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Criminal Bail Application No. 657 of 1976, decided on 25th June 1976...

‑‑ Ss. 498 & 497(2)‑Bail‑Specific part assigned to accused inconsistent with medical evidence‑Case, held, falls within purview of cl. (2) of S. 497‑Bail granted to accused in circumstances of case‑Penal Code (XLV of 1860), S. 302/34.

Aftab Ahmed Alvi for Applicant.

A. Sattar Sheikh, Asstt. A.‑G. for the State.

The applicant alongwith co‑accused Iqbal and Mst. Nadir has been sent up under section 302/34, P. P. C. for the murder of one Saadat Ali.

2. Briefly, the prosecution case is that on 17‑3‑1975 there was a quarrel between the deceased and some of the accused party. On 18‑3‑1975 it is alleged that at the instigation of Mst. Nadir the present applicant caught hold of the deceased and co‑accused lqbal whipped out a knife and stabbed the deceased in the abdomen. The deceased tried to free himself raising cries for help, upon which the applicant is said to have given him a blow with a dandy which landed on the back of the deceased. Thereafter, the deceased Saadat All fell down. The uncle of the deceased happened to pass by and found the deceased lying in the injured condition on the footpath. He saw co‑accused lqbal running away with a knife in his hand and the present applicant with an iron rod. The deceased is then said to have related to his uncle that the applicant had hit him with the iron rod and co‑accused had stabbed him. The F. I. R. was lodged by the uncle of the deceased, Khalid Ali. There are six eye‑witnesses in the case namely, Najamuddin. Tasleem, Abdul Basit, Ehsan Maqsood, Majeed Hussain, and Muhammad Haji Islam, whose evidence were recorded by the enquiry Magistrate during the commitment proceedings.

3. In the autopsy of the body of the deceased the Police Surgeon, Karachi, found the following injuries .‑

(1) Incised wound right thigh front 2 " from mid‑line 1" x " x 2" muscle deep.

(2) Contused abbrasion right side eye‑brow .1" x 1/2".

The only ground urged in support of this bail application is that the specific part assigned to the applicant, as stated above, was that he inflicted a Amide blow upon the deceased on his back whereas the medico legal report does not bear out the prosecution case in so far as no such injury was found on the person of the deceased. The learned counsel, therefore, strongly urged that there is patent inconsi3tency between the ocular evidence and the medi cal evidence so far as the present applicant is concerned. In this connection counsel relied upon Ghulam alias Gammoon and others v. The State (1970 P Cr. L J 642) and submitted that conflict between the ocular and medical evidence is a good ground for grant of bail. Learned counsel then referred to the evidence of the eye‑witnesses who have stated that the applicant had dealt a danda blow to the deceased on his back whereas the F. I. R. with reference to the state ment of the deceased speaks of an iron rod as the weapon with which the applicant inflicted the blow.

4. Learned Assistant Advocate‑General opposing the application sub ‑mined that as many as six witnesses have implicated the applicant in the case and therefore, he is not entitled to bail.

5. I, however, find that the submission of the learned counsel for the applicant is correct that the medical report does not indicate any injury on the deceased on his back, Whereas some of the witnesses were so specific in their assertion that the applicant hit the deceased on his back that they said that the deceased due to the back injury was unable to sit. For the purposes of bail, therefore, due to the clear inconsistency between the ocular and medical evidence in my opinion, the case falls within the purview of clause (2) of section 497, Cr. P. C. It will be for the prosecution to explain this discrepancy at the trial and it would be for the trial Court to come to a finding upon considering the entire evidence. For the aforesaid reasons I grant bail to the applicant in the sum of Rs. 15,000 with one surety and P. R. in the like amount to the satisfaction of the Nazir of this Court or V Additional Sessions Judge, Karachi.

Bail granted.

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