2005 P Cr (PLP)

Vide F.I.R. No.102 Police Station Daddiwala dated 10-9-2004 a case was registered on the report of Akhtar Zaman against three persons including the present petitioner for having fired at Noor Shah Wali Khan with their weapons whereby he and a camel were injured. The said Noor Shah Wali Khan later on succumbed to the injuries. The present petitioner was arrested and after seeking relief unsuccessfully from the Court below, the present petition has been moved for his release on bail.

2. Learned counsel for the petitioner argued that three persons have been charged but the present petitioner and another co-accused Mirogai have been charged for having .303 bore rifles and the third accused Latifullah has been charged for having kalashnikov. However, it was pointed out that the medico-legal evidence indicates that the deceased was killed through fires of a shotgun due to the multiple exit wounds and the recovery of pellets. The learned counsel also referred to the medico-legal report containing the observation of the Medical Officer that the blackening and charring marks were present at the entry point and the learned counsel referred to the site plan whereby the distance between the accused and the deceased was shown as five paces and therefore, he urged that the prosecution story is belied by the scientific evidence because blackening and charring cannot be caused from a distance of 12 feet.

3. The learned counsel for the complainant argued that the supplementary statement of the complainant was recorded whereby he has explained that the accused was holding a shotgun which appeared to be a .303 bore rifle. The learned counsel argued that normally the offenders are clever enough to devise and design various means of creating ambiguity in the type of weapon used in the commission of offence. He also explained that the distance stated in the site plan is normally the approximate one and with minor chance of miscalculation and adding the length of the barrel of the gun and the arms of the accused, the distance between the assailant and the deceased can be presumed to be within the limit whereby charring and blackening can happen.

4. Such minor niceties can be considered at the time of the disposal of a case after trial or at the stage of a criminal appeal but such minute analysis of the facts and circumstances at bail stage is neither desirable nor of any use. At the time of an armed confrontation, it is normally not possible for the complainant and the eye-witness to determine exactly the type of the weapon of offence and the exact distance in inches. In a panic, the observation may not be as exact as in the normal situation. Such type of contradiction, if any, may indicate the truth of the prosecution story because the narration of microscopic and photographic details of the manner of occurrence and the weapons of offence may indicate that the F.I.R. was lodged after the conduct of investigation and receipt of medico-legal report. Unless someone in genius, in a situation of panic during the moments of commission of the gravest offence like murder, the normal mind is not supposed to preserve every action of the scene and to report the same in minute exactitude to the Investigating Agency. At the bail stage, generally it has to be seen whether the petitioner was charged for the commission directly and without any ambiguity about his identification and whether there was any mala fide of false accusation. Analyzing the position of the present petitioner in the given scenario, none of the said factors are applicable. There is no chance of mistaken identity nor there is any mala fide for false charge. The situation has developed on the scene of occurrence over a petty matter but the assailants committed the gravest offence for the pettiest dispute. Only one person has been arrested so far and the rest are still at large. The release of the petitioner on bail at this stage would practically nullify the entire nature of offence.

5. Consequently, the petition fails which is dismissed. S.A.K./354/P Bail refused.