2013 PLP 156 (YLR)

SALAHUDDIN PANHWAR, J.

Applicant Ameer Bux alias Kuraro has moved this Application under section 497, Cr.P.C, in Crime No.212 of 2011 of Police Station 'B' Section, Khairpur, registered for offence under sections 302, 34, P.P.C. The relevant facts leading to the case are as set out in F.I.R., are that under:-- "Complainant is labourer, comp-lainant and his brothers had feud with Mashooque and Ghulam Nabi alias Gulu Maitlo and others, who had committed murder of comp-lainant's brother Imtiaz Hussain. On fatefull day at noon time, complainant along with his brothers were returning back to their home. When they reached at near shop, Azizullah Maitlo,

2. Zulifquar alias Gudu, both sons of Ghulam Nabi alias Guloo,

3. Rahib,

4. Sahib, both sons of Allah Dino, by caste Maitlo, resident of Sim Nali, Luqman, all were armed with Pistols came running towards them. Meanwhile the accused Amir Bakhsh alias Kuraro with intention to commit murder opened fire with Pistol, which hit to Gulzar Ali, who raised cries and fallen down, and accused Zulifqar alias Guddu also opened fire upon him, which hit him on left leg and accused Rahib, due to fear of weapons they remained silent, then all the accused ran away towards western side with their weapons. Then complainant saw his bother Gulzar Ali had sustained fire injury from neck side, blood was oozing, thus he succumbed the injuries, then while leaving the above witnesses for protection of dead-body, complainant lodged F.I.R. The learned counsel for the applicant/accused has inter alia contended that though the applicant is specifically named in the F.I.R. but this is a case of conflict between medical and ocular evidence; according to the ocular evidence the fatal injury was caused by the applicant to deceased Gulzar on the right side of his neck whereas the postmortem report shows the said injury on the upper side of the chest, same is a material conflict between ocular and medical evidence, such aspect can be considered at bail stage; according to the prosecution case, the F.I.R. was lodged on 25-10-2011 at 1330 hours but the postmortem report reflects that the dead body was received on same date at 1-20 p.m. In support of such contention, he has relied upon the case law reported as Syed Abdul Baqi Shah v. The State (1997 SCMR 32) and Moeen Butt v. The State (2004 PCr.LJ 545). Conversely the learned counsel appearing for the complainant has contended that the applicant/accused is specifically assigned the role in the F.I.R.; recovery of 2 empties of pistol has been effected from the place of wardat and during investigation, the police has also recovered pistol from the applicant; prior to this incident, one Imtiaz Hussain the brother of complainant was also killed by the father of applicant co-accused Ghulam Nabi alias Gullu, who is still absconder and this is a case of brutal murder. In support of such contentions, he has relied upon the case-law reported as Syed Mahboob Shah v. The State (1995 SCMR 1099) and Syed Abdul Baqi Shah v. The State (1997 SCMR 32). Learned A.P.-G. appearing for the State has adopted the same arguments as advanced by the learned counsel for the complainant and has vehemently opposed this bail application and relied upon the case reported as Amanullah v The State (PLD 2009 SC 542). Heard the arguments of the learned counsel for the respective parties and perused the material available on record with their assistance. Applicant's counsel has mainly argued only one ground that there is a conflict between ocular and medical evidence and he has emphasized that medical evidence negates the ocular version. To decide this aspect of the case I have given my careful examination to the ocular version and post mortem report. According to ocular version injury was caused on the right side of neck of the deceased and it will be more appropriate to reproduce such portion of the F.I.R. 'we went close to my brother Gulzar Ali and saw fire shot injury from right side of neck and blood was oozing' while the post mortem report shows the seat of injury as over the right upper part of chest at the level of IInd intercostals space near anterior ancillary line. Post mortem report also reveals that fatal injury was caused by fire-arm. From the bare examination of F.I.R., mashirnama of dead body and postmortem report I am not in agreement with contention of the learned counsel for applicant/accused that apparently there is any conflict between medical and ocular evidence. It may be added here that it should not be expected from a brother to note down and detail the exact location of injury to the police when he is reporting the matter to police within thirty minutes of incident i.e. having seen his brother bleeding. The slightest difference of inches about the seat of injury cannot be termed as conflict in medical and ocular evidence. The record shows that complainant stated the injury to be fire-arm which the post mortem supports, therefore, the plea of the applicant/accused regarding conflict in medical and ocular accounts carries no weight. The authorities referred to on the ground that benefit of ocular and medical evidence can be extended to the accused, are distinguishable to the facts and circumstances of the present case as it is also a settled law that in criminal administration of justice, every case is to be decided on its own merit. The record further shows that the present applicant has been assigned specific role of causing fatal shot to the deceased and the F.I.R. was lodged within 30 minutes of the incident; the pistol was recovered from the possession of the applicant during the course of investigation, such recovery is admissible under Article 40 of Qanun-e-Shahadat Order, 1984 hence prima facie the applicant/accused is linked with the offence with which he stands charged which falls within meaning of the section 497(1), Cr.P.C. Since the applicant/accused has failed in bringing his case out of subsection (1) to subsection (2) of section 497, Cr.P.C. hence his plea of bail, at this stage, merits no consideration and same is hereby dismissed. These are the reasons of short order dated 27-8-2012; however observations made in this order are tentative in nature and shall not affect upon the trial of case. MWA/A-93/K Bail refused.