' Briefly stated the facts of the prosecution case are that on the day of the incident due to some dispute regarding elections between the accused party and the complainant party, the former confronted the latter being fully armed with T.T. Pistols. Applicant Munawar Ali allegedly shot dead deceased Shahid Farooque whereas the other accused also opened fire at the complainant party with the intention to kill them but fortunately they escaped. Thereafter the accused party went away towards their houses while raising cries as a number of persons had gathered at the scene.
2. On the basis of the foregoing facts Mr. Qurban Ali Chohan has firstly submitted that this is a case of two versions since according to the counter F.I.R. Lodged by the accused party, the complainant party had surrounded the house of the accused Munawar Ali and had launched the attack on the latter which is borne out by the fact that in both the crimes the deceased's body is shown lying outside the house of the applicant which is also supported by the memo. Of the place of incident.
Per learned counsel the counter F.I.R. Which was lodged on 11-10-2002 at 17-30 hours was delayed by 18 hours as due. To the attack on the accused's family, they all had to shift to their relatives home. Further more, the counter version is supported by the 164, Cr.P.C. Statement of the ladies belonging to the accused's family which was again delayed as the male members of the family were in jail and hence the statements were given once they were bailed out.
3. Next learned counsel has submitted that one revolver was recovered from the applicant/accused on 15-10-2002 viz. Five days after the crime whereas both in the F.I.R. As well as the 161, Cr.P.C. Statements of the eye-witnesses and their deposition in Court the accused are said to be armed with pistols.
4. Next, per learned counsel, according to the medical report one fire arm injury was available on the head of the deceased from which a bullet had been recovered, however, the letter "b" had been over written on the letter "p" which would prima facie establish that a pellet was recovered.
Furthermore, per learned counsel, the time in the medical report of receipt of the dead body has been changed from 7-00 p.m. To 8-00 p.m. And the time of the beginning of post-mortem has been changed from 9-45 to 8-45 p.m. And the ending of the same from 11-45 to 10-45 p.m. Hence, learned counsel has submitted that prima facie the medical report does not support the ocular account which has created sufficient doubt in the matter the benefit of which should go to the accused even at this stage.
5. Next learned counsel has submitted that per the ballistic report the empty of the revolver recovered from the scene matched the revolver recovered from the accused which is quite strange since normally it is not possible to recover a revolver empty as it does not eject the same like a pistol. Secondly, the ballistic report itself does not say as to how the revolver and empty were received and from whom. Finally, learned counsel has submitted that per the medical report the bullet/pellet recovered from the deceased's brain was sealed in a plastic bottle and given to the concerned Police Station. However, the ballistic report does not mention the receipt of the bullet/pellet in a sealed bottle from any police authority. In this connection learned counsel has also submitted that there is a delay of five days in the despatch of the revolver and empty to the ballistic expert which has not been explained at all.
6. Next learned counsel has submitted that all the eye-witnesses are the relations of the deceased and there is no explanation as to why no independent eye-witnesses were examined by the police.
7. Finally, per learned counsel, even if the eye-witnesses have been examined in this case this is no ground to deny bail as per settled case law.
8. In support of his submission learned counsel has relied upon:-- Mitho v. The State (1978 SCM R 231), Shoaib Mehmood Butt v. Iftikhar-ul-Haq (1996 SCM R 1845), Muhammad Iqbal v. The State (1989 Cr.LJ 1838), Sufian Shaikhani v. The State (2003 Cr.LJ 855), Qazi-ur-Rehman v. State (1997 PCr.LJ 1612), Brig. (Retd.) Imtiaz Ahmad v. Federation of Pakistan (1988 PCr.LJ 2051), Gul Muhammad v. The State (1974 PCr.LJ 400), Muhammad Ismail v. Muhammad Rafique (PLD 1988 SC 585), Abdul Baqi Shah v. The State (1997 SCM R 32) and Muhammad Hanif v.
Manzoor (1982 SCM R 153).
9. On the other hand, Mr. Rasheed A. Qureshi appearing for the State has opposed this application on the ground that the specific role of murdering the deceased has been assigned to the applicant/accused in the F.I.R., the 161, Cr.P.C. Statements of the eye-witnesses as well as their depositions in Court. As regards the delay of five hours in lodging the F.I.R., per learned counsel, this has been sufficiently explained since the P.Ws. Had taken the deceased first to the hospital in an injured condition where he died and then the postmortem was conducted and finally the F.I.R.
Lodged. With respect to the counter F.I.R., lodged by the accused party, learned counsel has submitted that this has been done only in order to create a defence in a malicious manner and no explanation was given for the delay as the said F.I.R. Regarding the same incident was lodged 20 hours thereafter. Finally, per learned State counsel the detailed appreciation of the medical evidence and the ballistic report etc., should be left to the trial Court since at this stage ibis exercise cannot be carried out. In support of his submissions learned State counsel has relied upon:-- Badshah Gul v. The State (1999 PCr.LJ 691).
10. Mr. Aftab Ahmed Warriach appearing for the complainant has fully supported the learned State counsel. According to him the delay of five hours in lodging of the F.I.R. Has been sufficiently explained which in any event is supported by the prompt recording of 161, Cr.P.C. Statements of the eye-witnesses which was done immediately thereafter. As to the counter case, he has submitted that this is hardly believable as no explanation has been given for the delay in lodging of the F.I.R.
Itself. Secondly, there is no mention of the accused partys' womenfolk being maltreated either in the F.I.R. Or the 164, Cr.P.C. Statements of the eye-witnesses. However, this is mentioned in the challan, which is an improvement upon the accused's case.
11. Next, learned counsel has submitted that per the 164, Cr.P.C. Statement of D.W. Mohsin Ali the mob attacked the house of the applicant after the deceased was lying in an injured condition in front thereof. Hence, there is no question of the applicant having acted in self-defence. So also per learned counsel the plea of self-defence cannot be taken at the bail stage for which he has cited Liaqat Ali v. The State (2000 SCM R 1438).
12. Next per learned counsel the over writing in the medical report, the lacunas in the ballistic report and the recovery of a revolver from the applicant though he was stated to be armed with a pistol can be explained by the concerned witnesses at the trial. At this stage, any discussion of these issues would amount to a deeper appreciation of the same and hence any findings on the same by this Court may embarrass the trial. In support of his submission learned counsel has relied upon:-- Haji Gulu Khan v. Gul Daraz Khan (1995 SCM R 1765), Mst. Parveen Akhtar v. The State (2002 SCM R 1886), Abdul Hayee v. The State (1996 SCMR 55) and Nasir Muhammad Wassan v. The State (1992 SCM R 501).
13. I have heard both the learned counsel and my conclusions are as under:-- .
14. It would be seen that the complainant and the eye-witnesses have totally supported the prosecution case regarding the incident whereby the applicant had allegedly shot deceased Shahid Farooque with a Pistol due to an election dispute between the parties which resulted in the latter's death. Such version is consistent throughout as appearing in the F.I.R., the police statements and the deposition of the witnesses in Court, even though they were put to lengthy cross- examination. As opposed to the ocular account, it appears that there is some over writing in the post-mortem report of the deceased inasmuch as in the word bullet a "p" is discernible which would perhaps suggest that the world "pellet" has been changed to "bullet". Accordingly, per learned counsel for the applicant, this would create a doubt in the matter as per the ocular account the applicant had used a pistol and not a gun. Such doubt is further compounded by the fact that a revolver was recovered from the applicant and not a pistol. In my opinion however, in the face of the consistent ocular account per the eyewitnesses, at this stage, appreciation of the apparent inconsistencies between such account and the medical evidence etc., would amount to a deeper probe in the matter which is not to be undertaken at the bail stage per settled law as laid down by the Hon'ble Supreme Court. Similarly, whether or not the revolver recovered from the Accused, empty recovered from the scene and bullet recovered from the deceased's head were sent in a sealed cover for the ballistic test, can again best be determined once the ballistic expert is examined by the learned trial Court. Consequently, it is yet premature to draw any conclusions in this regard from a perusal of the ballistic expert's report alone which in any event certifies that all the above articles were received in a sealed cover. As regards the case of Abdul Baqi Shah v. The State (supra) cited by Mr. Qurban Ali Chohan vis-a-vis a conflict between the ocular account and the medical evidence, it would be seen that there the Hon'ble Supreme Court found both these pieces of evidence entirely in conflict with each other. Per the medical version injuries were suffered by the deceased with a sharp edged weapon whereas according to the eye-witness account the accused was stated to have given repeated stick blows at the head of the accused. In the present case, it would be seen that per the medical evidence the deceased died due to a fire-arm injury to his head which is corroborated entirely by the eye-witness account in which the accused/applicant has been nominated. The discrepancy, if any, is with regard to the fire arm used i.e. Whether a pistol or a gun since there is some over writing in the post-mortem report which suggests that perhaps the word pellet has been changed to bullet. In my view such contradiction can best be resolved at the trial.
15. As far as the counter version is concerned, no explanation is forthcoming as to why the F.I.R. In this regard was delayed for over 18 hours. Learned counsel has tried to do this by submitting that the complainant party had attacked the house of the accused and hence every one had to seek shelter elsewhere. However, there is nothing on the record to substantiate this submission or for that matter to explain the delay in the recording of the 164, Cr. P . C .
Statements of the eye-witnesses.
Consequently, at this stage, the counter-version cannot be given much weight in view of the overwhelming eye-witness account unless and until the defence witnesses are examined which exercise would, of course, be carried out by the trial Court. As regards the cases cited at the bar by Mr. Qurban Ali Chohan, it would be seen that in the case of Mitho v. The State, the counter F.I.R. Had been lodged promptly and in fact in both the F.I.Rs. The time difference was only 30 minutes in which event the Hon'ble Supreme Court came to the conclusion that this was a case of further enquiry since it was yet to be determined as to who was the aggressor. The facts in the case of Shoib Mehmood Butt v. Iftikharul Hag (supra) are more or less the same. Similarly, in the case of Sufian Sheikhani v. The State, a learned Single Judge of this Court allowed the bail application since three different F.I.Rs had been lodged regarding same incident which were not too far apart in time.
So also in the case of Qaziur Rehman v. The State -(supra) a learned Division Bench of this Court again granted bail to the accused on the round that the prosecution witnesses had given a different version of the facts which is not the case in the present matter.
16. For all the foregoing reasons in my view this is not a fit case for bail and hence this bail application is dismissed. However, in the interest of justice the learned trial Court is directed to dispose of the matter within a period of three months from today.