1994 P Cr (PLP)

A.S. Ghaffar for the Complainant. Fair certified copy of Annexure "F" has been filed in Court today.

2. Granted subject to all just exceptions.

3. The applicant is facing trial before the IVth Additional Sessions Judge, Shikarpur, in Crime No.97/92 of Sultankot Police Station for offence under section 302, Qisas and Diyat Ordinance read with section 336/114/148, 149, P.P.C. Complainant, Mithal son of Muhammad Panjal, lodged F.I.R. No.97/92 at Sultankot Police Station on 7-10-1992 alleging that on that morning at about 8-00 a.m., he alongwith Janoo son of Muhammad Malook and Lal Dino son of Muhammad Hayat was taking his sick brother Bahadur, for medicine, on a tractor being driven by Bakhoo alias Bakhtiar. As they reached near Pir Rasool Bux they saw accused Rabnawaz, Khauharo, Moor, Sain Dino, Akbar and Sharif all armed with gun and applicant Jan Muhammad, Imdad and Allah Dino all armed with rifle, standing on the road. They stopped the tractor and accused Moor instigated others to kill Bahadur. Thereupon Rabnawaz grappled with Bahadur and pulled him down and applicant Jan Muhammad fired at Bahadur with his rifle hitting him on his face and Bahadur died. The accused fired in the air too and then went away. The contention of the applicant's counsel is that there is clear contradiction in the ocular and the medical evidence inasmuch as in the F.I.R. the allegation is that applicant Jan Muhammad fired at deceased from his rifle which hit him on the face. However, the medical report shows that two pellets were recovered from the skull region of the deceased and that these were sufficient to cause death. His submission is that had the deceased been killed with the rifle shot as alleged in the F.I.R. bullet ought to have been recovered from the skull and the wound should have been that of bullet rather than pellet. He places reliance on the case of Nadir and 2 others v. State reported in 1985 P Cr. L J

247. In this case it was held that-- "The learned counsel points out that according to the witnesses on the scene and the version in the F.I.R. accused Imam Bux and Ago were armed with gun and revolver and have fired at complainant Baqar, Heetam, Nawaz and Ahmed Hassan. But the medical report disclosed that none of the injuries found on these persons was caused by a fire-arm. Due to this glaring inconsistency between the two pieces of evidence, the role assigned to these two accused becomes highly improbable. This by itself entitles them to be released on bail:" Learned counsel for the State and learned counsel for the complainant oppose the application. Their contention is that there is no contradiction in the ocular and the medical evidence as, according to the witnesses as also the post -mortem report of the doctor, the deceased died of fire-arm injuries and, therefore, the case on which reliance is placed by the applicant's counsel is not relevant for in that case the allegation in the F.I.R. was that the accused had fired with gun and revolver but the medical report showed that the injury found on the complainant's body was not caused by fire-arm. It is submitted that it was due to this glaring inconsistency in the report of the doctor and the evidence of the witnesses that the applicant in that case was granted the benefit of doubt. I am, however, unable to agree with the counsel. In this case too there is inconsistency in the ocular and the medical evidence. If the deceased was hit by rifle shot the injury should have been that of bullet but from the report of the doctor it appears that only two pellets as distinct from bullet were recovered from the skull and these pellets were the cause of death according to the doctor. It would also seem that later rifle was recovered from the applicant, though it was a licensed weapon. At this stage, therefore, the benefit of inconsistency in the doctor's report and the allegations in the prosecution case must go to the applicant. The present case is that of further enquiry. I would, therefore, enlarge the applicant on bail on his furnishing a solvent surety in the sum of Rs.1,50,000 (Rupees one lac fifty thousand) with P.R. bond in the like 14 amount to the satisfaction of the trial Court. However, if after recording of some evidence, the trial Court considers it appropriate it may cancel the present bail granted to the applicant. N.H.Q./J-165/K Bail allowed.