ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Bail Appln. No. 27 of 2010.
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Date |
Order with signature of Judge |
For hearing.
02.02.2010.
Mr. Safdar Ali G. Bhutto, Advocate for applicant.
Mr. Mohammad Ashique Dhamraho, Advocate for complainant.
Mr. Naimatullah Bhurgri, State counsel.
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F.I.R No. 29/2009, was registered at P.S Arija, on 22.5.2009. After narrating previous enmity, the complainant stated that during the fateful night, when the complainant party reached near the minor canal, in the light of torch they saw four persons armed with firearms present in the bed of canal, one of them being present applicant who was armed with shotgun, and as for as co-accused are concerned they were also duly armed. Co-accused Khadim Hussain is alleged to have raised hakal, stating that brother of complainant will not be spared that day. Thereafter, it was stated in the F.I.R that co-accused fired with his shotgun, which hit brother of the complainant on left arm and above left nipple. The present applicant is alleged to have made straight fire with his shotgun, which hit brother of the complainant on left knee, who fell down. The accused persons raising noises went away. The complainant saw that his brother had by that time expired. He left his other brother with the dead body and went to lodge the report.
Bail application was filed in the trial Court below and that bail application was dismissed for the following reasons:
“After hearing learned counsel for parties and having gone through case file, I, find that name of present applicant transpires in F.I.R. F.I.R of the incident has been lodged promptly. There is specific allegation against pres3ent applicant that he fired from his gun which hit deceased Ali Nawaz on his leg, who succumbed to his injuries on spot. Prosecution witnesses in their statements under section 161 Cr.P.C. have also supported the version of complainant as per F.I.R. Police has also recovered empties from place of incident. No doubt co-accused Hussain Bux has been granted bail by this Court on the ground that his name was not mentioned in F.I.R, nor any role was assigned to him. But case of present applicant is not identical one with case of co-accused Hussain Bux. Therefore, rule of consistency does not apply with the case of present applicant.”
Learned counsel for the applicant submitted that no crime weapon has been recovered and even the torch which is stated to be source of identification has not been recovered. He further submitted that in the F.I.R it is stated that fire allegedly made by the present applicant hit left knee of the deceased and in the medical report there is no injury on the left knee of the deceased. He also submitted that statements under section 161 Cr.P.C. were recorded after 18-days. Learned counsel relied upon Syed Abdul Baqi and others Vs the State (1997 SCMR 32), Zulfiqar Vs the State 2002 P.Cr.L.J 791), and Mohsin Vs the State (1997 P.Cr.L.J 159).
Learned counsel for the complainant submitted that F.I.R was promptly lodged, the applicant was named in the F.I.R and specific role has been ascribed to him in the F.I.R. He further submitted that statements recorded under section 161 Cr.P.C. fully implicate the present applicant. He submitted that non recovery of crime weapon is due to inefficiency and slovenliness of police. Learned counsel submitted that in the case of death, it is immaterial whether the injury is caused on the vital parts of the body or on non vital parts of the body. He relied upon Allahyar and another Vs the State (2006 P.Cr.L.J 1748).
Learned counsel for the State opposed grant of bail. He submitted that six pellets have been recovered from body of the deceased.
I have considered the submissions made by the learned counsel and have also gone through the record.
In the postmortem report injuries are described and as for as injury to the knee is concerned, there is one injury 1 ½ cm x 1 ½ cm muscle deep near right knee. There is no exit wound in respect of this injury. Contention of the learned counsel for the applicant was that in the F.I.R it is stated that left knee was injured and in the medical report it is stated that right knee was injured. He submitted that, therefore, there is inconsistency between ocular evidence and medical evidence and benefit of such inconsistency, certainly at bail stage must go to the accused. The first case relied upon by the learned counsel was Mohsin Vs the State (1997 P.Cr.L.J 159). This case was decided by a single bench of this Court (by Mr. Justice Zafar Hussain Mirza, as his lordship then was). In the case in the F.I.R it was stated that deceased before dying told his uncle that applicant had hit him with iron rod and co-accused had stabbed him. The ground urged in support of bail application was that specific part assigned to the applicant was that he inflicted “Danda” blow upon the deceased on his back, whereas medico legal report did not bear out prosecution case in so for as no such injury was found on the person of the deceased. It was on account of this clear inconsistency between ocular and medical evidence that the Hon’ble single Judge held that the case fell within purview of clause (2) of section 497 Cr.P.C. In the case of Mohsin the allegation was that “Danda” blows were given on the back and the injuries were found to be on the thigh and eyebrow. In the present case the question is whether injury was received on the right knee or on the left knee. In Zulfiqar case (supra), a case decided by a division bench of this Court, the applicant was alleged to be armed with rifle while co-accused was armed with kalashnikov and pistol. Firing was alleged. The Court notices that record showed that while applicant Zulfiqar was armed with rifle, recovery of empties revealed that 15-empties of 7.62 bore and 05-empties of 7 m.m were secured from the place of occurrence. The medical evidence showed that all six injuries were caused with gun while ocular evidence alleged that injuries were caused with rifle. It was in view of this discordance between ocular and medical evidence that bail was granted. Again in this case the question was whether gun was used or a rifle was used, whereas in the present case both ocular and medical evidence are at one on the point that gun was used and difference is only between left knee and right knee. In Syed Abdul Baqi Shah’s case (Supra), it was held that the petitioner gave repeated stick blows on the head of the deceased but no injury whatsoever, blunt or sharp, were found on the head of the deceased by the doctor who medically examined him. Benefit of conflict between ocular and medical evidence was given to the accused.
On the other hand case law relied upon by the learned counsel for the complainant, Allahyar and another Vs the State (2006 P.Cr.L.J 1748), was decided by Mr. Justice M.A Shahid Siddiqui acting as single Judge at Lahore High Court (at present an Hon’ble Judge of the Supreme Court of Pakistan). It was observed that medico legal report revealed that firearm was got examined by the police immediately after the occurrence and matter has been brought to the notice of the police on the day of occurrence. Consequently delay if any in registering the case reflects on the conduct of police. Prosecution witnesses in their statements under section 161 Cr.P.C. had fully supported the allegations against the accused and injury had specifically attributed to the accused. The facts of the case were that as per F.I.R complainant stated that while he accompanied by his son and two others was on their way to village when all of sudden, the two petitioners before High Court, alongwith three other persons appeared from the bush. Petitioner is alleged to have fired two shots hitting the deceased on the inner side of his right leg and left wrist, whereas second petitieonr caused firearm on the back side of the hand of the deceased. Remaining accused also caused injuries with their respective weapons. The injured person subsequently succumbed to his injuries. The High Court noted that challan had been submitted and the trial has commenced and tentative assessment of the record showed that prima facie there was ample evidence connecting petitioners with crime. Consequently bail application was dismissed.
Contention of Mr. Bhutto that since in the F.I.R it is alleged that injury was caused on the left knee and the postmortem report stated that injury was caused to the right knee and therefore, there is discordance between ocular and medical evidence, in my opinion is quite distinguishable from the discordance noticed by the Supreme Court in Abdul Baqi Shah’s case and this High Court in Zulfiqar’s and Mohsin’s case. This is not case of a different weapons or of injury on the back or on the front. It is only question whether it was left knee or right knee and in the heat of the moment it may not be possible to pinpoint the knee in question.
However, the injury alleged to have been caused by the applicant is injury on the knee and the medical report states that it is only muscle deep. F.I.R reveals that first it was co-accused Khadim Hussain who fired with his shot gun and one of the pellets went inside the thorax cavity above the left nipple and medical report is clear that death was caused by injury to vital organ such as heart and lung as a result of fire caused by co-accused Khadim Hussain. The medical report also states that, that injury was sufficient to cause death in the ordinary course of nature. The accused was arrested on 10.06.2009. Challan has been filed on 25.6.2009, but charge has not yet been framed. Role ascribed to applicant is of firing on non vital parts of the body. In view of the above facts, I allow this bail application. Let applicant be admitted to bail for a sum of Rs.300,000/- (three lacs), with P.R bond and one surety in the like amount to the satisfaction of the trial Court.
Judge