1985 PLP 2018 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑By these two petitions leave to appeal is sought from the same judgment of Sind High Court, dated 15‑12‑1982 by which application filed by Abdul Ghani petitioner in Cr. P.S.L.A. No. K‑1 of 1983 was partly allowed, in that; out of six accused who were released on bail by the Sessions Judge, Badin, bail of only one accused, namely, Bachal, was cancelled. Abdul Ghani petitioner now seeks cancellation of bail of the other five accused, whereas Bachal accused has filed Cr. P.S.L.A. No. K‑10 of 1983 seeking leave to appeal from the order of cancellation of his bail. The incident in the case occurred on 17‑6‑1982 at 1‑35 p .m. in the Otaq of Ismail Khaskeli in Deh Kadh, three miles from Golarchi police station, Badin. It is said that while Abdul Ghani, Mooso, Ismail and Hote Khan were sitting in the Otaq, the six accused, namely, Bachal Mral, Haji Peeru, Muhammad Hassan, Ghulam Hussain and Hakeem came there armed with rifle, guns and hatchets. They abused the complainant party saying that they wanted to take possession of land. Thereafter, according to Abdul Ghani, the first informant in the case, "the accused fired straight at us from guns and rifles from a distance of 70‑80 paces; one of the bullet hit deceased MOOSO who fell down on the ground. Except for one fatal injury received by Mooso decease, the others were unhurt. After the culprits left, Abdul Ghani went to the police station and lodged the report of the crime at 3‑00 p, m, The Sessions Judge, Badin granted the request of the accused for release on bail for the reason that no overt act was attributed to three accused, namely, Muhammad Hassan, Ghulam Hussain and Hakeem who were armed with hatchets. As regards the remaining three this is what he observed: "The post‑mortem notes show that deceased mooso received one fire‑arm injury, which is not specifically attributed to any of these three applicants/accused. The doctor has not given definite opinion as to the type of fire‑arm weapon, which caused said injury. Furthermore, the medical evidence belies ocular testimony as the complainant has alleged in the F.I. R. that incident took place at 7‑00 a.m. on 17‑6‑1982 and that these three applicants/ accused have fired, with their respective fire arms simultaneously at them at the distance of 60‑70 paces. Whereas the medical evidence shows the time of death of deceased Mooso as 5‑00 a.m. and further it shows that the deceased received one fire‑arm injury with blackening. No one else from the complainant side received any fire‑arm injury, although it is alleged that all these three applicants/ accused fired straight at the complainant party. No empty has been secured from the Vardat. There is also delay in lodging the F.I.R. as the incident took place at 5‑00 a.m. and it was reported P.S. Golarchi at 3‑00 p.m. while the distance between the Vardat and police station is three miles, as mentioned in the F.I.R. The explanation given for such delay in the F. I. R. that the complainant first went to the S.P. at Badin who directed him to C.I.A. Police and from there the complainant went to Police Station Golarchi is unsupported. In this view of the matter, the case of these three applicants/accused requires further enquiry at the stage of trial. In this respect reference may be made to 1980 PCr.LJ 507, the authority cited by the learned Advocate for the applicants/ accused. The learned D.P.P. concedes to the grant of bail to all the applicants/ accused." On the application for cancellation of bail granted to the accused, learned Judge in the High Court was impressed by the plea the "Bachal Khan was mentioned as main accused in the F.I. R. and he was attributed having fired his rifle at the deceased." As regards the medical evidence that there was blackening on the injury suffered by the deceased, which according to the defence plea belied the prosecution version that the assailants were at a distance of 60‑70 paces. Learned Judge took the view that "the evidence in this regard to distance from which rifle was fired cannot be considered specially at this stage to be of any indication with regard to commission of offence specially when the wound caused was rifle wound." Learned Judge also relied on a passage from Taylor's Principles and Practice of Medical Jurisprudence (Volume I) Twelth Edition at page 290 which is to the effect that rifle‑shot wound from a few hundred yards is likely to cause explosive effect. According to learned Judge, explosive effect blackening could be possible. On this view of the case, learned Judge held that "grant of bail to the main accused Bachal Khan was not justified", and he accordingly cancelled his bail, "but allowed the other accused to continue on the same bail". Mr. A.K. Brohi, learned counsel appearing for petitioner Bachal submitted that the learned Judge in the High Court has misconstrued the passage from Taylor's Book, in that, he has equated the explosive effect of a tire‑arm on a human body with blackening on the injury. Learned counsel further submitted that in the face of the medical evidence so far available in the case that the injury on the deceased was caused by "a fire‑arm", learned Judge ought not to have drawn a conclusion of his own that the injury was caused by a rifle and not a gun. Learned counsel finally submitted that since the reasons that persuaded the learned Sessions Judge to release the accused on bail are very cogent and proper, the High Court should not have interfered with the discretion exercised by him. In this behalf reliance was placed on the decision of this Court in "Falak Sher and another v. The State 1979 SCMR 103." On the other hand, Mr. Abdul Hafeez Memon, learned counsel for the petitioner Abdul Ghani submitted that since the High Court has exercised discretionary jurisdiction on the basis of material produced by the prosecution, interference by this Court would not be justified. Learned counsel on the other hand emphasized that the bail granted to the co‑accused should have been cancelled. After hearing the learned counsel for the parties in the light of the record before us, we find that the reason that persuaded the learned Judge in the High Court for cancelling the bail of Bachal accused was that he was the main accused, and that he alone was armed with rifle, and that the injury suffered by the deceased was caused by a rifle. For this view the material before the learned Judge consisted of the F.I.R. and the post‑mortem examination report. There is nothing in the F.I.R. to indicate that Bachal was the main accused, and so far as the medical evidence is concerned the post‑mortem examination, its relevant entries therein, shows that the injuries caused to the deceased was from a fire‑arm "with blackening." In the absence of other medical evidence learned Sessions Judge had not distinguished the case of Bachal accused, and the discretion exercised by him cannot be said to be improper so as to call for interference by the High Court. On this view of the case we convert Criminal Petition for Special Leave to Appeal No. 10‑K of 1983 into an appeal and allow it with the direction that petitioner Bachal shall be released on bail on his furnishing one surety in the sum of Rs.15,000 and on executing personal bond in the like amount to the satisfaction of the Sessions Judge, Badin. Criminal Petition for Special Leave to Appeal No. 1‑K of 1983 is dismissed. M.I. Order accordingly.