ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
CR. B.A.NO.S-611 OF 2012
DATE ORDER WITH SIGNATURE OF JUDGE
22.10.2012.
Mr. Aghis us Salam Advocate for applicant.
Mr. Shahzado Saleem, A.P.G. for the State.
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SALAHUDDIN PANHWAR,J- Applicant Tashif Memon seeks post arrest bail in crime No.97/2012 of P.s. Bhitai Nagar for offence u/s 324, 34 PPC.
2. Facts, leading to this application are that due to monetary dispute, accused Tashif Memon, Mukhtiar Khoso, Mushtaque Jamali and Adnan Shaikh, abused the complainant while accused Tashif Memon in violent behavior, caused straight fire shot upon Imran Khemtio, which hit him at his left thigh, thereafter applicant along with other accused escaped away.
3. Learned counsel for the applicant has inter alia contended that applicant has been booked due to money dispute with the complainant in false case; alleged injury attributed to the applicant is on thigh of complainant, which is not on vital part of the body; it is alleged that applicant has attempted to cause murder of the complainant but from record it is evident that though applicant was armed with weapon but he has not repeated the fires, therefore, ingredients of intention to commit Qatle-e-amd are lacking in this case; ocular account is that applicant caused fire shot injury on right thigh of the complainant but medical certificate shows only one injury on buttock, and he has relied upon case of Muhammed Ayub v. Ubedullah and others reported in PLD 2004 SC 479.
4. On the contrary, State counsel has maintained that the applicant is nominated specifically in the FIR but did not controvert about contradiction of medical evidence with ocular version.
5. Heard counsel. Record perused.
6. It is matter of record, that monetary dispute was in existence between the complainant and applicant; ocular version is in contradiction with medical report, as per statement of victim/complainant and Pws, injury was caused on thigh but medical report reveals that injury was caused on buttock, this aspect apparently makes this aspect of prosecution case open to further probe. No doubt, medical report can only identify the seating and nature of injuries and weapon used in crime but cannot identify the identity of culprit but in instant case medical report is in contradiction of ocular version, this apparent inconsistency can be termed as “conflict” in medical and ocular version hence tentatively creates a reasonable doubt and since it is settled principle of law that benefit of doubt even at bail stage can be extended in favour of accused persons. Moreover, alleged injury is not on vital part of body of victim and it is not a case of prosecution that applicant repeated the fire shots upon the complainant/victim though he was at mercy of the applicant/accused hence this also opens a room towards application of section 324 of PPC; applicant is not required for further investigation as case is pending for trial and in almost similar circumstances honourable Supreme Court, in case of Muhammad Ayub v. Ubedullah khan has said that:-
“A perusal whereof indicates that allegedly the petitioner fired upon the outer side of the right side of leg’s middle part of injured Shahid Iqbal , therefore prima facie , we are of the opinion that he had no intention to fire upon the vital part of the injured shahid iqbal for the purpose of launching murederous assault”
7. Keeping in view of given circumstances, and dictum laid down by honourable supreme court, it is apparent that applicant has succeeded in making out a case for further inquiry as contemplated under section 497(2) Cr.P.C and benefit of doubt can be extended at this stage in favour of applicant, thus, applicant is entitled for bail.
8. By short order dated 22.10.2012 applicant was admitted to bail and these are the details reasons thereof, the observations made hereinabove are tentative in nature and will not prejudice the merits of the case.
JUDGE
A.K