Applicant Din Muhammad son of Fakir Muhammad Mochi stands charge sheeted by P.S. Kazi Ahmed in Crime No.57 of 1994 for offence under section 302/34, P.P.C. Qisas and Diyat Ordinance.
Bail application on behalf of Mir Muhammad and Din Muhammad was filed in the Court of learned Sessions Judge Nawabshah, who was pleased to reject the same vide order dated 28-11-1994. The applicant has, therefore, approached this Court for bail.
2. The brief facts of the prosecution case are that Muhammad Yousif Mochi on 9-8-1994 at 1230 hours lodged F.I.R. With Police alleging therein that Mst. Sakina his daughter had married Mir Muhammad about 2 years back and in lieu of that marriage, Din Muhammad brother of Mir Muhammad had promised to give the hand of his daughter Mst. Kazbano in marriage to Ghulam Hussain, the son of Muhammad Yousif. After sometime Din Muhammad backed out from the above promise which resulted in disputes and fight between the parties and subsequently registration of cases with the police. Thereafter, Rais Ghulam Sarwar Uner intervened and a settlement was brought out between the parties. The complainant in his F.I.R. Has further alleged that on 6-88-1994 he had gone to the house of Din Muhammad for the purpose of engagement ceremony of his son Ghulam Hussain where many other persons of the community were also present but Mir Muhammad was not available in the house. After sometime Mir Muhammad came to the house and on coming to know about the engagement he got annoyed. The complainant thereafter, returned to his village after the performance of ceremony. Complainant has further alleged that a day before filing of the F.I.R. In the evening he had gone to the house of his uncle Muhammad Siddiq in village Mitho Marri where he stayed for the night and that at about 4 a. m. He waked up and learnt that during the night at unknown time his sister Mst. Sakina had been killed. He then alongwith his uncle Muhammad Siddaq, Haji Muhammad Khan went to the house of accused Mir Muhammad but his brother Din Muhammad (applicant) was loitering about outside his house. The complainant has further alleged that they went inside the house and found Mst. Sakina was lying dead on the cot with her neck appearing to have been throttled. The also saw one bottle of poisonous insecticide lying over there by her side leaving others over the dead body the complainant went to Kazi Ahmed Police Station where he lodged the F.I.R. Complainant, therefore, has alleged suspicion of Mst. Sakina to have been killed by Mir Muhammad with the help of his brother Din Muhammad by throttling her and by forcibly feeding of poisonous insecticide. However, after the F.I.R., the complainant also made subsequent statement with the S.H.O. In which he stated that he was informed by Muhammad Haji Khan and Muhammad Siddiq that while they were returning from the water rotation they heard voices from' the house of Mir Muhammad. They went inside the house and found that Din Muhammad was holding the legs of Mst. Sakina and Mir Muhammad was throttling her neck.
3. I have heard Mr. Abdul Ghani Memon, learned counsel for the applicant, who has contended (1) that incident is reported at 1230 hours where as place of Vardat is situated at the distance of 9 miles away from Kazi Ahmed and Mashirnama of Vardat was prepared at 1-40 p.m. (2) That there are houses of other Mochis around the Vardat. (3) That the entire investigation is conducted by A.S.I. Shoukat A.I and that further statement of complainant was recorded by S.H.O. On 9-8-1994.
(4) That there is no motive for the commission of the crime to the accused persons. (5) That all the P. Ws. Are interested and inimical and the learned counsel referred to the Modi's Text Book of medical Jurisprudence and Taxicology from page 159 which reads as under:---- "If the fingers are used (throttling) marks of pressure by the thumb and fingers are usually found on either side of the windpipe. Cresentic marks produced by the finger nails are occasionally present, if the finger tips are pressed deeply into the soft tissues of the neck. When both hands are used to grasp and compress the throat, the thumb mark of one hand and the finger marks of the other hand are usually found on either side of the throat "
(6) That it is a case of further enquiry where concession of bail may be allowed to the applicant/accused. .
4. Learned counsel for the applicant has cited and relied upon the following cases:--
(1) Fateh Khan v. The State (1973) P.Cr.L.J. 125).
(2) Mahr Ghulam Nabi v. Muhammad Shafiq and another (1979 SCM R 479).
(3) Allah Ditta and another v. The State (1979 P.Cr.L.J. 190).
(4) Lal Din v. Muhammad Malik and 4 others (1973 P.Cr.L.J. 624).
(5) Shahid lqbal v. The State (1976 P.Cr.L.J. 758).
(6) Unreported case of Sher and Another v. The State (Cr. B.A. No.99 of 1994 decided on 15-5-1994).
(1). In the case of Fateh Khan (1973 P.Cr.L.J. 125) reference was Made to the case of Manzoor v. State (PLD 1972 SC 81) wherein the Honourable Supreme Court has observed inter alia that while considering the question of grant of bail, the Court can examine the data available in the case and can also take into consideration the nature and credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence.
In my humble view this authority is not applicable so far the facts and circumstances of this case are concerned.
(2). In the case of Mehr Ghulam Nabi (1979 SCM R 479) it is held that events giving rise to ground of misuse of concession of bail. Such events taking place after grant of bail. Held these events cannot be made basis of obtaining reversal of bail grant order from Supreme Court. In my humble view this authority is also not applicable so far the facts and circumstances of this case are concerned.
(3). In the case of Allah Ditta (1979 P.Cr.L.J. 190) it is held as under: - "As the below caused on the neck of deceased with Kassi is attributed to Allah Ditta petitioner only.
It has been argued that even if the prosecution version is correct the part ascribed to Muhammad Said petitioner is exaggerated as there was no need to hold a man who was already asleep so that the other could cause an injury with a Kassi blow on his neck. It is evident that the Kassi blow on the neck of deceased is attributed to only petitioner Allah Ditta. Hence no case for bail is made out, so far as Allah Ditta is concerned. As for Muhammad Saeed petitioner, without commenting on the merits, I admit him (Muhammad Saeed) to bail subject to his furnishing surety in the sum of Rs.30,000 with 2 sureties each in the like amount to the satisfaction of Assistant Commissioner Bakkhar."
(4). In the case of Lal Din (1973 PCr.LJ 624) an application for concession of bail to respondent by the learned Sessions Judge Sialkot was agitated and the learned Judge of the Lahore High Court has observed as under:--- "The learned Judge further observed that Muhammad Din who lodged the report did" not claim to be an eye-witness to the occurrence in which Bashir was put to death by the respondents. Counsel for Lai Din petitioner submitted that as the respondents have been committed to Court of Sessions for trial on a charge under section 302/34, P.P.C. They are not entitled to the concession of bail. It is also submitted that the ground which prevailed with the learned Sessions Judge that Muhammad Din was not an eye-witness to the occurrence, was untenable as it is not necessary for the first maker of the first information report to be an eye-witness to the occurrence."
Whereas in this case complainant Muhammad Yousif has lodged the F.I.R. There is also ocular evidence of Muhammad Haji Khan and Muhammad Siddiq, both of these 2 P.Ws. Have prima facie supported the case of the prosecution in their statements, therefore, this authority is not applicable so far the present case is concerned.
(5). In the case of Shahid Iqbal (1976 PCr.LJ 758) it is held that a solitary blow allegedly inflicted on deceased by co-accused while petitioner held deceased by arm needing further inquiry. This authority in my humble view is not applicable so far facts and circumstances of this case are concerned because in the abovereferred case the solitary fatal blow is attributed to co-accused Zulqarnain which has been inflicted on the deceased. It is yet to be seen whether it was necessary to hold the deceased when other co-accused allegedly inflicted that one blow. Here in this case the allegation against the applicant is that he held the deceased Mst. Sakina by her legs while Mir Muhammad is alleged to have throttled the deceased. There is no allegation that Mir Muhammad has caused any fatal blow with any weapon on the person of the deceased.
(6). The facts of the case of Sher A.I son of A.I Muhammad Malah, in (Cr. Bail Application No.99 of 1994) are quite different from the facts of the present case because learned Judge has held as under:- "So far as applicant Hakim, the allegation against him is that he was driving the Car in which co- accused came and he is even shown empty handed. As to his vicarious liability, would be determined by the trial Court and till then his case in my view would require further enquiry within subsection (2) of section 497, Cr.P.C."
The case of petitioner Hakim is quite distinguishable because he was driving the Car and co- accused Sher Mallah is alleged to have fired at the deceased Muhammad Younis. Therefore, the facts of the case of Sher Malah and Hakim are quite different from the facts and circumstances of the case of present applicant/accused Din Muhammad.
5. - Learned counsel for the applicant has also contended that a cot was lying in the house and that it is an unwitnessed crime.
6. I have heard Mr. Muhammad Ashraf Leghari Advocate who has appeared for A.A.G., who has contended that most of the arguments of the learned counsel for the applicant are based upon improbabilities which can be agitated at the time of trial.
7. There is ocular evidence of complainant, P.Ws. Muhammad Haji Khan and Muhammad Siddiq consisting their 164, Cr.P.C. Statements recorded by the Mukhtiar kar and F.C.M. Sakrand on 18-8- 1994. Though the applicant and co-accused were provided with an opportunity for cross- examining the prosecution witnesses but cross-examination is not done by the accused.
8. That medical evidence is also in support of the prosecution case so also the report of the Chemical Analyser.
9. I have perused the marital on record and have gone through the authorities cited by the learned defence counsel and I have also perused the Modi's Text Book of Medical Jurisprudence and Toxicology.
10. With all my humbleness at my command I am unable to agree with the contention of the learned defence counsel. The name of accused/applicant is mentioned in the F.I.R. And in the further statement of the complainant, Specific role is assigned to him. Medical evidence as well as Chemical Analyser's Report is in conformity with the prosecution case. So far the reference of the learned counsel to the Text Book of Modi is concerned I would like to refer the opinion of the Medical officer which is as under:--- "From the external and internal examination of the body of the deceased Mst. Sakina wife of Mir Muhammad I am of the opinion that the death took place due to injury to vital organ as rupture of the spinal cord as result of the throttling of neck."
11. The submissions of Mr. Abdul Ghani Memon, learned counsel for the applicant so far the Text Book of Modi's Jurisprudence is concerned can be considered very well after the evidence is recorded by the trial Court.
12. So far the bail application is concerned advisedly only a tentative assessment of the evidence is to be carried out, therefore, I am not discussing this aspect of the case so that case of the either party may not be prejudiced at the trial.
13. Specific role has been assigned to the present applicant/accused. Prima facie, there is allegation against the present applicant/accused that he actually facilitated co-accused Mir Muhammad in committing the murder of Mst. Sakina by holding the feet of the deceased while she was asleep. Medical evidence as well as report of the Chemical Analyser are in support of the prosecution case.
14. In view of the facts, circumstances and case-law discussed above, prima facie, there is sufficient evidence to connect the applicant/accused with the commission of the crime which is punishable with death. As such, the bail application is rejected.