1986 P Cr (PLP)

Khan Muhammad M. Mashori for Applicants. Riaz Ahmed for Asstt. A.‑G. for the State. This is an application on behalf of Ghulam Rasool and Adloo alias Abdul Karim both sons of Gul Hassan Motmal in a case registered under section 302/34, P.P.C. at Police Station, Tharo Shah, District Newabshah, vide F.I.R. No. 55 of 1985 which was lodged by Khair Muhammad son of Bhawai Siyal inter alia alleging that he, his 'Masat' Khan, Miandad and uncle Mehru on hearing cries from the house of accused Ghulam Rasool went there and saw that the accused Ghulam Rasool and his brother Adloo had knocked down his (complainant) sister Mst. Haleeman on the ground and were strangulating her. On seeing them the accused person left Mst. Haleeman and made good their escape. According to the F.I.R. when the complainant and other witnesses went near Mst. Haleeman they found her breathing her last and she died in their presence. However, in the post‑mortem report prepared by Dr. Manzoor Ahmed Memon it is stated that from the external as well as internal examination of the deceased no sign of any strangulation on the body of the deceased nor any ligature mark of other injury was found on the neck (externally and internally). There was also no injury on the body. According to the report the cause of the death was natural. Mr. Riaz Ahmed appearing on behalf of the State has produced a copy of the report of medical board which was constituted to examine the body of the deceased after the same wag exhumed on 3‑12‑1984 and according to this report the body was in highly decomposed state as it was exhumed after about six, months and, therefore, the board could not give cause of death. Mr. Riaz Ahmed states that the police has recorded the statements of three eye‑witnesses and they all, have implicated the accused persons. However, it is submitted by the learned counsel for the applicants that the medical evidence does not support their version and there is clear inconsistency between the ocular evidence and the medical evidence. Learned counsel for the applicants has, therefore, submitted that the applicants are entitled to bail. He relied on Mohsin v. The State 1977 P Cr. L J 159 wherein Ghulam alias Gammoon and others v. The State 1970 P Cr. L J 642 has been followed which lays down that conflict between the ocular and medical evidence is a good ground for grant of bail. He also relied on Naseer Mehdi and another v. The State 1985 PCr.LJ

417. In this case according to F.I.R. as well as the statements made by the eye‑witnesses the petitioners were armed with hatchets and they had caused injuries on the person of the deceased with wrong sides of the hatchets whereas according to the post‑mortem report, all the injuries found on his person were caused by fire‑arm and since the ocular account was not in confirmity with the medical evidence that factor was taken into consideration by the Lahore High Court in granting bail to the petitioners in that case. Moreover, the case of Mohsin v. The State 1977 P Cr. L J 1591 clearly lays down that where there is clear inconsistency between the ocular and medical evidence the case falls w0hin the purview of clause (2) of section 497, Cr.P.C. I may quote hereinbelow the relevant passage‑‑ "

5. I, however, find that the submission of the learned counsel for the applicant is correct that the medical report does not indicate any injury on the deceased on his tack. Whereas some of the witnesses were so specific in their assertion that the applicant hit the deceased on his back that they said that the deceased due to the back injury was unable to sit. For the purposes of bail, therefore, due to the clear inconsistency between the ocular and medical evidence in my opinion, the case falls within the purview of clause (2) of section 497, Cr.P.C It will; be for the trial and it would be for the trial Court to come to a finding upon considering the entire evidence. I am, therefore, of the view that a case or grant of bail to they applicants has been made out. I accordingly grant bail to them in they sum of Rs.20,000 (Rupees twenty thousand only) each with one surety, each and the P.R. Bond in the like amount to the satisfaction of the Sessions Judge, Nawabshah. M. Y. H. Bail granted.