ZIAUL ISLAM Versus THE STATE

ORDER

1. Ziaul Islam and his brother Anwar Ismail alongwith Amanullah, Ghulam Rasool and Liaqat Ali were alleged to have been involved in an occurrence which took place on 9‑3‑1987 at 5‑00 p.m. at the Ravi Bridge, Lahore.

2. Arif Hussain Shah son of Rasool Shah resident of Muslim Colony Jiya Musa, Shahdra Town, Lahore was beaten as a result of which he died on 13‑3‑1987 in A1‑Sheikh Welfare Hospital, Ferozewala.

3. According to the prosecution on 10‑3‑1987, Arif Hussain Shah was found lying unconscious in front of the house of one Qasim in village Nain Sukh. He remained unconscious till 9‑00 p.m., on 12‑3‑1987.

4. On 12‑3‑1987 at 9.00 p.m. Arif Hussain Shah became conscious. He found his relatives around him in the hospital. There he disclosed the names of his assailants. Next morning he died. Report in this case was based on the dying declaration of the deceased on the basis of which formal FIR was recorded at Police Station Shahdra Town.

5. The post‑mortem report revealed 25 injuries caused by blunt weapon. Number of investigations took place, some at the instance of the accused party, the other on the application of the father of the deceased. The last investigation was conducted by Amanullah Khan, S.P., City Lahore.

6. The motive as alleged by the prosecution is that Arif Hussain Shah, who was an employee of the petitioner Zia‑ul‑Islam, mis appropriated Rs.10 which were detected from his pocket.

7. Petitioners Zia‑ul‑Islam and Anwar Ismail applied for bail after arrest. The Additional Sessions Judge rejected the bail application by order dated 26‑8‑1987. Now they have moved this Court for bail.

8. The first point raised by the counsel for the petitioners was about the evidentiary value of the report. It was argued that the deceased was lying in the hospital unconscious and when he gained consciousness he gave his version to his relatives present by his bed. Ismail, Chowkidar of the hospital, was also present there. It was the Chowkidar who passed on the story to Naz Ashraf Lady Doctor. Counsel submitted that such a version was neither admissible in evidence nor could it be the dying declaration which could form the basis for the report. It was further submitted that as a matter of fact nobody saw what happened to the deceased. Learned counsel contended that though the prosecution cited two eye‑witnesses Nisar Ali and Aslam Sajjad but the former appeared for the first time on 14‑3‑1987 before the police and latter, on 16‑3‑1987, although it was within their knowledge that the occurrence had taken place on 9‑3‑1987. Learned counsel submitted that the motive alleged by the prosecution was hardly believable. Learned counsel also pressed into service the plea of alibi and submitted that civil litigation was going on between Zia‑ul‑Islam and his brother. The matter had been referred to arbitrator at Faisalabad. On the day of occurrence Zia‑ul‑Islam and his brother personally appeared before the arbitrator. Counsel submitted that reliable evidence was produced before the police in support of the plea of alibi. Affidavits of some of the Advocates were also shown. This very evidence was repeated before the Additional Sessions Judge, Lahore. Last of all learned counsel submitted that the name of Anwar Ismail was not mentioned in the F.I.R.

9. I have heard counsel appearing on behalf of the State as well for the complainant. Both opposed the grant of bail on the ground that there is strong prima facie evidence connecting the petitioners with the murder of Arif Hussain Shah. It was argued that the mere fact that there was difference of opinions of the Investigating Officers about the implication of the petitioners was no ground to admit the petitioners to bail because in the last investigation the S.P. found the petitioners responsible for the commission of the crime. Both the counsel further submitted that it was the lady Doctor who herself recorded the dying declaration.

10. Zia‑ul‑Islam is toll contractor at the Ravi Bridge, Lahore. Anwar Ismail, his brother, is a student. The remaining three accused are employees of the contractor and so was the deceased.

11. I do not think this is the proper stage where I have to express my opinion pertaining to weight of the evidence about the dying declaration, FIR and the motive alleged by the prosecution. The question of admissibility of such evidence and its evidentiary value shall have to be determined by the trial Court at the proper time. So far as the plea of alibi is concerned, no documentary evidence has been placed before me. In the absence of such evidence, I do not think the petitioners are entitled to bail in a murder case simply because such a plea has been urged. No doubt the name of Anwar Ismail is not mentioned in the report. It is one Gudda. But the counsel for the complainant submitted that in the bail application moved on behalf of Gudda before the lower Court the name was mentioned as Anwar Ismail.

12. As observed earlier the post‑mortem report showed 25 injuries, all caused by blunt weapon. The prosecution case is that the deceased died as a result of injuries inflicted by blunt weapon.

13. The mere fact that there were more than one investigation does not entitle the petitioners to bail as a matter of right. It is the duty of the Court to form its own opinion. Opinion of the Police Officer is not binding on the Court.

14. After taking all the contentions of the counsel for the petitioners as well as for the State and that of the complainant into consideration, I do not think that the petitioners are entitled to the concession of bail. This petition is accordingly dismissed.

15. The Sessions Judge Lahore is hereby directed to entrust this case to one of the Additional Sessions Judge for early disposal. The trial Court shall conduct the trial day to day. The Registrar of this Court shall be informed about the result of this case.

16. S.A./Z‑34/L Bail refused.