1. ORDER.
2. Applicant Abdullah, has been sent up to face trial for the offence punishable under sections 302, 109 and 34, P.P.C. On the allegation of causing death of deceased Haji Aftab. The learned counsel for the applicant has submitted that according to F.I.R. The applicant/accused fired with the country made pistol meaning thereby that the deceased died on account of receiving pellet injuries, in addition to the other injuries by sharp-edged weapon. He has submitted that the version contained in the F.I.R. And in 161 Cr.P.C. Statements of the other eye-witnesses is in conflict with the medial certificate. The Medico Legal Officer, has given opinion that the death was caused due to receiving of injuries Nos. l to 9, caused by the bullet fired with a fire-arm weapon and receiving of injuries Nos. 10 and 11, caused by sharp---cutting weapon.
3. The learned counsel for applicant has submitted that the applicant is neither alleged to have been armed with sharp-cutting weapon nor a fire-arm from which bullet can be fired. He has submitted that there is an old enmity between the parties and large number of accused persons have been implicated by the complainant party. In support of his contention that in such circumstances' an accused person is entitled for bail he has placed reliance on the judgment of Hon'ble Supreme Court, in the case of Syed Abdul Baqi Shah v. The State 1997 SCM R 32. In the cited case the eye- witnesses stated that accused caused injuries with stick on the head of deceased. Doctor opined that all the six injuries suffered by the deceased were caused 'with sharp-edged weapon. The Hon'ble Supreme Court, observed that the benefit of the conflict in the ocular and medical evidence from the tentative assessm ent thereof will lay in favour of the petitioner. While disposing of the bail application, the Hon'ble Supreme Court, further observed that the established rule of criminal administration of justice is that primarily the facts and circumstances of each case govern the situation and attract the applicability of a particular principle of law. With these observations bail was granted by the Hon'ble Supreme Court.
4. On the other hand the learned Assistant Advocate-General has opposed the bail application. He has contended that eye-witnesses have specifically implicated applicant Abdullah for causing fire-arm injuries with country made pistol. There is no delay in the lodging of F.I.R. The F.I.R. Has been lodged within 30 minutes of the incident. He has submitted that the deeper appreciation of evidence is not to be resorted to, at the stage of considering bail plea and according to learned A.A.-G the Medico. Legal Officer, is not a Ballistic Expert and, therefore, it is not within his competence to express opinion, whether the fire-arm injuries were caused by pellet or bullet. In support of his contention that the benefit of conflict between the ocular version and the medical report should not be extended to an accused person in a murder case he has placed reliance on the judgment of Hon'ble Supreme Court in the case of Abdul Hayee v. The State 1996 SCMR555.
5. A perusal of the judgment of Hon'ble Supreme Court in Abdul Hayee's case shows that necessary facts have not been incorporated in the Judgment. The bail was granted by the Additional Sessions Judge Kambar, District Larkana for the reason that the allegation against the applicant was that they fired at the deceased and the allegation was of general nature. There was another observation that the ocular evidence is not supported by the medical evidence. It has not been stated in the order of Additional Sessions Judge, as to what was the nature of conflict between the ocular testimony and the medical evidence. The bail granted by the Additional Sessions Judge was cancelled by a learned Single Judge of this Court, sitting in Larkana Circuit Bench, for the reason that it was broad, daylight incident, the name of assailants were promptly mentioned in the F.I.R.
6. And there was corroboration by medical evidence. 1t was further observed that it was not a fit case to exercise discretion in a case of capital punishment. The exact nature of conflict between the ocular testimony and the medical evidence is not given even in the order of High Court canceling bail. The Hon'ble Supreme Court, was approached with request to grant leave to appeal and the Hon'ble Supreme Court refused to grant leave for the reason that their Lordships were not persuaded to accept the plea that the petitioners were rightly granted bail on account of conflict in the ocular account with the medical evidence I have carefully considered the contentions raised by the learned Advocates for the parties. The first principle, relating to the law of precedent, which is required to be kept in view, is that if a leave to appeal is refused by the Hon'ble Supreme Court, the order does not lay down any principle having the force of precedent. The refusal to grant leave has a limited effect, meaning thereby, that the Hon'ble Supreme Court is not persuaded to exercise its discretion. It does not amount even to the confirmation of view of the High Court which is sought to be assailed, while seeking leave to appeal. On the other hand if the Hon'ble Supreme Court, decides any matter on merits, it has the force of precedent which is binding on all the subordinate Courts and Tribunals including the High Court. Keeping this principle in view, I find that the judgment on which learned Assistant Advocate- General, has placed reliance is a judgment in which leave to appeal is refused and no principles of law have been laid down. On the other hand, the judgment on which Mr. Awan, learned counsel for applicant, has placed reliance, contains findings on merits and principle of law has been laid down by Hon'ble Supreme Court. There is yet another aspect, the judgment on which learned Assistant Advocate-General, has placed reliance was given by a bench comprising of two Hon'ble Judges of the Supreme Court, while the judgment on which Mr. Awan, has placed reliance is by a Full Bench and by now it is established principle of the law of precedent that a judgment of Full Bench shall prevail over the judgment of a Bench consisting of lesser number of Judges-: For the foregoing reasons, I am of the opinion that in the light of the principle of law laid down by the Hon'ble Supreme Court in the case of Syed Abdul Baqi Shah (supra), the applicant is entitled for the bail. The reason for granting of the bail that there is conflict between the ocular account and the medical evidence does not amount to deeper appreciation of evidence and merely amounts to tentative assessm ent of the material available on record.
7. For the foregoing reasons, I am of the considered opinion that applicant is entitled for bail. He is, therefore, granted bail in the sum of Rs.3,00,000 (Rupees three lacs) and P.R. Bond in the like amount on furnishing one solvent surety, to the satisfaction of the trial Court.
8. Before parting with this order, I would like to clarify that the observations made in this order are tentative in nature and shall have no effect on the appreciation of evidence by the trial Court, after examining the witnesses.
9. H.B.T./A-161/K