1988 P Cr (PLP)

1984 SCMR 1092; 1983 P Cr. L J 2075; 1979 S C M R 579 and PLD 1978 SC 256 ref. Sh. Rehman for Applicant. Muhammad Ashraf Leghari for the State. This bail application is moved on behalf of applicant who alongwith two co--accused is facing trial before the Sessions Court Larkana under sections 302, 307 and 504 read with section 34, P.P.C, and section 13-D, Arms Ordinance. The two co-accused have been released on bail by this Court on the ground that fatal injury was not attributed to them. The facts of the case in brief are, that on 24-3-1986 at 7 p.m., deceased Ahmad Ali was returning back to his village on Cycle alongwith his brother-in-law Sikandar Ali. At 7 p.m. when they reached the Bank of Monder Branch, they were waylaid by the present applicant and two co-accused, who were all armed with guns. The present applicant is alleged to have threatened the complainant /deceased saying that his father and uncle had killed his maternal-uncle Faqir Mohammad therefore he will take revenge. So saying, the present applicant is alleged to have fired straight at the deceased, who fell down which Sikandar Ali jumped inside the Monder Branch. The accused persons went away. The deceased /complainant came and lodged such complaint at Police Station Nasirabad on the same day at 10 p.m. which is at the distance of 5 K.M. from the scene of offence. The deceased died subsequently of the injuries. The main contention of the learned counsel for the applicant is, that there is no evidence against the applicant and- that the F.I.R. lodged by the deceased can neither be used as a dying declaration nor as corroboration of the evidence of only remaining eye-witness Sikandar Ali. Reliance is placed by him on 1984 SCMR 1092 wherein it is held by their Lordships that the dying declaration recorded at police station in presence of relatives of deceased was not worthy of credence. In 1983 P Cr. L J 2075 it has been held that dying declaration recorded by A.S.I. without getting opinion of Doctor whether deceased who was injured .at that time was fit to make a statement or not and the deceased was also not conscious of the fact that this may be his last declaration. Such statement of deceased was held could not be placed at the level of a dying declaration recorded by person other than the Police Officer. In 1979 SCMR 579 it was held by their Lordships that where the person making F.I.R. was dead, such F.I.R. cannot be used as corroboration of the testimony of another person and can at best be used by prosecution for showing of a name of certain witness having been mentioned therein. It may be pointed that in all the above three reported cases, the question for consideration before their Lordships was not whether bail could or could not be granted on the evidence on record, but the question for consideration was whether conviction could be sustained on such evidence. While granting bail in a case falling within prohibition in section 497, Cr.P.C. the Court has to come to a finding that there are reasonable grounds to believe that the accused has not committed a non-bailable offence. Reliance is also placed on PLD 1978 SC 256 wherein their Lordships have held, that in application for bail the Court is bound to make tentatative assessment of the evidentiary value of evidence produced by the parties. In the instant case apart from the said evidence viz. F.I.R. lodged by the deceased which is assailed by the learned counsel for the applicant on the ground that it can neither be considered as dying declaration nor would it have corroborative value, the fact remains, that there is still evidence of Sikandar Ali, who is also an eye-witness and whose name transpires in the F.I.R. No reason has been shown as to why his evidence could be disbelieved. One ground urged by the learned counsel is that this Sikandar Ali has no injure on his person and therefore his presence is doubtful. This Sikandar Ali has not yet been examined. In the F.I.R. reason is shown as to why he did not receive injuries. The mere fact that he had no injuries would not necessarily render his evidence unbelievable. The Court if satisfied can record conviction, even on the sole evidence of this single witness. As such at this stage it cannot be said, that there are reasonable grounds to believe, that the present applicant's has not committed the non-bailable offence. As such the application is dismissed. S:G.D./B-57/K.??????????????????????????????????????????????????????????????????????????????????? Bail declined.