1990 P Cr (PLP)

A.Q. Halepota for Applicant. Shaukat H. Zubedi, A.A.G. for the State. This application for bail has been filed by Dodo son of Khamoon, the applicant in a case registered, vide F.I.R. No.81/89 of Police Station Jhudo, under sections 302, 303/34, P.P.C.

2. According to the prosecution story, on 25th September, 1989 at about `Isha' time, the complainant Assan and his mother Mevi were sleeping in the courtyard of their house and Jaro, deceased, was sleeping over `Khara' of Chillies near their house, which is situated near watercourse No.3 in the land of Porho Gurgez. At about 2 o'clock he and his brother Jaro woke up on hearing some sound. The complainant on torchlight saw three persons, namely, Lakhano son of Mooso Tangri, who was armed with lathi, Dodo Tangri, who had a pistol and Mir Tangri, who had also a lathi. He raised cries. Deceased Jaro challenged the accused and reached near them when Dodo, the applicant above-named, fired at him from the pistol. The accused then started running away and Jaro also followed them. He, however, fell down near bridge of watercourse. In the meanwhile Panhwar came running and he also saw the accused on torchlight. Jaro having sustained fire-arm injury on chest had died.

3. The motive alleged in the F.I.R. is that about a month back, there was a quarrel between his brother Jaro and Lakhadino Tangri over a Punjabi boy's friendship. The elders had settled the dispute and decided that Jaro should migrate from the village. The complainant party, however, said that they would leave after harvesting the crop, whereupon Lakhano party said that they would not leave Jaro Oad.

4. After due investigation, the police submitted challan, wherein the applicant-accused was shown as an absconder. He, however, according to the learned counsel voluntarily surrendered before the Court on 14th January, 1990 and was remanded to judicial custody.

5. Mr. A.Q. Halepota, learned counsel for the applicant, submitted that no proceedings under sections 87 and 88, Cr.P.C. had been adopted in this case. The applicant was thus not an absconder. In this connection he cited 1986 P Cr. L J 1449, wherein it is held at page 1453 of the report, by Ali Madad Shah, J. (as he then was) that "For the purpose of consideration of bail, mere evasion of arrest for considerable time is a circumstance disentitling the accused from concession of bail in the light of the Supreme Court authorities quoted above." This case does not lend support to the contention of Mr.A.Q. Halepota. On the contrary, I think, it goes against him. He urged with vehemence that it was practically impossible for the complainant and the inmates of the house, to identify the assailants during the dead night at about 2.00 a.m. In support of his contention, he placed reliance on P L D 1978 Lah. 1060 and an unreported judgment of this Court in Criminal Bail Application No.426/82, dated 2nd June, 1982. It was next urged with vehemence by Mr. A.Q. Halepota that the version of the prosecution witnesses and particularly that of the complainant is contrary to the medical opinion inasmuch as the Doctor, who performed the post-mortem has opined that the deceased Jaro died instantaneously. Hence the complainant's statement in the F.I.R. to the effect that the deceased started running is absurd. The place of incident, the counsel so urged, is not near the house of the accused, but near the watercourse where the dead body of the deceased was found lying. The counsel further contended that there are no grounds to believe that the applicant/accused is guilty of offence with which he is charged and that there are sufficient grounds for further enquiry into his guilt, as contemplated by section 497(2), Cr.P.C.

6. Mr. Shaukat H. Zubedi, learned AA.-G. also conceded to the grant of bail to the applicant. He submitted that the medical certificate belies the version of the complainant. The doctor has specifically, opined that the deceased died instantaneously; whereas the complainant in the F.I.R. has stated that he chased the accused and fell down near the bridge.

7. I have given due consideration to the submissions made at the Bar. No doubt, in certain cases identification of the accused on torchlight is not possible but it cannot be taken as a general proposition that in all cases the identification on torchlight is an impossibility. In the instant case, the complainant has stated that one of the accused, namely, Lakhano was close to him and gave him lathe blow on his arm. He has further stated that deceased Jaro challenged the accused and reached near them when Dodo the applicant, fired at him. It cannot, therefore, in this case outright be said with certainty that the identification of the accused by the complainant was an impossibility. The use of the word "instantaneously" by the doctor in the post-mortem report, does not completely exclude the possibility of the deceased having followed the applicant a few steps after sustaining the bullet injury. It cannot be safely assumed at this stage either way, unless the doctor's evidence is recorded and he is made to explain it. In so far as the distance between the place where the deceased had fallen down and the `Kharo' of Chillies where he was sleeping would be ascertainable only after the evidence is recorded. At any rate, from the facts and circumstances of this case, I am convinced that there appear reasonable grounds for believing that the applicant has been guilty of an offence punishable with death. I may, however, hasten to caution that the above tentative observations will not influence the learned trial Court in any manner while deciding the case on merits.

8. In the result, I do not find any good reason to allow the bail application. The applicant-accused shall, however, be at liberty to repeat the bail application before the learned trial Court after the evidence of the Doctor and the eye-witnesses is recorded. N.H.Q./D-81/K Bail application dismissed.