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Criminal Miscellaneous No. 634‑B/BWP of 1984, decided on 8th July, 1984.

-----S. 497‑‑Penal Code (XLV of 1860). Ss. 302 a 307‑‑Bail‑‑According to F.I.R. lodged by father of deceased accused causing injuries to his wife and murdering son of complainant‑‑Deceased having illicit relations with wife of accused‑‑According to private complaint lodged by father of accused's wife (injured lady), besides accused certain other persons also participating in said crime‑‑F.I.R. lodged by father of deceased having not so far been contradicted by him‑‑Final report drawn up by police under S.173, Cr.P.C. basing on, story given in F.I.R. and not, on complaint by father of injured lady, filed with a delay of 17 days‑‑No process in complaint, having so far been issued‑‑Presence of deceased at dead of night in/near house of accused with whose wife deceased was suspected to be having illicit, liaison remaining to be explained satisfactorily‑‑Court, in cases of grave and sudden provocation, held, had refrained from awarding sentence beyond a few years‑‑Bail owed in circumstances.

Amir v. The State P L D 1972 S. C 277 ref.

Malik Yar Muhammad for‑Petitioner.

Abdul Nabi for the State.

Malik Muhammad Din for the Complainant.

Muhammad Amir, petitioner has applied for the grant of bail in the case registered against him under section 302/307, P.P.C. at Police Station Khanpur for murdering Muhammad lqbal and making attempt on the life of his wife Mst. Mumtaz Bibi.

2. The F.I.R. in this case has been lodged by Ghulam Hassan, father of Muhammad lqbal deceased. According to the complainant, on the night between 20/21‑3‑1984 he and his son Muhammad Iqbal went to sleep as usual after Isha prayers time. At mid‑night he found Muhammad Iqbal missing from the house and, therefore, he went out in his search in the company of Allah Wasaya and Muhammad Ajmal. He went towards the house of Muhammad Amir, petitioner for he knew that his son Muhammad Iqbal had illicit relations with Mst. Mumtaz Bibi wife of Muhammad Amir, petitioner. By reaching near the house of the petitioner they heard commotion emanating from the house of the petitioner and saw in the moonlight Muhammad Amir petitioner inflicting hatchet blows to Muhammad lqbal. When the witnesses shouted at him he left Muhammad Iqbal and attacked his wife Mst. Mumtaz Bibi and injured her. Muhammad Iqbal died at the spot. The petitioner, however, disappeared and Ghulam Hussain, complainant, leaving the dead body in the custody of witnesses went to Police Station Khanpur and lodged report there.

3. According to the medical evidence Muhammad lqbal died of violence and Mst. Mumtaz Bibi was also found injured with a sharp‑edged weapon. The petitioner has since been arrested and challaned in the case.

4. The petitioner applied for the grant of bail in the Court of Additional Sessions Judge‑III, Bahawalpur but did not succeed, hence this application. I have heard learned counsel for the petitioner as well as for the State assisted by learned counsel for the complainant and also perused the record.

5. It is argued on behalf of the complainant that according to Mst. Mumtaz Bibi wife of the petitioner, she, was not assaulted due to her illicit liaison with Muhammad lqbal, rather she was attacked for the petitioner wanted her to transfer, her landed property in his name. It is stated that Saleh Muhammad, father of Mst. Mumtaz Bibi has filed a private complaint alleging that besides Muhammad Amir, petitioner, Bakka, Khan Muhammad, Muhammad Ajmal, Allah Rakha and Ahmad Khan had killed Muhammad lqbal on the night between 20/21‑3‑1984 and made murderous assault on Mst. Mumtaz Bibi, It is, however, admitted that Ghulam Hussain, complainant in the police case, has neither been examined nor has he so far supported the story given in the private complaint.

6. Learned counsel for the petitioner submits that the F.I.R. clearly discloses that the petitioner killed deceased and also assaulted his own wife under fit of grave and sudden provocation and that a person no less than the father of the deceased had admitted that‑ the deceased was suspected of having illicit connection with Mst. Mumtaz Bibi wife of the petitioner and that he was found missing from his house at the dead of night and was attacked by the petitioner in the latter's house, leading to irresistible conclusion that the petitioner had acted under grave and sudden provocation and in such cases normally sentence of imprisonment awarded is less than 10 years, hence the petitioner is entitled to the grant of bail.

7. I have carefully considered the facts and circumstances of that case and find that the F.I.R. lodged by the father of deceased has not so far been contradicted by him. I have seen the final report drawn up by the police in this case under section 173. Cr.P.C. which is based on the story given in the F.I.R. and not on the complaint b Saleh Muhammad filed with a delay of about 17 days. No process in the complaint has so far been issued. In view of the fact that the presence of the deceased at dead of night in/near the house of the petitioner with whose wife he was suspected to be having illicit liaison remains to be explained satisfactorily. Normally in the cases of grave and sudden provocation the superior Courts of this country have refrained from awarding sentence beyond a few years. Following the dictum laid down in Amir v. State PLD 1972 S C 277, I feel inclined to allow the petition. The petitioner be released on bail subject to his furnishing bail bonds in the sum of Rs.20,000 (Rupees Twenty Thousand only) with two sureties each in like amount to the satisfaction of Assistant Commissioner/ Duty Magistrate, Bahawalpur.

H.A.K. Bail granted.

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