MUHAMMAD ASHRAF vs THE STATE

ORDER

' Petitioner has applied for bail in case F.I.R. No,125 of 1998, dated 10-4-1998 registered at Police Station, Miana Gondal, District Mandi Baha-ud-Din on the statement of Munir Hussain son of Bashir-ul-Hassan under section 302/324/148/149/109, P.P.C. Read with sections 337-A, (i), (ii), 337-F,

(ii) (vi), P.P.C.

2. Brief allegation according to the F.I.R. Was that on 10-4-1998 at 6-30 p.m. Petitioner along with seven others co-accused were armed with fire-arm caused the death of Bashir-ul-Hassan and also caused injuries on the person of Ghulam Hussain, Dilawar Raza and Dither. As far as petitioner is concerned, according to the F.I.R., he was armed with .222 rifle and caused an injury on the person of deceased Bashir-ul-Hassan which hit on the left side of his testicle. Learned counsel for the petitioner submits that according to the post-mortem report the certified copy of which along with its diagram and the legible of the post-mortem report has been placed on record this is injury No,7-B, which is an exit wound. He further submits that in fact petitioner was not present at the spot and he has been falsely implicated in this case and ocular account is completely contradicted by medical evidence. He has relied upon 1997 SCM R 32. He further submits that on the same day a cross-F.I.R. From the side of the petitioner vide No,126 of 1998 has been registered against the complainant party because they had suppressed the injuries of Muhammad Ahmad and Ghulam Ali belonging to the accused party, and had caused fire-arm injuries on their person and it is a case of cross-version and the accused in case F.I.R. No,126 of 1998 have already been released on bail. He has relied upon 1996 SCM R 1569. He also submits that petitioner is seriously ill in a jail hospital and the same has been mentioned by the learned trial Court in his order while dismissing the bail application of the petitioner.

3. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that petitioner is named in the F.I.R., specific role is attributed to him, that he was armed with .222 rifle. He fired a shot which hit the deceased and further that the points raised by learned counsel for the petitioner requires deeper appreciation of evidence which cannot be done at this stage and he has relied upon 1982 SCM R 208. He further, submits that petitioner has committed an heinous offence. Mian accused is still at large. Challan is under scrutiny with the public prosecutor and the case of the petitioner is covered by prohibitory clause of section 497(1), Cr.P.C. He further submits that doctor has written in his post-mortem report the injury No,7-A and B are the cause of death of the deceased.

4. I have heard the learned counsel for the parties and have also gone through the F.I.R. Post- mortem report and other documents from the record. According to the F.I.R., first of all, Asghar alias Babar raised Lalkara, he was armed with pistol, he caused injury with the said pistol which hit Bashir-ulHassan father of the complainant on his right flank which has been shown in the diagram as injury No,7-A as exit wound. Thereafter, according to the F.I.R., present petitioner was armed with .222 rifle, he fired a shot which hit on the left side of the testicle of the deceased, which has been shown in the diagram as injury No,7-B as exit wound. In my view, the points raised by learned counsel for the petitioner that there is a clear conflict between ocular account and medical evidence is well-founded one. Relying upon the judgments cited by learned counsel for the petitioner and also PLD 1972 SC page 81 and 277. Case A of the petitioner is covered by subsection

(2) of section 497, Cr.P.C. Which requires further inquiry into the guilt of the petitioner.

5. In this view of the matter, petitioner is allowed bail in the sum of Rs,50,000 (fifty thousand) with two sureties in the like amount to the satisfaction of trial Court.