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Criminal Bail Application No. 177 of 1985, decided on 11th February, 1985.

‑‑‑‑S. 498‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, grant of‑‑Accused giving one blow with piece of wood/Lathi to his wife on temporal region‑ ‑Wife allegedly rebuking accused by filthy language over trifle matter when given fatal blow‑‑Accused, 62 years of age giving Lathi blow to woman of 45 years, resulting in instantaneous death‑‑Injury skull deep on temporal region‑‑Bleeding from nose and ear‑‑Right temporal bone fractured‑‑Lathi, held, was deadly weapon‑‑Bail refused in circumstances.

Siddiq Shah v. Qurban Shah and others 1985 S C M R 979; Mureed v. The State 1985 P Cr.L J 265; Ch. Abdul Malik v. The State P L D 1968 SC 349; The State v. Rais Pehlwan 1985 P Cr. L J 1024; Zafar Iqbal v. The State 1985 PCr.LJ 2619; Amir v. The State 1973 P Cr. L J 205; Shami v. The State 1972 PCr.LJ 149; Abdul Rashid v. The State 1974 PCr.LJ Note 167 at p. 103 and Khalid and others v. The State 1975 S C M R 500 ref.

Kazi Azizullah for Applicant.

Syed Sarfraz Ahmad, A.A.‑G. for the State.

This is bail application under section 498, Cr.P.C. The brief facts leading to this application are that on 13th September, 1984 the applicant/accused is alleged to have given a blow by a piece of wood to his wife Mst. Moomal, who succumbed to death then and there on account of that blow. The reason for the said incident, as given in the F.I.R. by the son of the deceased, from her previous marriage, is that the applicant asked the deceased as to why she had not gone to cut the grass, and on that she rebuked the applicant, who being provoked by the filthy language used by her against the applicant gave a Lathi blow to her. The applicant was arrested and is in detention for the last about 15 months. On 16‑10‑1984, an application for bail was moved before the learned Sessions Judge, Nawabshah, which has been rejected by the learned Sessions Judge on 8‑ 11‑ 1984. The relevant portion of his order reads as follows:‑

"There are eye‑witnesses to the incident. Blood‑stained hatchet has been secured from accused. Accused also produced blood stained waist coat. From‑ the material on record I am satisfied that there are reasonable grounds to believe that accused has committed this offence punishable with death or imprisonment for life. I, therefore, reject this application."

Being aggrieved of the said order, the applicant has on 11‑4‑1985 filed the above application in this Court.

2. Mr. Kazi Azizullah, learned counsel for the applicant contends that the applicant is entitled to bail as, according to F.I.R. it was a sudden affair without any premeditation. There is only a single blow struck in the heat of passion. He has placed his reliance on a number of cases reported as (1) Siddiq Shah v. Qurban Shah and others 1985 SCMR 979, (2) Mureed v. The State 1985 P Cr. L J 265, (3) Ch. Abdul Malik v. The State L D 1968 S C 349, (4) the State v. Rais Pahlwan 1985 PCr.LJ 1024 and (5) Zafar lqbal v. The State 1985 P Cr. L J 2619.

3. I am afraid, none of the cases cited by the learned counsel for the applicant applies to the facts and circumstances of the present case.

4. In the first case Siddiq Shah v. Qurban Shah and others 1985 SCMR 979 the bail granted by the High Court of Lahore was refused to be cancelled by the Supreme Court, it was observed that the High Court was right in observing that the intention of the respondents was not to commit murder and their conduct requires further inquiry. It cannot be gathered as to what were the considerations for grant of bail, as the order of the High Court is not before me. In any case, the allegation against the respondents in that case was that they had attacked the companions of the deceased and the learned Judge of the Lahore High Court had exercised the discretion vested in it and the learned Supreme Court did not feel inclined to cancel the bail.

5. In the second case 1985 P Cr: L J 265, as per F.I.R., the accused gave Lathi blows on the hand and legs of the deceased Saleh while Mureed gave blow on the front side of head of Saleh whereas it is clearly mentioned in the post‑mortem report that there is only one injury found on the person of deceased Saleh. Initially, the case under section 307, P.P.C. was registered, but subsequently injured Selah died and the case was challaned under section 302/307/34, P.P.C. It was thus found by the learned Single Judge that there was discrepancy as to the number of injuries alleged in the F.I.R. and the medical report, as it was alleged in the F.I.R. that the injuries were two, whereas, as per post‑mortem report, it was stated to be one on the person of the deceased. Moreover, no case‑law was discussed in the said case. There is also a distinguishing feature in the facts and circumstances of that case as injured Saleh had died subsequently. ,

6. In the third case P L D 1968 S C 349 learned counsel for the applicant invited my attention to the observation of Supreme Court appearing at page 352, which reads as follows:‑‑

"However, if it is found that the charge is groundless i.e. to say unsupported by any evidence or instead of the grounds being reasonable, their absurdity stands exposed on a plain view, or the charge on its face value is reduced to a minor one which is not punishable with death or transportation for life, as for example where it is a case of accidental and unintended death caused by simple hurt, the limitation on the Courts and discretion is removed which must then be freely exercised in favour of the grant of bail. Similarly where reasonable grounds are not disclosed but grounds do exist for a further investigation and inquiry into the guilt of an accused person, the case will fall under section 497(2) of the Cr.P.C., in which case again bail should not be withheld:"

The observations of the learned Supreme Court referred to above are in the nature of laying down certain principles for the guidance of the Courts. The relevant portion relied on by learned counsel states, firstly, a case, by way of example, where it is a case of accidental and unintended death caused by simple hurt, and, secondly, if it is found that the charge was groundless. Considerations as to causing simple hurt and the charges being groundless are not available in the instant case.

7. In the fourth case 1985 P Cr. L J 1024 which is a Full Bench judgment of our own Court, the learned counsel referred to the following passage appearing at page 1029:‑

"If on perusal of all the facts the Court comes to the conclusion that in this case a sentence of death or imprisonment for life or 10 years, would not be called for. This would mean that if on consideration of all the material a Court comes to the conclusion that the case exhibits such features as negative prospect of a severe sentence then bail could be granted:"

The point for consideration was as follows:‑‑

"If in a particular case, the Court is in a position to come to a conclusion on the data placed before it even at bail stage, that the prosecution case taken to its extreme would not entail the maximum punishment, it would go out of the prohibition. The Court would then have the jurisdiction to grant or refuse bail in exercise of its discretion:"

The relevant paragraph as relied on by the learned counsel in the above judgment, which referred to Amir v. The State 1973 P Cr. L J 205, does not also support his contention, inasmuch as it cannot be said, at this stage, when the case is yet to begin that there will be a lesser punishment than which has been provided under the provision of law, because the observation of the Full Bench is to be read in full, as it has been specifically stated that mere fact of an offence being punishable with death or imprisonment for life or 10 years would not be sufficient to refuse bail if on perusal of the facts the Court comes to the conclusion that in this case a sentence of death or 10 years would not be called for. At this stage, it will amount to pre‑empting the trial Court to say so, which, in the absence of any material on the record, except the alleged lack of intention, I am 'not inclined to make any observation in the case on this point at this stage.

8. The last case 1985 P Cr. L J 2619 relied on by the learned counsel for the applicant is that of a Division Bench of Peshawar High Court. He referred to the following observation appearing at page 2624:‑‑

"The consensus of opinion seems to be that where a single knife blow is inflicted without premeditation in a sudden quarrel and it is not shown that it was the intention of the assailant to cause death, the offence committed by him would be culpable homicide not amounting to murder. The fact that the assailant had not taken undue advantage nor had acted in a cruel or unusual manner is also to be taken notice of. Thus, taking into consideration all the facts and circumstances we are of the view that the provisions of exception 4 to section 300, P.P.C., are attracted to the instant case and the offence committed by the appellant falls within the ambit of section 304, Part I (second portion), P.P.C:"

The above case is also of no avail to the learned counsel as it has been decided after conviction in an appeal.

9. Syed Sarfraz Ahmad, learned A.A.‑G. has referred to the cases of Shami v. The State 1972 P Cr. L J 149 and Abdul Rashid v. The State 1974 P Cr. L J Note 167 at p. 103. Both the cases are distinguishable inasmuch as both the cases do not relate to bail. However, in the first case it was observed that "This would certainly negative any element of preparation on his part of intention to cause her death as he seems to have picked up this Danda in the heat and excitement of the moment. In these appellant would not be held guilty of murder in this case. We are, therefore, not inclined to maintain his conviction under section 302, P.P.C. and the death sentence awarded to him is accordingly not confirmed. The appellant could not, however, escape the responsibility for the death of Mst. Amiran as in inflicting blows with Danda P.1. on the vital part of her body he could safely be saddled with the knowledge that his act was likely to cause death. We, therefore, alter his conviction to that under section 304, part It, P.P.C. and sentence him to R.I. for 10 years".

In the other case also it was observed that the "accused getting provoked on account of deceased's (his wife's) refusal to let him have access to her grappling with her, trying to strangulate her and then picking up a hockey stick and giving her one blow on head such blow proving fatal. The accused held, could at most be held liable for having knowledge that his blow would cause death and not for having intention to cause death. Conviction was thus altered from section 302 to section 304, Part II:"

The learned counsel for the applicant emphasised that it was a Lathi blow which was not capable of causing death as ordinarily the Lathi blow does not cause death, but Mr. Sarfraz Ahmad submits that Lathi has been held to be a deadly weapon and for this he placed reliance on Khalid and others. v. The State 1975 S C M R 500, wherein it was found that the accused had struck the blow on the top of the head of his victim with such force that his skull was fractured and fronto‑parietal suture was opened up on the left side. The death was almost instantaneous. This decision is distinguishable firstly, as the case was decided after conviction in an appeal and, secondly, the Lathi was wielded with an iron shod.

10. In fact, it is the force with which a Lathi is used which; in the circumstance, can be said to have resulted in as deadly or otherwise. It is noticed that a man of 80 years of age as alleged by the applicant and found to be of 62 years of age on medical examination has used such force which has resulted into instantaneous death of the deceased, who is said to be a woman of 45 years of age. The medical report describes lacerated wounds 2.5 c.m. x 2 c.m. and skull deep on the right side of temporal region, between the right eye and right ear. There was bleeding from nose and ear. There was swelling around the right eye and fracture of right temporal bone.

11. For the reasons discussed above, the application for bail is dismissed.

12. Before parting with this case, I would like to add that the observations made hereinabove are without prejudice to the merits of the case and will, in no way, affect the trial of the applicant/accused.

S.A./G‑9/K Bail refused.

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