1. This is an application under section 497 (5), Cr. P. C. Filed by Abdul Ghani son of Muhammad Ramzan (hereinafter referred to as the complai--nant) seeking cancellation of order of the Sessions Judge, Badin dated 21-7-1982 whereby respondents Bachal Khan son of Nangar Khan, Miral son of Hashim Shaikh, Haji Peeru son of Photo Khoso, Muhammad Hassan son of Jumoo, Ghulam Hussain son of Usman Chang and Hakeem son of Usman Chang (hereinafter referred to as the accused) were admitted to bail in a case under section 302 read with sections 147, 148, 149, P. P. C. And section 13-D of the Arms Ordinance. The instant application was presented on 31-7-1982 whereas the accused were released on bail on 21-7-1982. I have now beard Mr. A. Q. Halepota, Advocate for the appellant/complainant, Mr. Abdul Sattar Shaikh, A. A.-G. For the State and Mr. Usman Ghani Rashid, Advocate for the respondents.
2. The facts of the case are that on 17-6-1982 at I-35 p. m. Complainant/ appellant lodged F. I. R.
3. Stating that be was hari of Muhammad Khaskheli, deceased Mooso son of Mahi was hari of Ismail son of Muhammad Khaskheli on the land with respect to which there was dispute and the Additional Commissioner, Hyderabad had ordered observance of status quo. He along--with Moosa, Ismail Khaskheli and Hot Khan Leghari was sitting at the Otaq of Ismail, when accused Bachal Khan, armed with a rifle, Miral and Haji Peeru armed with guns and Muhammad Hassan, Ghulam Hussain and Haleem, accused armed with hatchets came. They abused the complainant and his companions and told them to go away as they wanted to take possession of land. It was further stated by the first informant/ applicant that the accused fired straight at them with guns and rifle from a distance of 70 or 80 paces and deceased Mooso was hit and fell down on the ground. It was further stated that it was found on going near Mooso that he had been hit by a shot of bullet and was bleeding and he died.
4. The Post-mortem Examination Report of the Medical Officer shows that Mooso died on receiving bullet wound with fire-arm and there was blackening.
5. The learned Sessions Judge before whom application for bail was filed on 18-7-1982 passed the impugned order releasing all the accused on bail after hearing the D. P. P. Who conceded to the grant of bail to the accused. In the order the learned Sessions Judge, Badin stated that no overt act was attributed to applicants Muhammad Hassan, Ghulam Hussain and Hakeem and, therefore, they were entitled to grant of bail. As for the remaining three accused, the learned Sessions Judge observed that the post--mortem notes show that deceased Mooso received one fire-arm injury, which was not specifically attributed to any of the three applicants/accused. He further observed that the Doctor had not given definite opinion as to the type of fire-arm weapon which caused said injury. Ire further observed that medical evidence belies ocular testimony as the complainant had alleged in the F. I. R. That the incident took place at 7-00 a. m. On 17-6-1952 whereas the medical evidence shows that the time of death of deceased. Mooso as 5-00 a. m. He further observed that no empty has been secured from the scene of offence and there was delay in lodging the F.
1. R. Mr. A. Q. Halepota, the learned counsel for the applicant has pointed out that the assertion that no particular overt act was attributed to any of the other five accused is correct but the case of main accused Bachal Khan was different. He has pointed that the F. I. R. Mentioned that Bachal Khan was armed with rifle whereas the other accused were armed with guns and hatchets. He has further pointed out that the complainant had stated that on going near deceased Mooso after he received injry they found that it was a bullet wound which again points to the fact that the injury was caused not by gun but by rifle bullet.
6. With regard to the observations of the learned Sessions Judge, Badin about the time of death, the learned counsel has referred to the decision of this Court in Haji and 4 others v. The State (1972 PCrLJ 465), wherein it was observed that opinion of Doctor as to time of death of deceased was merely conjectural and not conclusive and further that the time of death given by the prosecution witnesses not fitting with time given by the Doctor, did not have the fact of making of their testimony not reliable or not worthy of credence.
7. It has further been contended by the learned counsel for the complai--nant that at the stage of grant of bail, there could be no question of giving benefit of doubt to an accused person, and he has further urged that in the instant case the name of Bachal Khan was mentioned as the main accused in the F. I. R. And he was attributed having fired his rifle at the deceased which had resulted in the death of the deceased. The learned counsel relied on the Supreme Court decision in Muhammad Sarwar v. The State (1982 SCMR 257), in which bail application was rejected in the circumstances. The evidence with regard to distance from which rifle was fired cannot be considered specially at this stage to be of any indication with regard to commission of offence specially when the wound caused was rifle wound. A reference has been made to Taylor's Principles and practice of Medical Jurisprudence (Vol. I, Twelfth edition) to page 290 where it is stated as under :- "As a general rule with revolvers and automatic pistols firing a low velocity bullet there is no great destruction of tissue. This is not so, however, with regard to rifle wounds, for the modern rifle fires a bullet with a muzzle velocity of about 3,000 feet per second, rotating at rate of something like 3,000 revolutions per second. The bullet is kept point forward by the gyroscopic effect of the spin, but like top tends to wabble somewhat at the other end before it settles down. This continues for several hundred yards, and in dealing with wounds from rifles we must be careful to distinguish between those inflicted at relatively short ranges up to a few hundred yards, the middle ranges from 600 to 1,200 yards, and those at even greater range. In the first group we are likely to see explosive effects; in the second group we are likely to see clean punctured through-and through wounds; and in the third group we are again liable to get irregular lacerated wounds, owing to the loss of velocity."
8. It is apparent from the statement in the F. I. R. That the bullet wound caused was as classified in first group in the quotation above and, therefore, the explosive effects namely the blackening could be possible.
9. For the reasons given above, it would appear that the grant of bail to main accused Bachal Khan was not justified. In the result I cancel the bail of accused Bachal Khan but allow the other accused/respondents to continue on the same bail. Order accordingly.