Find a Lawyer

Criminal Bail Application No. 994 of 1979, decided on 10th November 1979.

----S. 497-Bail-Bail of petitioners, accused of murder, pressed on grounds : (i) complainant a habitual thief having given an affidavit in trial Court, and gone back on F. I. R.; (ii) affidavit of complainant showing F. I. R. lodged on basis of suspicion; (iii) prosecution wit nesses in affidavit absolving petitioners from offence-F. I. R., however, lodged within a reasonable time and record showing blood stained clothes secured from petitioners on day of occurrence and crime weapon produced at instance of petitioners--Reasonable grounds to believe petitioners guilty of offence under S. 302, P. P. C. existing, bail declined, in circumstances-Penal Code (XLV of 1860), S. 302.

Allah Bakhsh v. Nazar Hussain Shah 1979 S C M R 137 ; Cr. P. S. L. A. No. 34 of 1979 and Rehman Ali v. State 1979 S C M R 30 ref.

----S. 497-Bail-Expressions-"Sufficient ground" and "Reasonable ground"-Difference-Words sufficient grounds' in S. 497, Cr. P. C., held, require slightly higher degree of probability than words reason able grounds' in same section.-[Words and phrases].

Muhammad Hayat Junejo for Petitioners.

The applicants are alleged to have caused the death of 3 deceased persons, who were busy in cutting the grass. The motive is alleged to be avenging of murder of Mir Muhammad. The incident is alleged to have taken place at about 9-00 a.m. and it was reported on the same day at 11-30 a.m. by complainant Muhammad Mithal, who claims to be the nephew of deceased Noor Muhammad. F. I. .R. was lodged at Mir Wah, Police Station, which was at a distance of 6 miles from the vardat. Three deceased in the case are Noor Muhammad, Karim Buksh, who are brothers inter se and the 3rd deceased is Iqbal cousin of other two. Tajoo is alleged to have fired gunshot at Karim Buksh, who fell down and Ismail accused. gave hatchet blows to him. Sodo and Ali Hassan Shah gave hatchet blows to deceased Iqbal Shazado Shar and Ali Mochi gave hatchet blows to Noor Muhammad. The complainant had alleged that he and Khan Muhammad and Sher were also cutting the grass at the time of incident.

The main contention of Mr. Hayat is that complainant Mithal is habitual thief and he has given an affidavit in the trial Court in which he went back on his F. I. R. but at the time of arguments of the bail application in the lower Court be went back even upon that affidavit and supported F. I. R. But he has now again given his affidavit stating that he had lodged the F. I. R. only on the basis of suspicion and he has stated that the faces of the assailants were muffled. Mr. Hayat argues that P. W. Mithal should not be believed and in any case his last affidavit has absolved all the accused. He has also argued that Khan Muhammad P. W. has also given an affidavit, where he has absolved Ali Hasan Mochi from the offence, and has stated that he was not there. It was also stated by Khan Muhammad in his affidavit that P. W. Sher Khaskhali came on the scene of the- offence after the occurrence. Mr. Hayat argues that in these circumstances, all the eye-witnesses are condemned and the case, is therefore, eminently fit for bail. He has relied upon 1979 S C M R 137, and another case also at page 30, and Cr. P. S. L. A. 34/79. In the first case the Supreme Court had refused to interfere with the order of the High Court, where bail was granted in view of the affidavit of prosecution witnesses exculpating some of the accused. In the other 2 cases the Supreme Court had granted bail to accused, where the High Court had not granted the bail, In the report 1979 S C M R 30, the Supreme Court granted ban on the ground that in view of the affidavit of the complainant it was difficult to say if the petitioner had committed the offence. In the care of Petition No. 34/79, the Supreme Court granted bail, where High Court had refused bail. In that case the complainant had sworn an affidavit before the Notary Public and not before the Magistrate and the explanation before the Supreme Court was that the Magistrate had refused to attest the: affidavit of the complainant, where he wanted to go back upon his complaint. In that case the A. A.-G. on behalf of the State had conceded the bail. However every case depends upon its own peculiar facts. The cases cited by Mr. Hayat, learned counsel for the applicant cannot be interpreted to mean that in very case, where either the complainant or some P. Ws. have gone back upon their statements then bail must be granted to the accused. In the case before me there are statements recorded under section 164, Cr. P. C. of P. Ws. Khan Muhammad and P. W. Sher Ahmed, the alleged two eye-witnesses, where these P. Ws. have implicated all these applicants before me. These statements were taken in the presence of the accused and they were allowed to cross-examine these P. Ws. but they did not availed that opportunity. These statements are available to prosecution. I also see that the affidavit of Khan Muhammad is hardly an affidavit exculpating all these applicants, but it mainly directed to exculpate Ali Hasan Mochi. Generally in that affidavit Khan Muhammad has admitted the occurrence the presence of Shars without giving the names of. the accused or parts ascribed to them. I am not inclined to grant bail merely on the basis that the complainant Mithal has resiled from his complaint as his resiling is not really consistent. He resiled from complaint in the first affidavit, but before the trial Court at the time of hearing of the bail application, when he was present, he reiterated bi--, position as given in the F. 1. R. and stated before the Court that his affidavit was not true. Anti now he has again reverted of the position of backing out from the F. I. R. I find that the F. I. R. was lodged within a reasonable time of the offence. I also find from the record that the blood-stained clothes of Sodho and Mir Ali Hassan were secured from them on the day of incident after their arrest and they had also produced blood-stained hatchet. Accused Tajoo had produced a gun and his blood-stained clothes were also secured on the next day. The blood-stained clothes of Ismail, Shahzado and All Hassan Mochi were also secured from them and in these circumstances, there are reasonable grounds to believe that the applicants before me have beets guilty of the offence punishable under section 302/34, P. P. C. There is no discrepancy even alleged between the medical evidence and the injuries ascribed to the injured in the F. 1. R. In these circumstances. I am unable to find sufficient grounds for further enquiry into the guilt of the accused. The words "sufficient grounds" in section 497 of Cr. P. C. require slightly higher degree of probability then the words "reasonable grounds" in the same section. The two-affidavits in question do not really provide sufficient grounds for further enquiry, but on the other hand reasonable grounds exist against the applicants in this triple murder case.

In these circumstances, bail application is dismissed.

Application dismissed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.