1. Bail is sought by the applicant Dhani Bux who is facing trial in Crime No,83 of 2001. Police Station Dadu under sections 302 and 324, P.P.C.
2. In the nutshell per F.I.R. facts are that the complainant party while returning from Court proceedings when reached at the Phatak were encountered by accused persons including the applicant Dhani Bux. It was specifically alleged that Dhani Bux caused straight fire with his repeater gun and other co-accused Ghulam Nabi and Haji Ramzan who were duly armed with guns and Shahnawaz armed with revolver. Zulfiqar and Gul Muhammad armed with pistol while abusing the complainant party fired which hit Gulab. The complainant party made good their escape and the injured was taken to the hospital where he succumbed to the injuries.
3. Learned counsel for the applicant contends that there appears to be delay in lodging the F.I.R. as the incident took- place at 9-45 a.m. and the F.I.R. was lodged at 11-00 a.m. According to the learned counsel the presence of the complainant at the scene of occurrence is doubtful. He further contends that admittedly there is enmity between the parties and possibility of false implication cannot be ruled out. It was further contended that another passerby who was injured in the said incident namely Muhammad Ismail he has given exonerating affidavit in favour of the present applicant Dhani Bux. Learned counsel further contends that the medical evidence does not corroborate the ocular evidence inasmuch as three fire shots are alleged whereas medical evidence shows that the deceased had received six fire-arm injuries. It was stated that benefit of doubt in terms of dicta laid down by Honourable Supreme Court in PLD 1972 SC 277, ought to go to accused persons and even the exonerating affidavits were considered favourably by a Division Bench in case reported as 1999 PCr.LJ 1884. It was further stated that Shanoo, Ismail son of Sher Muhammad, Muhammad Ismail son of Haji Muhammad Niaz, Hussain and Muhammad Umar in their 164, Cr.P.C. statements have exonerated the present applicant and the statement of Niaz who is said to be eye-witness was recorded a day after i,e, on 6-7-2001 which according to the learned counsel shows that said person was not present at the scene of occurrence. It is further contended that other co-accused were not challaned in this case. Lastly the star witness the rickshaw driver was not examined by the prosecution under section 161 or 164, Cr.P.C. He, therefore, prays that the applicant is entitled for bail.
4. In contra learned State Counsel alongwith Mr. Rasheed Ahmed. Qureshi, learned A.A.-G. submits that there appears to beano delay in lodging the incident took place at 9-45 a.m. injured was first carried to the Taluka Hospital from where the complainant party went to Police Station which is 3 furlongs away from the hospital. According to the learned counsel .12 bore empty cartridge was recovered from the place of occurrence and .12 bore repeater was recovered from the possession of the present applicant. He contends that deeper appreciation of evidence at this stage should not be made. Accused has been assigned specific role in commission of the crime. In support of his contentions he has relied on 1997 PCr.LJ 1593 and 1998 SCM R 358. It was further contended that there is no denial that the deceased succumbed to the fire-arm injuries. The alleged contradiction that the deceased received three fire-arm injuries as against six reported by Medico-legal Officer cannot be undertaken at this stage. As far as the exonerating affidavit of one Ismail the learned counsel placed reliance on Naseer Ahmed v. The State (PLD 1997 SC 347) wherein such exercise has been deprecated.
5. I have heard the arguments and perused the record.
6. As far as the first contention of the learned counsel for the applicant is concerned apparently there is no delay in lodging the F.I.R. and where such incident occurs and the person is injured priority is to save life by carrying such person to the hospital which certainly takes some time and the fact that the Police Station is situated at the distance of 3 furlongs in such area would consume some time. Delay of about 1 hour .15 minutes under circumstances cannot be considered as inordinate delay in lodging the F.I.R.
7. As far as the contention of learned counsel that in the F.I.R. applicant was allegedly holding 10 rounder repeater whereas from his custody .12 bore gun was recovered. Mr. Rasheed Ahmed Qureshi, has read the memo of recovery which describes the weapon as .12 bore (repeater). On the face of such recovery memo. any deeper appreciation as to the identity of the weapon cannot be undertaken more particularly when a .12 bore empty cartridge was recovered from the scene of occurrence and as per postmortem report one pellet of .12 bore was also recovered from the body of deceased. Contention of the learned counsel that the medical evidence does not corroborate the ocular evidence in my humble opinion would not carry weight where the deceased succumbed to the injuries, which were found six in number on the body of the person in commotion an open fire there may be some minor discrepancy as to the number of shots which cannot be lost sight.
8. As far as the exonerating affidavit is concerned and the reliance on 1999 PCr.LJ 1884 the case of Naseer Ahmed supra will have precedent and I am bound to follow the dicta laid down. by Honourable Supreme Court wherein exonerating affidavits at the bail stage are deprecated. Even otherwise the credibility of the witness Muhammad Ismail has been questioned by the learned State Counsel who stated that such witness in his affidavit of exoneration had mentioned his address different than the one given in 161 statement. Accused has been assigned specific role.
9. There is admitted enmity between the parties and there are counter cases against each other.
10. Such enmity indeed is double-edged weapon. I don't see under the circumstances of the case any glaring discrepancy in the evidence of which benefit of doubt could be extended to the present applicant. Accordingly, I do not find any justification to upset the finding recorded by the learned