ALI GOHAR alias IGLOO vs THE STATE
This matter concerns a bail application filed by the applicant, Ali Gohar alias Igloo, who was accused in an F.I.R. registered for robbery and murder. The prosecution alleged that the applicant, armed with a Kalashnikov, participated in a robbery where a co-accused, Talib, was killed by gunfire. The core legal question was whether the applicant was entitled to post-arrest bail given the evidentiary inconsistencies in the prosecution's case. The court held that the applicant was entitled to bail. The ratio of the decision rests on several discrepancies: the absence of bloodstains at the crime scene despite the alleged fatal shooting, the lack of injuries attributable to the applicant's alleged weapon (Kalashnikov) in the post-mortem report, the failure to recover the weapon, and the absence of bullet marks on the tractor despite claims of heavy firing. The court established the principle that where the prosecution's narrative is contradicted by physical evidence and the medical report, the applicant is entitled to the concession of bail pending trial.
- Whether bail should be granted when the medical report contradicts the weapon attributed to the accused?
- Does the absence of bloodstains at the scene of the crime undermine the prosecution's case for the purpose of bail?
- Is bail appropriate when the recovery of the alleged weapon has not been effected?
ORDER
1. ' SHAHID ANWAR BAJWA, J.--F.I.R No, 118/2010, was recorded at Police Station Mahi Makol, District Kamber-Shandadkot on 21-12-2010, at 2230 hours, for an incident alleged to have taken place at 9- 30 hours of the same day. Complainant stated that he had owned tractor and used to drive it.
2. During fateful night complainant and his two relatives went to their fields; his relative Imtiaz Ali was driving the tractor. On the way a group of six persons including the present applicant who is alleged to be armed with Kalashnikov and Talib armed with rifle, as well as four others stopped the tractor. Present applicant and four unidentified persons robbed mobiles and cash. Co-accused Talib drove the tractor for some distance. Complainant stated that they resisted and pulled down Talib from tractor, upon which accused persons fired, one of the fires hit Talib and all the accused persons taking rifle of Talib fled away. Talib expired of his injury at the spot.
3. ' Learned counsel for the applicant submitted that incident occurred during dark of the night and identification in darkness is always doubtful. He submitted that this is case of ineffective firing because the present applicant is stated to have been armed with Kalashnikov and injury received by deceased Talib was rifle injury.
4. ' Learned State counsel as well as Mr. Shamasuddin Abbasi, learned counsel for complainant submitted that five empties of Kalashnikov have been recovered from the spot. They submitted that the applicant has been nominated in the F.I.R with specific role.
5. ' I have considered the submissions made by the learned counsel and have also gone through the record.
6. There are four reasons, for which I think this bail application should be allowed; (i) it is alleged that deceased Talib received an injury and died on the spot, yet the mashirnama of inspection of scene of crime does not disclose or state any blood stains on the ground, (ii) the applicant is said to be armed with Kalashnikov but no injury caused by Kalashnikov is stated in the postmortem report,
(iii) though it is claimed that there were five empties recovered from the spot but the Kalashnikov alleged to have been used by the applicant has not been recovered. It is alleged that there were six persons who resorted to firing, as Talib was driving the tractor away and the complainant party were able to pull him down and there is no statement of any witness whatsoever that any of the fires had hit tractor.
7. ' Consequently, this bail application is allowed. Let applicant be admitted to bail upon his execution P.R bond for a sum of Rs,300,000 (three hundred thousands), with one surety in the like amount to the statement of trial Court.