Find a Lawyer

Criminal Miscellaneous Application No. 428 of 1986, decided on 6th April, 1987.

‑‑S. 497‑‑Penal Code (XLV of 1860), Ss. 362, 404, 148 & 149‑‑Bail‑‑Application for granting bail‑‑Sessions Court while granting bail observing that accused indulged into firing which did not result into death of deceased and that case was made out for further inquiry‑ Observations by Sessions Court not borne out from material available on record‑‑Sessions Court also making two categories of accused, one of those accused who hit deceased ineffectively at first instance and other category of those accused who fired at deceased when he fell down‑‑Such observations also negating principle laid down by superior Courts in respect of vicarious liability and about tentative assessment of evidence at bail stage‑‑Held, Courts should refrain directly or indirectly from giving any conclusive finding on question of guilt or innocence of accused while considering prayer for bail.

‑‑S. 497(5)‑‑Penal Code (XLV of 1860), Ss. 362, 404, 148 & 149‑‑Bail‑‑Application for cancellation‑‑Names of‑accused mentioned in first information report and there existed no point of mistaken identity as it was a day‑light incident‑‑Ocular evidence against accused getting support from medical evidence as well as from recoveries of weapons‑ Bail cancelled.

Munawar v. The State 1981 S C M R 1092 and Khalid Javed Gillan v. The State P L D 1978 S C 256 rel.

Ghulam Kadir Malik for Applicant.

Zawar Hussain Jafferi A.A.G. for the State.

Samiullah Qureshi for Respondent No.2.

Sharfuddin Ada for Respondent No.3.

Date of hearing: 5th April, 1987.

Application is made by the complainant Mullan son of Sajan Ghoto seeking indulgence of this Court for cancellation of bail granted to respondent accused Ghous Bux and Raban by the learned Vth Additional Sessions Judge, Sukkur, vide order dated 23‑12‑1985 in case Cr.No.146/1985 registered at P.S. Ghotki on 25‑7‑1985 under section 302/ 404/ 148/ 149 PPC.

In nutshell the prosecution case is that on 25‑7‑1985 in the morning time complainant Mullan and his brother Mohammad Saleh and Sala of Mohammad Saleh, namely, Ghulam Mohammad left for their village, Mohd Saleh deceased was carrying his licensed gun. At about 6‑0 a.m. while they were going on road from eastern side, suddenly, Haji Punhoon, Sanwal, Ghous Bux and Raban armed with guns and Soomer armed with hatchet came out from ambush. They challenged Mohammad Saleh expressing they would kill him taking revenge of murder of Hote (which is motive for the offence). All the accused fired at Mohammad Saleh who ran for safety and had a fall. Accused chased him. Thereafter, accused fired twice at deceased Mohammad Saleh while he was lying on the ground. The accused after giving gunshot injuries took the gun of deceased Mohd Saleh which he was carrying and ran away. Mohammad Saleh was found dead having fire arm injuries on various parts of his body. Complainant went and lodged FIR. Persons who were attracted on gun reports and cries did not intervene due to dire consequences threats given by accused.

Mr. Malik Ghulam Kadir appearing for the applicant has contended that there is direct ocular evidence, recovery of gun belonging to deceased for co‑accused Punhoon and also gun from respondent Raboo. Trail of blood is found at vardat as shown in vardat mashirnama, and two empties are too recovered from near the dead body and all the accused have been named in the FIR. Occurrence is day light occurrence leaving no room for mistaken identity, as many as 13 injuries are sustained by deceased as per medical evidence. Hence bail granted to respondent /accused was unwarranted in the circumstances of the case.

I have heard counsel Mr. Sharfuddin Ada Advocate for respondents Raban and Mr. Samiullah Qureshi advocate for Ghous Bux. It is urged by both the learned counsel for the respondents that the medical evidence is inconsistent to ocular evidence inasmuch as that according to post‑mortem report the death of the deceased was instantaneous, as such the prosecution case that deceased after sustaining injuries at first firing could not run and have fall at some distance. It may be mentioned here that this is the ground that has weighed with the learned Vth Additional Sessions Judge, Sukkur also who has granted bail, as is clear from his observations in both orders while granting bail and dismissing the cancellation application dated 23‑12‑1985 and 8‑5‑1986 respectively. It is further argued that the deceased lost life due to the fire of accused Sanwal and Punhoon. Hence respondents Ghous Bux and Raban cannot be saddled with responsibility of causing death of the deceased Mohammad Saleh. Case being one of further enquiry also is the point raised on behalf of respondents.

Mr. Zawar Hussain, AAG appearing for State has supported the application for cancellation of bail contending that since the firing by the accused persons at first part is not denied followed by second firing attracts principle of vicarious liability and common intention to draw the line of distinction in the nature of allegations is deeper appreciation of evidence at bail stage. Thus order of Vth Additional Sessions Judge, cannot be sustained. It is further urged that recovery of gun belonging to. deceased and gun from co‑accused Raban is strong circumstantial evidence available on record. Emphasis is also made by him to the fact that all the accused had ambushed themselves in Juwar cultivation to achieve the object of making murderous assault.

I have carefully considered the arguments of the learned advocates and gone through the material made available by the learned counsel and find that learned Vth Additional Sessions Judge was persuaded to grant bail on wrong approach to the matter. The observation of the learned Judge that the present two respondents indulged into firing which did not result into the death of deceased Mohammad Saleh makes the case of two respondents one of further inquiry. The observation so made is totally misconceived and not borne out from material available. Medical opinion is that death was due to shock haemorrhage consequent to the injuries caused by discharge from fire‑arm and all injuries are certified to be the result of gun fires. The learned Additional Sessions Judge has therefore, seriously erred in embarking upon this aspect at the stage of bail. The observations made in the case of Munawar v. The State reported in 1981 SCMR 1092 are fully attracted. It is clearly evident from the reading of the two orders of the Additional Sessions Judge that he has creates two categories; one for those accused who hit the deceased ineffectively at the first instance and the other for those who fired at deceased when he fell down. I have my doubts if this approach can be termed as correct at the stage of bail in the facts and circumstances of present case which is a murder case. I cannot resist to express that it is highly objectionable for the reason such observation negates the well‑settled principle laid down by superior Courts so far vicarious liability is concerned and as contained in sections 34 and 149, PPC. I also repel the argument of learned counsel for respondents that opinion of medical officer touching time of death and causing of injury should be considered belying the ocular evidence only on ground that by treating the view of doctor correct the case of complainant that deceased ran for some distance is falsified and benefit of bail be given. I am not persuaded by this argument. In the case of Khalid Javed Gillan v. The State (PLD 1978 S.C. 256) the Hon'ble Supreme Court has laid down that while deciding bail applications assessment of evidence should be tentative and courts should refrain directly or indirectly from giving any conclusive finding on question of guilt of innocence of accused. I have given my anxious thought to the matter and considered the citations which according to me, do not touch the facts and circumstances of the present case. It may be mentioned that both the learned counsel for respondents attempted to argue that since case is fixed for regular hearing in the lower court the application may be decided after the doctor in the case is examined. I don't find any justification to concede to the request. Learned counsel has submitted case diary in his own hand which shows that the witnesses are not appearing for the last 4 or 5 hearings and I do not want to contribute to this protraction of trial. No delay has been caused in moving the courts to cancel the bail of respondents. Cancellation application moved before the original court that had granted bail was dismissed on 8‑5‑1986. The present application was moved in this Court on 22‑5‑1986, although it has come up for hearing now. Finally I feel that names of all accused persons including two respondents are mentioned in FIR, there is no point of mistaken identity. It is day light incident. Ocular evidence gets support from medical evidence as well as recoveries of weapon. Charge against the respondents is under section 302 PPC. In this view of the matter and in the facts and circumstances of the case I cancel the bail of the respondents granted to them on 23‑12‑1985. Accused respondents should surrender before the trial Court. In case they fail to surrender or appear the trial Court shall take necessary legal steps to secure their presence and remand them to custody.

Before parting with the matter I have felt myself disturbed by the observations of the learned Vth Additional Sessions Judge and so it would be expedient in the interest of justice that the Sessions Judge shall himself try this case or transfer to some other Judge having jurisdiction for trial. Whatever observations are made will be treated of tentative nature for the purpose of bail and respondents are at liberty to repeat the prayer for bail after some evidence is recorded.

M.Y.H / M‑240/ K Bail cancelled.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.