The respondents were granted bail by Sessions Judge, Khushab, vide order, dated 23-1-1986, in a case registered against them and another under section 302/452/34, P.P.C., on the statement of Muhammad Siddique deceased. Muhammad Siddique, as a result of injuries suffered in this occurrence died on 23-10-1985.
Initially F.I.R. Was registered under section 307/452/34, P.P.C. On 14-10-1985. On expiry of Muhammad Siddique, offence under section, 302, P.P.C. Was also added.
According to the F.I.R., the respondents armed with guns accompanied by Maqbul Ahmad, armed with a Kulhari, after entering his haveli, while raising Lalkara, had fired shots. Shot fired by Sher Muhammad had hit the deceased on left side of his chest. The shot fired by Mehran Khan had hit him on his left knee.
Motive for the occurrence was dispute of land between complainant party and Sher Muhammad and others. It is also stated that 2/3 days prior to the occurrence complainant (deceased) had abused respondent Sher Muhammad, as a result of which he had felt aggrieved.
2. The learned Sessions Judge rebutting all other contentions of petitioners counsel (respondents herein) granted bail to the respondents taking into account, only, the fact that since the distance of the assailants shown in the site plan was 55 feet from the deceased, the injury found on the deceased with blackening around could not have been the result of a shots fired by the respondents.
3. Learned counsel for the petitioner contended that in view of the clear allegation levelled in the F.I.R. Against the respondents of having fired fatal shots and in view of the previous history, which is mentioned as motive for the occurrence, the learned Sessions Judge should not have embarked upon, adjudging the medical evidence at the bail stage. Learned counsel contended that the Sessions Judge should have waited for this till the Doctor and eye-witnesses were examined.
Learned counsel cited 1983 SCMR 355, in support of his contention.
4. Learned counsel for the respondents contended that the order of the learned Sessions Judge is based on prima facie assessm ent of medical evidence and the eye-witnesses and as such, does not call for any interference. Learned counsel stressed that the site plan, which showed the distance of the assailants to be 55 feet from the deceased, was prepared at the instance of the eye-witnesses and so it cannot be argued with any amount of certainty that the witnesses at the trial might be able to explain it to the benefit of the prosecution. Learned counsel further contended that even if the order of grant of bail is not considered maintainable for any insufficient reasons, this Court can examine other material and decide if the respondents deserved concession of bail, in that, learned counsel contended that the complainant in a statement made by him before the Magistrate contradicted his earlier, statement, on the basis of which F.I.R. Was recorded, by 'stating that he had suffered injury at the abdomen. In this connection learned counsel referred to the medico-legal report as well where the seat of injury has been noted to be at chest and not abdomen. Learned counsel argued that it is not distinguishable from the medical evidence and the statement made by the deceased that the injury suffered by the deceased as a result of the shot fired by Sher Muhammad respondent is the only injury which proved fatal. Lastly, learned counsel submitted that superior Courts have rarely interfered in the discretion exercised by the lower Courts while granting bail. Learned counsel cited 1984 P Cr. L J 2461 in support of his contention that the bail granted on the contradiction of medical evidence by the eye-witnesses was not cancelled.
In support of his contention that superior Courts normally do not interfere in the discretion exercised by lower Courts, learned counsel cited 1986 P Cr. L J 394. This, in fact, is Judgment given by me.
5. I have-considered the contentions of the learned counsel for the parties and have gone through the record and case-law cited by the counsel for the parties.
The facts of the case reported as 1986 P Cr. L J 394 are entirely different from the facts of the present case. In that case not only the land, on which the occurrence had taken place, was found to have been in possession of the respondents (accused), but contradiction of medical evidence was also more apparent and significant in that case than in hand. In that case seat of infliction of injury mentioned by the complainant party was found to be exit wound. This naturally was a clear contradiction. While in the present case, there is no such contradiction.
6. The contention of the learned counsel for the respondents that in the dying declaration made by the deceased the seat of injury mentioned by him was abdomen and not chest cannot be adjudged at this stage, as an injury was found on the abdomen as well as on the chest of the deceased.
Although there is weight in the argument of the learned counsel for the respondents that the superior Courts should rarely interfere in the discretion exercised by the lower Courts while granting bail, but in this particular case, bail has been granted on such a ground and in the same is maintained, it might create a hazardous situation, because if the bails are allowed on the ground of differences in the site plan and the nature of injury, (I think) waiting for the evidence will be of no use. To say the last, that would amount to grant that the statements of the witnesses are superfluous.
7. For all the reasons enumerated above, I find force in this petition. The same is, therefore, granted.
The order of grant of bail passed by the Sessions Judge, Khushab, dated 23-1-1986, is set aside.