2006 PLP 595 (MLD)

NADEEM AZHAR SIDDIQUI, J.

The applicant is facing trial in Crime No.61 of 2004 of Police Station Waleed under sections 302/34,114, P.P.C. The allegations in the F.I.R. are that Ghulam Abbas (applicant) with two others directly fired pistol shot on Azhar Hussain Shah with intention to commit murder and that fire hit at right arm of Azhar and he started bleeding and was removed to hospital and subsequently died. The applicant moved bail application before the 1st Additional Sessions Judge, Larkana who has dismissed the bail application vide order dated 7th February, 2005. Learned Additional Sessions Judge, while dismissing the bail application has observed as under:-- "I have considered the submissions of learned counsel for the applicant/accused, learned D.D.A. for the State and have gone through the police record. Admittedly the applicant accused firstly abused the deceased Azhar Hussain Shah and fired upon him with intention to commit his murder with the result the accused was grappled by the deceased with the result accused Ghulam Abbas also received head injuries, therefore, the applicant/accused cannot be said free from the incident. No doubt that the pistol shot fired by accused Ghulam Abbas hit to deceased Azhar Hussain at his arm which is non-vital part of his body but he fired within intention to kill Azhar Hussain Shah. Moreover, one day delay in recording the statements of P.Ws. under section 161, Cr.P.C. is no longer time which could infer the deliberation and false implication of the applicant/accused. Further moreover, the complainant as well as the eye-witnesses of the incident have also implicated the applicant/accused in their respective statements under section 161, Cr.P.C. The relationship of the P.Ws. with the deceased is no ground for grant of bail to the applicant/accused. Under these circumstances the applicant/accused is not entitled for concession of bail. Therefore, the bail application is hereby rejected being meritless." I have heard the learned counsel for the applicant who has contended that the accused is in custody since 15-8-2004 and that there is no cogent evidence against the applicant to connect him with the alleged crime. He further submits that the witnesses in the matter are closely related to the complainant and in spite of the fact that the alleged incident was committed during broad-daylight in a very thickly-populated are no independent witness was cited and that the statement under section 161, Cr.P.C. was recorded one day after lodging of the F.I.R. He further submits that as per the medical report the victim was not died due to fire injury but he was died due to shock as a result of injuries to vital organs such as heart and lungs. He further submits that by placing the name of co-accused in Column No.11 of Challan, the investigation agency has not believed the version of the complainant. Learned counsel relied upon the following reported cases:-- (1) Meeran Bux v. The State and another (PLD 1989 SC 347). (2) Master Dur Muhammad and 2 others v. The State (1994 PCr.LJ 1769). (3) Muhammad Nawaz v. The State (1999 PCr.LJ 184). (4) Abdul Latif v. The State and 5 others (1986 PCr.LJ 208). The learned State counsel opposed the grant of bail on the ground that applicant was named in the F.I.R. and a specific role was assigned to him. He submits that cogent evidence is available to connect the accused with the crime. He further submits that One day delay is not fatal in recording the statement under section 161, Cr.P.C. The learned State counsel could not dispute the medical report. The allegation against the applicant is firing on the non-vital part of the body of the deceased. The deceased was also not expired due to fire injury but was expired due to shock and injuries at heart and lungs. The learned counsel for the applicant argued that this is a case of further enquiry and further argued that the applicant is entitled to concession of bail, if, his case comes within the purview of further enquiry. From the record produced before me it appears that there is conflict between .the ocular evidence and medical evidence. From the F.I.R. it is clear that victim sustained injury on non-vital part of the body and subsequently expired. The bail cannot be refused as a punishment merely on the allegation that a person has committed an offence punishable with death or transportation of life unless reasonable grounds appear to exist to disclose his complicity. The allegations in the F.I.R. require further enquiry to implicate the accused with the offence charged as the medical evidence is not supporting the ocular evidence. The allegation against the applicant is firing on the non-vital part of the body. The medical report also shows that victim was not expired due to firing, this creates reasonable doubt. The placing of name of co-accused Inayatullah and Muhammad Qasim in Column No.2 of challan against whom the allegations are that they were holding pistols in their hands also creates doubts and the applicant is entitled to the benefit of such doubts. In the first case cited by the learned counsel for the applicant bail before arrest was granted by the Sessions Judge, which was cancelled by the High Court. The Hon'ble Supreme Court has set aside the order of High Court and restored the order of grant of bail by the Sessions Judge and observed as under:-- "Apart from this we find that the Sessions Judge granted the pre-arrest bail to the appellant after considering the merits of the case inasmuch as he inter alia observed that the injury alleged to have been caused by the appellant to the leg of the deceased by gunshot was according to the post-mortem note, neither fatal nor was caused on the vital part of the body and was declared to be simple and that it was a case of further inquiry so far as the appellant is concerned." In another reported case of Muhammad Nawaz the learned D.B of Lahore High Court while granting the bail has observed as under:-- "As per post-mortem examination report injuries Nos.4, 5 and 7 are exit wounds and others are wound of entry. This factual position creates discrepancy between the ocular account and medical version. Although deeper appreciation of evidence at this stage is not warranted by law, yet tentative assessment is not precluded. It is also admitted position that petitioner is in jail for more than 1-1/2 years and trial has not started." I am satisfied that reasonable grounds do not appear for believing that the applicant has been guilty of an offence punishable with death or transportation of life. I, therefore, grant bail to the accused in the sum of Rs.2,50,000 and the P.R. bond in the like amount to the satisfaction of the trial Court. In case the applicant misuse the concession of bail, the trial Court may cancel the bail and take action against the applicant as well as the surety in accordance with law. The bail application is disposed of. N.H.Q/G-8/K????????????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.