2007 PLP 318 (MLD)

MUNIB AHMED KHAN J.

In this case the applicant Muhammad Salem is facing trial in F.I.R. No.154 of 2004 under sections 302/397/392/34, P.P.C. According to the facts one Muhammad Rehan Segal while carrying cash, was intercepted by four persons and in the scuffle was shot with the Pistol on 29-9-2004 at about 11-45. He was taken to Hospital but died on 30-9-2004. In the challan four accused persons including applicant have been named. The learned counsel for the applicant submits that admittedly Muhammad Saleem has been involved on the ground that he pointed out the place of incident but that piece of evidence cannot be taken into account as according to prosecution itself applicant was brought from jail under permission from the District Judge and thereafter he allegedly pointed out the place of incident. He further contends that nothing on record appears to show as to in what offence and on what date he was sent to jail and whether on the particular date of alleged incident he was in jail or some where else. Learned counsel further submits that according to the challan itself, submitted by the police, it has been admitted that applicant was not identified while offence against other persons has been established therefore, in the absence of any identification the applicant may be released on bail. He further submits that there arc six, alleged eye-witnesses and according to their versions, as has been picked up in 161, Cr.P.C. statement, deceased was hit by a bullet from front side, while according to F.I.R. applicant was hit from the back. He further submits that there is no statement of the deceased himself, notwithstanding the fact that he remained alive for 1535 hrs and died on next date of incident i.e. on 30-9-2004 on 3-20 hrs. He further submits that there is no mention of the name of the applicant in the F.T.R., therefore, in the circumstances when there is conflict between the ocular evidence as well as the medical evidence then benefit of doubt may be given to the accused persons. He further submits that there is alleged admission of the applicant before the police which is not admissible under Article 38/39 of the Qanun-e-Shahadat, 1984. On the other hand learned State counsel after hearing the arguments and examining the documents available on record has conceded to the hail on the ground that the identification of the applicant in the circumstances is doubted. From the factual position coming on record as well as the arguments it appears that according to the complainant deceased has given some statement to the complainant which has been recorded through complainant in the shape of 161, Cr.P.C. statement which is in addition to the F.I.R. According to medical report deceased remained alive for 1535 hrs but notice has failed to record his statement which could be converted into dying declaration. It is also apparent that the applicant was brought from the jail under permission of the District Judge and then he allegedly pointed out the place of incident, wade the police itself is submitting in the challan that the applicant has not been identified. Keeping in view the citations presented by the learned counsel for the applicant i.e. 1997 SCMR 32, 1980 SCMR 784, 2006 MLD 81, on the point that benefit may be given to the accused when there is conflict between the ocular and medical evidence as well as absence of specific role and the 3rd citation on the point of alleged admission of an accused towards the pointation before the police was not taken into account. In the above factual position some doubts have been created hence benefit of the same to be given to the applicant. In the circumstances the applicant is admitted to bail in the sum of Rs.100,000 and P.R. bond in the like amount to the satisfaction of the trial Court. H.B.T./M-166/K????????????????????????????????????????????????????????????????????????????????? Bail granted.