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Criminal Bail Application No. 24 of 1985, decided on 29th January, 1985.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302/34‑‑Grave and sudden provocation‑‑Bail, grant of‑‑Accused warning father of deceased to stop him from visiting village as accused had bad intention‑‑Deceased fired at by accused suspecting accused having illicit relations with his niece‑ Occurrence taking place near accused's village‑‑Such motive common in F.I.R. lodged by complainant father of deceased and report lodged by accused under S. 451, P.P.C.‑‑Question of family honour being involved, it was natural that one could be provoked‑‑Bail granted in circum stances.‑‑[Grave and sudden provocation].

Aftab Ahmed Akhund for Applicant.

A.A. Mohammadally, A. A.‑G. for the State.

This application for bail has been filed on behalf of applicant, Ali Muhammad, son of Behram who is facing trial for the offences under section 302/34, P.P.C. in the Court, of Sessions Judge, Thatta.

The facts briefly stated are that on 21‑10‑1984 at 2‑30 a.m., complainant Abdul Ghafoor Arain, lodged report at Mirpur Bathero Police Station in which he stated that deceased, Ramzan alias Jani was his son and his marriage took place six months back. His village is situated at the distance of two furlongs from Mushtaque Chandio. About 8/9 days back to the incident, Ali Muhammad told him that he had seen his son Ramzan alias Jani loitering in their village, therefore, he should asked him not to visit his village. He further told that his son Ramzan alias Jani was visiting their village with bad intention. Abdul Ghafoor made enquiries from his son who told him that he did not visit the village of Ali Muhammad. On 21‑10‑1984 at 12‑30 mid‑night one Jani alias Ramzan Brohi son of Masood Brohi, who is Hari of Chandios, came and informed Abdul Ghafoor that his son Ramzan alias Jani has been given blows by Raees. He came to the village of Chandios where he found his son lying on the floor of Otaq where Siddique, Chandio was also sitting. Ramzan had gunshot injuries on his abdomen and was unconscious. In the meanwhile, applicant, Ali Muhammad, came and told him that he had asked him not to allow his son to visit their village and today again he came to the house of his nephew Siddique and he had fired at him. Ramzan alias Jani died there. Abdul Ghafoor went and informed his son Ghulam Mustafa and nephew Ishaque. They came back where the dead body was lying, where they came to know that Ali Muhammad had gone to police station to lodge report. Abdul Ghafoor also went and lodged report as stated above.

On the same night at 2‑00 a.m. applicant Ali Muhammad went and lodged report under section 451‑A, P.P.C. He stated in his report that he suspected that Ramzan alias Jani had illicit connection with his niece Mst. Shahnaz, therefore, he used to come to their village during night time. On knowing this he asked Abdul Ghafoor to prevent his son not to visit their village. He has further stated that on the night of incident at about 11‑30 a.m. his nephew Siddique came to him and told him that dogs were barking. He then took up the gun of his nephew Adil Hassan and went to jungle and hide himself. At about 12‑15 night he heard cries of thief that raised by his nephew Siddique who was pursuing the thief. He was sure that Ramzan alias Jani might have come. He (Ali Muhammad), fired from his gun directly at Ramzan and also gave a blow with butt of his gun on his head. Ramzan alias Jani fell down. In the meanwhile, Siddique and other villagers came on gun reports. He removed Ramzan to Otaq and sent Ramzan Brohi alias Jani to Abdul Ghafoor. Ramzan died. He left Siddique and other villagers at the dead body and went and lodged report.

Mr. Aftab Akhund, Advocate for the applicant has submitted that applicant suspected the deceased to be in toe with his niece, therefore, asked his father not allow, to his son to come to their village. He has argued that deceased was found during odd hours near the house of Siddique with an ulterior motive just to meet his niece, therefore, this is the case of grave and sudden provocation and that immediately after the incident applicant sent a man to the father of the deceased who came at the Wardat and thereafter applicant also went and lodged the report at the Police Station Mirpur Bathero. His contention is that there is no eye‑witnesses of this incident and motive in both the reports is the same that deceased was prevented from coming to the house of co‑accused Sadiq. Mr. Akhund has cited 1979 P Cr. L J 442 and submitted that the facts of the present case are identical to that of reported case where considering all these points bails was granted.

Mr. A.A. Mohammadally, A.A.‑G. has no objection to the grant of bail

It is an admitted fact that there is no eye‑witness of this occurrence except that applicant himself lodged report and informed the father of the deceased who in his report has admitted that 8‑9 days prior to this incident applicant told him that his son Ramzan alias Jani was found during night time near their village but he ran away. He has also stated in the F.I.R. That due to ordinary suspicion applicant and his nephew committed murder of his son. The motive in both reports is the same. There is no enmity excepting that deceased was suspected to have illicit relations with niece of applicant. Mst. Shahnaz, in her 161, Cr.P.C. statement has stated that she is unmarried and about 2 months prior to the incident she developed illicit connections with deceased Ramzan alias Jani. The Mashirnama of Wardat shows that place where Jani fired is at the distance of 110 paces from the house of accused Sadiq and case of Ali Muhammad is that deceased came to their village and applicant and his nephew saw him and perused him. I do not agree with Mr. Akhund that this is the case of grave and sudden provocation. From the circumstances it could be gathered that case could be of a sudden provocation but not of grave. There is no motive excepting that deceased was suspected to have connections with family member of the applicant and he was found in odd hours near their house and that previously he was too prevented not to come. The other factor which has persuaded me to consider his bail is that the injuries were caused to the applicant at the distance of 110 paces from their house but he was brought in injured condition to the Otak of applicant Ali Muhammad, had no further attempt to kill him. Abdul Ghafoor father of the deceased has himself stated in the F.I.R. that when he came his son was lying in injured condition and subsequently died. Applicant cannot get benefit of an exception of section 299, P.P.C. and cannot be exonerated from the charges of murder. But his case for the purpose of bail deserves some consideration. The question of an honour family is involved and it is bit natural that one can be provoked in these circumstances. The version has further been supported by the statement of Mst. Shahnaz. In these circumstances I am inclined to exercise discretion of granting bail to the applicant. On this the case cited by Mr. Akhund is relevant. In that case motive for the occurrence was that deceased was suspected to have illicit relations with one woman and he was stopped from visiting the house. The bail was granted. Furthermore, co‑accused Sadiq has already granted bail by the learned Sessions Judge.

For the facts and reasons stated above, I admit applicant to bail on furnishing two sureties in the sum of Rs.50,000 and P.R. Bond in the like amount to the satisfaction of the Sessions Judge, Thatta.

S. G. D.

Bail granted.

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