2007 PLP 838 (YLR)

MUNIB AHMED KHAN, J.

The applicant has requested bail in F.I.R. No.33 of 2006 registered under sections 302, 506(2), 337-H-2, 148 and 149, P.P.C. According to the allegation in the F.I.R. accused person along with four other persons came to the land-of deceased while he was accompanying the complainant, their mother and their cousin Abdul Sattar. As there was some dispute in respect to the return of the loan amount and claim of land in lieu thereof by the accused over the land of the deceased therefore there were threats from the accused side. On the day of the incident i.e. 1-6-2006 at 7-00 p.m. the accused party came to the land of deceased and as per allegation accused Muhammad and Noorullah fired upon Ghulam Nabi, the brother of complainant who died on the spot. Learned counsel for the applicant has contended that there is only one bullet injury and that too from the back of the deceased with exit from the abdomen therefore it cannot be said as to which of the accused caused death and further the ocular evidence in respect to the injury and post-mortem report is different as according to the complainant bullet hit the deceased from the front side. The learned counsel further submits that the post-mortem report shows that the death took place round 6-00 p.m. while the allegation in the F.I.R. is that incident took place at 7-00 p.m. and that nothing has been recovered from the accused and has further submitted that police has recorded statement of' three independent witnesses and all of them have not implicated the accused rather have said that the deceased brother has caused death of the deceased on some dispute between the family. On the other hand the learned State Counsel submits that the complainant, in the F.I.R., has not specified as to at which part of the body bullet hit the deceased nor it has been stated that how many bullets hit the deceased. He further submits that medical evidence has slight difference in respect to time of death and that cannot be certain but can be counted as of probabilities. He further submits that all the three independent witnesses examined by the prosecution are not the ocular witnesses and have been examined after about fourteen days therefore their version cannot replace the version of ocular evidence. After hearing, I observe that there are three witnesses before whom the incident took place. The accused along with other were armed with fire-arms and have fired directly upon the deceased. Since the incident took place in the daylight at 7-00 p.m. in the month of June therefore there cannot be mistaken identity, in the circumstances, when the parties are known to each other. The inconsistency between the medical and ocular evidence in respect to the bullet injuries can be termed as minor discrepancy and even the complainant in the F.I.R. has not stated as to what part of the body of the deceased was hit. Admittedly two persons fired and one of the bullets has hit the deceased while the intention of both the accused were common to kill the deceased. The opinion of doctor regarding time of death cannot be taken as certain as same is based only on his observation. The evidence of other witnesses recorded by the police after fourteen days cannot be considered at the moment as same cannot replace the ocular evidence but to be considered only after the witnesses are subjected to evidence. The minor issues and discrepancies, as raised by the learned counsel for the applicant, can be sorted out only after the evidence is recorded and not at the bail stage. In the circumstances, bait is refused and application is dismissed. H.B.T./N-4/K Bail refused.