ALLAH WASAYA vs STATE & another
This matter concerns a petition for post-arrest bail filed by the accused, Allah Wasaya, in relation to FIR No. 193 registered at Police Station Khairpur Tamewali, District Bahawalpur, for offences under Sections 302 and 34 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to the concession of bail given the discrepancies between the ocular account and the medical evidence. The Court held that the petitioner is entitled to bail, observing that while the FIR alleged the petitioner held the deceased while co-accused fired, the post-mortem report revealed only two firearm injuries with no signs of blunt or sharp-edged weapon injuries, thereby contradicting the prosecution's version of events. Furthermore, the Court found the role assigned to the petitioner implausible given the presence of firearms. Consequently, the Court determined that the case falls within the ambit of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The key principle laid down is that where medical evidence contradicts the ocular account, it creates sufficient doubt to warrant the grant of bail pending trial.
- Does a contradiction between the medical evidence and the ocular account justify the grant of post-arrest bail?
- Is the role of holding a deceased person while co-accused are armed with firearms considered a sufficient ground to deny bail when medical evidence does not support the alleged physical struggle?
- When does a criminal case fall within the ambit of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
Allah Wasaya/petitioner seeks post-arrest bail in case FIR No, 193 registered at Police Station Khairpur Tamewali, District Bahawalpur, on 14-05-2011, for offences under Sections 302 & 34, PPC.
2. After hearing the learned counsel for the parties at length and going through the record, I have noted that according to FIR the petitioner along with his co-accused Muhammad Rafiq has given severe beating to Allah Bachaya brother of the complainant and then Allah Wasaya/petitioner caught hold of Allah Bachaya from his arms and Muhammad Rafiq fired with his carbine on the - right thigh of Allah Bachaya and Muhammad Zafar fired with his carbine on the head of Allah Bachaya, who succumbed to the injuries at the spot. The allegation .against the petitioner is to the extent of severely beating and holding Allah Bachaya from his arms but during post-mortem examination the doctor has not observed any injury of blunt or sharp edged weapon on the dead body of Allah Bachaya, except two firearm injuries; thus, the medical evidence is not in line with the ocular account and this fact prima facie creates doubts in the prosecution story. Moreover, when the accused were armed with firearms, then the role assigned to the petitioner i,e, holding the deceased from his arms, does not appeal to a prudent mind. The question whether the petitioner actually participated in the occurrence, in the manner, as alleged by the prosecution will be determined by the learned trial Court after recording of evidence. In these circumstances, the case of the petitioner squarely falls within the ambit of sub-section (2) of Section. 497, Cr.P.C.
3. In view of the above discussion, I am inclined to allow this petition and admit the petitioner to bail subject to furnishing bail bonds in the sum of Rupees Two Lac (Rs,2,00,000/-), with two sureties, each in the like amount, to the satisfaction of the trial Court.