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Criminal Miscellaneous No. 279-B of 1984/BWP, decided on 16th April, 1984.

--- S. 497/498 - Penal Code (XLV of 1860), S. 302/34 - Bail -Murder-Fatal blows with sticks attributed to accused-Extensive area covered by injuries on person of deceased appearing to be result, of sustained and merciless beating which deceased gave to accused-- Prima facie accused could be burdened with knowledge that injuries caused to deceased would most likely result in his death --Reasonable grounds existing to believe that accused guilty of com mitting an offence falling under S. 304, P. P. C., and punishable with ten years and covered by prohibitory clause of S. 497, Cr. P. C.-Accused, held, not entitled to bail in circumstances.

Malik Muhammad Din for Petitioners.

Ch. Ejaz Ahmad for the State. A. R. Tayyib for Complainant.

Abdul Malik with 3 others, namely, Shabbir, Idrees and Ghulam Abbas sons of Muhammad Hussain, has been accused of committing the murder of Arshad Ali on 14th December, 1983 in the vicinity of Chak No. 74/P within the jurisdiction of Police Station Kot Samaba. District Rahimyarkban. He applied for the grant of bail, in the Court of Additional Sessions Judge but remained unsuccessful, hence this application.

2. Briefly the prosecution case as disclosed in the F. I. R. lodged by Ghulam Rasool brother of Arshad Ali deceased is that they purchased from one Ghulam Qadir a piece of land adjacent to the land of aforesaid Muhammad Hussain who did not feel happy over it and, therefore, teased the complainant party for one reason or the other. The parties had differences over Warabandi of canal water and also a quarrel had taken place 3/4 days before the occurrence between the parties because the barley field of the complainant party was inundated by the accused party as a result of which the barley crop sown by the complainant party was damaged. It is alleged that on the fateful day at about 5 p.m. Arshad Ali, deceased, was returning from the flour-mill where he had gone for getting his wheat milled and on the way the petitioner Abdul Malik, Shabbir and Idrees armed with Sotas and Ghulam Abbas armed with spear waylaid him and caused him injuries with their respective weapons. Abdul Malik petitioner and Idrees were specifically attributed injuries found on the buttocks and lumber region of the deceased. The occurrence was witnessed by Ghulam Rasool complainant, his brotber Muhammad Yaqoob and brother-in-law Muhammad Sadiq Arshad Ali was first removed to the house where he was served with hot millk and then taken to the hospital on a tractor-driven trolley reaching at Kot Samaba hospital at about 8 p.m., but before he could be rendered any medical aid Arshad Ali died. The incident was reported the same day at 9. p.m. According to the post-mortem report Arshad Ali suffered 14 injuries in all 2 of them were the penetrating wounds and the rest were skin abrasion and ecchymosis marks. It may be mentioned that injuries Nos. 12, 13 and 14 were on the buttocks and lumbar rengion involving an area of 30 c.m. x 25 c.m., 26 c.m. x 22 c. m. and 30 c.m. x 2 c.m. respectively. On dissection it was found that left kidney and spleen underneath injury No. 14 were ruptured which resulted in the death of Arshad Ali and it was also found to be sufficient in ordinary course of nature to cause his death.

3. Learned counsel appearing on behalf of the petitioner submits that case against the petitioner is false; that the petitioner although a close relation of aforesaid Muhammad Hussain, had no direct motive whatso ever against the deceased, that the injuries attributed to the petitioner do not show that he intended to cause the death of deceased; and that S. H. O. and D. S. P. have found the petitioner innocent and, therefore, it is a case of further inquiry as to the participation or otherwise of the petitioner in the crime, hence he deserves grant of concession of bail. As against this, learned counsel for the State assisted by the complainant's counsel submits that the petitioner has been attributed specific injuries to the deceased which proved fatal; that the opinion of the Investigating Officer as to the innocence of the petitioner is not admissible in evidence as also the said finding is not based on any material on the record; and that the offence with which the petitioner is charged is punishable with extreme penalty, therefore, the case of the petitioner falls within the prohibitory clause of section 497, Cr. P. C., hence he is not entitled to the grant of bail.

4. Having perused the record in the light of the arguments of learned counsel for the parties I find that fatal blows with sticks have 'been attributed to the petitioner. The dimension of injuries Nos. 12, 13 and 14 shows that these injuries were caused by giving repeated blows with some blunt weapon and even if it is assumed that the petitioner did not have any intention to kill even then in view of the extensive area covered by afore said three injuries appear to be the result of sustained and merciless beating and the petitioner can be prmia facie burdened with the knowledge that the injuries caused to the deceased would most likely result in his death and, therefore, the offence committed would fall under section 304. P. P. C. which is punishable with 10 years' R. I. and is covered by the prohibitory clause of section 497, Cr. P. C. As for the findings by the two Investigating Officers declaring the petitioner as innocent, it may be observed that there is only the statement of one Punnu who claims to have seen the deceased being beaten by other accused and not by the petitioner. It is to be noted that this witness appeared 5 days after the occurrence and gave no explanation as to why he did not join the investigation earlier and secondly he did not state as to how and at whose hands the deceased suffered the penetrating wounds on his person, therefore, prima facie his words hardly carry any weight at this stage. To the contrary, prosecution is supported by 3 eye-witnesses and the medical evidence. In the circum stances, I find that there exist reasonable grounds to believe that the petitioner is guilty for committing an offence punishable with 10 years' R. I. and as such he is not entitled to the grant of bail Consequently,/ this petition being without merit is hereby dismissed.

M. Y. S. Bail refused.

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