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Criminal Bail Application No. 501 of 1979, decided on 20th Jude, 1979.

‑‑‑ S. 497‑‑‑Bail pressed on grounds (i) part assigned to all accused in P.I.R. same; (it) case of petitioners identical to that of co‑accused already granted bail ; (iii) according to post‑mortem report occur rence an un-witnessed crime ; (iv) crime weapon not yet proved ; (v) F. I. R. not specifically assigning distinctive part played by peti tioners‑Bail allowed, in circumstances‑Penal Code (XLV of 1860), Ss. 302, 307, 148 & 149.

Aftab Ahmad v. State 1978 P Cr. L J 632 ref.

Ghiasuddin Baloch for Applicants.

Murtaza Hussain for the State.

There are seven accused persons facing trial, for offences under section 302/307/148/149, P. P. C., for committing the murder of Sher Mohammad deceased and causing injuries to P. Ws. Umed Ali and com plainant Yar Mohammad.

Out of the seven, except tire two applicants, all the co‑accused were allowed bail by the Court of Session, by two orders dated 3rd August, 19721 and 16th August,. 1978. Whereas, the case of the present two applicants, was distinguished on the ground that against them there was corroborative evidence in the shape of recovery of hatchets.

The learned counsel for the applicants, Mr. Ghiasuddin Baloch has argued the following points

(i) That in the F. I. R. the part assigned to all the seven accused is the same. No specific part is attributed to the two applicants for having caused the hatchet injuries to the deceased or any of the injured witnesses.

(ii) That the medical evidence discloses only two incised injuries on the person of the deceased Sher Muhammad. Complainant Yar Mohammad had three incised hatchet injuries and Umed Ali had two blunt object injuries on his person. It is, therefore, con tended that the case of the applicants is identical to those of the co‑accused.

(iii) On the perusal of the post‑mortem report, it is shown that the post‑mortem was performed from 12‑30 noon to 1‑30 p. m. on 9th June, 1978 and the probable time between injuries and‑post mortem, was within 8 and 9 hours and the death was described as instantaneous. The learned counsel has submitted that from this, it concludes that the occurrence bad taken place at 4‑00 a. m. and was an un-witnessed crime.

(iv) Co‑accused Rajo and Haji had also produced hatchets and they were granted bail by the Court of Session.

(v) That the motive as alleged in the F.I.R. was that co‑accused Syed Ghulam Shah suspected the complainant Yar Mohammad with his sister Mst. Shah Bibi and had thus declared him, as Kayo'. It is argued that the applicants had no motive against either the deceased or the complainant. Whereas co‑accused Syed Ghulam Shah had been released on bail by the Court of Session.

(vi) Finally it is submitted that the hatchets produced by the two applicants are not yet proved by the report of the Chemical Analyser to be stained with human blood.

Mr. Murtaza Hussain on the other hand has opposed the grant of bail and has contended that the release on bail of the co‑accused would not ipso facto entitle the applicants to the grant of bail. He has placed reliance on the case of Aftab Ahmad (1978 P Cr. L 1632). He has also argued that the applicants had produced the hatchets and on that ground alone, their bail application , was withdrawn by the learned defence counsel, in the Court of Session, when co‑accused Rajo, Haji and Nek Mohammad were granted bail by the order dated 16th August, 1978. It is further pointed out that on perusal of the Mashirnamas of recovery of the hatchets, from the applicants, as well as, co‑accused Rajo, Haji and Nek Mohammad it is shown that the hatchets were washed and that was not the case with hatchets produced by the two applicants. He has further emphasised that the motive at this stage cannot be gone into; because it could be determined at the time of trial, and not at this stage, since the applicant Ali Gul Shah, nephew of Ghulam Shah, all the accused persons had come together, therefore would be equally persuaded to commit the crime by the same motive. He has further submitted that the time of occurrence can be explained, from the time oft he death and the post‑mortem. It is to be construed that the occurrence had taken place between 8 or 9 hours and not within 8 and 9 hours, meaning thereby that either 8 or 9 hours before the post‑mortem was performed.

I have perused the F. I. R., which, as is admitted position, does not, specifically, assign distinctive part to the two applicants, for having inflicted two injuries to the deceased, or to the two injured, complainant Yar Mohammad and Umed Ali. In short no distinction is made between part played, by the two applicants, and that of the co‑accused. The bail to the co‑accused, was allowed, as there was no corroborative incrimi nating piece of evidence available. The case of the two applicants was distinguished, mainly, on the point of production of the two hatchets. Under the circumstance the report of the Chemical Analyser was called, in respect of the human blood, if it was found, on the two hatchets, pro duced by the two applicants. No such report off the Chemical Analyser is available, though the case was challaned on 26th June, 1978. At this stage, therefore, there is no evidence to show that the hatchets produced by the two applicants were stained with human blood. In that position of the facts of the case, I find no distinction in the case of the applicants from that of the co‑accused who are on bail. I would, therefore, allow bail to the applicants in the sum of Rs. 10,000 (Rupees ten thousand) each and P. R, Bond, in the like amount, to the satisfaction of the trial Court.

However, if at any later stage, evidence .of incriminating nature, assigning the specific part, to the applicants and corroborative pieces of evidence, of the hatchets, being stained with human blood, comes on the record against the applicants, the trial Court would be at liberty to entertain any application by the prosecution, for cancellation of their bail.

Bali allowed.

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