ABDUR REHMAN Versus STATE
Criminal Miscellaneous No.4158/B of 1993 and Criminal Miscellaneous No.4453/B of 1993 are being disposed of together as these bail applications arise out of the same F.I.R.
2. Briefly the allegations against the petitioners as per F.I.R. are that they alongwith their co-accused committed the murder of Muhammad Aslam and Mst. Razia Bibi.
3. The learned counsel for the petitioners namely Abdur Rehman and Muhammad Usman, vehemently contended that only proverbial Lalkara has been attributed to them, hence they are entitled to the grant of bail. He further urged that the case of the petitioners is similar to the case of Luqman co accused who has since been allowed bail by this Court vide order, dated 12-10-1993 passed in Criminal Miscellaneous No.3455/B of 1993, so on the principle of consistency the petitioners are entitled to the grant of bail.
The learned counsel appearing for Muhammad Haroon petitioner submitted that the petitioner has only caused simple fire-arm injury on the knee of the deceased and that too under grave and sudden provocation when he found Muhammad Aslam deceased in a compromising position with Mst. Razia Bibi who too was murdered at the spot, thus the case against him does not fall within the ambit of section 302, P.P.C. as it would be determined after the recording of detailed evidence whether the petitioner shared common intention with the principal accused Khalid who caused stab wounds to both the deceased, hence his case is one of further enquiry and he is entitled to the grant of bail.
4. The learned counsel for the State assisted by the Police Officer submitted that according to the site plan and the nature of injuries, it appears that both these murders were committed one after the other and it is not a case of Kali Kala, so in this case, the petitioners are not entitled to the grant of bail as their case falls within the prohibitory clause. He has disputed the findings given in Zimni No.60, dated 8-9-1993 in which the 1.0. made this observation that this case might be the result of grave and sudden provocation because there is no supporting evidence on the record to justify this finding.
5. The learned counsel for the complainant submitted that at a bail stage, the Court in order to decide the bail application has to examine the F.I.R., statements of the witnesses recorded under section 161, Cr.P.C. and any other incriminating material collected by the police during the investigation. In the present case, the eye-witnesses and the complainant have fully supported the prosecution, hence the petitioners are not entitled to the grant of bail because all the petitioners are vicariously liable for the act of their principal accused Khalid Mahmood who caused stab wounds to both the deceased with a knife. In the end, he submitted that the petitioners are not the near relations of Mst. Razia Bibi who is a married woman, hence they have concocted this false plea to cover up their misdeed.
6. I have heard the learned counsel for the parties and perused the police file minutely.
7. It is correct that there is some observation in Zimni referred to above of the Investigating Officer regarding the possibility of commission of offence by the accused persons under grave and sudden provocation. I am afraid, this opinion of the 1.0. is not based upon proper appreciation of the material so far collected because mere presence of human semen in the vagina of married woman would not lead to this inference that it is a case of compromising position in the absence of any tangible and forceful evidence in favour of the accused party. It is correct that at a bail stage, the Court has to examine the F.I.R., the statements of the witnesses and any other incriminating material collected by the police during the investigation.
8. Applying the aforesaid principle of law to the facts of the present case, I find the petitioners are nominated accused in the F.I.R. and a specific role has been attributed to them in the commission of crime. The case of Abdur Rehman and Muhammad Usman petitioners is distinguishable from the case of Luqman co-accused who has been released on bail, as apart from proverbial Lalkara both of them dragged Mst. Razia Bibi out of the room towards the place where she was ultimately murdered by their eo-accused. Likewise the case of Muhammad Haroon petitioner (in Criminal Miscellaneous No.4453/B of 1993) is distinguishable from the case of said Luqman, his co-accused because the present petitioner caused fire-arm injury to deceased Muhammad Aslam.
9. In view of the above discussion, no case for the grant of bail of the petitioners is made out, hence both the bail applications are dismissed.
N.H.Q./A-516/L Bail refused.