DHALOO Versus THE STATE
ORDER
1. This application for bail under section 498, Cr.P.C. has been filed on behalf of an accused who has been sent up for trial for offence under section 302/34, P.P.C. The application for bail moved before the learned trial Court has failed.
2. The prosecution case as disclosed in the F.I.R. lodged by one Wali Mohammad is that deceased Ladho had a son by the name of Ranjhan and daughter named Kunj. His son Ranjhan was married to Shrimati Gulan alias Kundi daughter of Sono Oad. In exchange, his daughter Kunj was married to Dhaloo son of Loung Oad, the applicant abovenamed, who is paternal‑uncle of Gulan, the daughter‑in‑law of the deceased. After his marriage with Kunj, the relationship between the applicant‑accused‑and Ladho deceased became strained over some family matters and hence Shirimati Kunj and Shrimati Gulan alias Kundi were not being allowed to visit their respective parents. The complainant who resides in a house adjacent to the house of deceased Ladho then stated that on last Wednesday the applicant‑accused Dhaloo Oad came to the house of Ladho Oad, the deceased and invited them to attend Khairat arranged by him and requested them to bring his niece, Shrimati Gulan also. However, neither Ladho himself attended the Khairat nor they permitted Shrimati Gulan to attend the same. On the night of 2S‑4‑1987 at about 4‑00 a.m. the complainant and his brother Allah Warayo, who were sleeping in their house heard cries from the house of deceased Ladho. They got up and proceeded to his house. The complainant had a torch in his hand. He flashed it. In t‑he meanwhile Mangho Bhil also reached there. In the light of torch they identified applicant‑accused Dhaloo who had spade in his hand. The applicant‑accused gave sharp‑sided spade blow on the neck of Ladho deceased. By his side Shrimati Gulan alias Kundi was standing. She took spade from the applicant‑accused and gave second blow on the neck of the deceased Ladho. On the Hakal and caution of the said witnesses the applicant‑accused threw his spade and ran away. They chased him but he made good his escape. Shrimati Gulan alias Kundi however, remained there. Ladho died on the spot. It is further mentioned in the F.I.R. that on enquiries, accused Shrimati Gulan told the said witnesses that she had conspired with her paternal‑uncle to murder the deceased Ladho by giving blows with spade. She further added that she had given second blow and her uncle had taken spade from her for giving third blow but he threw his spade on hearing Hakal. Complainant then went to Kamdar Abdul Sattar Brohi, who advised him‑to lodge a report with the police.
3. Mr. Mohammad Hashim Memon, learned counsel for the applicant vehemently urged that the medical certificate issued by Dr. Abdul Ghafoor Shaikh, who had performed the post‑mortem on the dead body of the deceased Ladho has mentioned in his report that the deceased had four injuries on his person whereas the eye‑witnesses have alleged only two injuries having been caused by both the accused. The version of the eye‑witnesses, therefore, is at variance with that of the medical report. He further urged that according to the post‑mortem report the post‑mortem was started at 12‑30 p. m. on 29‑4‑1987 and finished at 1‑30 p.m. on the same day. According to the medical report the probable time that elapsed between the death and the post‑mortem was about 12 hours. The counsel, therefore, submitted that this indicates that the incident had taken place at about 12‑00 hours on 28‑4‑1987 whereas the complainant has given the time of the occurrence at about 4‑00 hours on 29‑4‑19,87. There was thus an obvious conflict about the time of the death and it calls for further inquiry. He also urged that the incident had taken place at night time and hence the identification of the culprits could not be ascertained. He also emphasised that it is equally unbelievable that culprits would wait to hit second and third blows till the arrival of persons from .the neighbourhood. Even the version of the prosecution witnesses that they heard the cries and reached the place of occurrence before even the first blow was given to the deceased is unbelievable inasmuch as the culprits hit the deceased while he was asleep. The counsel further submitted that in similar circumstances a learned Single Judge of this Court had allowed bail as per decision reported in 1982 P Cr. L J 30.
4. Mr. Riaz Ahmed, learned counsel for the State, on the other hand, opposed the application vehemently. He submitted that the names of both the co‑accused appear in the F.I.R. The eye‑witnesses have supported the case of the complainant. He submitted that the merits of the case cannot be examined at this stage and that there was no material difference between the medical report and the version of the eye‑witnesses. He urged that the Supreme Court has held that the doctor's opinion may be erroneous to the extent of 3/4 hours hence the doctor's report does not belie the version of the prosecution witnesses.
5. I have given my anxious consideration to the submissions made at the bar. No doubt the difference between the time of incident as given in the F.I.R. and as per opinion of the medical officer comes to about 31 hours but it does not, in my opinion, make the prosecution case so improbable or doubtful as to give its benefit to the applicant at this stage. Besides, on the other hand, as per post‑mortem report the stomach was empty and the small intestines contained digested food products and these factors do appear to prima facie lend support to the version of the complainant, of the incident having taken place at about 4‑00 a.m. In so far the presence of four injuries on the body of deceased as against two allegedly witnessed by the witnesses, it may be observed in the passing that the possibility of the two injuries having been caused prior to the arrival of the witnesses cannot at this stage be completely excluded. However, these matters will be considered during the trial of the case on the basis of the evidence.
6. In the result, the application fails and is hereby dismissed.
7. M.Y.H./D‑25/ K Petition dismissed.