2005 PLP 3184 (YLR)

FAZAL-E-MIRAN CHAUHAN, J.

The petitioner seeks bail in case F.I.R. No.59 of 2004 dated 16-3-2004 under sections 302/324/148/149, P.P.C. registered with Police Station Muhammad Pur Tehsil Jampur District, Rajanpur.

2. As per the F.I.R. lodged on the complaint of Muhammad Iqbal, the allegations against the petitioner along with other co-accused are that they armed with fire-arm weapons, forming an unlawful assembly committed rioting and launched attack upon the complainant party. The petitioner fired a shot with his gun hitting Ghulam Nabi deceased on his neck. The petitioner's bail after arrest was dismissed by the Additional Sessions Judge, Jampur vide order dated 8-9-2004.

3. It is argued on behalf of learned counsel for the petitioner that the petitioner is innocent, and is falsely involved in this case due to previous political and personal enmity. Only one single fire was attributed to the petitioner, which, as per F.I.R. hit the deceased on the left side of his neck. This ocular version of the complainant is negated by the post-mortem report. As per post-mortem report there is no fire-arm injury on the neck of the deceased. It is further argued that according to the Medical Officer, organs of abdomen and chest are injured due to fire and such injuries can cause death in the ordinary course of life. It is alleged in the F.I.R. that shot fired by the petitioner hit the deceased on the left side of his neck, where on the other side no injury was found on the neck of the deceased and the deceased died due to the injuries on abdomen and chest which injurie, are not attributed to the petitioner. Hence the petitioner is not responsible for injuries as result of which deceased died. The case of the petitioner is one of further inquiry and falls within subsection (2) of section 497, Cr. P. C. It is further argued that no motive was attributed to the petitioner for committing such kind of heinous offence. It is also argued that as per F.I.R. the deceased received three fire-arm injuries on his body attributed to Bilal Ahmad, Munir Ahmad and Asghar, whereas, according to Medico-legal report the deceased Ghulam Nabi received six injuries on his body. The additional three injuries suffered by him are unexplained which created doubt in the story of the prosecution the benefit of which will go to the accused.

4. Conversely, learned counsel for the State argued that, the petitioner is named in the F.I.R. Recovery of .12 bore gun was made from him. There is no delay in lodging the F.I.R. The challan has been submitted against the accused in the trial Court but the trial has not commenced yet. On Court's query, learned counsel for the State admits that there is a conflict between ocular and medical evidence. The medical evidence negates the ocular version of the F.I.R.

5. The main stress of learned counsel for the petitioner is that the specific role assigned to the petitioner, as stated above, was that he caused injury by his gun on the left side of the neck of the deceased Ghulam Nabi, whereas, the Medico-legal report does not bear out the prosecution case, as no injury was found on the left side of the neck of the deceased. He placed reliance on Mohsin v. The State 1977 PCr.LJ

159. The tentative assessment of ocular and medical evidence, disclosed a conflict between the two benefit of which could be given to the accused at bail stage. From perusal of the record, it is found that the complainant being eye-witness categorically deposed that the petitioner fired hit the deceased on the left side of his neck, but no injury was found on the neck of the deceased by the doctor. It is also declared by the doctor in the Medico-legal report that deceased sustained six injuries on his body, whereas, the complainant only attributed three fire-arm injuries to three different accused including the petitioner. This fact disclosed a conflict between the medical evidence and ocular version, the benefit of which, therefore, will weigh in favour of the petitioner while deciding his bail application. Reliance is placed on Syed Abdul Baqi Shah v. The State 1997 SCMR 32.

6. I, however, find that the submissions of learned counsel for the petitioner are correct, that the Medico-legal report does not indicate any injury on the left side of neck of the deceased, whereas, the complainant in the F.I.R. had specifically mentioned that petitioner fired hitting the deceased on the left side of his neck. It is also found from the record that the deceased died due to the fire-arm injuries suffered by him on his chest and abdomen, the injuries which are not attributed to the petitioner. For the purpose 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 prosecution to explain this discrepancy at the trial and it would be for the trial Court to come to a finding upon considering the entire evidence. For the above said reasons, I grant bail to the petitioner; subject to his furnishing bail bonds in the sum of Rs.1,00,000 (rupees one lac) with surety in the like amount to the satisfaction of the trial Court. N.H.Q/M-1139/L Bail allowed.