This is an application under section 497, Cr.P.C. Praying for grant of bail to the applicant Sarfraz son of Ghulam Mustafa Jamal.
2. The brief facts are that a NC report was lodged at Police Station, Dadu on 27-5-1999 at 15-30 hours for an offence stated to have been committed on the same date, at 14-30 hours. However, on 28-5-1999 at 9-15 hours the complainant went to the Police Station and informed them that Abdul Razak aged 17/18 years who had been referred to the Civil Hospital, Dadu and when he had been taken to Hyderabad for treatment, he expired at 8-30 hours. The body of the deceased was taken to Civil Hospital, Dadu and at the time of the information was there. On such information, the earlier report was reproduced and F.I.R. Was lodged under section 154, Cr. P. C .
3. In the information given it was stated that, Abdul Razak was sitting in the shop of Dodo Khan Panwar, which was a video shop. When Sarfraz son of Ghulam Hussain Jamali and Ghulam Hussain Jamali came to the shop they took up wooden "Paties" from the shop and abused him and told him that they were annoyed with him over the Video game, they exchanged the hot words with them. It was also stated that, the two accused had also come to the house of the deceased to fight, but as he was not available went away. It was stated that at the video shop they threatened that he (deceased) could not be served after these circumstances, attacked him (the deceased) with the said "Paties" due to which he was injured, however, Puphat Ghulam Mujtaba son of Dodo and Aijaa son of Bashir Panwhar saved him. The accused thereafter went away, abusing the deceased. The deceased went home with the injuries his father Suleman was informed, who came home and according to the report, went to the Police Station and reported the incidence.
4. Mr. Syed Ally Madad Shah argued and said that the timing as given in the F.I.R. And the medical report, causes a doubt as to the correctness of the story. He said that in the F.I.R. It was stated that the deceased was in the shop of Dodo at 2-30 p.m. When the fight started, whereas the medical report states that he was in hospital on 2-35 p.m. He said that if the fight started at 2-30 p.m. And thereafter he went home and after calling his father he went to the Police Station he could not have been in the hospital at 2-35 p.m.
5. Mr. Madad stated that the allegation is that both the persons namely Sarfraz (the applicant) and Hafizur Rehman caused the injury, as such it is impossible to determine whose blow, if it was done by the accused could have caused death. He said that Hafizur Rehman has been granted bail, though on tenderage, as such this would be a case of further enquiry, andsaid that, in the circumstances the applicant had made out a case for grant of bail.
6. Mr. Madad said that the trial Court while considering the bail application has not considered the law that has been laid down by the superior Court and had, therefore, come to the wrong decision.
He said that the trial Court was also wrong in holding that as the ocular version corroborated with the medical evidence, therefore, bail was to be refused. He said that the timings were of utmost importance and that in the circumstances the version of the eye-witness could also be in dispute.
He said that the statement of the eye-witnesses were also not recorded. He said that in the circumstances the order passed by the lower Court was incorrect. He said that one of the eye- witnesses is a relative and the other a caste-fellow. Their evidence could also no be believed. He further said that from the facts as narrated in the F.I.R., it is clear that there was no motive, and that they did not come to murder the deceased as they picked up the 'Paties', from the shop itself. Had they come with the intention they would have been armed with some weapon. Thus, he says that in these circumstances bail is liable to be granted.
7. In respect of all the assertions above Mr. Madad has referred to various judgments of superior Courts. On the point of further enquiry he said, in the circumstances bail ought to be granted. This was discussed in the case of Jaffar and others v. The State 1980 SCM R 784. On the question of use of 'Dandas and use by various persons' he has referred to the case of Muhammad Aslam and another v. The State 1997 SCM R 251, State Bank of Pakistan v. Messrs Samdad Commercial Complex International (Pvt.) Ltd. And 2 others 1995 PCr.LJ 1274; Sadain and Zahid v. The State 1998 Cr.LJ 534.
On the point of intention to commit murder, the following have been cited: Amir v. The State PLD 1972 SC 277 and Manzoor and 4 others v. The State PLD 1972 SC 81.
8. Mr. Azhar Ali Tunio for the State argued, that it is clear from the facts of the case it is clear that the Applicant is a nominated person and that it was broad daylight. He said that the F.I.R. Is clear that it was the deceased had himself nominated him. He said the statements under 161, Cr.P.C. Are clear and that in fact he has been nominated there also. He said that the F.I.R. Was promptly recorded and that the timing would not cause much difference as the death was caused by the nominated accused and the nomination was by the deceased himself. He said the motive of murder is apparent from the fact that the accused had come to the house to fight with him. He said that the entire act was planned, and that in the circumstances, bail should be refused. Mr. Umar adopted the arguments of Mr. Tunio.
9. I have gone through the pleadings, the F.I.R. The medical reports and the order of the trial Court.
The judgments cited by Mr. Madad are all distinguishable considering the peculiar facts of the case. The applicant is a nominated accused, and that too by the deceased himself. This is not a case of further enquiry, as such the case of Jaffar and others v. The State 1980 SCM R 784 being distinguishable on facts, cannot be followed. As to the motive, the same is also evident from the F.I.R. Itself, there being a dispute, and the accused having came to the house of the deceased to fight with him. No doubt, if there was no motive bail could have been granted, which is also held in the referred citations on the subject. The argument as to, whose 'Patty' inflicted the fatal blow, cannot be looked for the purpose of the bail, as it would amount to a deeper appreciation. I find force in the argument of the learned counsel for the State, that the applicant is a nominated accused and that it was the deceased" who had nominated him. The timing in the circumstances would not be of much avail. The deceased expired as a result of the injuries and that the ocular version is supported by the medical report. It so was that the accused had planned to attack the deceased, and in furtherance thereof they did so causing death to the deceased. The accused has committed, ex facie, a non-bailable offence within the prohibitory clause of section 497, Cr.P.C. In the circumstances and the discussion above, the applicant is, at this stage not entitled to be admitted to bail.
10. In the circumstances I dismiss the application, refuse to grant bail to the applicant. However, he may approach the trail Court after the eyewitnesses have been examined. The observations as to the merits if any made herein are tentative in nature and not binding on the trial Court.