' SHAHID AWNAR BAJWA, 3,- F. R. No,76 of 2009 was recorded at Police Station Waggan, District KamberShandadkot, on 29-5-2009, 4-30 p.m., for an incident alleged to have occurred on 27-5- 2009, at 5-30 p.m. Complainant was Mehar All and he stated that they had a running dispute with Ali Sher and others on the allegation of honour and as a consequence of which All Sher had sustained gunshot wounds and F.I.R. In this connection had been registered against the uncle of the complainant. On the eventful day, the complainant stated, when they were returning from Kamber in a van, they got off from van at Lalu city bus stop, when they saw Manzoor with a double barrel gun in his hand, Chakar (present respondent No,1) with gun in his hand, Khadim Hussain (present respondent No,3) with hatchet in his hand and Master Ali Sher (respondent No,2) with a Danda in his hand. All Sher instigated the others. Chakar and Khadim held uncle of the complainant by his arms and Manzoor shot two fires from his double barrel gun, which hit the uncle below the chin on neck. Uncle fell down and accused Khadim gave him hatchet blows on right side of his head and temple and Master Ali Sher caused Danda blows to the uncle of the complainant.
After F,I.R. Was registered, police submitted report under section 173, Cr.P.C. And showed Chakar and Master Ali Sher, respondents Nos.1 and 2, in column 2. However, the Judicial Magistrate did not agree with the police and ordered submission of challan. Challan was accordingly submitted. Pre- arrest bail application was filed on 11-8-2009 and it was dismissed on the same day. On the same day post-arrest bail application was also filed. It was taken up the next day and was allowed vide order, dated 12-8-2009. The relevant part of the order reads as under:- "This application is post-arrest bail of the accused persons, The learned counsel pointed out that the allegations of instigation and facilitating the crime, require adjudication as to determine vicarious liability. Apparently the case of the accused Manzoor, who is still absconding and that of others namely, Chakar, Ali Sher and Khadim Hussain, (the present accused) are not at par. Besides, the fact of being let off by the investigation authorities, also makes the said accused persons entitled to benefit of bail, as the case against them requires further inquiry. The DPP has no objection over the grant of bail to the accused persons, I therefore, grant bail to the accused persons, subject to furnishing solvent surety in the sum of Rs,50,000 (fifty thousands) with P.R bond in the like amount."
2. The medical examination report revealed the following injuries:- "Examination = External = . Dead body of middle aged person, healthy, Rigor Mortis and postmortem lividity present. Clothes-white Kameez, Baniyan and potro of mixed colours-all blood stained. Injuries= (1) Lacerated punctured wound (LPW) 2 cm x 2 cm x scalp deep over posterior part of the left parieto-temporal area of the skull, damaging the concerned bones, brain matter, upper part of the occipital area (Entry Wound), (2) and having exit over right parieto---temporal area of the skull bones, (3) Incised wound, 3 cm x 1 cm x muscle deep over anterolateral aspect of the neck, (4) Incised wound 3 cm x 1 cm x muscle deep over right side of the face, (5) Bruise 5 cm x 2 cm over back of the left shoulder, and (6) Incised wound 3 cm x 1 cm x muscle deep over back of the left forearm. Internal= Stomach health, containing semi-digested food particles, Heart-empty, bones plus blood vessels and muscles damaged over injury sites. Other organs-N.A.D. (Normal) "
3. Learned Counsel for the applicant submitted that on 15-7-2009 an application was filed for constitution of a medical board and that matter is pending before this Court. He, therefore, submitted that the medical report is not a reliable report. He submitted that axe had been recovered from Khadim Hussain. However, he conceded that there are no blood stains on it. He submitted that death had occurred due to axe wound. Learned counsel further submitted that after grant of bail the accused persons misused the facility of bail in that they lodged another F.I.R.
Against the complainant party. Lastly, the learned counsel submitted that reasons were not recorded by the Court below in the bail granting order. While concluding, the learned counsel submitted that an innocent person has lost his life and has been brutally murdered by the present respondents in collusion with absconding accused Manzoor. He, therefore, prayed that bail granted to the respondents Nos.1 to 3 be cancelled. Learned counsel relied upon a number of authorities, to which I shall refer in their due place.
4. Mr. Ali Nawaz Ghanghro, learned counsel for respondents Nos.1 to 3 submitted that it does not seem probable that two persons would hold a person on one side and the third person would fire at that person with a gun. He stated no one in his right mind would expose himself to such danger by standing on side of a person who is being aimed with a gun. He further submitted that the respondents Nos.2 and 3 were placed in column 2. He submitted that although opinion of police is not binding, but it certainly created a dent in the story of prosecution and benefit of such dent should have been and has been rightly given by the learned trial Court to the respondents.
Regarding recovery of hatchet, learned counsel submitted that the hatchet has been found not to contain any blood stain. He also submitted that injury is not attributed, in the medical report, to any injury caused by hatchet. Referring to post-mortem report, learned counsel submitted that either the complainant and his witnesses have not seen the incident or the incident has occurred in some other manner and new story is being put around it in order to rope in respondents Nos.1 to 3, who admittedly had enmity with the complainant party. He further submitted that medical report does not reveal any charring of the skin around the entry wound and, therefore, the gun must have been fired from, at least, a distance of four feet. Regarding request for appointment of medical board made by learned counsel for the applicant, Mr. Ghanghro submitted that it turns the case into a case of further enquiry and the applicants were entitled to the facility of bail and have been rightly enlarged on bail.
5. Mr. Nisar Ahmed G. Abro learned State counsel adopted the arguments of Mr. Ghanghro and supported the order of the Court below.
6. I have considered the submissions made by the learned counsel and have also gone through the case-law as well as the record.
7. The first case relied upon by the learned counsel is Abdul Hayee and 2 others v. The State, 1996 SCMR 555. In this case a murder took place within jurisdiction of Police Station Drigh, District Larkana. One Haji Roshan had given his daughter in marriage to one Abdul Khalique son of Abdul Hayee in lieu of marriage of his son with sister of his son-in-law. Abdul Khalique ousted his wife from his house and she was, therefore, living with the complainant. This caused grudge. On the day of incident, Abdul Hayee and three others, armed with shotguns and another person armed with a hatchet came to the spot in execution of their common intention to commit murder. A hakal was given. Abdul Hayee and his brothers fired from guns and killed Ahmed Ali. Bail was allowed by the Additional Sessions Judge, Kamber by holding that allegation against applicants was that they fired at the deceased, which allegation, according to the Additional Sessions Judge, was of general nature. Besides, ocular evidence was not supported by medical evidence. Validity of bail granting order was challenged in the High Court and the High Court allowed the miscellaneous application while observing that incident had taken place in broad daylight, three persons named as assailants are duly mentioned in the F.I.R. And corroboration was there by medical evidence and, therefore, the case was not fit for further enquiry. When the matter was taken to the Supreme Court, the Supreme Court observed "after recording evidence it is for trial Court to give weight to the prosecution evidence in its own wisdom. Time and again it has been stated by this Court that at bail stage evidence or parties could not be assessed/tested in depth." Second case relied upon by the learned counsel was Mst. Fatima v. Abdul Majid, 2004 YLR 400 Karachi. Facts of that case were that one Ayoob Bullar was murdered and case was registered against Majid Dahiri and others. Son of the complainant Ghulam Mustafa was on friendly terms with the party of Ayoob Bullar, due to which Majid Dahiri party was annoyed with him and asked him to discontinue his friendship. This led to some altercation, during which son of complainant was beaten. F.I.R. Was duly registered in this regard. On the day of incident, complainant along with her son Ghulam Mustafa were going on a motorcycle when another motorcycle approached them from the opposite direction, on which Majid Dahiri and his nephew were seated. They had country-made pistols in their hands, gave a hakal and Majid Dahiri fired upon Ghulam Mustafa, which hit him on his right side and he fell down.
Upon cries certain witnesses came and the accused after giving a threat while firing in the air went away. Bail was granted by the trial Court as well as by the High Court. It was thereafter alleged that the two accused persons are giving threats of dire consequences to the complainant as well as prosecution witnesses to the effect that if they gave evidence against them, they would be killed. In this context, application for cancellation of bail was filed. The learned Judge referring to the provisions of sections 497(5), Cr.P.C. And the principles regarding grant of bail, observed that the incident had occurred in the broad daylight and murder was witnessed by two independent witnesses. Although, in the F.I.R. It was stated that the witnesses reached there after the firing, but the witnesses stated that they had seen the accused person came on a motorcycle and had also witnessed firing and were also threatened by the accused persons. Consequently, High Court held that the trial Court had erred in sifting the evidence placed on the record and allowed application for cancellation of bail. The third case relied upon by the learned Counsel is Haji Gul Khan v. Gul Daraz Khan 1995 SCMR 1765. One Nawab Khan was murdered by Gul Daraz and two others by firing at him with their pistols. Motive was said to be altercation between the parties as both the parties plied their vehicles on a common route. Bail application was rejected by the Additional Sessions Judge, but bail was allowed by the High Court. Thereafter, application was filed in the Supreme Court. Supreme Court observed that firstly question whether the witnesses, while examined under section 164, Cr.P.C., made improvement on their earlier statements recorded by the police under section 161, Cr.P.C. And what is the effect of this improvement on the case of prosecution, would be a matter of deeper appreciation of evidence which can only be done at trial. Thereafter, Supreme Court observed that even if the alleged improvement made by the witnesses in their statements under section 164, Cr.P.C. Are ignored, there are definite allegations of firing by respondent No,1 on the deceased, which would, prima facie, connect him with the offence alleged against him.
Consequently, the Supreme Court accepted the appeal and cancelled the bail allowed to the accused persons. Fourth case relied upon by the learned counsel was Shafqatullah Qazi v. Karim Bux and others, 2001 MLD 215. This case was decided by a Single Bench of this Court. The facts were that it was alleged that Ghulab armed with gun, Karim Bux armed with hatchet and three others, all armed with lathies, emerged all of a sudden and waylaid the complainant, his brother and one Waheed Murad as they were coming on a motorcycle to Mirpur Mathelo. Motorcycle was stopped, Ghulab fired in the air, Karim Bux caused hatchet blow on ear of the complainant and his left ear was chopped off. Allah Warayo caused lathi blow hit the motorcycle and other two persons gave lathi blows to the complainant. Thereafter the accused persons decamped. Four persons were let off by police, but on application under section 193, Cr.P.C., they were joined as accused. On the same day they were remanded to custody. Bail application was thereafter allowed. Being aggrieved by the order granting bail, cancellation application was filed in the High Court. The High Court observed that it would not be appropriate to cancel the bail of the other accused persons except Karim Bux, who was armed with hatchet and caused hatchet below resulting in chopping off ear of the complainant. Consequently, bail of Karim Bux was cancelled. The last case relied upon by the learned Counsel was the case of Bashir Ahmed v. The State, PLD 1994 Karachi 462. This case was cited by the learned counsel on the point of recovery of the hatchet.
8. Facts of the present case are that in the F.I.R. It is stated that Chakar and Khadim held Rano from arms and Manzoor shot two fires from his double barrel gun. Medical report says that there was one firearm injury. Entry wound was on A posterior part of left parieto-temporal area and exit wound was over right parietotemporal area on the skull. F.I.R. States that the firearm hit the deceased below the chin on neck, whereas no such injury is shown in the medical report.
Thereafter, it is alleged that Khadim caused hatchet blows to the uncle. Medical report says that there are four incised wounds all muscle deep. It is also stated in the F.I.R. That accused Ali Sher caused blows of Danda and medical report states one bruise over back of the left shoulder.
Medical report says that injury No,5 is as a consequence of direct fall on the hard ground. There is no reported charring of the skin at the point of entry. It does not seem logical that two persons will hold arms of another person so that some one may hit him with a gunshot and then that gunshot is stated in the F.I.R. To have hit below the chin on the neck, whereas medical evidence states that injury is on the head from left side. Abdul Hayee's case had simple allegation that three persons fired with their guns and killed Ahmed Ali. No doubt, the law is trite and will-settled that during bail, evidence is not to be deeply appreciated, but at the same time clear and strong contradictions in the evidence cannot just be glossed over even at bail stage. Similarly, in Mst. Fatima's case it was clearly alleged that it was Majid Dahiri who fired upon the deceased and then both the accused warned the witnesses not to approach the deceased. In Gullu Khan's case again the allegation was that Nawab Khan was murdered by firing at him by the accused persons using their pistols. Last case on this point was Shafqatullah Qazi's case. In this case Ghulab fired in the air and Karim Bux gave the hatchet blow, which chopped off ear and this Court while rejecting cancellation of bail application in respect of other accused allowed cancellation in respect of Karim Bux observing: "a single hatchet below resulting in loss of part of human body" As far as Bashir Ahmed's case is concerned, recovery in this case was of stolen jewellery from the possession of the accused and its identification by the complainant. Jewellery is jewellery and axe is axe. Where jewellery can be easily identified as to whom did it belong, axe is not so readily identifiable. Moreover, no blood stains have been found on this axe to connect the same with the murder.
8. B Learned Counsel extensively argued that postmortem report was manoeuvred and was a managed report and that is why he had filed request for appointment of a medical board. That may be so. In any case, it fells the case into a case of further inquiry. Out of the three respondents in this case, Chakar is alleged to have caught hold of arm of deceased. He is alleged to have caught hold of arm to facilitate that someone would make a fire. Ali Sher is accused of giving Danda blows only and respondent Khadim Hussain is accused of holding other arm and then giving hatchet blows. Death has occurred, according to the postmortem report, due to wound which entered from left side of the skull and exited from right side. If two persons were holding hands, the fire should have hit from the front and F.I.R, says that it hit from the front below the chin on the neck and no injury below the chin on the neck is stated in the postmortem report. All these turn the case into a case of further inquiry.
9. Learned Counsel for the applicant is correct in submitting that the trial Court has granted bail on two grounds, firstly the respondents had been let off during police investigation and secondly role of absconding accused Manzoor is different from the role of the three respondents. As far as person being let off in police investigation is concerned, there I would agree with the learned Counsel for the applicant that this should not be and cannot be a ground for allowing bail to a person or refusing bail. As far as Manzoor and his role is concerned, that certainly is different, but that could not have been a ground for grating or refusing bail to the applicant.
10. Notwithstanding the above shortcomings of the order of the trial Court, on merits, I think the respondents/accused persons are entitled to bail and therefore, I dismiss this application.
11. Needless to observe that while deciding guilt or innocence of the accused persons the trial Court shall not be, in any manner whatsoever, influenced by any of the observations made above.
Needless also to observe that if applicant's request for consideration of medical board is allowed and if that medical board renders materially different medical report, the applicant shall be at the liberty to move fresh application q for cancellation of bail in the trial Court.