2016 M L D 561
[Balochistan]
Before Naeem Akhtar Afghan, J
MUHAMMAD SHAFIQ and 6 others ---Applicants
Versus
The STATE---Respondent
Cr. Bail before Arrest Application No.432 of 2015, decided on 23rd November, 2015.
Criminal Procedure Code (V of 1898) ---
----Ss. 498 & 497(2) ---Penal Code (XLV of 1860), Ss. 302 & 337 ---Qatl-i-amd and hurt ---Bail
before arrest, grant of ---Further inquiry ---Cross version---Two FIRs ---Abscondance ---Accused
persons in one FIR had been released on pre -arrest bail by Trial Court but accused persons in
other FIR were declined pre- arrest bail ---Validity ---Cross version of occurrence and on the basis
of tentative assessment of material available on record, case against accused persons with regard
to unnatural death of deceased fell within the ambit of further inquiry ---Further inquiry into the
guilt of accused persons inter alia mala fide and ulterior motives could be assessed in bail before
arrest matters ---Mere alleged abscondence of accused could not be made a basis to refuse bail if
accused was otherwise entitled for the same on merits and case was open to further inquiry into
his guilt within the scope of S.497(2), Cr.P.C.---Complainant or prosecution witness did not
sworn / file affidavit to prove allegation of abusing or misusing concession of ad interim pre -
arrest bail by accused persons ---Possibility of false implication of accused persons for mala fide
reasons could not be ruled out of consideration--- Intended arrest of accused persons by
authorities at the behe st of complainant party out of malice and ulterior motives to create
humiliation and unjustified harassment could also not be ruled out of consideration--- Bail was
allowed in circumstances.
Mohammad Ishfaq v. State 2012 SCMR 70 rel.
Baz Muhammad Kakar , Muhammad Dawood Kasi and Jamil Agha for Applicants.
Muhammad Qahir Shah for the Complainant.
Abdul Latif Kakar, Additional Prosecutor General for the State.
Date of hearing: 18th November, 2015.
ORDER
NAEEM AKHTAR AFGHAN, J. ---This order disposes of Criminal Bail Application
No.432 of 2015 whereby the applicants are seeking pre -arrest bail under sections 302, 337- ADF
r/w sections 147, 149/34, P.P.C. in FIR No.32 of 2015 dated 18.04.2015 lodged with Levies
Thana Chaman by Muhamma d Saleem son of Aghan Muhammad, wherein it has been reported
that the complainant along with his other relatives Muhammad Naeem, Haji Dad Muhammad
(deceased), Kamal -ud-Din, Hazrat Umar, Muhammad Anwar, Shamsullah, Muhammad Naseem
and Allauddin were sitting in their shop near Ice Factory Chaman; that in the meanwhile, at
about 7:30 p.m. accused Samiullah (application No.3) came, issued threats and started calling
bad names; that the other accused namely Sher Ali (applicant No.4), Muhammad Shafiq
(applicant N o.1), Kaleemullah (appliant No.5),Yahya Khan (application No.6) and Attaullah
(applicant No.7) came and attacked upon them; that accused Sher Ali and Wali Khan (applicant
No.2) were having daggers with which they assaulted his relatives; that accused Samiullah hit his
uncle Haji Dad Muhammad on his liver due to which he fell in the Nala and become
unconscious; that he was taken to hospital but he expired on the way; that accused Sher Ali
caused dagger injury to his uncle Muhammad Naeem above his eye; that t he other accused
inflicted dagger blows to his relatives Muhammad Anwar, Hazrat Umar and Muhammad
Naseem; that all the accused unjustifiably attacked upon them; that other co -accused were also
accompanying the nominated accused whose names are not known to him.
2. The counter version of the occurrence has also been registered by Abdul Rauf son of Haji
Abdullah against Muhammad Saleem son of Agha Muhammad (complainant of FIR No.32 of
2015) as well as against Hazrat Umar, alias Baccha, Muhammad Naeem, Shams ullah,
Muhammad Naseem, Mateen, Muqadam, Muhammad Anwar and four others vide FIR No.33 of
2015 with Police Station Levies Chaman under section 336, 337- ADF r/w section 147, 149/34,
P.P.C. reporting therein that on 18.04.2015 at about 7:30 p.m. he was prese nt in his house; on
hearing hue and cry infront of his house, he came out of the house and saw that nominated
accused had caught his paternal cousins Wali Khan and Samiullah; that accused Muhammad
Saleem was having an iron rod in his hand whereas accused H azrat Umar alias Baccha and
Muhammad Naeem were having Dandas in their hands; that accused Shamsullah was having an
iron clip in his hand; that accused Muhammad Naseem, Mateen, Muqadam, Muhammad Anwar
and four unknown accused had caught Wali Khan and Samiullah whereas accused Hazrat Umar
alias Baccha, Muhammad Naeem and Shamsullah assaulted them with iron rods and Dandas due
to which they received severe injuries on different parts of their body; that one tooth of Wali
Khan was also dislocated; that Samiullah received injuries on his body, on his right cheek as well
as on his back; that area Secretary of Pashtoon Khawa Milli Awami Party was also standing
nearby who was also assaulted by the accused but he escaped any injury; that on his hue and cry,
his othe r paternal cousins and inhabitants of the area intervened and rescued them otherwise the
accused would have killed his paternal cousins.
3. In FIR No.33 of 2015, all the nominated accused were granted ad -interim pre -arrest bail
by learned Additional Sess ions Judge Killa Abdullah at Chaman (hereinafter "the trial Court")
which has subsequently been confirmed.
4. The applicants also surrendered themselves to the mercy of trial Court for grant of pre -
arrest bail by filing Criminal Bail Applications Nos.66 and 89 of 2015. The applicants were
granted ad -interim pre -arrest bail but same was subsequently recalled by the trial Court vide
order dated 08.09.2015 whereafter the applicants have surrendered themselves to the mercy of
this Court for grant of pre -arres t bail by filing the instant application on 10.09.2015. The
applicants were granted ad -interim pre -arrest bail by this Court vide order dated 10.09.2015.
5. Learned counsel for the applicants stated that the complainant party has already been
granted pr e-arrest bail by the trial Court in cross FIR No.33 of 2015; that applicant No.3 has
been alleged to hit the deceased Haji Dad Muhammad on his liver but the allegation is not
supported by the Medical Certificate and postmortem report; that nothing is on re cord to show
that the deceased Haji Dad Muhammad had expired due to alleged assault by the applicant No.3;
that there is no allegation against applicant No.3 that he had hit Haji Dad Muhammad with some
arm/article; that the medical certificate issued by th e Medical Officer of District Headquarter.
Hospital Chaman does not reveal of any contusion or bruises on the body of deceased Haji Dad
Muhammad; that the daily diary of the 18th April 2015 maintained by Naib
Tehsildar/Investigating Officer reveals that th e complainant party was not willing/ready for
postmortem as they had submitted an application through one Nazar Jan to the effect that they do
not want to conduct the postmortem of the deceased and that the dead body be handed over to
them for burial; that the deceased was buried without postmortem; that subsequently on 23rd
April 2015, the son of deceased submitted an application for exhumation of dead body which
was accepted by the trial Court, whereafter the postmortem of the deceased was conducted on
29.04.2015; that according to postmortem report complete heart, lung piece, liver piece and
stomach piece were separated for dispatching to the Chemical Examiner but according to the
Forensic Toxicology Analysis report of Punjab Forensic Science Agency only three sealed jars
containing specimens of stomach, lung and liver were dispatched to the said laboratory and heart
was deliberately not sent to the laboratory for chemical examination to avoid report of Cardiac
failure of the deceased; that the postmortem report of the deceased does not reveal of any
external injury on the body of the deceased except an abrasion on left side of the chest below the
nipple which is contradictory to the contents of the FIR; that statements of the witnesses/alleged
injured Muha mmad Naseem, Muhammad Naeem, Allahuddin, Shamsullah, Hazrat Umar alias
Baccha and Muhammad Anwar were recorded with unexplained inordinate delay on 23.04.2015
with improved version; that the unnatural death of the deceased is yet to be determined/proved
by the complainant party/prosecution at the trial; that the applicants have cooperated with the
investigation of the case as and when required; that the case of the applicants falls within the
ambit of further inquiry; that the applicants apprehend their arr est at the behest of the
complainant party out of malice and ulterior motives to create humiliation and harassment.
6. Learned APG while opposing the confirmation of ad- interim pre -arrest bail of the
applicants stated that sufficient incriminating material is available on record to prima facie
connect the applicants with the commission of the non- bailable offences; that the applicants have
not cooperated with the investigation of the case; that the applicants are required for
investigation and their inten ded arrest is not tainted with malice or ulterior motives.
7. Learned counsel for the complainant while opposing the confirmation of ad- interim pre -
arrest bail of the applicants stated that the FIR has been lodged promptly without any delay; that
the occurrence has been admitted by the applicants in the cross FIR No.33 of 2015; that after
recalling of ad -interim pre -arrest bail by the trial Court the applicants were arrested by the police
but subsequently they were released by the levies facilitating them to avail ad -interim pre -arrest
bail from this Court; that the applicants remained absconders and being fugitive of law they are
not entitled for concession of pre -arrest bail; that in this regard inquiry has also been initiated
against Naib Tehsildar as w ell as police officials; that press conferences held by the complainant
party also reflect about the same; that sufficient incriminating material is available on record to
connect the applicants with the commission of the non- bailable offences; that the medical
evidence available on record reveals of unnatural death of deceased Haji Dad Muhammad due to
assault made by the applicants in furtherance of their common intention; that the investigation
has not yet been completed, the recoveries are yet to be effe cted and the applicants are required
for further investigation; that the applicants are misusing the concession of ad- interim pre -arrest
bail as they are issuing threats to the complainant party for dire consequences; that in the facts
and circumstances of the case the applicants are not entitled for confirmation of ad -interim pre -
arrest bail as their intended arrest is not due to mala fide or ulterior motives.
8. Heard the learned counsel and perused the available record. According to the available
recor d both the parties have registered counter FIRs with regard to the occurrence. The
complainant party in the cross FIR No.33 of 2015 has already been granted pre -arrest bail by the
trial Court.
As per contents of Crime FIR No.33 of 2015 and Medical Certif icates issued by the Sandeman
(Prov) Hospital Quetta, in the night of occurrence, applicants Samiullah and Wali Khan had also
received injuries, but their injuries have been concealed by the complainant Muhammad Saleem
in FIR No.32 of 2015 (subject matter of the instant application).
Though allegation has been leveled against applicant No.3 (Samiullah) that he hit the deceased
Haji Dad Muhammad on his liver but it has not been mentioned in the FIR that with which
arm/article the deceased was allegedly hit by the applicant No.3 on his liver. Hence, no question
arises of any recovery from applicant No.3. It further reveals that the deceased was taken to
District Headquarter Hospital Chaman where his external examination was conducted by the
Medical Officer b ut according to the Medical Certificate no contusion, bruises or any head injury
was seen on the body of the deceased.
9. Through an application bearing thumb impression of Nazar Jan son of Haji Nasrullah it
was prayed to the Investigating Officer that the dead body of deceased Haji Dad Muhammad
lying in District Headquarter Hospital Chaman be handed over for burial without postmortem.
The receipt dated 18.04.2015, thumb impression by Nazar Jan son of Haji Nasrullah and attested
by the witnesses Hazrat U mar son of Muhammad Saleem and Obaidullah son of Muhammad
Anwar, reveal that the dead body of the deceased was handed over to Nazar Jan son of Haji
Nasrullah for burial without postmortem. This fact is also evident from the daily diary of
18.04.2015 mainta ined by Naib Tehsildar/ Investigating Officer.
10. Record reveals that subsequently one Rahimuddin (son of deceased Haji Dad
Muhammad) submitted an application to the trial Court for exhumation of dead body for
conducting postmortem which was accepted vi de order dated 23.04.2015. After exhumation of
the dead body, postmortem of the deceased was conducted in Sandeman (Prov) Hospital Quetta.
In the postmortem report, no external injury was seen on the body of the deceased Haji Dad
Muhammad except an abrasio n on the left side of the chest below the nipple. The postmortem
report does not reveal of any injury to the liver of the deceased as alleged in the FIR. The
postmortem report further reveals that no injury on scalp, skull, vertebra and muscles of the
deceased was found. The opinion of the Medico Legal Officer of the Sandeman (Prov) Hospital
Quetta that deceased died due to vaso- regal shock, caused by blunt trauma on trager zone i.e.
temporal area, epigastrie and secrotal region is not supported by the cont ents of the FIR as well
as the 161 Cr.P.C. statement of the witnesses which have been recorded with inordinate delay on
23.04.2015 with improved version of FIR with regard to injuries of the deceased.
The postmortem report further reveals that complete h eart, lung piece, liver piece and stomach
piece were separated for dispatching to the chemical examiner but the Forensic Toxicology
Analysis report of Punjab Forensic Science Agency reveals that only specimen of stomach, lung
and liver were sent for analys is but the heart was not dispatched to the laboratory for chemical
examination.
11. In view of all the above circumstances, cross version of the occurrence and on the basis
of tentative assessment of the material so far available on record, the case agai nst the applicants,
particularly with regard to unnatural death of deceased Dad Muhammad, falls within the ambit of
further inquiry.
According to settled principle of law, further inquiry into the guilt of the applicants inter alia
mala fide and ulterior motives can be assessed in bail before arrest matters. Reliance in this
regard is placed on the case of Mohammad Ishfaq v. State 2012 SCMR 70 wherein the petitioner
was granted pre- arrest bail on the ground of further inquiry.
12. The injuries allegedly sustained by Hazrat Umar alias Baccha, Muhammad Naeem,
Muhammad Anwar and Muhammad Naseem have already been declared simple by the Medical
Officer of District Headquarter Hospital Chaman.
13. The contention of the learned counsel for the complainant tha t the applicants remained
absconders, is not supported by any material on record. In the letter dated 08.09.2015 issued by
Deputy Public Prosecutor (DPP) Killa Abdullah to Naib Tehsildar Chaman it has been stated that
on the day of pronouncement of the order by the trial court with regard to confirmation or
otherwise of the ad -interim pre -arrest bail of the applicants he was not present in the Court which
was mandatory and that the applicants were arrested by the police officials at the door of Court
room but he has been informed that the applicants made their escape good from the hands of the
police personnel for the reasons best known to them. In pursuance of this letter of DPP nothing is
available on record to show that the applicants were arrested by the police officials after recalling
of their ad -interim pre -arrest bail by the trial Court, or that they absconded, or that any action has
been taken against those police officials.
The documents referred by the learned counsel for the complainant with reg ard to
correspondence between Deputy Commissioner Killa Abdullah at Chaman and Secretary Home
and Tribal Affairs Department, Government of Balochistan, pertain to the request of the
complainant party to transfer the investigation of the case to the Crime B ranch Quetta.
It is evident from the record that initially the applicants surrendered themselves to the mercy of
the trial Court for grant of ad -interim pre - arrest bail which was subsequently recalled on
08.09.2015, whereafter the applicants surrendered themselves to the mercy of this Court on
10.09.2015 for grant of pre -arrest bail.
Even otherwise, mere alleged abscondence of an accused cannot be made a basis to refuse bail if
the accused is otherwise entitled for the same on merits and his case is op en to further inquiry
into his guilt within the scope of section 497(2), Cr.P.C.
14. With regard to allegation of abusing or misusing the concession of ad- interim pre -arrest
bail by the applicants no affidavit of the complainant or any prosecution witnes ses has been
sworn/filed.
15. In the circumstances, the possibility of false implication of the applicants for mala fide
reasons cannot be ruled out of consideration. The intended arrest of the applicants by the levies
authorities at the behest of the co mplainant party out of malice and ulterior motives to create
humiliation and unjustified harassment can also not be ruled out of consideration.
For the above reasons, the application is accepted, the ad -interim pre -arrest bail granted to the
applicants b y this Court vide order dated 10 -9-2015 is hereby confirmed. However, the
applicants are directed to cooperate with the investigation of the case as and when required.
The observations made hereinabove are tentative in nature and same shall not influence the
merits of the case at the trial.
MH/2/Bal Bail allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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