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Criminal Miscellaneous No.1074-B of 1987, decided on 23rd May, 1987.
---S.497--Penal Code (XLV of 1860), Ss.302/148/149--Bail--Accused having a direct and very strong motive against deceased--Injury attributed to accused sufficient to cause death in ordinary course of nature--Bail refused.
Malik M.Pervaiz Akhtar for Petitioner.
Ghous Muhammad Chaudhry for the Complainant.
Abu-ul Fateh for the State.
Khan Muhammad petitioner has moved this petition for bail in a case registered against him and others a/ss.148 and 302/149 PPC.
2. In the occurrence which took place on 30-12-1986 at 8-30 a.m., Muhammad Sharif deceased was murdered. The facts of the prosecution case need not be narrated it detail as the same have been detailed in my order dated 31-3-1987 passed in Cr. M. No.847-B of 1987 filed by co-accused Riasat Ali. It may however be mentioned that the role attributed to Khan Muhammad petitioner was that he opened the attack by firing his gun at the deceased hitting his back.
The motive for the offence was that 2 years prior to the occurrence Muhammad Anwar, father of Khan Muhammad petitioner, was murdered for which Muhammad Sharif deceased and others were prosecuted. About 3 months prior to the occurrence Muhammad Sharif was acquitted while the others were convicted. The accused persons nursed grudge against the deceased for the aforesaid murder.
3. Learned counsel for the petitioner contends that during the investigation the petitioner was found innocent and shown in column No.2 of the challan and his case is at par with that of co-accused Riasat Ali who has been granted bail by this Court. It is submitted that in view of the principle of consistency the petitioner is also entitled to the same concession.
4. Learned counsel for the complainant on the other hand, submits that the case of the petitioner is distinguishable from that of co-accused Riasat Ali and principle of consistency is not attracted in his case. Reliance is placed on Muhammad Iftikhar Tahir v. The State (1985 SCMR 230).
5. I have considered the submission made by the learned counsel for the parties in the light of material available on the record. Co-accused Riasat Ali was granted bail on two grounds; firstly, the finding with regard to his innocence was supported by sufficient material, and secondly, no motive was attributed to him in the F.I.R. The case of the petitioner is distinguishable. He is the son of Muhammad Anwar deceased for whose murder Muhammad Sharif deceased of the present case was prosecuted and acquitted three months prior to the occurrence. The petitioner, therefore, had a direct and very strong motive against Muhammad Sharif. The deceased had two fire-arm wounds of entry i.e. injuries No.1 and 4. Injury No.1 fractured the whole frontal bone on the left and parietal and temporal bones on both sides of the skull. There was an exit wound of this injury on the back and left side of head, 8 c.m. behind left ear. Injury No.1 was attributed to aforesaid Riasat Ali, Zafarullah and Ghulam Hussain co-accused. The injury,on the back (No.4) was attributed exclusively to Khan Muhammad petitioner. Injuries No.1 and 4 were individually sufficient to cause death in the ordinary course of nature. The circumstances in the case of the petitioner and aforesaid Riasat Ali are not similar except that both of them were placed in column No.2. The principle of consistency is, therefore, not attracted. This view finds support from the authority cited by the learned counsel for the complainant.
In the circumstances, there is no force in this petition and the same is dismissed.
M.Y.H./K-42/L Bail refused
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