This is a second had application by the petitioner in a case registered against him and four others under sections 302, 148 and 149, P.P.C. Vide F.I.R. No. 245 dated 14-7-1976 with Police Station Kahna, District Lahore on the complaint of one Muhammad Shafi, brother of the deceased.
2. The facts are given in detail in the earlier bail application (Criminal Miscellaneous No. 2040- B/1978) and need not be repeated here. The said bail application was dismissed by my order dated 19.8-1978.
3. In this second application, the submissions made by the learned counsel are, firstly, that the medical evidence by way of Medico-legal Report is in conflict with the ocular version and secondly that the case of the petitioner is identical with others who have been granted bail by the learned Sessions Judge. Continuing with his argument the learned counsel submitted that according to the Medico-legal Report there is one injury only on the person of the deceased, whereas according to the F. I. R. Two persons, namely Barkat petitioner and Salah-ud-Din co-accused tired one shot each which bit the deceased. He submitted that there being one injury only, one shot could have been fired at according to the medical report.
4. The learned counsel for the State, on the other hand, pointed out that the result of medical examination is that there are multiple lacerated penetrating circular wounds, with diameter of 1/3" each in area, 10' x 7" over left lumber region back. He further pointed out that the chadar and, body- -worn shirt were both blood-stained and showed multiple holes. On this premises he submitted that both the persons i.e. The petitioner and Salah-ud---Din being armed respectively with a .12 bore pistol and a .12 bore gun, both the shots may have been fired at and the pellets might hava hit the deceased. He said that it cannot be said that the medical report contradicts the ocular evidence. He also distinguished the case of the petitioner from other co---accused, who have been allowed bail by the learned Sessions Judge by submitting that the latter were not armed with any fire-arm and the death had resulted on account of shot of fire-arm.
5. From the contentions of both the learned counsel I find that these points touch the merits of the case and should not be gone into at this stag lest it may prejudice the case of any of the parties.
These pleas can be better adjudicated upon only on the basis of the evidence that may come on the record. I am, therefore, of the view that no ground has been made which may warrant allowing of bail to the petitioner at this stage.
6. Before parting with the case I would like to mention that the learned counsel for the petitioner showed apprehension that observations in the order dated 9-8-1978 passed on the earlier bail application (Ch. Barkat Ali v. State (PLD 1979 Lah.518)) in the following words may cause prejudice to the defence of the petitioner at the trial :-- "The facts of the case as brought out above, clearly indicate that the accused is named in the F. I.
R., he has been attributed a specific role of having fired with a gun and it is also alleged that the deceased died of an injury from the shot fired by the petitioner. There is motive also stated in the F.
I. R. With which the petitioner is directly concerned. In the circumstances there are reasonable grounds to connect the accused to the crime which is punishable with death or imprison--ment for life."
7. I do not think the observations made by me as reproduced above, should be any hurdle in the way of the petitioner at the trial. These observa--tions were only for the purpose of bail application and were neither intended nor should be taken as a conclusive finding connecting the petitioner with the crime. Be that as it may, I would like to clarify that the trial Court should not take the above observations as determination on merits of the case and can come to any finding on the basis of the record and evidence that may be adduced before it.
8. With the above observations this application is dismissed.