1997 P Cr (PLP)

S, 497

Penal Code (XLV of 1860), S.302/34

Bail

Contradiction in ocular account of occurrence and medical evidence could not make it a fit case for bail without examining the evidence at the trial

Accused had been assigned a specific role in the F.LR. for committing the double murder in pursuance of a motive

Bail was refused to accused in circumstances. -[Evidence]. 1997 SCMR 32; 1984 SCMR 530; 1985 PCr.LJ 247 and 1996 SCMR 555 ref. Muhammad Fayyaz Ahmed Khawaja for Petitioner. Muhammad Asif Chaudhry for Noman Nadeem. Qazi Ahmed Naeem for the State A case under section 302/34, P.P.C. was registered against the petitioner and others at Police Station Chauntra, Tehsil and District Rawalpindi for an occurrence which took place on 11-6-1996 at about 1-30 p.m. within the area of village Sihal. The F.I.R. was lodged on the same day at about 8-00 p.m. on the report of Sattar Shah in which Mst. Hussan Bibi and Ziarat Shah had lost their lives, whereas Muhammad Khan and Mst. Abida Yasmeen sustained fire arm injuries.

2. The bail is prayed on the ground that the medical evidence is not supported by the ocular account of occurrence given by the eye-witnesses; and that there is a cross-version for which separate complaint has been lodged against the complainant side which was aggressor and had fatally injured the aforesaid Muhammad Khan and seriously injured Mst. Abida Yasmeen from the petitioner's side.

3. The learned counsel for the petitioner contended that according to F.I.R. Mst. Hussan Bibi deceased had received fire-arm injuries but according to post-mortem report, she did not suffer any fire-arm injury. As such there was allegedly material contradiction between the eye-witnesses and the medical evidence. It was further contended that Mst. Abida Yasmeen was seriously injured whereas the real brother of petitioner namely Muhammad Khan was killed in the attack opened by the complainant side in the residence of petitioner. Hence the complainant's side being aggressor, it had become a case of further inquiry and the petitioner was entitled to bail on that ground. Reliance was placed on 1997 SCMR 32, 1984 SCMR 530 and 1985 PCr.LJ 247 (Karachi).

4. The learned counsel for the State opposed the bail application on the ground that the medical evidence cannot be given any weight till the evidence of eye-witnesses is recorded at the trial. The deeper appreciation about the merits of the case cannot be undertaken at this stage lest it may prejudice the trial. Reliance was placed on 1996 SCMR 555 to support the above proposition. It was further submitted that since the petitioner was named in the F.I.R. and positive role was attributed to him for firing at the deceased persons while armed with a pistol, therefore, prima facie he was guilty of an offence under section 302, P.P.C. punishable with death or imprisonment for life. It was, therefore, contended that the petitioner was not entitled to bail at this stage.

5. I have considered the foregoing submissions and find that at this stage only tentative assessment of the evidence should be made without entering into A the deeper appreciation of the merits of case. In criminal matters, the principle of universal application cannot be laid down because each and every case stands on its own facts. Hence the contention that there is some contradiction between I 8 the ocular account of the occurrence and the medical evidence would not make it a fit case for bail without examining the evidence at the trial. Apparently, the petitioner has been assigned specific role in the F.I.R. for committing the double C murder in pursuance of a motive alleged in the F.I.R. As such, he has no case for bail at this stage. The petition is accordingly dismissed.

6. The record of the challan case and complaint case shall be sent back to the Court concerned. N.H.Q./M-293/L Bail refused.