TASHIF MEMON vs The STATE
This matter concerns a post-arrest bail application filed by the accused, Tashif Memon, in relation to a criminal case involving allegations of attempted murder under Section 324 of the Pakistan Penal Code 1860. The core legal question was whether the accused was entitled to bail given the apparent contradictions between the ocular account of the incident and the medical evidence, and whether the ingredients of the alleged offense were prima facie established. The Court held that the accused was entitled to bail, noting a significant discrepancy between the complainant's statement that the injury was to the thigh and the medical report indicating an injury to the buttock. Furthermore, the Court observed that the injury was not on a vital part of the body and that the accused did not repeat the fire, casting doubt on the intent required for the offense. The key principle laid down is that where there is a conflict between medical and ocular evidence, it creates a reasonable doubt that may be resolved in favor of the accused even at the bail stage, warranting further inquiry under Section 497(2) of the Code of Criminal Procedure 1898.
- Does a contradiction between the ocular version of an incident and the medical report entitle an accused to the benefit of doubt at the bail stage?
- Can the absence of injuries on a vital part of the body and the failure to repeat fire shots affect the prima facie application of Section 324 of the Pakistan Penal Code 1860?
- Under what circumstances does a case qualify for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' SALAHUDDIN PANHWAR, J.---Applicant Tashif Memon seeks post arrest bail in Crime No,97 of 2012 of Police Station Bhitai Nagar for offence under sections 324, 34 P.P.C.
2. Facts, leading to this application are that due to monetary dispute, accused Tashif Memon, Mukhtiar Khoso, Mushtaque Jamali and Adnan Shaikh, abused the complainant while accused Tashif Memon in violent behavior, caused straight fire shot upon Imran Khemtio, which hit him at his left thigh, thereafter applicant along with other accused escaped away.
3. Learned counsel for the applicant has inter alia contended that applicant has been booked due to money dispute with the complainant in false case;' alleged injury attributed to the applicant is on thigh of complainant, which is not on vital part of the body; it is alleged that applicant has attempted to cause murder of the complainant but from record it is evident that though applicant was Armed with weapon but he has not repeated the fires, therefore, ingredients of intention to commit Qatle-e-amd are lacking in this case; ocular account is that applicant caused fire shot injury on right thigh of the complainant but medical certificate shows only one injury on buttock, and he has relied upon case of Muhammad Ayub v. Ubaidullah and others reported in PLD 2004 SC 479.
4. On the contrary, learned A.P.-G. For the State has maintained that the applicant is nominated specifically in the F.I.R. But did not controvert about contradiction of medical evidence with ocular version.
5. Heard counsel. Record perused.
6. It is matter of record, that 'monetary dispute was in existence between the complainant and applicant; ocular version is in contradiction with medical report, as per statement of victim/complainant and P.Ws., injury was caused on' thigh but medical report reveals that injury was caused on buttock, this aspect apparently makes this aspect of prosecution case open to further probe. No doubt, medical report can only identify the seating and nature of injuries and weapon used in crime but cannot identify the identity of culprit but in the instant case medical report is in contradiction with ocular version, this apparent inconsistency can be termed as "conflict" in medical and ocular version hence tentatively creates a reasonable doubt and since it is settled principle of law that benefit of doubt even at bail stage can be on in favour of accused persons. Moreover, alleged injury is not on vital part of body of victim and it is not a case of prosecution that applicant repeated the fire shots upon the complainant/victim though he was at mercy of the applicant/accused hence this also opens a room towards application of section 324 of P.P.C.; applicant is not required for further investigation as case is pending for trial and in almost similar circumstances honourable Supreme Court, in case of Muhammad Ayub v. Ubaidullah Khan has said that:-- "A perusal whereof indicates that allegedly the petitioner fired upon the outer side of the right side of leg's middle part of injured Shahid Iqbal, therefore prima facie , we are of the opinion that he had no intention to fire upon the vital part of the injured Shahid Iqbal for the purpose of launching murderous assault".
7. Keeping in view the given circumstances, and dictum laid down by honourable supreme court, it is apparent that applicant has succeeded in making out a case for further inquiry as contemplated under section 497(2), Cr.P.C. And benefit of doubt can be extended at this stage in favour of applicant, thus, applicant is entitled for bail.
8. By short order dated 22-10-2012 applicant was admitted to bail and these are the details reasons thereof. The observations made hereinabove are tentative in nature and will not prejudice the merits of the case.