P L D 1977 Peshawar 15 (PLP)

Muhammad Shafique Khan for Petitioner. Jan Muhammad Khan for Respondent. Miss Suraya Jabin for A.-G for the State. Date of hearing: 12th November 1976. Ghufran son of Rahmat resident of Katakhat, Police Station Rustam, is accused in a murder case of Ghafoor Rahim, who was released on bail by the learned Additional Sessions Judge observing: - "The occurrence took place at Deegar time (at 3-00 p. m.) but the report was lodged in the police station after eight hours of the occurrence which is hardly at a distance of 6-7 miles from the spot. According to the site plan, accused fired at the victim from the front side at a distance of 5-6 paces. The presence of accused is shown on the thoroughfare. The complainant party was going to east. In the site plan at point No. 4, which is behind the place of deceased, towards the north pellet marks were noticed on mulberry tree. It was contended that the presence of pellet marks on the mulberry tree makes the whole case doubtful, because there was hardly any necessity in the case to fire in that direction. A perusal of medical report would also reveal that right half of the skull was broken and blown off. The visible delay in the report coupled with the injury on the head of the deceased, when considered in the light of the site plan and the allegations of the witnesses, make the case arguable for the purpose of bail.

2. The following in the F. I. R. is important to note: - The pellet mark does not conclusively run counter to the prosecution version, for, neither pellet was found embedded in the mulberry trees nor any was found in the close vicinity. Prima facie there being more than one fire shot it can hardly be assumed that all the shots were fired from one and the same place in the same direction. Moreover, the spreading of pellets after leaving the muzzel of gun is another factor bringing about similar results; and the spread of pellets depends on the choke of the gun used, the cartridge used and the charge contained in the cartridge. The directions visualised in the impugned order are not diagnolly opposed therefore, the pellet marks, if any, on the tree in question, unless probed further would not lead to the only conclusion of casting doubt on the ocular charge.

3. The delay as considered inordinate reflecting the prosecution case only if it remains unexplained, depending on the witness to be examined. The division of time in village life requires to be construed in the manner prevalent in the village life and the time before evening in Pushto and after is termed as therefore, in determining the time the afore-mentioned division should be kept in view, unless deposed to by the witness in terms of hours. Whether or not there was say delay I should not be understood, to mean either way. Keeping in view the charge against the respondent by the person who claims to have witnessed the occurrence, I do not find justification for maintaining the impugned order which is accordingly vacated, and the respondent is taken into custody to be committed to prison. S. Q. Bail cancelled