MUHAMMAD MUMTAZ vs THE STATE and another

ORDER

' SHAHID HAMEED DAR, J.---The petitioner seeks bail after arrest in case F.I.R. No,68, dated 15-3-2011, under sections 302, 34 P.P.C., registered at Police Station Phullarwan, District Sargodha.

2. The allegation against the petitioner is that he gave two brick blows on the back of Muhammad Nazir (deceased) whereas his co-accused two in number, also committed violence upon him during the occurrence as a result of which Muhammad Nazir died at the spot; the motive behind the occurrence pertained to a previous quarrel between the parties over throwing garbage in a drainage.

3. Learned counsel for the petitioner submits that medical evidence is inconsistent with the ocular account; his co-accused has been admitted to bail, hence the petitioner, on the principle of consistency also deserves the same treatment; the prosecution's case has been found false by the Investigating Officer during the course of investigation who opined that the deceased had died, having suffered a massive heart attack.

4. On the other hand, learned Deputy Prosecutor-General Punjab assisted by learned counsel for the complainant submits, that the principle of consistency is not applicable in respect of the accused-petitioner as his role is plainly distinguishable from that of his co-accused; the medical.

Evidence fully establishes that the deceased had died due to the injuries received by him at the hands of the accused; the eye-witnesses still support the prosecution case; the petitioner's case does not call for further probe into his guilt so he may not be granted the Relief for.

5. Having heard learned counsel for the parties and perused the record, it is observed that Muhammad Nazir (deceased) was allegedly hit. Twice with a brick on back of his chest by the accused-petitioner. The blows on the body of the deceased were given so forcefully that it caused swelling, on the back of his left and right side of, the chest in areas measuring 14 cm x 6 cm and 18 cm x 4 cm. The underlying muscles and soft tissues were found damaged with clotted blood at two different places, underneath the above-noted external injuries. The medical officer was confident enough to declare the cause of death as cardio-genic shock resulting from the traumatic injuries on the back of the chest of the deceased. It has been categorically alleged in the F.I.R. By the complainant that Mumtaz accused hurled a brick twice on the back of chest of Muhammad Nazir which sent him reeling to the ground in injured condition. The opinion of the Investigating Officer that Muhammad Nazir went back to his house from the place of occurrence and lived for another 2-1/2 hours after the occurrence before he suffered a massive heart attack which proved fatal, is without any substance as the medical officer has recorded the probable time that elapsed between injuries and death as within one hour. The statements of eye-witnesses under section 161, Cr.P.C. Are in line with the version of the complainant as contained in the F.I.R. The true import of the report, issued by the Forensic Histopathologist, hinting at Ischamic Heart Disease due to fibrosis, in respect of Muhammad Nazir (deceased) shall be assessed by the learned trial court after recording evidence of the parties at trial. The medical officer however recorded cause of death of the deceased in aforementioned terms, with reference to the report of the histopathologist.

Muhammad Nazir was murdered in a daylight occurrence. The parties were fully known to each other and there was no probability of mistaken identity of the accused. Sufficient incriminating evidence is available to prima facie, formulate an opinion that the petitioner's case does not call for further probe into his guilt, therefore, I am not inclined to accept this application which is dismissed accordingly.