Ss. 302, 148, 149 & 427--Post arrest bail, dismissal of--Petitioner is well nominated with specific role of causing sota blow on back side of right shoulder of father of complainant which injury found existent in post-mortem report of deceased-

 PLJ 2022 Cr.C. 316

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 302, 148, 149 & 427--Post arrest bail, dismissal of--Petitioner is well nominated with specific role of causing sota blow on back side of right shoulder of father of complainant which injury found existent in post-mortem report of deceased--Doctor has specifically opined that death has occurred due to panic anxiety attack transforming to vasovagal inhibition/shock leading to cardiac arrest due to mental trauma, death threats as well as physical assault--At stage of bail evidence or material brought on record is not to be appreciated in its minute details rather same is to be taken view of tentatively--Bail was dismissed.          [Pp. 317 & 318] A, B & C

Mian Khurram Shahzad, Advocate for Petitioner.

Mr. Nisar Ahmad Virk, DPG for State.

Ch. Humayun Rashid, Advocate for Complainant.

Date of hearing: 2.9.2021.

 PLJ 2022 Cr.C. 316
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
MUHAMMAD SHARIF--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 39561-B of 2021, decided on 2.9.2021.

Order

Through this petition, Muhammad Sahrif petitioner, entreats post-arrest bail in case FIR No. 446/2020, dated 10.11.2020 for offences under Sections 302, 148, 149, 427, PPC registered at Police Station Gojra, District Mandi Bahauddin.

2. According to story of prosecution firstly the petitioner along with his co-accused stopped the car of the complainant party and damaged the same by inflicting sotas and handles of rifles blows. Co-accused Jahangir and Mohsin Sharif pulled out Abdul Rasheed Gorsi from the car by holding him from his color. Petitioner inflicted sota blow on the back side of shoulder whereas co-accused Jehangir caused sota blow on the left side of chest of complainant’s father who fell down. Accused persons over possessed and dragged him on the ground. Due to the indiscriminate firing of accused party and panic the father of complainant lost his senses, thereafter, succumbed in the hospital.

3. Learned counsel for the petitioner has vociferously argued that injury attributed to the petitioner is simple in nature and not the cause of death, inasmuch as from the facts and circumstances of the case offence under Section 302, PPC is not made out because it is not intentional murder. According to learned counsel at the most Section 315, PPC is attracted for which punishment is provided under Section 316, PPC to Diyat along with sentence which may extent to twenty-five years hence, the petitioner is entitled to the concession of bail.

4. Learned DPG assisted by learned counsel for the complainant has submitted that the petitioner is nominated in the FIR and specific role is attributed to him. Offence with which the petitioner has been charged falls within the ambit of prohibitory clause of Section 497, Cr.P.C., hence, not entitled for the concession of bail.

5. I have mused over the arguments rendered by the learned counsel for the parties and gone through the record with their eminent assistance.

6. I have noted that the occurrence in this case took place on 10.11.2020 at 10.45 a.m., whereas, the matter was promptly reported to the police on the same day at 01.55 p.m. in which the petitioner is well nominated with the specific role of causing sota blow on the back side of right shoulder of the father of the complainant which injury found existent in the post-mortem report of the deceased. In the column of opinion it has specifically been observed by the doctor that death has occurred due to panic anxiety attack transforming to vasovagal inhibition/shock leading to cardiac arrest due to mental trauma, death threats as well as physical assault. This trauma is sufficient to cause death in ordinary course of nature. The definition of vasovagal has been described in Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology (seventh Edition) which is as under for facilitation:

“Syncope: This is death from failure of function of the heart resulting in hypo-perfusion and hypoxia of the brain. It is due to (1) heart disease, (2) haemorrhage, (3) pathological states of blood, (4) exhausting disease, or (5) poisoning due to digitalis, potassium, aconite or oleander. At autopsy, the heart appears contracted. It contains very little blood, if death is due to haemorrhage. The viscera appear pale and the capillaries congested.

A syncopal type of death may also result from reflex cardiac arrest due to:

1)       Vagal stimulation, commonly known as vasovagal shock, vagal inhibition or neuro-genic shock.

2)       Rarely ventricular fibrillation due to cardiac problems or spontaneous sympathetic nervous discharge.

          Vagal inhibition is important in certain cases of accidental hanging; throttling (manual strangulation); blow to the epigastrium; abortion; emotional tension; sudden immersion of the body in cold water; insertion of an instrument into the uterus. Bladder, rectum or any other body cavity; and light anaesthesia. In these conditions, as the trauma may be very trivial, the injury is not visible. Therefore, there are no characteristic post-mortem appearance and the cause of death is inferred from the history and negative findings, viz. no natural disease, injury or poisoning, to account for the cause of death.”

Wisdom is also derived from the case law reported as Noor Bakhsh vs. The State (2020 SCMR 1205) wherein in a similar case, it has been observed as infra:

“While it is for the trial Court to determine the cause of death and consequences thereof, the case initially set up in the crime report, supported by the statements of the witnesses and medical evidence constitutes, 'reasonable grounds; within the contemplation of Section 497 of the Code of Criminal Procedure 1898 with space for further probe or inquiry in absence whereof, he cannot be released on bail even on that score.”

Similar view was also reiterated by Hon’ble Supreme Court of (AJ&K) in the case reported as Muhammad Javed vs. The State and another (2001 YLR 2923) and observed as under:

“In the instant case all the eye-witnesses, namely, Nadeem Ahmad Khokhar, Muhammad Sadiq Khokhar and Atta-ur-Razzaq who have been duly named in the F.LR. are unanimous on the point that Muhammad Javed, accused, inflicted blow with the stone upon Nazeer Ahmed Khokhar on his forehead in consequence of which he -died on the spot. Atta-ur-Razzaq who happens to be an independent witness apart from Muhammad Nadeem Khokhar and Muhammad Sadiq Khokhar has also supported the prosecution version that accused Muhammad Javed inflicted injury on the forehead of the deceased with a stone in consequence of which he died. The alleged weapon of offence, i.e. the stone, has also been recovered at the instance of Muhammad Javed accused. The doctor who initially conducted the post-mortem report of the deceased on 16-1-2000 observed Injury No. 1 on the person of deceased as a bruise over left orbit 2 x 2 c.m. in diameter creptis over that area. In the column of opinion it has been observed by the doctor that Injury No. 1 is the definite cause of death which has provocated the neurogenic and vasovagal shock which has led top cardiac arrest resulting in death. However, the Board, which on the application of accused examined the deceased on 23-2-2000, observed that the Board is of the opinion that deceased received primary impact injury on the left side of the forehead, as a result he fell down on the ground and received secondary impact injuries over right tempro-occipital area of head. These secondary impact injuries to the brain may have received defused coup and contra coup injuries which were sufficient to cause death, therefore, the cause of death is head injury.”

Reference can also be made to the case law titled as Zia Mahmood alias Mazhar vs. The State and another (2012 P.Cr.L.J. 94).

Insofar as contention of learned counsel for the petitioner vis-à-vis attraction of Section 315, PPC is concerned, for better appreciation Sections 315 and 316, PPC are reproduced as under:

Section 315 Qatl Shibh-i-amd

“Whoever, with intent to cause harm to the body or mind of any person, causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit qatl Shibh-i-amd”

Section 316 Punishment for Qatl Shibh-i-amd

Whoever, commits Qatl Shibh-i-Amd shall be liable to Diyat and may also be punished with imprisonment of either description for a term which may extend to (twenty-five years) as Tazir.

The argument is not tenable for the reasons firstly the doctor has specifically opined that death has occurred due to panic anxiety attack transforming to vasovagal inhibition/shock leading to cardiac arrest due to mental trauma, death threats as well as physical assault and secondly the offence with which the petitioner has been charged fall within the ambit of prohibitory clause of Section 497, Cr.P.C. Reference in this respect may be made to the cases reported as Bilal Khan vs The State thorugh P.G. Punjab and another (2020 SCMR 937), Yaseen vs. The State (2020 SCMR 1182).

7. The PWs are tenacious upon their statements. Moreover, sufficient incriminating material is available against the petitioner. During investigation, the petitioner has been found fully involved in the occurrence and recovery of club has also been effected from his possession in this case.

8. After giving due consideration to the arguments advanced at the Bar and perusing the relevant record, it may be observed that by now it stands settled by the judicial pronouncements that at the stage of bail the evidence or the material brought on record is not to be appreciated in its minute details rather the same is to be taken view of tentatively. Wisdom is derived from the case laws reported as Imtiaz vs. Azam Khan and others (2021 SCMR 111) and Syed Maqbool Muhammad vs. The State (2005 SCMR 635).

9. According to the investigation officer, report under Section 173, Cr.P.C. has been prepared and sent up to the Court. The epitome of above said discussion is that the petitioner has failed to make out a case of further inquiry and there are sufficient grounds to connect the petitioner with the commission of offences.

10. For the above reasons, this petition has no merits, and the same is hereby dismissed.

11. It is, however, clarified that observations made hereinabove are just tentative in nature and strictly confined to the disposal of this bail petition.

(A.A.K.)          Bail dismissed