1978 P Cr (PLP)

S. 498 Medical evidence at variance with eye-witness account of occurrence F. I. R. lodged with delay of about four hours leaving room for consultation Alleged crime guns secured from petitioners not connected with firing and injuries to deceased or injured P. Ws. due to lack of Expert's report Injured P. Ws. neither identifying nor nominating petitioners in their police statements Bail allowed, in circumstances. Muhammad Ali Shaikh for Applicants. A. S. Sheikh, Asstt. A: G. for the State. ORDER The applicants are brothers inter se and sons of All Khan. They are facing trial for offences under section 302/307/34, P. P. C. The incident is alleged to have taken place on 15-4-77 at 4-45 p.m. in Landhi. It is alleged that after Juma prayers a procession was taken out, which was coming from Korangi No. 6 and going to Landhi No. 1. When the procession reached near Alami Dry Cleaners Shop, the complainant Moulana Bashir Ahmed heard the sounds of three gun fires on the procession coming from the top of a house. Three persons, namely, Muhammad Sabir, Muhammad Ghaffar and Mirza Qaiser Baig received injuries from amongst those in the procession. They were taken to the hospital. One of them, namely Muhammad Sabir died on the way. It was further alleged that the firing was made from the roof of the house of All Khan by his two sons. Abdul Hamid and Habib who are the applicants. In consequence of the firing, it was further alleged that the crowd had lost control and had burnt tire wood stall belonging to Ali Khan, which was close to his house. The mob had also ransacked the office of People's Party situated in the same area. On the report of Moulana Bashir Ahmed, a case under section 302/307/ 34, P. P. C. was registered at Landhi Colony Police Station under F. L R. No. 41 of 1977. After necessary investigation, the case has now been challaned in the Court. The Police had also registered another case by way of F. I. R. No. 45 of 1917 for offences wider sec ions 43604, P. P. C. against six persons, out of whom two were apprehended on the spot and four were shown as absconders, for setting on fit, the wood stall of Ali Khan, who is stated to be the President of the People's Party in Landhi Colony. The learned counsel for the applicants has argued that in addition to setting on fire the wood stall of All Khan, the crowd of about two thousand Shad also surrounded the house of All Khan and pelted stones inside his house and had caused extensive damage by breaking the windows and the door. The Police accompanied by the Military, had reached the scene of offence and with their assistance the family members numbering about 13, were escorted to a safer place in New Karachi to avoid their massacre. The present two applicants were also taken in safe custody to the police station. The order of rejection of the bail by the learned Vth Additional Sessions Judge, was referred to, wherein, the actual position of the scene of offence was shown to be the main road, from where the procession was passing. It was shown to be about 500 yards away from the house of the applicants and their father All Khan. It has further been argued that from the medical certificate, it is shown that the two injuries on the person of the deceased Muhammad Sabir had charring visible around them. This fact is also borne out from the police papers. It would therefore indicate that the firing was from a close range of about 6 to 8 yards, including the length of the gun. It hie therefore argued that if the firing had taken place from a distance of 500 yards from the roof of the house of All Khan, there will not be any charring present around the injuries and identification of the culprits would be difficult. The perusal of police papers further shows that from the possession o the applicants, one '12 bore shot-gun and one air gun were secured, but it has not been mentioned from whose custody what weapon was secured. There is no Ballistic Expert report to connect the weapons, secured from applicants, A with the firing and the injuries on the deceased, as .sell as, the other injured. It is further pointed out that the injured persons had not identified the applicants, nor they had named them in their statements. Although the complainants have named them in the F. I. R. which was lodged after about mo than 4 hours. But no report was immediately lodged with the police, who were present at the place of occurrence, which indicates, that after consultation the F. I. R. was lodged and applicants were implicated. In view of these circumstances, as well as, the two cases referred lo above, the learned Assistant Advocate-General has no objection to the grant of had to the applicants. His contention is that the case against the applicants one which requires further inquiry to determine to what extent they are liable in the commission of the offence, alleged against them. The applicants therefore shall be released on bail on their furnishing one surety each in the sum of Rs. 25,000 (Rupees twenty five thousand) and P. R. Bond in the like amount to the satisfaction of the trial Court. However, if any evidence, directly incriminating the applicants comes on the record, at any stage of the proceedings, the trial Court shall be at liberty to cancel their bail. Petition allowed