2012 Y LR 2551
[Balochistan]
Before Abdul Qadir Mengal, J
ISHAQ GEORGE and 3 others ---Applicants
versus
THE STATE ---Respondent
Criminal Bail Application No.389 of 2012, decided on 25th August, 2012.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497(2) ---Penal Code (XLV of 1860), Ss. 302/34 ---Qatl-e-amd, common inten -tion---
Bail, grant of ---Further inquiry ---Benefit of doubt ---Allegation against accused persons was
that they dragged the deceased and gave him fist and kick blows ---Contentions of accused
persons were that there was no evidence on record to suggest that they at tacked the deceased
with intention to kill him; that admittedly no weapon had been used during the occurrence,
and that record showed that deceased had died on account of cardiac disease or attack ---
Validity ---Medical evidence showed that deceased had been inflicted fist and kick blows ---
Evidence and circumstances at best did not show commission of qatl -e-amd and it was yet to
be determined whether the case of accused persons fell under section 315, P.P.C or
otherwise ---Benefit of doubt went in favour of ac cused persons even at bail stage ---Alleged
offence required further inquiry ---Accused persons were granted bail, in circumstances.
Aslam Khan v. Qaiser Khan 1999 PCr.LJ 582 rel.
(b) Criminal Procedure Code (V of 1898) ---
----Ss. 497/498 --- Bail--- Assessment of evidence ---Scope ---Best course for determination of
a bail application was to look into the matter cursorily and assess the same tentatively.
Syeda Tehmina Samad for Applicants.
Yahya Khan Deputy Prosecutor General for the State.
Date of hearing: 24th August, 2012.
ORDER
ABDUL QADIR MENGAL, J. ---This application under section 497, Cr.P.C. has
been moved in case F.I.R. No.75 of 2012, dated 9th April, 2017 for offences under section
302/34, P.P.C., registered at Police Station B rewery, Quetta.
2. Brief facts leading to filing the present bail application are that one Ahsan Sardar son
of Sardar Masih on 9th April, 2012, at 7 -55 p.m. lodged report with Police Station Brewery,
Quetta, through a written report, wherein that he alle ged that he alongwith his brother Kashif
Sardar and other family members had gone to St. John Vianny Church to attend a religious
ceremony, where the accused Abneer extended abuses to Kashif stating that he would not let
him alive. It was 7 -15 p.m. when th ey reached near to their houses situated at Spini Road,
Quetta, there they saw Ishaq, Samson John, Abneer and Azmeer, who were heating Kashif
and they also dragging him in the street. On their intervention the accused also attacked upon
him and caused inju ry to him at his finger. The accused were giving blows of kicks and fists
to Kashif, however, he was saved from accused and they took Kashif towards hospital, but he
succumbed to injuries and died.
3. The accused were arrested and then challan was submit ted before the court of
Sessions Judge, Quetta, where almost all the material witnesses were examined, when a bail
application was moved, however, same was dismissed vide order dated 15th August, 2012,
hence the instant bail application.
4. I have heard Syeda Tehmina Samad, Advocate for the applicants while Mr. Yahya
Khan, Deputy Prosecutor General was heard on behalf of the State.
5. Learned counsel for the applicants mainly contended that there is no evidence on
record that applicants have attacked up on the deceased with intention to kill him, so as
admittedly no weapon in the present matter has been used, which could show that applicant
had any intention to kill or cause serious injuries to the deceased. On contrary record shows
that deceased had died on account of cardiac disease or attack.
6. On the other hand learned State counsel opposed the bail application on the ground
that as the applicants have been charged under sections 302/34 P.P.C., whereas evidence also
has come on record in respect of the alleged offence, which bring the case of applicants under
the prohibitory clause of section 497, Cr.P.C., therefore, the applicants are not entitled to be
granted bail.
7. After hearing both the sides and perusing the record of the case, it appears t hat the
allegations against the all applicants is that they dragged the deceased and gave him blows of
kicks and fists. This evidence also has been supported by the Doctor and he in his statement
has mentioned the nature of injuries which reads as follows:
"(1) Swelling on left cheek.
(2) Bruises on right elbow joint.
(3) Lacerated wound on little finger of right hand.
(4) Old history is heart (Angioplasty) and expired during First Aid due to chest
pain."
8. The above evidence at best shows t hat the offence does not fall under section
302/34, P.P.C. and it is yet to be determined whether the case of the applicants falls under
section 315, P.P.C. or otherwise. Admittedly for grant or refusal of bail there is a no need to
assess the evidence tho roughly. The best course for determination of a bail application is to
look into the matter cursorily and assess the same tentatively. As such the above
circumstances at best do not show for commission of Qatl -e-amd punishable under section
302, P.P.C. Leg ally, benefit of doubt goes in favour of applicants at the stage of bail. In this
respect I have fortified my view from the case of "Aslam Khan v. Qaiser Khan" 1999 PCr.LJ
582 Lahore., which reads as under: --
"---S.497 ---Penal Code (XLV of 1860), S.302/ 34---Bail---Benefit of doubt ---Grant or
refusal of bail is determinable on basis of material available in nature of F.I.R.,
statement of witnesses, medical report and other evidence collected during
investigation ---Benefit of slight doubt arising in case i s necessarily to be given to
accused even at bail stage."
9. Thus without any detailed appreciation, it is suffice to say that the alleged offence
against the applicants at this stage requires further inquiry, therefore, the applicants are
entitled to be granted bail. As such, bail application is allowed provided if each of the
applicant furnish surety in the sum of Rs.2,00,000 (two lac) and PR bond of the like amount
to the satisfaction of the Deputy Registrar of this Court or trial Court. The observatio ns made
hereinabove are purely tentative in nature, hence, the trial Court shall not be influenced from
the same. With the above observations, the instant application stands disposed of.
These are the reasons of my short order dated 24th August 2012.
MWA/78/Q Bail granted.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,
let us know.