1998 P Cr (PLP)

2. Briefly the facts of the case as gleaned from the F.I.R. are that on 27-2-1997 at 10 a.m. the complainant alongwith his cousin Zafar Iqbal was going towards his lands, when they reached on the backside of the mosque, Gulzar Ali armed with .12 bore gun, and Intizar Ali armed with .222 rifle turned up at the spot. Gulzar Ali fired at Zafar Iqbal hitting him at his forehead, and right arm. He ran towards his house raising alarm which attracted Khizar Hayat who came out of his house. Intizar Ali, then opened fire hitting him on the chest. He fell down and succumbed to his injury on his way to Civil Hospital, Okara. The motive for the alleged occurrence was stated to be the previous enmity over litigation between the parties.

3. The petitioner was arrested on 4-3-1997. He had applied for his bail but the same was refused by the learned Additional Sessions Judge, Okara on 15-7-1997. Hence this petition.

4. Learned counsel for the petitioner has vehemently argued that the ocular evidence to be led by the prosecution stands belied by the post-mortem report which reveals that a pellet was recovered from the injury which was alleged to have been caused by a shot fired with .222 rifle. According to the learned counsel, this fact alone was sufficient to allow bail to the petitioner. Reliance in this respect was placed on Ali Ahmad v. The 1997 PCr.LJ 61 and Jan Muhammad alias Janoo v. The State 1994 PCr.LJ 541.

5. Learned counsel for the complainant as well as learned counsel for the State have strenuously opposed the application by submitted that the only injury found on the person of the deceased was caused by a bullet, because a stray pellet would not have caused the injury of the nature as mentioned in the post mortem report. It was further submitted that the version of the prosecution was supported by the eye-witnesses and the recovery witnesses of .222 rifle, recovered at the instance of the petitioner, as such, the medical evidence, which is confirmatory or explanatory of the direct evidence would not effect adversely the case of the prosecution at this stage. Reliance in this regard was placed on Ghulam Mehdi v. The State 1991 SCMR 60 and Sanatta and another v. The State 1982 SCMR 208.

6. I have heard the learned counsel for the parties and have perused the record carefully.

7. To better appreciate the contention of the learned counsel for the petitioner, it would be necessary to have a look at the disputed injury which according to the prosecution was caused by a shot fired by a .222 rifle while the defence alleges the same to have been the result of the shot fired by .12 bore gun. For convenience the description of the injury as it appears in post-mortem report is reproduced below:-- "A lacerated wound 1/2 x 1/2 c.m. circular in shape going deep w inverted and blackened, margins on front and upper part of right side, chest.

8. The dimension of the injury and its nature, if examined critically would reveal that this injury was so serious as the same proved sufficient to cause death of the deceased in the ordinary course of nature. Its dimension also discloses that the metal which had pierced the body of the deceased had lot of force behind it as the same had caused sin-le aperture with maximum damage to the internal organs, which normally would not have been the result of striking of single stray pellet. I, therefore, do not feel pursuaded to believe that there was any contradiction in the ocular evidence qua the medical evidence. '

9. Besides this, the case of the prosecution stands supported by the statements of the eye-witnesses including one Zafar lqbal who was injured during the occurrence. All these P.Ws. have stated with one voice that the petitioner was armed with .222 rifle and had fired a shot at the deceased hitting him straight in the chest in consequence of which he succumbed to his injury f when he was being shifted to the hospital. Moreover the said rifle was recovered from the petitioner during the course of investigation and the same was sent to the Ballistic Expert, who could not ascertain as to when the said rifle was lastly fired. I have given my anxious consideration on this report but I do not think if the said report will have any fatal adverse effects on the case of the prosecution as both medical evidence or the Expert Report would be entirely in the nature of confirmatory or explanatory, of direct or other circumstantial evidence. This view gets support from the observation made by the learned Supreme Court of Pakistan in the case of Ghulam Mehdi v. The State cited supra which is as follows:-- "It is well-established that expert evidence, may it be medical or that of a Ballistic Expert is entirely in the nature of confirmatory or explanatory of direct or to her circumstantial evidence. But if there is direct evidence as in the instant case which is definite forthright and at the same time creditworthy, confirmatory evidence is not of much significance. It cannot, at any rate, outweigh the direct evidence unless it is for any reason deficient in quality."

8. I have also gone through the case-law cited at the Bar by the learned counsel for the petitioner, the same being distinguishable was not on all fours with the facts and circumstances of this case.

9. Prima facie there arc reasonable grounds to believe that the petitioner stands connected with the charges alleged against him, as such he was not entitled to the concession of bail at this stage.

10. Under the above circumstances and without going deep into the merits of the case, lest it may prejudice the cause of either side, I decline to allow bail to the petitioner. Consequently his petition for bail merits dismissal, which is accordingly dismissed. H.B.T./I-35/L Order accordingly.