1983 PLP 355 (SCMR)

SHAFIUR RAHMAN, J.‑The three petitioners alongwith two others are charged under section 302/307/149, 148, P. P. C. on F.

1. R. No. 174 Police Station Pattoki, District Kasur dated 28th June, 1981. They seek leave to appeal against' the judgment of the Lahore High Court dated the 29th November, 1982 and 3rd of October, 1982 whereby bail was denied to them. On the 28th of June, 1981 at about 10 a.m. in the limits of Chak No. 68, Dukh Naroki, Police Station Pattoki, District Kasur, Muhammad Sharif was fired at and given dagger blows and done to death. Hanif Tahir also received fire‑arm injuries. Muhammad Tufail who has not applied for bail was charged for causing the fire‑arm injury while the three petitioners for causing the dagger blows. Qasim Ali was admitted to bail by the Sessions Judge on account of his old age and has no grievance left in the matter for the present. The application of the petitioners for bail came up before a number of fudges and on a number of days for hearing. It is not necessary to recount here the reason therefore. The fact remains that when the petition was set down for hearing before another Judge, the learned counsel for the petitioner withdrew from the case on which, as requested by him, a notice was served on the petitioners who were confined in jail. After such notice their application for bail was heard by the learned Judge on the 3rd of October. 1982 in the presence of the counsel representing the State. The three petitioners were refused bail on the ground that their names are mentioned in the F. I. R. and specific roles have been attributed to them. Sub sequently the learned counsel for the petitioners obtained a fresh authoriza tion froth the petitioners and moved an application for rehearing of the matter of bail after recall of the order refusing them bail. The learned Judge rejected this application as proper disposal of the application after notice to the petitioners bad already taken place. The learned counsel for the petitioners contended with great force and by reference to a number of authorities on the subject of medical jurispru dence like that of Modi and Taylor that after having received the gunshot wound from a close range, leaving signs of charring and blackening on his skirl, and tearing the heart the deceased could not have lived a second longer and the dagger blows attributed to the petitioners would have landed on a dead body. On this assumption it is said that the petitioners would be guilty of no offence, for they inflicted dagger blows on a dead body. He has also contended that the witnesses are highly inimical and it is more (sic) likely that the complainant was not present at the time of occurrence because in that case he would have certainly intervened to protect his uncle rather than to allow him to be so ruthlessly murdered. Having heard the learned counsel for the petitioners and examined the report of the post‑mortem, we consider that the appreciation of the medical evidence which the learned counsel wants at this stage cannot be undertaken and must be deferred to a date when the doctor has been examined and cross‑examined on the question in issue. Theoretically it may not be possible to differ with the learned counsel for the petitioners but the case deals with a concrete situation and the law points arising therein have to be resolved by reference to the witness competent to give expert opinion in the light of facts and authoritative books referred to by the learned counsel for the petitioner. As regards the other aspect of the case, we find that the petitioners have been charged in the F. I. R. for having inflicted dagger blows on the deceased. The dagger injuries were found on the person of the deceased. It is, as observed by the High Court, somewhat premature in view of such allegations and material on the record to admit the petitioners to bail. Their petition for leave to appeal is therefore dismissed. However, the petitioners may, if so advised, move a fresh petition after the doctor has been examined or the statutory right in the matter of bail can be of avail to them. Petition dismissed. Petition dismissed.