NOSHERWAN ALIAS NOSHA Versus STATE

This is an application for bail mace on behalf of the applicant Nosherwan alias Nosha who is detained in Crime No.182 of 1991, Shershab Police Station under section 324, P.P.C. as amended. The bail application made on his behalf was rejected earlier by learned Ist Additional Sessions Judge, (West) Karachi, vide order, dated 30-9-1992.

2. This regrettable episode is a sequal to an ordinary occurrence. On 18-11-1991 at 9-15 p.m. applicant Nosherwan alias Nosha was found staring at P.W. Syed Bahadur, who objected to it, whereupon the applicant flew into passion and caused three injuries to P.W. Syed Bahadur by means of Chhuri which he was carrying. The incident was witnessed by Syed Iqbal and Wahid Shah. Complainant Syed Rahim, brother of P.W. Syed Bahadur was informed about this incident at his house. He rushed to the place of occurrence and carried P.W. Syed Bahadur to Civil Hospital, Karachi. On 19-11-1991 at 2-30 a.m. the report of this incident was lodged at Shershah Police Station.

S. The applicant who was arrested in this case had applied for bail before this Court (Criminal Bail Application No.600 of 1992) earlier also and his bail application was dismissed after it was not pressed, with direction to trial Court to record the evidence of injured Syed Bahadur and concerned Medical Officer. The compliance of this order was made and thereafter the applicant repeated his bail application before the trial Court, but without success.

4. I have heard Mr. Javaid Haider Kazmi, learned counsel for applicant, Mr. Attaullah Khan, learned counsel for complainant and Mr. Abdul Hakeem Bijarani, learned AA.-G. for State. The learned A.A.-G. has raised no objection to the grant of bail to applicant.

5. The perusal of the record shows that the incident took place all of a sudden over a trifling matter. There is also no dispute that injured Syed Bahadur was found dead drunk at the time of incident, which is confirmed by Dr. Mubarak Ali (P.W.2), in the following words:--

"The patient was under the influence of some intoxicant and he was non-cooperative and talkative and was using filthy and abusive language."

The perusal of the record also reveals that on further examination 96% alcohol was found in the blood of injured Syed Bahadur, who on the basis of such report was prosecuted for an offence under Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979. The injured is thus found to be a drunkard and the judicial approach has to be cautious in dealing with evidence of such persons.

6. The recital of F.I.R. further shows that this incident was witnessed by Syed Iqbal and Wahid Shah. Both these witnesses were, however, examined by police on 3-12-1991, after 15 days of the incident, why? Nobody knows. In Budho v. The State reported in P L D 1965 Kar. 76, Sahib Gul v. Ziarat Gul and others reported in 1976 S C M R 236, Allah Din and another v. The State reported in 1976 P Cr. L J 249 and Muhammad Iqbal v. The State reported in 1984 S C M R 930, it was held that the reliability of witnesses whose statements were recorded after long delay without any plausible explanation is always questionable.

7. In order to constitute an offence under section 324, P.P.C. (old section 307, P.P.C.) the intention to cause death or the knowledge that the death was likely to be caused has to be established. There can be no presumption that the accused intended to cause death. The evidence of Dr. Mubarak Ali (P.W.2) shows that injured Syed Bahadur had received three incised wounds, out of which one which was caused on epigastric region was certified as grievous. No data is however, available on record in support of this opinion. The acceptability of such evidence of an expert always depends on the grounds and cogency of reasoning on which the opinion is based.

8. For all the above reasons, I am satisfied that the case against the applicant under section 324, P.P.C. as amended, needs further inquiry within the meanings of subsection (2) of section 497, Cr.P.C. and he is entitled to the grant of bail. The only fact that the applicant has avoided his arrest at the initial stage of investigation is not relevant at this stage when he is in custody for about four months. Accordingly bail is granted to applicant in the sum of Rs.50,000 (Rupees fifty thousand) with P.R. bond in the like amount to the satisfaction of Nazir of this Court.

9. By a short order, dated 3-i1-1992 I had allowed bail to applicant in the aforesaid amount. These are the reasons for the said short order.

N.H.Q./N-521/K

Bail granted.