2003 PLP 1191 (YLR)

Mumtaz Ali Khan Deshmukh for the state. Date of hearing : 27th November 2002. Heard the learned counsel for the applicant and learned State Counsel. According to the F.I.R. incident took place on 24‑9‑2002 at about 12‑10 p.m. and report was lodged on the same day at 20‑15 hours at Police Station, Taimuria, North Nazimabad, Karachi, under section 324, P.P.C. on the basis of information conveyed by Mst. Fatima Malik who is daughter of injured Ms. Azra Malik and is employed as Laboratory Assistant in Ziauddin Hospital, Karachi. The allegation against the applicant is that he was on visiting terms with the family of complainant and on the day of incident he entered the flat of Ms. Azra Malik while she was alone in the flat and caused her injuries with sharp cutting weapon like Churri on various parts of her body. The Medico Legal Officer noted in all ten injuries on the person of Ms. Azra Malik. Out of which the following three wounds were found to have been caused by sharp cutting weapon, (1) an incised wound near right angle of mandible going downwards and posteriorly 12 c.m. x 3 c.m. into muscle deep, (2) Lobule of ear is also cut and absent, and (3) a wound measuring 2.5 c.m. x 0.5 c.m. skin deep on right thigh. Injuries Nos.3 to 8 were found to be Jurh‑Ghayr‑laifah‑Damihah and injuries Nos. 1, 2, 9 and 10 were reserved for final opinion. Mr. Shakeel Ahmad, learned counsel for the applicant, has argued that there is difference in the time shown in the F.I.R. and the medical certificate as according to F.I.R. incident took place at 12‑15 p.m. whereas according to Medico‑Legal Certificate time of incident is shown about 11‑00 a.m. and the patient/injured had reached at Ziauddin Hospital at 11‑30 a.m. and she was further examined at about 6‑15 p.m. in Abbasi Shaheed Hospital, Nazimabad, Karachi, on the same day. The learned counsel has, therefore, vehemently urged that difference in these timings has created reasonable doubts in the veracity of the F.I.R. He has also argued that the injuries Nos.3, 4, 5, 6, 7 and 8 were found Jurh‑e‑Ghayr‑Jaifah‑Damihah, the punishment whereof does not fall within the prohibitory clause of section 497, Cr.P.C. Learned counsel has further argued that present accused is a young man of about 17/18 years. He is not a previous convict or a hardened criminal. While relying upon the case‑law reported in 1992 PCr.LJ 2806, the learned counsel has laid much stress that in such type of cases bail is a rule and jail is an exception. The learned counsel has also relied upon the cases reported in 1999 PCr.LJ 582, 1999 MLD 939 and 1999 MLD 1206 to show that benefit of doubt even at bail stage is to be extended to an accused. Mr. Mumtaz Ali Khan Deshmukh, learned State Counsel, while opposing to the grant of bail and replying to the arguments of learned counsel for the applicant regarding difference in timings as pointed out by him, has demonstrated with the help of F.I.R. that it was registered on the basis of statement of complainant Mst. Fatima Malik daughter of the injured recorded in hospital where she was on duty in the Laboratory of Ziauddin Hospital at the time of incident and it was at about 12‑15 p.m. when she received a telephonic message from a lady residing in her neighbourhood (mother of baby Annum) about the incident whereafter she went to her flat where she was informed that her injured mother was already taken to Emergency Ward of Ziauddin Hospital. She came back to Ziauddin Hospital where her statement was recorded by a police officer and thereafter the same was incorporated in the register under section 154, Cr.P.C., hence according to the learned State Counsel difference in timings under the circumstances is immaterial. Learned State Counsel has further pointed out that Medical Certificate issued by the Medico‑Legal Officer of Abbasi Shaheed Hospital, Karachi, also shows that in the first instance the injured was taken to Ziauddin Hospital where she was examined at 11‑30 a.m. and thereafter she was referred to Abbasi Shaheed Hospital, Karachi, where she was examined by the Medico‑Legal Officer on the same day at 6‑15 p.m. Learned State Counsel has further argued that injured Mst. Azra Malik in her 161 Cr.P.C. statement has fully implicated the present applicant. There are also two other witnesses namely Muhammad Aslam and Muhammad Riaz who are the neighbours and who had seed the accused/applicant running soon after the incident duly armed with a blood‑stained Churri. He has further pointed out that in presence of Mashirs blood stained Churri and shirt have been recovered from the accused/applicant. He has, therefore, vehemently opposed to the grant of bail showing that it is not a case of further inquiry but for the time being the material available on record shows that there are no reasonable grounds to believe that the applicant has not committed the alleged offence. I have given due consideration to the contention of the learned counsel for the applicant and the learned State Counsel. The difference in timings as pointed out by the learned counsel for the applicant during his arguments has been fully explained by the learned State Counsel as such prima facie there is no reason to disbelieve the prosecution's case at this stage particularly when nothing has been placed on record to justify the false implication of the applicant in this case who was already known to the complainant side and was on visiting terms with them. The ocular version of the injured lady corroborated by the recovery of blood stained shirt and crime weapon from the accused/applicant and the medical evidence which shows that as many as three injuries on the person of Ms. Azra Malik are the result of use of sharp cutting weapon so also the statements of the two witnesses who appear to be the natural witnesses being the neighbours and had seen the applicant/accused running away alongwith blood‑stained Churri soon after the incident prima facie does not lead to hold that the applicant has not committed the alleged offence. Under these circumstances, this bail application is rejected. However, it is made clear that the observations made above, are purely tentative in nature and will not cause prejudice at the trial stage. N.H.Q./R‑86/K Bail refused.