The petitioners, namely, Bilal and Ghulam Mustafa in Criminal Miscellaneous No. 1063-B of 2000, Muhammad Sharif and Khadim Hussain in Criminal Miscellaneous No. 672-B of. 2000 seek post- arrest bail in case F.I.R. No. 744 of 1999, dated 26-11-1999, under sections 302/149 read with section 148, P.P.C. Which stood registered against them and two others, namely, Hafeez-ur-Rehman and Aziz-ur-Rehman, at Police Station Saddar, Dera Ghazi Khan at the instance of Mst. Amina Bibi, sister of Muhammad Abdullah deceased. I propose to dispose of both these applications together through this single order.
2. Concisely facts bearing upon the charge are that Hafeez-ur-Rehman and Aziz-ur-Rehman paid a visit to the house of Muhammad Abdullah and took him away to the hotel of Allah Diwaya at P.I Piyarawali on the pretext of solving a plot dispute existing in-between both the sides. Bilal, Ghulam Mustafa, Muhammad Sharif and Khadim Hussain were already available at the hotel of Allah Diwaya. Hafeez-ur-Rehman and Aziz-ur-Rehman exhorted a Lalkara inciting their co-accused to teach a lesson to Muhammad Abdullah for not selling out the plot in their favour. In consequence of said Lalkara all the six started grappling with Muhammad Abdullah. In addition to this, kicks and fist blows were also given to him. Muhammad Abdullah, the victim of assault, was then put into a Dalla and then they immediately left him at the same place and lavented from the spot.
Muhammad Abdullah by then had become unconscious Amina Bibi, his sister, Allah Nawaz and Mureed Husain his brothers, were available at the spot, who witnessed the entire occurrence. They boarded Muhammad Abdullah in a rickshaw and shifted him to the District Headquarters Hospital at Dera Ghazi Khan, where he succumbed to his injuries.
On receipt of information regarding the occurrence, Liaquat A.I, Inspector/S.H.O. Alongwith other police officials hurriedly reached the hospital. Amina Bibi established contract with him and narrated the details of occurrence which were taken down by him. This statement of Mst. Amina Bibi was despatched by him to the police station through Khadim Hussain, Constable for formal registration of a case against the offenders. Consequent upon receipt thereof, Abid Hussain. MHC drew up formal F.I.R. At 10-20 a.m. That is how the police machinery was put into motion by Mst.
Amina Bibi by getting the above said case registered against the accused.
3. Bilal, Ghulam Mustafa, Muhammad Sharif and Khadim Hussain petitioners could be arrested by the Investigating Officer on 30-11-1999. They preferred post-arrest bail applications before learned Sessions Judge. Dera Ghazi Khan, who made over the same to a learned Additional Sessions Judge for its disposal in accordance with law. By virtue of his order dated 15-3-2000, the said learned Judge declined relief to the petitioners. Under these circumstances and confronted with this situation, they have approached this Court through these applications.
4. Learned counsel for the petitioners submit that the petitioners were empty-handed and only kicks and fist blows upon Muhammad Abdullah deceased were attributed to them, but stranger enough no marks of violence were available on the dead body and, as such, allegations stand negated. It was next argued that case was despatched to the Chemical Examiner for detection of poison, if any. Although it was not a case of poisoning at all, samples of other vital organs like lungs, heart, kidney and spleen etc. Were sent to the Bacteriologist to the Government of Punjab for seeking his opinion about cause of death. Even after lapse of six months, reports from the concerned quarters have not been received. The medical officer, who performed autopsy upon the deceased, had reserved his opinion with regard to the cause of death. He was to rely upon reports of Chemical Examiner and Bacteriologist. Learned counsel for the State and the police official, present with record have not been able to controvert this factual position. It was next contended that the most important factor, i.e. Intention to kill, is missing from facts and circumstances of the case and the petitioners are not likely to be awarded maximum punishment, Hafeez-ur-Rehman and Aziz-ur-Rehman were not even arrested by the police during the course of investigation, being innocent.
5. Conversely learned counsel for the State had argued with full force that the petitioners were named in the first information report and specific parts played by them during the course of occurrence have been detailed in the contents of first information report. They were by all means responsible for exacting violence upon the deceased which resulted into his instantaneous death.
6. I have taken everything into my full consideration after hearing respective arguments addressed at the bar by both the sides. In murder cases, it is imperative upon the prosecution to prove three factors of crime of Qatl--e-Amd:
(1) That death took place, no doubt that death has taken place
(2) That death is due to violence; and
(3) That violence is to be assigned to the individuals indicated for the crime of murder.
As regards the latter two factors, it may be seen that it is as clear as the daylight that no external marks of injuries were ever observed by the examining doctor and the prosecution so far has not been in a position to prove that death had occurred due to violence attributed to the accused.
Final opinion of the doctor is also not available on the record. The principal accused, Hafeez-ur- Rehman and Aziz-ur-Rehmen were found not connected with the commission of crime in question.
It strikes at the very root of the case. After consideration of totality of facts and circumstances of the matter, I find that case of the petitioner falls within the ambit of further inquiry and at this stage they are entitled to the grant of post-arrested bail.
7. Accordingly, they are directed to be released on bail subject to their furnishing bail bonds in the sum of Rs.1,00,000 each with two sureties each I ll bin the like amount to the satisfaction of trial