ZULFIQAR Versus THE STATE Muhammad Ayaz Soomro , Ali Azher Tunio, Asstt. A. G.

ORDER

1. We are going to dispose of bail application of applicant Zulfiqar son of Khadim Hussain Marfani Chandio involving him in a murder case Crime No.77 of 2000 of Police Station Warah under sections 302, 148 and 149, P.P.C.

2. The story narrated by complainant Punhal son of Amir Bakhsh Gadehi reveals that on the day of incident at about 4‑45 p.m. applicant Zulfiqar alongwith co‑accused Dodo, Zulfiqar alias Bhutto and unidentified persons having open faces came at the place of occurrence in a car. The applicant is alleged to be armed with rifle while co‑accused Dodo with Kalashnikov, Zulfiqar alias Bhutto with pistol and one amongst the unidentified person was armed with pistol. It is alleged that applicant Zulfiqar and co‑accused Dodo and Zulfiqar alias Bhutto collectively fired at the deceased which hit him and consequently he died. Thereafter all the accused persons went away. The motive behind the alleged offence is that prior to this about a year back one Hamid Ali Chandio was murdered by Bakhtoo Chandio and others. Bakhtoo Chandio is said to be the husband of complainant's daughter, as such, accused Dodo and others used to say that they will kill Ghulam Nabi in revenge.

3. We have heard the learned counsel for the parties and perused the record.

4. Perusal of the record shows that applicant Zulfiqar was armed with rifle while the recovery of empties reveals that 15 empties of 7.62 bore rifle and five empties of 7 m.m. were secured from the place of occurrence. The learned counsel has drawn our attention to medical report of the doctor which is in conflict with the ocular version. As per post‑mortem report the deceased has suffered in all six injuries with gun while the ocular version is that he received injuries by rifle, Kalashnikov and a pistol. In this regard we would like to reproduce the opinion or doctor as under:‑‑

5. "From the external as well as internal examination of the deceased, I am of the opinion that the death has occurred due to heavy bleeding, caused by the abovementioned injuries which were caused by the discharge of fire‑arm weapon like gun and the injuries were ante‑mortem in nature and were, sufficient to case death."

6. In the case of Mohsin v. the State reported in 1977 PCr.LJ 159 it was laid down that where there is clear inconsistency between the ocular and medical evidence the case of the accused falls within the purview of clause (2) of section 497, Cr.P.C.

7. In the case of Ghulam Rasool and another v. The State reported in 1986 PCr.LJ 120, same dicta has been followed which was held in the case of Mohsin (supra).

8. As per version of the complainant the deceased received fire‑arm injuries at his chest, abdomen and back while the medical version is that the deceased received injuries on left side of neck, left forearm and left shoulder hence the injuries stated by complainant do not find place in the post‑mortem report.

9. Due to the clear inconsistency between the ocular and medical evidence, for the purpose of bail, the case of applicant falls within purview of clause (2) of section 497, Cr.P.C. In view of the above case?law and the circumstances of the case, the ‑case of applicant calls for further enquiry and he has made out his case for grant of bail. Accordingly he is admitted to bail.

10. By a short order, dated 18‑10‑2001 we have allowed bail to the applicant and above are reasoning for the same.

11. Needless to mention that the observations made in the bail applications are tentative in nature and the same shall not influence the trial and learned trial Court should decide the matter according to law,

12. H.B.T./Z‑26/K ???????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.