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Criminal Bail Application No. 20 of 1985, decided on 9th February, 1986.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S.302‑‑Bail, grant of‑‑Petitioner deceitfully, manipulating removal of dead body of deceased without pose mortem examination‑‑Poison, however, detected in viscera of decease during post‑mortem performed after Exhumation of dead body‑‑Statement of witnesses coupled with attending circumstances of case, reasonably connecting petitioners with commission of offence‑‑Bail declined in circumstances.

P L D 1972 S C 81; 1977 P Cr. L J 445; 1978 S C M R 360; 1983 P Cr. L J 2374 and P L D 1979 Quetta 148 ref.

Raja M. Afsar for Petitioners.

Munawar Ahmad Mirza, A.‑G. for the State.

Date of hearing: 9th February, 1985.

On the refusal of the learned Sessions Judge, Quetta to relea se the petitioners on bail this court has been approached. The event which led to the registration of the case against the petitioners an their involvement in an offence under section 302, P.P.C., are that on 16th March, 1984 the dead body of one Muhammad Aslam a native of village Vehari District (who at time was putting up in Qazifi Hotel Prince Road Quetta alongwith the accused) was brought to the Civil, Hospital and on the external examination it was found that the dent was caused due to electric shock. The dead body was allowed to be removed and taken to the native place of the deceased on the application made in that behalf by the present petitioners. It was also prayed that application moved before the Additional District Magistrate that no poet‑mortem was necessary. It is the case of the prosecution that the burial at the village was hurriedly performed in the absence of the father and the close relatives of the deceased. Sometime thereafter the father of the deceased suspecting foul play approached the Superintendent Police, Multan and the matter was also brought to the notice of the Quetta Police and whereupon the dead body was Exhumed and the contents from the stomach were taken in the presence of the witnesses and on the chemical analysis poison was detected in the viscera. The police during the investigation has examined persons before whom the accused are alleged to have confessed their guilt and the matter for reconciliation before a Punchayat was taken. The Advocate General informed me that the complete challan is ready to be filed in court, an interim challan having been previously filed soon after the rejection of the bail application by the Sessions Judge, Quetta.

2. The learned counsel appearing for the petitioners has canvassed Before me the following grounds in support of his prayer for the release of the accused on bail:‑

(i) that none of the petitioners was found present in the vicinity of the Khokha where the deceased Muhammad Aslam was found dead.

(ii) that in the belated F.I.R. there is no overt act ascribed to the present petitioners and there is no evidence about the administration of poison by the accused persons. According to the learned counsel the "mydriatic poison" allegedly found in the viscera as per certificate by the chemical examiner is not a known type of poison.

(iii) That there is no common intention on the part of the accused persons.

(iv) That there is no motive for the commission of the offence and the one assigned by the father of the deceased is a very far fetched and that too has not been substantiated through any evidence.

I am afraid I am not called upon at this stage to give any positive finding on the merits of the case. What I am required at this stage is to find, from the material collected by the police during the investigation, for a prima facie satisfaction that some tangible evidence can be offered which if left un-rebutted may lead to the inference of the guilt. The learned counsel for the petitioners has contended that Quetta Police during the inquiry conducted under section 174, Cr.P.C. has come to the conclusion that it was a case of electrocution and the cause then found was only electric shock. This, according to him, is contradictory to the stand now being taken, thus the police record contains two versions and it is a case of further enquiry and in such circumstances the petitioners are entitled to be released on bail as contemplated under section 497 (I) .Cr.P.C. and has placed reliance on the following cases:‑

P L D 1972 S C 81; 1977 P Cr. L J 445; 1978 S C M R 360; 1983 P Cr. L J 2374 and PLD 1979 Quetta 148.

I must straightaway state that the considerations which should be taken into account by the court while exercising the judicial discretion must necessarily depend upon the facts and circumstances of each cast and no hard and fast rule can ever be laid down nor there can be any rule of practice upon the basis of which such a discretion can be judicially exercised, for, rarely will there be two cases in which facts are alike. Reverting now to the arguments advanced before me I propose to examine them and the reliance s referred above. On the close scrutiny of the cases it is found that none of them could be applied in the instant case. In P L D 1972 S C 81, the complainant had made a grievance that the police was attempting to shield the real accused. In 1978 S C M R 360 the prosecution witnesses wire found not supporting the prosecution version and the Investigating Officers had made contradictory reports; one in favour of the accused while the other against the accused.

In Lahore case 1983 P Cr. L J 2374 the police record contained two versions regarding innocence of the accused and thus a case of further inquiry was made out. In Aurang Zaib's case P L D 1979 Quetta 148 prosecution case consisted of two versions a further enquiry was, therefore, called for. In 1977 P Cr. L J 445 the complaint was found to be false and the proceedings taken before the High Court were under section 561‑A, Cr.P.C. for the quashment of the proceedings. As demonstrated above none of the cases relied upon by the learned counsel are apt in the instant case. In the instant case the circumstances pressed into service against the accused by the prosecution are that it was the petitioners who did not allow the post‑mortem of the dead body at Quetta. They persuaded the authorities (police and A.D.M. Quetta) to believe that the post‑mortem was not necessary and thus hurriedly took away the dead body‑without any post‑mortem. The learned Advocate‑General considered this act of the petitioners as deceitful and a manipulation for the removal of the dead body so that the crime may not be detected. The circumstance that the dead body was buried at Vehari hurriedly in the absence of the father of the deceased lends support to the submission of the learned Advocate General. The extra‑judicial confession of the accused before witnesses (1) Abdul Shakoor Arain, (2) Abdul Shakoor Oad; and (3) Muhammad Rafiq has been relied by the prosecution. The members of the Punchayat namely, Haji Nawab, Haji Abdullah and Musa are also being mentioned as persons who are likely to throw light on the conduct of the accused persons soon after the commission of the offence. And above all the reports of the chemical examiner for a finding that poison was detected in the viscera taken out from the body of the deceased. Thus the statements of the witnesses found by police during the investigation coupled 'with the circumstances surrounding the occurrence as pointed A out above do form a relevant data to come to the conclusion that reasonable ground exists to connect the accused persons with the commission of the offence and there appear to be no two versions of the prosecution case alleged against them. Thus in view of the prohibition contained in section 497(1), Cr.P.C. the judicial discretion in favour of the accused /petitioners is not called for in the circumstances of the case.

For the reasons given above I find no justification for the release of the petitioners at this stage, the bail application, therefore, is dismissed.

S.G.D Bail declined.

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