1. ' Latif son of Mian Dad and Dharoo son of Jaggan, who are facing trial for offence under section 302/34 P.P.C. In the Court of First Additional Sessions Judge, Kandhkot have presented this application for bail. It is alleged by the prosecution that on 14-11-1988 Ghulam son of Lashari lodged the report at Police Station, Tangwani, District Jacobabad to the effect that on 13-11-1988 at triphari time while he, his brother Moula Bux and Shah Dino and others were in the thrashing yard near their houses,they saw that Latif son of Mian Dad, Jaggan son of Fatch Ali, Rajo son of Jaggan and Daroo son of Jaggan, all armed with guns came from western side and called his nephew Lashkeri from his house and no sooner than, he (Lashkeri) came near them, the applicant accused Latif fired straight at him from his gun which hit him. Lashari began to run hack when accused Jaggan fired from his gun direct at Lashkeri, which also hit him and he fell down groaning. The complainant and the other, two prosecution witnesses named above came running from the thrashing yard. The accused, however, retreated towards west firing in the air. Being unarmed, the complainant and the witnesses did not follow the accused person. The deceased was stated to have received the first shot on his head and the second shot on the right arm and side.The injured Lashkeri was taken back home and the complainant then went to arrange conveyance but could not get any. At mid- night time Lashkcri injured expired. In the morning, the dead body was carried to the police station and F.I.R. Was lodged. The motive for the commission of the offence as stated in the F.I.R. Is that Mohammad son of Bajhi Sabzoce, who had died a year back in Sukkur while begging had married the sister of the deceased Lashkeri after the death of said Mohammad these accused persons used to ask Lashkcri to hand over to them the hand of the widow as they were legal heirs and would get her married. Lashkeri had declined to do so by saying that her sister has five sons and three daughters and that she will look after them.
2. I have heard Mr.Awan Rehmatullah Nadeem, Advocate on behalf of the applicants and Mr.Zawar Hussain, learned A.A.-G. For the State. The counsel for the applicants vehemently made the following submissions:
(i) that there was 18 hours delay in lodging the F.I.R., which indicates that the complainant was not present at the scene of offence. The non-removal of injured to the Hospital till mid-night although the offence was allegedly committed at Triphari time also indicates that the complainant was not there.
(ii) that the medical evidence belies the ocular testimony in the following manner:--
(1) On receipt of Ist injury the deceased began to run hack when co- accused Jagan fired at him, but the deceased has no any injury on his back.
(ii) The M.O. Has given the time between injuries and death to be instantly which means the deceased had died at 4.30 P.M. And not at mid-night, and he has rightly opined so as he could not survive for a second in case of internal damages. Hence the incident is blind.
2. ' It makes the prosecution version doubtful and the benefit of it should go to the applicants/accused.
(iii) That the P.Ws. Claimed to have witnessed the incident, about 200 paces and hence it was impossible for them to have recognized the culprits. It is also not the case of the prosecution that the deceased had disclosed the name of the accused to them. It was, therefore, an unwitnessed incident.
(iv) That the theory of the accused having called the deceased from his house from the distance of 150 paces (3/4 furlongs) and the deceased going to them despite knowing that there was an enmity between him and the accused persons, more particularly when the accused were also armed with guns, appears to be absurd.
(v) that the deceased would have easily been taken to Hospital even on a bullock cart which is usually possessed by villagers for immediate medical aid if the complainant could not get any other conveyance. It indicates that the deceased was actually fired at 2.00 A.M. And died instantaneously as opined by the Medical Officer, who conducted the post-mortem.
(vi) that the injury did not contribute to the death of the deceased but he appears to have died because of profuse bleeding.
(vii) Even otherwise injury No,5 was attributed to have been caused to the accused No,1 which as per post-mortem report, did not cause the death of the deceased and, lastly.
(viii) he urged that the accused-applicant No,1 did not, however, admittedly do any overt act hence he was entitled to the grant of bail.
3. ' The thoroughness with which Mr. Awan Rchmatullah Nadecm, learned counsel for the applicants made the submission and the large number of the authorities and unreported orders cited by him, gave me an impression, which I could not help expressing even during the hearing, as if he was arguing an appeal on merits. He supported his contentions with reference to the following case- law.
(1) PLD 1976 Lah. 1403;
(2) PLD 1963 SC 17;
(3) Unreported orders of this Court in Criminal Bail Applications Nos.246 and 273 of 1988.
(4) 1979 SCM R 557;
(5) 1977 SCMR 72;
(6) 1985 SCMR 530 and
(7) Unreported order of this Court in C.M.A. Such Criminal Bail Applications Nos. 232, 707, 777 and 134 of 1984.
4. ' Mr.Zawar Hussain Jafferi, A.A.-G. For the State, on the other hand, vehmently opposed the bail application by contending that the delay in filing the F.I.R. Had been duly explained by the complainant. The contention of the learned counsel for the applicants that deceased could have been taken to Hospital in a bullock cart which the complainant was expected to own, is based on mere presumption. With regard to the direction in which the deceased started running would he clarified by the eye-witnesses only at the trial. There is, however, no inconsistency between the ocular version and the medical opinion so as to disbelieve the eye-witnesses at this stage. All the five injuries sustained by the deceased were of fire-arm and on vital part of the body. Other injuries, according to him, could have also contributed to the death of the deceased. Besides, the complainant, the incident was also witnessed by P.Ws.Moula Bux and Sahib Dad, who had also given their statements under section 164, Cr.P.C., and until unlicensed gun was recovered from the accused-applicant No,1.
5. ' I have given due consideration to the facts and circumstances of the case as well as to the arguments of the learned counsel for the parties, and have also perused the above-referred case- law cited by the learned counsel for the applicants. In the presence of the above-noted material available on record, I am clearly of the view that there are reasonable grounds for believing that the applicant No,1 is involved in the commission of the offence. I may at the outset like to add with regrets that of all the reported cases cited by Mr.Awan Rehmatullah Nadeem, learned counsel for the applicants, the only case, if at all, relevant to the facts of the case is the one of Lahore High Court PLD 1976 Lah.
6. 1403. The other cases are wholly irrelevant to the facts of this case. The several unreported orders of this Court cited by him, however, seem to have a bearing in one or the other aspect of the case as urged by Mr. Awan Rehmatullah Nadeem. The complainant in the instant case has, as rightly pleaded by the learned A.A.G., given the explanation of delay in lodging the F.I.R. How far it is correct and reliable will be a matter for the trial Court to judge. It is too early to make any comments in his behalf. The alleged variance of ocular evidence with the postmortem report would also call for a deeper appreciation of evidence at the trial, after the Medical Officer is examined and cross- examined. However, it is, in my opinion, not of such glaring nature as to justify the tentative opinion of the veracity or otherwise of the version of the incident given by the complainant and other eye- witnesses, both regarding time of incident and the death of the injured-deceased, nor it calls for further enquiry into the guilt of the applicant. The plea that the P.Ws could not have witnessed the occurrence from the place where they were sitting can also be substantiated, if at all, when the evidence of these witnesses is recorded. Similarly the contention that the deceased could have been removed to Hospital despite there being no conveyance available, is based, as rightly pleaded by the learned A.A.-G. On surmises and gestures rather than upon the material available on record. It is difficult at this stage to form an opinion that it was an unwitnessed incident.The submission of the applicant's counsel that the death was not due to injury caused to the deceased deserves to be repelled because of its being contrary to medical opinion. '
7. ' For the foregoing reasons, I do not find any justification to order the release of the applicant Latif son of Mian Dad, applicant No,1 on bail.
8. ' However the case of the applicant/accused Daroo son of Jaggan is patently distinguishable inasmuch as no overt act to kill the deceased is attributed to him. The only aspect as to whether he shared the common intention to kill deceased with the other accused calls for further enquiry as envisaged by section 497(2), Cr.P.C. I would, therefore, allow bail to him and direct that he should execute P.R. Bond in the sum of Rs,30,000 with one surety in the like amount to the satisfaction of the learned First Additional Sessions Judge, Kandhkot.
9. ' The bail application of Latif is dismissed.