2014 P Cr. L J 636
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
EJAZ AHMED---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.5 of 2014, decided on 8th January, 2014.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss.302, 109 & 34---Qatl-e-amd, abetment, common
intention---Doctrine of "Falsus in uno falsus in omnibus", app licability---Bail, refusal of---Co-
accused persons had been acquitted, but their acqu ittal could not bring the case of accused at par
with said acquitted co-accused; because only th e allegation of abetment and instigation was
levelled against them; while accused had be en assigned overt act towards commission of
offence---Doctrine of "falsus in uno falsus in om nibus" (False in one thing, false in all) was not
applicable in the prevalent system of criminal ad ministration of justice---R ule that if one set of
accused was not found guilty, the other accused ip so facto would stand acquitted was not
universally applicable---C ourt had to sift the grain from the chaff---Judgment of acquittal of co-
accused would be of no avail to accused; as his case was entirely disti nguishable from that of
acquitted co-accused---In the present case, no one else was targetted, but the deceased, who had murdered brother of accused-- -Accused remained absconder for more than two years---Mere
abscondence though by itself, was not sufficient to refuse the bail to an accused, but if
proceedings under Ss.87 & 88, Cr.P.C., had been initi ated in the first round of litigation, it could
be considered as a strong piece of corroborativ e piece of evidence to the other direct and
circumstantial evidence of the case---Accused be ing fugitive from law, his conduct after the
incident prima facie, was indicative of guilt, when considered in conjunction with the other ocular and circumstantial evidence---Delay of 1 hour and 15 minutes in reporting the matter to
Police, could not be considered fatal to pros ecution case---Accused having failed to make out a
case, he was not entitled for concession of bail.
Samano v. State 1973 SCMR 162; Ri az Hussain v. The State 2001 SCMR 177;
Muhammad Mansha v. The State 2001 SCMR 199; Noor Elahi's case PLD 1976 SC 557;
Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Rohtas Khan v. The State 2010 SCMR 566
and Amanullah v. The State 2002 PCr.LJ 1934 ref.
(b) Criminal trial---
----Motive---Purpose, nature and importance---Mo tive was an energetic source of mind, which
would provide a propelling force and give impetu s to perform any action, or to do any act---
Motive was a double-edged weapon, but its significance and impor tance could not be ignored---
Motive could not be sine qua non for bringing offence home to accused, yet relevant and
significant enough to determine the factum of inten tion, and could be consider ed in view of facts
and circumstances of the case---Substitution of real culprits with accused due to already
available motive between deceased and accused, was not acceptable.
(c) Criminal trial---
----Witness---Interested witne ss---Eye-witness---Scope---Merel y on the basis of inter se
relationship, the statement of eye-witnesses c ould not be discarded; because it was not the
relationship, but the value of the evidence, wh ich mattered---"Interested witness" was one who
had the motive to falsely implicate accused or had some rancor or enmity---No rule of law existed that statement of intere sted witness could not be considered, but same could safely be
relied upon, if supported by surrounding circumstances.
Muhammad Qahir Shah for Applicant.
Miss Sarwat Hina, Additional Pros ecutor-General for the State.
Date of hearing: 8th January, 2014.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- Through this application the
applicant has sought post-arrest bail in case F. I.R. No.148 of 2011, lodged with Police Station
Bijli Road, Quetta under sections 302, 109 and 34, P.P.C .. It is alleged by the prosecution that on
28-10-2011 at about 8-30 a.m. complainan t Muhammad Dawood along with deceased
Muhammad Anwar, their paternal cousins Muhammad Farooq and Muhammad Abid were on
their way to the High Court to attend their case , when near Jamia Masjid Jinnah Town two
persons riding on motorcycle intercepted th em and made firing upon them. Resultantly,
Muhammad Anwar received bullet injuries on his person, while accused persons were identified
as applicant Ejaz Ahmed and absconding accused M uhammad Ashraf. The injured was rushed to
Civil Hospital, Quetta, but he succumbed to his injuries on a way to the hospital. The motive
behind the occurrence is stated to be previous en mity between the parties. Earlier the application
for the same relief had been rejected by the l earned Sessions Judge Ad hoc, Quetta vide order
dated 26-12-2013.
2. Mr. Muhammad Qahir Shah, learned counsel fo r the applicant at the very outset referred
to a judgment dated 29th March, 2013 passed in Sessions Case No.42 of 2012 by the same court,
whereby, the co-accused persons Haji Muha mmad Aslam and Noor Muhammad, who were
alleged for abetment and instigation towards th e main offence were acquitted of the charge.
Learned counsel contended that accused is behind the bars and challan has also been submitted
against him and since in the pr evious round of trial, witnesse s have already been examined,
therefore, there is no pr obability of further improvement in the prosecution case. He stated that
no specific role has been assigned to the applican t, as well as, to his absconding co-accused and
it cannot be ascertained that in the presence of four companions, only one of them was hit and
succumbed to his injuries, while the rest of hi s companions neither intercepted nor received any
injury, since the complainant, as well as, allege d eye-witnesses are paternal cousins of deceased
thus are not worthy of credence being interest ed and inimical towards applicant/accused. He
further stated that the F.I.R. was lodged with de lay of one hour and fift een minutes and that too
without any explanation, whic h shows that the same was lodged after deliberation and
consultation. He added that the alleged motive as stated in the F.I.R. is shrouded in mysteries
because the family of deceased is having cer tain other tribal enmities involving blood
transactions. He stated that so far only the co mplainant has been examined, while the trial Court
when dealing with the questio n of bail has relied upon the st atement of witnesses, whose
statements were recorded during the previous round of trial, wher eas the case requires further
probe entitling the applicant to be admitted to bail, but th e trial Court has declined the
concession of bail on basis of absconsion, which cannot be made basis fo r withholding the bail.
3. Miss Sarwat Hina, Additional Prosecutor-General strongly opposed the intention and
stated that not only absconsion but ocular acc ount and sufficient corroborating evidence are
available against the applicant. She stated that th e applicant is not entitled for concession of bail
as his wilful absconcion is floating on the surface connecting him with the commission of
offence. She further pointed out that plea of A libi has been introduced in cross-examination but
no such evidence was brought during the course of investigation. Sh e finally contended that there
is sufficient incriminating evidence against the a pplicant on basis whereof he is not entitled for
concession of bail.
4. I have heard the learned counsel and perused the record with their valuable assistance,
though the tentative assessment has to be made, while dealing with the question of bail, but same
cannot be decided in vacuum because the learne d counsel has raised a number of contentions,
which are required to be dealt within the law of bail laid down by the Hon'ble apex Court,
therefore, just for disposal of the application in hand, same are re quired to be discussed turn by
turn.
5. As far as the acquittal of the co- accused viz Haji Muhammad Aslam and Noor
Muhammad vide judgment dated 29th March, 2013 is concerned. In fact the record does not
suggest anything, which could bring the case of the applicant at par with that of acquitted co-
accused persons, because only the allegation of abet ment and instigation was leveled against the
acquitted co-accused, while the applicant/accu sed has been assigned overt act towards
commission of the offence. Thus the doctrine of "falsus in uno falsus in omnibus" (false in one
thing, false in all), which is admittedly not app licable in the prevalent system of criminal
administration of justice and moreso, there is no ru le universally applicable that where one set of
accused is not found guilty the other accused ipso f acto stand acquitted, because the court has to
shift the grain from chaff. Reference is ma de to Samano v. State 1973 SCMR 162 and Riaz
Hussain v. The State 2001 SCMR 177. Therefore, th e judgment of acquittal dated 29th March,
2013 would be of no avail to the accused/appli cant as his case being entirely distinguishable
from that of the acquitted co-accused persons.
6. It is admitted feature of the case in hand that the applicant/accused, who was the
complainant against the deceased in F.I.R. No.81 of 2009 in which case the deceased was charged for the murder of the brother of accused. Thus, the motive is an energetic source of mind, which provides a propelling force and gives impetus to perform any action or to do any
act. There is no cavil to the proposition th at "motive is a double-edged weapon but its
significance and importance cannot be ignored. It cannot be sine qua non for bringing offence
home to accused, yet relevant and significant enough to determine the factum of intention and can be considered in view of facts and circumst ances of the case". Thus, the substitution of real
culprits with the accused/applicant due to already available motive between deceased and
accused is not acceptable. Merely on the basis of inter se relationship the statement of eye-
witnesses cannot be discarded because it is not the relationship but the value of the evidence,
which matters. It is well-settled by now that inte rested witness is the one who has the motive to
falsely implicate the accused or has some rancor or enmity. There is no rule of law that statement
of interested witness cannot be considered but the same can safe ly be relied upon if supported by
the surrounding circumstances. In the instant ca se admittedly no one else was targeted but the
deceased, who was accused for murder of brother of accused/applicant. Reference is made to the
case titled Muhammad Mansha v. The State 2001 SCMR 199 and Noor Elahi's case reported in
PLD 1976 SC 557.
7. It is worth-mentioning that a tentative perusa l of record further that after commission of
the alleged offence the applicant remained absc onder from law for consid erable period of more
than two years. Though, the mere abscondance by its elf is not sufficient to refuse the bail to an
accused, yet if proceeding under sections 87 and 88, Cr .P.C. have been initiated in the first round
of litigation, then it can be considered as a st rong piece of corroborative piece of evidence to the
other direct and circumstantial evidence of the case. As the accused/applicant is fugitive of law
since long, therefore, his conduct, after the incident prima facie, is indicative of his guilt, when
considered in conjunction with the other ocular and circumstantial evidence. Reference is made
to Muhammad Arshad v. Qasim Ali 1992 SCMR 814, Rohtas Khan v. The State 2010 SCMR
566 and Amanullah v. The State 2002 PCr.LJ 1934.
8. The perusal of record show s that according to police proc eeding deceased was brought to
the hospital by the complainant a nd his other companions and he soon after arriva l of concerned
police submitted his written report, furnishing comp lete account of the occurrence, therefore, the
delay of 1 hour and 15 minutes cannot be considered as fatal to the prosecution case, therefore,
the overall net of accusations ag ainst the accused/applicant disent itles him for concession of bail
and he has been failed to make out a case for bail.
Needless to observe here that observations made hereinabove ar e purely tentative in
nature and made for disposal of instant applicati on, therefore, the trial C ourt while deciding the
fate of the case should not be influenThis 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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