MUHAMMAD ABBAS Versus THE STATE

ORDER

1. The three applicants alongwith two others Fazle Ali and Mustafa Abbas are facing trial under sections 302, 148 and 149, P. P. C. for having caused the murder of one Muzaffaruddin alias Irshad on 8-9-75 at about 6-15 a. m. The report of this offence was forthwith registered at 7-50 a.m. at the Drigh Colony Police Station. The challan was sent up by the police on 23-9-75 but the case has now been sent up for trial to the Court of the Additional Sessions Judge, Karachi. However, the case has not yet proceeded. The motive of the crime is said to be that on the day of the incident there bad been some altercation between the deceased and the boy named Gandhi over the use of the Loud Speaker near mosque. Immediately thereafter accused Mustafa Abbas and applicant Iqtidar Hussain came over to intervene and the deceased told them to go away as this was their own affair. Mustafa Abbas refused to go and wanted to fight whereupon the deceased slapped him. On this Mustafa Abbas and applicant Iqtidar left the spot saying that they were just coming back to take revenge. Deceased came to his house and as he was leaving to go for his duty the applicants alongwith Fazle Ali and Mustafa Abbas being armed with knives came back together and injured the deceased with the object to kill him. As several persons reached the spot the applicants and the two accused left the injured and ran away. Habibur Rehman, the brother of the deceased inquired from the latter who told him that the two accused Fazle Ali and Mustafa Abbas had given him knife injuries in his stomach while the three applicants had caught hold of him and given him the fists and kicks blows. According to the First -Report the other witnesses who had seen the incident bad also said the same thing.

2. An application for bail was moved before the Court of Session on -behalf of the three applicants but it was rejected on 8-3-76 on the ground that the case had not been proceeded with and the application was premature. The learned counsel for the applicants has contended that even according to the First Report the three applicants are alleged merely to have given slaps, fist and kick blows. This is not only as per statement of the deceased but all the other witnesses who saw the incident are also said to have corroborated the same. Besides all the three applicants are of young age out of whom he has produced certificates for Mustafa Abbas and Iqtidar Hussain as being students. The medical evidence also shows that there were seven injuries on the person of the deceased out of which three were incised and the rest were with some blunt object. The motive is shown to be only to take revenge for the slap given by the deceased to accused Mustafa Abbas.

3. Learned Advocate-General opposed the grant of bail on the ground that the evidence had not yet been recorded and the common object was to take revenge. Moreover the applicant Iqtedar Hussain was also present with Mustafa Abbas in the morning when they gave a threat of taking revenge to the deceased. In view of these circumstances it was too premature now to grant bail to the applicants.

4. The case is under section 302 read with 148 and 149, P. P. C. in which normally the actual part played by a member of the unlawful assembly would not be a relevant factor. But the learned counsel for the applicant has relied upon a case of Khursheed and 4 others v. The State (1976 P Cr. L J 177), in which my learned brother Mr. Justice Abdul Hayee Kureshi has observed as under :

5. "There is a plethora of case-law on the subject in regard to bail in murder cases but summing up the conclusions, I must say that in order to resist the grant of bail to the particular accused, the mere fact of his being involved in a case of murder or the mere allegation of his being a member of the unlawful assembly would be insufficient. A member of an assembly causes the death would not be sufficient to raise even a conclusion that bail must be refused because allegation of commission of murder is made or the accused is named in the F. I. R. as a person concerned with the crime. The words used by the Criminal Procedure Code are that bail has not to be granted if there are `reasonable grounds to believe' that the accused is guilty. These words indicate that not only the grounds should be reasonable' but the same should also lead to belief of an assumption of guilt of the accused that there are grounds which are reasonable. Such words are not a substitute for mere suspicion. Belief though short of proof is something higher than suspicion or allegation."

6. These observations apparently support the contention of the learned counsel of the applicants but the facts of that case on consideration of which the above observation was made by his Lordship are obviously different. In that case one of the accused had taken out a knife from the folds of his trousers and stabbed the deceased on his chest, and the others gave fist blows to the deceased and also to the complainant who lodged the First Information Report. The bail for the accused who caused knife injuries to the deceased was not pressed while for the others an argument was raised on the ground of the medical evidence according to which neither the deceased nor the complainant had any marks of any injury to indicate that any fist or kick blows were given to them.

7. It was in the light of these facts that his Lordship was pleased to make a distinction in spite of the tact that section 149, P. P. C. did not apply. It may be noted that the distinction was, as clearly stated in the above-quoted. observation only for the purpose of considerations in granting or refusing bail. His Lordship was also pleased to observe while granting bail to the four persons "I may however add a caution, that whatever has been stated by me on the factual aspect of the case is by its very nature tentative and T also express a desire and a hope that the Courts below while determining the question of guilt of the accused finally, shall keep these observations out of consideration and bring to bear their own independent appreciation of the facts which come on record."

8. In the present case, however, not only applicant Iqtidar Hussain, had; participated in giving a threat that they were coming back to take revenge but the allegation that all the three applicants gave slaps, fist and kick blows to the deceased is admittedly corroborated by medical evidence Section 149, P. P. C. in these circumstances obviously operated against the applicants and in view of the fact that the case has not yet proceeded it would indeed be premature to allow the applicants to be released on bail. This application is, therefore, rejected.

9. S. Q. Application rejected.