P L D 1996 Karachi 382 (PLP)

The office has raised the objection that the previous application of the applicant was dismissed by Shah Nawaz Awan, J. on 19‑12‑1995, therefore, matter may be sent to Principal seat for placing before the Honourable Chief Justice for orders. The order referred to has been perused and relevant portion of the said order is as under: ‑‑ "However trial Court is directed to record the evidence of Medical officer immediately within the period of one month and thereafter if the applicant is satisfied, he can file a fresh application before the trial Court. " This order was complied with and the Medical Officer Ghulam Muhammad was examined and the applicant repeated bail application before the trial Court which was rejected on 17‑4‑1996. Against this order present bail application has been filed. The previous order was not on merits and, therefore, it is not necessary to A send the bail application to Principal seat for placing the same before the Honourable Chief Justice.

2. Exemption granted for the time being.

3. F.I.R. of this case was registered on 5‑10‑1994 for offences under sections 302, 34, P.P,C. read with section 324, Qisas and Diyat Ordinance. Complainant Kaural has stated that at about 1‑30 a.m. Suddenly three persons came there and they saw them in the light of torch and identified them to be accused Shainsuddin

2. Khadim and

3. Deedar. Accused Sharnsuddin gave 'Hakal' that they had killed his father Mehar and due to that revenge he will murder them. After saying this accused Sharnsuddin fired his gun at Mazan and Khadim. fired at Ranjhan. Ranjhan died on account of fire‑arm injury. The learned Advocate for the applicant has requested for bail on the .ground that it is a night time incident and applicant has been falsely implicated. There is delay of seven hours in the lodging of the F.I.R. and there is old standing enmity between the parties. The identification of the culprits in dark night requires enquiry as identification is said to be on torch light. He, however, submits that apart from this, the applicant did not cause any injury to deceased. The complainant and P.Ws. are interested witnesses. He also submits that the applicant is in custody since 30‑10‑1994. His main ground for bail is that there is conflict between ocular evidence and medical evidence. He submits that according to F.I.R. and 161, Cr.P.C. Statements applicant fired only once at Mazan but the statement of Medical Officer recorded during trial proceedings shows that there were three independent shots which caused injures on the person of injured Mazan but P.Ws. speak about only one shot having been fired. He submits that the gun is alleged to have been recovered from applicant but even after seventeen months, there is no report of Ballistic Expert. The learned Additional Advocate‑General opposes the grant of bail to the applicant on the ground that the name of the applicant appears in the F.I.R. and the P.Ws. have involved him in their 161, Cr.P.C. Statements. He is assigned part of firing at Mazan and he is vicariously liable also. He places i reliance on decision reported in 1991 SCMR 1849. At the bail stage, only the i contents of F.I.R. and 161, Cr.P.C. statements are examined and these are accepted on their face values. This is the basic principle but there are some exceptions when there is to be a deviation from this principle. One of such i exception is when the accused takes plea of alibi which is supported by i reasonably genuine evidence and the second exception is when ocular evidence is contradicted by medical evidence. These are the two exceptions and there may i 6e others also when deviation is made from the principle that contents of F I R., and 161, Cr.P.C. Statements are correct. Once these become questionable by I plea of alibi or contradicted by medical evidence then there is scope for further Enquiry. The name of applicant appears in the F.I.R. and he is alleged to have I fired at Mazan but the Medical, Officer has testified that the injuries on person of I Mazan were caused by three independent shots. Normally the statement of c complainant in F T R and 161, Cr.P.C. Statements are accepted on face value B t but because of contradiction in ocular and medical opinion, there is scope for f further enquiry. The learned counsel for the applicant has relied on two, r decisions wherein the bail was granted because there was conflict between ocular e evidence and medical evidence. The decisions relied upon by him are reported in 1986 PCr.LJ 120 and 1977 PCr‑LJ

159. The learned counsel for the applicant has, therefore, insisted for bail on this ground anti according to him the a applicant has been falsely involved. Their Lordships of the Supreme Court in decision reported in PLD 1996 SC 241 have been pleased to rule as under: ‑‑ "To deprive a person of his freedom is most serious. It is judiciously recognized that unfortunately there is a tendency to involve the innocents with a guilty. Once an innocence is put under wrest, then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial in a murder case. Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim bail granted to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So, whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail than in the jail, during the trial. " The admitted Position remains that the applicant did not cause any I injury to the deceased but he caused injury to P.W. Mazan. There is conflict between ocular evidence and medical evidence. Bail does not mean acquittal and it will remain open for the trial Court to come to any conclusion on the basis of evidence recorded during trial proceedings but so far as the question of bail is concerned, as there is scope of further enquiry, I grant him bail subject to his furnishing solvent surety in the sum of Rs.1,50,000, (rupees one lac and fifty thousand only) and P.R. bond to the satisfaction of Additional Registrar of this Court. N.H.Q./S‑27/K Bail allowed.