the complainant has moved this application for cancellation.
4. ' I have heard Mr. Madad Ally Shah, learned counsel appearing for the applicant. He has argued that the three witnesses, namely, P.Ws. Jagdesh, Karim Buz and Murad Ali in their police statements have stated that they had gone to the shop of the respondent No,1 where they had seen him beating the deceased. He has also submitted that the Mashimama of Wardat would show tliat the dead body was lying in the Otak of the respondent No,1 and that the dead body had a black circular mark all around his neck and also a black mark on his left cheek and so on his forehead.
5. From this, learned counsel has argued that since these facts have come in evidence, the burden will be on the respondent No,1 to prove that it was not the result of his beating or that it was not for his acts that the death of deceased is caused. He has then argued that the medical evidence supports the above facts and, therefore, there is sufficient material on record from which it can be said that there are reasonable grounds to believe that the present respondent No,1 had caused the death of said Mahesh. He has then argued that there is an extra judicial confession given by the accused. Learned counsel for the applicant has placed reliance on a number of cases in support of his above contention. He has referred to the case of Shah Zaman and 2 others v. The State PLD 1994 SC 65 in support of his contention that while deciding a bail application before recording of evidence in the trial, only tentative assessment is to be made by the Court and the Court should not enter into the details of the evidence and shift the same which may prejudice the case of one party or the other. There is no cavil about this proposition of law. However, it may be observed that a bail application cannot be decided in a void but in order to arrive at a tentative finding the Court has to look into the material available on record. Learned counsel has then placed reliance on the case of Bashir Ahmed v. The State PLD 1994 Kar.
462. In this case it has been held that if from the material in the hands of prosecution a prima facie case against the accused is made out, the accused will not be granted bail merely for the reason that evidence when led at the trial would not be sufficient for his conviction. He has also placed reliance on the case of Mst. Rashid Begum v. Abdul Rashid 1990 SCM R 579 wherein their Lordships have held that bail should not have been granted to accused who was involved in a murder case and there was only circumstantial evidence available. However, in this case the circumstantial evidence relied upon by the prosecution consisted of statements of witnesses and recovery of hatchet from accused who along with his co-accuse was seen throwing something in a canal on the night of occurrence. It may also be observed that in case before the Honorable Supreme Court, the deceased was murdered by strangulation and there was evidence showing that the accused had borrowed Patna. While the facts in the present case are different as there is no recovery of any incriminating article with which the respondent No,1 could be shown to have caused the strangulation which is shown to be the cause of death.
6. ' As regards the ground taken by the learned counsel that there is an extra-judicial confession, I am not able to agree with the said contention as there is nothing on record to suggest if such confession was given by the respondent No,1. Confession here would mean confession with regard to causing the death and not mere giving beating. It may be observed that according to the F.I.R.
7. The complainant alongwith P.W. Bheero had gone to the shop of the accused where the deceased was available and it is not said by any of these two witnesses that the deceased had suffered any injurySimilarly again at 1-30 p.m. These two persons had gone to the Otak of the accused where also they have met the accused but they don't say if they had seen any mark of injury on the body of the deceased. According to them accused told them that he had given beating to the deceased for making him confess with regard to the theft. In these circumstances, this can hardly be said to be the confession by the accused. The post-mortem report shows that the death was caused on account of the violence over the neck by application of direct- force through a ligature causing obstruction of the air passage. Thus, it is clear that the death is not caused by beating. According to evidence available with prosecution, the deceased was last seen by the complainant and P.W.
8. Bheero at 1-30 p.m. While earlier they have seen him at 9-00 a.m. And at both the times he did not have any mark of violence or injury on his body. The F.I.R. Also shows that deceased did not have any apparent mark of violence or injury on his body except an injury to the tooth and oozing of blood from nose.
9. ' The counsel for the applicant has then argued that the statements of Jagdesh, Murad Ali and Haji Karim Bux show that they had seen the accused giving beating to the deceased. However, no time is mentioned when the statements were recorded or when these three witnesses had come to the shop of the accused. According to these three witnesses it was at the shop of the accused that they had seen him giving beating to deceased which time in view of the facts discussed above would be at or before 9-00 a.m. On the said date. However, the statements of three witnesses were recorded by police 15 days after the incident and, therefore, cannot be of any material use to the prosecution as held in the case of Muhammad Hafeez v. The State 1986 PCr.LJ 1940.
10. ' As against this, Mr. Shoukat Hussain Zubedi, learned counsel appearing for respondent No,1 has argued that the statements of P.Ws. Sarang Ram and Bheero who were the first available persons having seen the dead body on the very day at 5-00 p.m. Do not state that there was such ligature mark all around the neck cif the deceased. On the contrary these two witnesses as well as P.W.
11. Garesh in their police statements recorded on the very day of incident have categorically stated that there were no visible marks of injury on the body of the deceased. Mr. Shoukat Hussain Zubedi, learned counsel for accused has pointed out another material fact in the case. As the F.I.R. Shows that said Mahesh was allegedly murdered on 2-12-1994 but his dead body was sent to L.M.C.H., Hyderabad for post-mortem on 3rd at the instance of the complainant and the Medical Officer available at L.M.C.H., Hyderabad did not perform such postmortem till next day when the medical board of four doctors was convened by the Director-General; Health Services. No explanation has been advanced as to why in such circumstances the post-mortem was not performed at Umerkot, the District Headquarter of Mirpurkhas where there is a Civil Hospital. These facts give rise to an inference that something was being managed at some quarters. It is also not understood as to how this ligature mark found place on the neck of deceased accused. Had the death been caused by strangulation by accused then such ligature mark encircling the entire neck of deceased and of the propositions as mentioned in the post-mortem report would have been visible to naked eye and would have been mentioned by the complainant in the F.I.R. And P.Ws. Sarang Ram and Bheero in their statements recorded by police on the same day as they could observe even an injury to the tooth of the deceased inside his mouth. As discussed above, these three witnesses have categorically stated that there were no such visible mark of injury on the body of the accused. Even if prosecution contention be accepted that the accused had been given beating to the deceased throughout the day, the deceased would have sustained a number of injuries on his body and not merely two minor injuries on his cheeks as shown in the post-mortem report.
12. ' Learned counsel for the accused has further submitted that the dead body of said Mahesh was available in the Otak of accused where even other people could be available. However, a possibility of suicide may also be there as according to the facts of the case, the deceased could have done so out of shame.
13. In the present case a discretion has been exercised by the Sessions Judge and the said discretion is not to be interfered with lightly. The relief of cancellation of bail is to be resorted to very sparingly and in rare cases where the order granting bail is found to be perverse on the face of it or where the material on record if accepted can lead to no other possibility but to prove the guilt of the accused or where the order granting the bail is against the settled principles of law. None of such grounds exist in the present case.
14. ' The lower Court had also taken into consideration the fact that the present accused is suffering from Angina Pectoris and, therefore, he would be entitled to bail under the exception as provided under section 497(1), Cr.P.C. Mr. Madad Ally Shah has vehemently argued that there is nothing on record to suggest that said illness of the accused is such to render him incapable. He has further argued that the certificate issued by Civil Surgeon, Mirpurkhas is dated 1-1-1995 which is after the incident had taken place and therefore, obviously is a managed one. Countering the above submission, Mr. Shoukat Hussain Zubedi, learned counsel for the present respondent No,1 has referred to numerous certificates placed on record on behalf of the applicant. These certificates range January, 1994 and show that the applicant has been under treatment of various Cardiologist since one year prior to the incident and had undergone the E.T.T. Test even long before the incident has taken place. It may further be observed that even after the incident when the accused was brought before the Magistrate, the Magistrate had himself referred him for treatment to Cardiologist. Angina Pectoris is quite a serious disease which requires special treatment, special diet, special medicines and a special way of living and such facilities could not be provided in the jail.
15. ' In view of the above discussion, I find no merit in the present application which is accordingly dismissed. Above are the reasons for the short order announced in Court on 19-7-1994.