Sher Muhammad petitioner has moved this petition for bail in a case registered against him under section 302, P. P. C. The allegations are that on 4-3-1977 he inflicted a Kendall blow on the head of Mst. Sughran, which ultimately resulted In het death. The occurrence was witnessed by Muhammad Sadiq complainant, Faqita, Haul! And P. Ws.
The learned counsel for the petitioner contends that all the eye-witnesses have sworn affidavits that the petitioner had been falsely implicated and the complainant had moved an application before the District Magistrate for the withdrawal of the case.
3. The copies of the affidavits of Faqir Muhammad, Beggs and Rani have been placed on the file wherein they have stated that Mst. Sughran was not murdered by the petitioner and he has been falsely implicated. Learned counsel for the petitioner has contended with some Justification that in view of these affidavits, there are an cient grounds for further enquiry Into the guilt of the petitioner.
In the circumstances, I admit hint to bail in the sum of Re. 20,000 with two sureties in the like amount to the satisfaction Assistant Commissioner/Deputy Magistrate, Kasur.
Petition allowed.
1978 P Cr. L 3 405 [Labors] Before M. S. H. Qureshi, J PAc IR MUHAMMAD alias PHEBRA And OTHERS-Petitioners versus THE STATE--Respondent Criminal Miscellaneous No, 2296 of 1977, decided on 5th July 1977.
Crimliel Procedure Code (V of 108)- - S. 497-Bail urged on grounds that (1) in per medical report alleged victim of rape was found used to sexual interc-ourse and no fresh tear was detected and (11) Investigating Officer had found petitioners innocent-Medical examination, however, taking place 2/3 days after occurrence- Medical report, held, could not be found in conflict with allegations in F. I. R. Nor opinion of Investigation Officer at bail stage carried any weight in circumstances-Bail &dined. (p. 4061A All Ahmad dares for Petitioners. Nairn Malik for the State.
' The petitioners have been ohallaned under section 358, P. P. C. Along with their co-accused Yousaf against whom the case is under sections 363, 366 and 376, P. P. C. The occurrence took place on 25-3-1977 at Ishawela. Mst. Amual Batool, the prosecutrix in the case, who, according to the F. I. R. Is aged 14i-15 years and is unmarried, had at that time gone out of doors along with her mother to answer the call of nature and when she was returning, the three accused came. Petitioner Faqir Muhammad put his hand on her mouth. Petitioner Haaoor alias Kalu caught hold of her arms and Yousaf co-aocused forcibly took her away in spite of the protests of her mother. They removed her to a wheat-field about 4/5 wares away where they kept her for the night and whet. Yousaf committed rape on her at pistol point. All the three accused kept a watch on her even during the following day but some witnesses arrived and the girl was able to run away. The report was lodged on 28.3-1977 and 9.15 a m. On the same day the girl was medically examined at 2-30 p.m. The Doctor found the hymen torn but he did not note any fresh tear. The vaginal swab was sent to the Chemical Examiner but the result of the same is not known. According to the Police Officer the same had not been received at the time of submission of challan which was done on 30-4-1977.
2. The petitioners' application for bail was rejects by the Additional Sessions Judge, Sahiwal, on 30- 5.1977.
3. Bail is urged firstly on the ground that during the investigation the petitioners had been found to be innocent. It appears from the challan that all the three accused had been arrested in the case but at the instance of Kalu and Faqir Muhammad, who applied that they were innocent, the S. H.
0. Investigated the matter in the result of which he found them to be innocent but on the application of the complainant party the S. P. Himself examined the matter and came to the view that the petitioners were liable under section 368, P. P. C. And as such they were also included as accused in the case. The basis of the Police Officer's opinion about the petitioners' innocence has not been cited by learned counsel for the petitioners. I find that the key-witnesses I.e., the prosecutrix and her mother, have supported the allegations. The opinion of the S. H.
0. Is, therefore, of little relevance at this stage.
4. Learned counsel then submits that the medical report shows that th girl had been used to sexual intercourse because the vagina was found "no tender on examination" and there was no fresh tear.
Considering that th medical examination had taken place on 21-3-1977 1 e 2/3 days after the occurrence, it is difficult to accept that the medical report is in conflict with the allegations in the F.
I. R.
5. The fact that the F. I. R. Is belated is also not fatal, for the delay can be explained.
6. The allegations show that the petitioners and their co-accused had acted in a high-handed manner and had forcibly removed the girl for their immoral purpose. The petition is, therefore, refused. Petition dismissed.
1968 P Cr. L J 407 [Labors] Before Muhammad Munir' Farukee, J MANZOORAN-Appellant versus The STATE-Respondent Criminal Appeal No, 68 of 1975, decided on 3rd November 1976.
(a)Criminal trial- - Witness-Evidence, reliability of-Close relationship of prosecution witnesses inter se and with deceased -No ground to discard their evidence, in absence of any or animus between parties.- [Witness]. [p. 408]4 (b)Evidence- Proof, onus of-Substitution of real murderer a thing of rare occurrence and cannot be assumed-,- Plea of substitution to be proved specifics Ily.-[M urder -Criminal trial]. [p. 409]8 Peru* Akhtar for Appellant. S. M. Anwar for the State Dates of bearing : 4th and 5th October 1976.
' This appeal is addressed against the judgment dated the 22nd of March 1975 of then Additional Sessions Judge, Multan, convicting /1-fr, MANZURAN wife of Muhammad, aged 22 years, under section 302, P. P. C. With a sentence of life imprisonment and a fine of Rs, 1,000 which, if recovered Shall be paid to the heirs of the deceased otherwise he would suffer further rigorous imprisonment for one year,
2. The incident involving the murder of Mg. Bibi four years old daughter of Hakam, took place at about peshiwela on the 23rd of May 1973 in a maiz field of Bharni Nadarwall in village Noran as reported by Hakam (P. W. 4) to Sub-Inspector Allah Ditta P. W. Who recorded his statement Exb. P. A.
At 7-30 p. m. The same evening In Police Station, Ludan for the formal registration of this case.
3. The prosecution case in brief was that Mst. Manzuran was married to Muhammad, a brother of Hakam complainant in exchange for the hand of Mst. Roshani for her brother six months prior to this occurrence. The latter was enjoying a harmonious life with her husband (also named Muhammad) while Mat. Manzaran appellant was not happy with her husband in Nooran and twice went away to the house of her parents witbout permission. She repeated this solution to her own village Azimabad a fortnight earlier and was brought back by Mst. Maryam and Nadar 4/5 days prior to this occurrence whereafter they became vigilant.
4. On the eventful day she went to a nearby maiz field for easing herself where Hakam complainant and his brothers Muhammad and Haltam as also his nephew Anwar followed her which she resented and calling out angrily said she was being worried and she would annoy their womenfolk.
A short while thereafter they heard shrieks from there and on going close they found her strangulating a baby. Muhammad her husband pushed her aside and found that the child /list. Bibi was dead.
5. Leaving others at the spot Hakam P. W. Rushed to the Police Station and lodged the report Bxh. P.
A. About it. Sub-Inspector Allah Ditta (P. W. 7) then went to the spot and after preparing the injury statement Exh. P. B. And the inquest report Exh. P. C. Despatched the dead body to the mortuary under the escort of Foot Constable Ghulam Qasim along with application Exb. P. D. Foot Constable Ghulam Qasim brought back shirt (P. 1) of Mst. Bibi from the mortuary and produced it before him vide Exh. P. E.
The Sub-Inspector lot prepared the site plan (Exh. P. F.) with its duplicate Exh. P./17 I and putting his notes in red ink signed the same in token of its correctness.
6. On 24th May 1973, at 4.15 p.m. Dr. Waseem Akhtar (P. W. 1) held autopsy on the dead body of Mst.
Bibi and found the following injuries ride Exh. P. G.
(1) A bluish contusion mark 4' x 4' on the left side of the neck.
(2) A bluish contusion mark 4' x 4' on the left border of mendible,
(3) A bluish contusion mark 4' x "4" on the right side of the neck.
(4) A faintly visible contusion mark 2' x 14' on front of cheat half inch to the right side of sternum.
' On dissection of the neck he found exudation of blood stain decomposition fluid. Trachea and larynx were congested on inner side. The ' ' ' hyroid bone was fractured from both ends. Both lungs and oesophagus were congested. ' his opinion the cause of death in his stage was asphyxia and apoplexy u a result of strangulation which was sufficient to cause death in the ordinary course of nature Injuries were ante-mortem.
Death occurred within few minutes after strangulation and the post-mortem was conducted within 24 to 28 hours.
7. In addition to this detailed medical evidence the prosecution had relied at the trial on the testimony of Hakam (P. W. 4), Muhammad (P. W. 5), Mst. Maryam (P. W. 6) for the ocular account of the occurrence each of whom lent unstinted support to the above narration.
8. The appellant in his turn denied allegations made against her by these witnesses and pleading her false implication in this case stated as under I- "This is correct that I was leading unhappy life with my husband because he used to commit sodomy upon me and I felt acute pain. This is incorrect that I ever ran away from his house.
Actually I had for a few days in his house and thereafter I went to my parents house and ' ' then did not come to my husband's house."
' She, however, led no evidence in her defence.
9. Learned trial Judge rejecting ber plea held her guilty of the charge which finding has been assailed before me as unsustainable being based on the evidence of interested-cum-bostile witnesses to the exclusion of disinterested and independent persons living in the neighbourhood, but on going through the record I am tot pursuaded to agree with these contentions.
10. It is no doubt correct that Hakam (P. W. 4) is the father of Mst. Bibil (deceased), Muhammad (P.
W. 5) bet uncle and Ma. Maryam (P. W. 6) harti mother, but their evidence cannot be discarded merely on that score as none of, them was shown to have any prior motive to implicate her falsely in such serious case. Not even a slightest suggestion was made about any previous incident indicating any ill-will or animus between the parties. Mst Rosiiani the sister of Hakam and Muhammad P. Ws. Was still living quite happily wi Muhammad. a brother of Mst. Manzuran appellant in their village Asimaba which could not be possible if they had involved her in a false case. They could have easily saved her by divorcing Mst. Roshani if this was their demand as put to Muhammad P. W. (her husband) in his cross examination after he had deposed against his own wife. This was apparently an afterthought as the statement of the appellant before the Committing Magistrate was absolutely silent about it. No such suggestion was made to any other witness like Hakam (P. W. 4) the elder brother of the husband of the appellant or Mst. Maryam (P. W. 6) the wife of the former. In fact the suggestion made to all the eye-witnesses about this occurrence was that NM. Bibi (the dead child) was strangulated by her playmates in that very field a day earlier but giving the actual offenders a free pardon they had substituted her in their place Such plea has never found favour with the Superior Courts as it is against the natural human instinct. Anyhow substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it.
' II was unfortunate that she had made another serious insinuation against her husband at a very late stage, I e., in her statement under section 342, Cr. P. C. At the trial, as reproduced above, watch was never suggested to him during his examination as a witness in the case. It was thus a clear afterthought like other suggestions in cross-examination. She even denied her arrest from this village.
11. The doctor was cross-examined at length about the duration between the death and post- mortem examination in the light of the symptoms like decomposition and eating up of small portion of skin by ants but no such material could be elucidated from him which could show that the unfortunate child had met her death a day earlier than the alleged occurrence. He had deposed that the skin of a child of four years (like Mo. BRA) is delicate and due to this tenderness (of the skin) decomposition had set in earlier. He had even in examination-in-chief described it as moderate decomposition. It was also true of the peeling off the skin from some delicate parts of the body. It was added however that it would always depend on the atmosphere in which the dead body was lying. It was admittedly the hot month of May 1973 and the humidity of the main crop around the dead body till the arrival of the police must also have cotributed to the decomposition.
The ants might have taken their share during the same period or even after arrival at the mortuary where the dead body in the cot laid in wait for the doctor for more than four hours. Due to the bad smell emitting from the dead body in that state nobody could have guarded against the ants.
12. In fact the prompt report followed by firmly consistent and unrebutted evidence of these witnesses could not be rejected without bringing on record any material to discredit them. The assertion that some other persons living in the vicinity of the crime had been excluded from the witness-box was likewise an afterthought as the name of no such person was put any of these eye-witnesses as having arrived on the scene on hearing the outcries of the child and seen the culprit.
13. Lastly it was urged that the undesirable conduct of the P. W. In going behind her when she went to the field for easing herself had aimed great annoyance to her and she had actually been enranged so her offence would fall under Exception (1) to section 300 of the Pakistan Penal Code, i,e,, grave and sudden provocation but this contention was also without any force as the provocation if any was caused to her could not be termed as grave or sudden. This vigilance or surveillance was continuing for the last four days which was the outcome of her own misconduct as she used to slip away to house of her parents without their permission from where she had been brought for the third time. Anyhow this child had given her no provocation nor was she killed by mistake or accident so Mo.. Manzuran appellant could not claim the benefit of this clause.
44. As a result of this discussion there was no merit in this appeal and she had been rightly convicted under section 302, P. P. C. It is accordingly dismissed.
15. As regards the sentence the benefit of provocation, if any, had already been given by a carding the lesser penalty to her in this case. Appeal dismissed.
1978 Cr. L 1 410 [Lahore] Before Muhammad Ilyas, Ch. ALLAH DITTA-Petitioner versus NOOR MUHAMMAD ETC.-Respondents Criminal Revision No, 463 of 1977, decided on 1st November 1977.
Criminal Procedure Code (V of 1$911)- -- S. 247, second proviso - Acquittal, - Contention that offences under S. 420/466/468/471, P. P. C.
Being either cognizable or non-compoundable, order of acquittal for non-prosecution of complainant, offended against second proviso to S. 247-Contention, held, correct and case remanded for fresh disposal.-(Remand of case). (p. 410114 Falak Sher for Petitioner.
Ripasat Ali for Respondent.
Muhammad Salim Blunt for A.-G. For the State. Date of hearing t 1st November 1977.
JUDEGMENT ' This criminal revision is directed against order dated 9-61977, passed by Sessions Judge, with powers of Special Judge, Anti-Corruption, Lyallpur (now known as Faisalabad) whereby ho acquitted the respondents by dismissing a complaint, under sections 420, 465, 466/468 and 471 P.
P. C. Filed against them by the petitioners.
2. The complaint came up for hearing before the learned Special Judge on the aforesaid date but as the complainant did not turn up to prosecute the cue, the trial Court made the impugned order.
3. Learned counsel for the petitioner contended that the offences committed by the respondents were either cognisable or non-compoundable I and, therefore the order of acquittal made by the learned Special Judge offended against the second proviso to section 247 of the Cr. P. C.Th contention was conceded both by the learned counsel for the respondent and also the learned State counsel. I, therefore, hold that the impugned orde is not sustainable in law.
4. In result, I accept the petition, set aside the order under revision and remand the case to the learned trial Court for fresh disposal in accordance with law. Petition allowed.
1978 P Cr. L 411 [Lahore] Before Gulbaz Khan, J BASHIR AHMAD-Petitioner versus THE STATE-Respondent Criminal Miscellaneous No, 1794/8 of 1977, decided on 13th June 1977.
Cried**, Pieced'*,* Code (V of 1898)- -- S. 497-No specific part attributed to petitioners, accused of setting building on fire by sprinkling petrol over it-Bail allowed, in circumstances-Penal Code (XLV of 1860), Ss. 353, 436, 332 and Defence of Pakistan Rules, 1971, r.
43. [p. 41 OA Ch. Reg Ahmad Bajwa, Asif Sajjad Jan and Man Abdur Rashid for Peti A. W. Butt for the State.
' I have been taken through the F. I. R. Of this case. According to the prosecution version, Muhammad Yousaf and Abdul Karim petitioners and their co-accused Jamil. Abdul Majid had sat the hotel of Muhammad Azam on fire by sprinkling petrol over the building. Khan Zeman, co- accused had lit the match and set it on fire. Bashir Ahmad alias Bache, Chuk and his co-accused Muhammad Aslam had set Alhamra General Store on fire by sprinkling petrol. There is an allegation of general nature as regards setting on fire the shop of Muhammad Rashid Naveed. No person had been named specifically for setting the said shop on fire. Learned counsel for the petitioners states at bar that Bashir Ahmad mentioned at Serial No, 1 of this petition is a different person than Bashir Ahmad alias Bachey Chuck. He further states that bail petition of Bashir Ahmad alias Chuk Cr. Misc. No, 1873-B/77 is fixed for 15-6-1977. Since Muhammad BacheyYousal and Abdul Karim have been named specifically for setting hotel of Muhammad Azam on fire, their bail petition is dismissed.
2. No specific part has been attributed to the remaining petitioners. They are admitted to bail in the sum of 5,000 with one surety each in the like amount to the satisfaction of A. C., Gujranwala, who shall return the bail bonds to this Court after attestation.