1. ' The applicants have requested for grant of bail in Crime No,58 of 1998, registered at Police Station "B" Section, Kandhkot under sections 302 and 34, P.P.C.
2. ' Succinctly stated, as per F.I.R., the allegations against the applicants are that while co-accused Muhammad Usman holding hatchet in his hand scared away the complainant and other witnesses, the applicant Dost Muhammad caught hold of deceased Allah Rakhio brother of the complainant and applicant Ghulam Mustafa gave Lathi blow on the head of Allah Rakhio as a result whereof deceased Allah Rakhio fell on the ground and both the applicants gave him fist and kick blows, brought a rope, put it around the neck of deceased and pulled it from both sides strangulating him to death. It is stated that this incident took place on 22-7-1998 at 11 hours during night hours when the complainant in company of the deceased, his cousins Mir Muhammad Mour had visited the house of the applicants for recovery of loan owed to them by applicants Ghulam Mustafa alias Sathi and on such demand the applicant had become infuriated and beside that he had also levelled allegations of illicit connections of deceased Allah Rakhio with his wife Mst. Sadhi alias Zahidan.
3. ' Learned counsel for the applicants, in his arguments, contends that incident has taken place in their house and in the given circumstances, the story as narrated in the F.I.R., appears to be totally improbable, F.I.R. Has been lodged against the applicants after delay of 7 hours though the distance of the police station is only 2 K.Ms., the evidence of Medical Officer is in conflict with F.I.R.
4. And 161, Cr.P.C. Statements of the witnesses inasmuch as that the F.I.R. And the said statements do not disclose if the deceased was inflicted injuries with any sharp cutting weapon but show that the deceased was given blows with Lathis whereas the evidence of the Medical Officer recorded on 22- 6-1999 before the trial Court discloses two incised wounds, one over head and other over left tempo-parital region fracturing the skull bone and five other injuries of which injury No,2 viz. Incised wound 3-1/2 x 1 c.m. Over left tempo-parital region fracturing the skull bone has been declared as the fatal injury allegedly caused by sharp-cutting weapon to cause the death of deceased.
5. Learned counsel submits that in these circumstances the case against the applicants, has become a matter of further enquiry entitling them to the grant of bail. He has placed reliance on the case-law reported in 1978 SCM R 285, PLD 1985 Kar.
27. PLD 1995 SC 34 and 1999 SCM R 1271.
6. ' Learned A.A.-G. Has opposed the bail vehemently on the ground that names of the applicants are mentioned in the F.I.R., allegation against them is that they caused injuries to deceased Allah Rakhio, Danishnama prepared soon after death does not disclose incised wounds on the person of the deceased. He submitted that none of the eye-witnesses has so far been examined, therefore, at this stage it cannot be said affirmatively that there is contradiction between the medical evidence and the oral evidence.
7. ' I have given my anxious consideration to the arguments of both learned counsel for the applicants and learned A.A.-G. I have also gone through the police papers with their assistance.
8. F.I.R. Is lodged with delay of 7 hours, admittedly it does not disclose if the deceased Allah Rakhio was inflicted any injury with any sharp-cutting weapon. It is only alleged that the applicant Ghulam Mustafa caused Lathi blows on his head so also he alongwith co-applicant Dost Muhammad caused the deceased fists and kicks blows and strangulated him with rope. P. Ws. Mir Muhammad and Mour, who are the eye-witnesses, have corroborated this statement in the F.I.R. Danishnama and Inspection note (Mashirnama) of place of occurrence prepared by the Investigating Officer disclose that there are 7 injuries on the person of deceased which include two tear like injuries on the head with blood having oozed out from them. Medical Officer has certified these injuries on the person of dead body of deceased Allah Rakhio in following terms:--
(1) One incised wound 3 x 1 c.m. Scalp deep over vertex.
(2) One incised wound 3-1/2 x 1 c.m. Over left tempo parietal region fracturing the skull bone.
(3) One bruise x 1/2 c.m. Over right cheek.
(4) Bruise 1 x 1/2 c.m. Over left side of forehead.
(5) Bruise 1/2 x 1/2 c.m over left eye. (6)- Bruise 2 x 1/2 c.m. Over abdomen. (7) Ligature mark around the neck.
9. ' It shall be significant to note that though the F.I.R. And both the witnesses are unanimous in their 161, Cr.P.C. Statements that applicant Ghulam Mustafa used Lathi in causing injuries to the deceased and both the applicants also gave him kicks and fists blows, the medical evidence runs otherwise. Medical Officer, who has been examined during course of trial, has categorically deposed in his evidence that there were 7 injuries (cited above) on the body of the deceased, injuries Nos.1 and 2 were caused by sharp-cutting weapon such as hatchet, injury No,2 is fatal injury and except injury No,2 rest injuries can be treated as simple in nature. No doubt that the grant or refusal in non-bailable matters is a matter of discretion, but, it is to be exercised in judicial manner assessing the prosecution evidence tentatively and not giving any definite finding to avoid prejudicing case of either party. In this view of mine, I am fortified by the dictum laid down in case- law reported in Gul Zaman v. The State 1999 SCM R 1271 in which, respectfully stated, it is observed as follows:-- .... The Courts while determining whether reasonable grounds exist or not, are under obligation to assess prosecution evidence tentatively and definite finding cannot be given for avoiding prejudice to be caused to the prosecution or the defence, as the case may be. A Court cannot have resort to an elaborate sifting of evidence and it has to go by its assessment of the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case PLD 1978 SC 256."
10. ' In case reported in The State v. Aziz alias Abdul Aziz PLD 1985 Kar. 27 decided by a Division Bench of this Court, it has been observed that:-- "The question of further inquiry in each case is to be determined with reference to the particular circumstances of that case. It may generally be laid down that under following circumstances a case would call for further inquiry provided the Judge/Magistrate is, on consideration of all the facts of the case first, of the opinion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence:-- (i).
11. (ii).
12. (iii)..
(iv) When there is material inconsistency between ocular evidence and the medical certificate as to the nature of the injuries, or as to the weapons used, or as to the time of the incident and the inconsistency is such that it renders the prosecution story prima facie incredible.
13. (v)
14. (vi)
15. Hereinabove I have tentatively assessed the prosecution evidence in shape of deposition of Medical Officer, also the statements in F.I.R. Lodged by the complainant - an eye-witness and the statements of two other eyewitnesses namely Mour and Mir Muhammad in the circumstances of case and I have come to the conclusion that the case against the applicants is a case of further enquiry.
16. ' Before concluding, however, I want to place on record that the third accused namely Muhammad Usman for whom, it is alleged that he was holding hatchet in his hand at the time of incident though not using the same was let off by the police. Considering all the above mentioned facts, circumstances and the case-law, I grant bail to both the applicants who shall be released on furnishing solvent surety in the sum of Rs,2,00,000 (two lacs) each and P.R. In the like amount to the satisfaction of trial Court.