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Criminal Bail Application No. 77 of 1980, decided on 13th October, 1980.

-‑‑S. 497‑Bail‑Contention as to time‑of death being not establish ed with any certainty and question to be solved being whether time given in F.I.R. correct or night time as shown in post‑mortem report ‑‑-Contentions held require consideration and a matter for further inquiry‑Bail granted.

Mardan Ali v. Gulistan 1980 S C M R 889 distinguished.

Mohammad Daud A. Baluch for Applicant.

Mohammad Ally, Asst. A.‑G. for the State.

On 18th March, 1980 Mohammad Usman complainant reported that at about 6 a. m., he heard a gunshot from the direction of the house of Baig Mohammad and he heard cries. He and Khan Mohammad went running and they saw accused Hiddu armed with gun. Kangal and Khan Jan both armed with hatchets coming out of the house of Baig Mohammad. The accused warned the complainant that Baig Mohammad is their Kato and, therefore, they had murdered him. The mother of the deceased Baig Mohammad told the complainant that Hiddu had fired at face of Baig Mohammad when he was sleeping. Mr. Daud Baloch, learned counsel for the applicant has argued that the timing given by the complain ant is contradicted by the post‑mortem report where it was shown that the stomach contained indigested food. Contention is that since food could be taken between 8 and 9 p. m. therefore the semi digested food could be available only for about 4 hours which would mean the 1 or 2 a. m. in the night and if the deceased was living beyond 2 a. m. in the night then there was no question of the semi‑digested food being found in the stomach. He relied upon Medical Jurisprudence by Modi at page 139.

2. Mr. Baloch further pointed out that the post‑mortem shows that the time between post‑mortem and death was within 24 hours and since post‑mortem was conducted at 4 p. m. on 18th March, 1980, therefore the approximate time of death would be from 4 p. m. of 17th March, 1980 till any time. But he states that the Supreme Court of Pakistan has observed in 1980 S C M R 889 that the Doctor's opinion may be erroneous to the extent of 2 and 3 hours but not to the extent of 6 and 7 hours, therefore, he contends that the time of death is not established with any certainty and in any case a reasonable case is made out for further enquiry into the question as to whether the timing given in the F.I.R. is the time of inci dent or whether the incident took place earlier during the night as suggested by the circumstances mentioned above shown in post‑mortem report. He also contended that if the time of death is not the same as given in the F.I.R. and if offence took place during the night then identification shall have to be seriously looked info as it would be an identification during the night.

3. All these submissions do require consideration and it appears to be a matter requiring further enquiry into the guilt of the accused particularly in respect of the timing of the offence.

4. Mr. Mohammad Ally, learned Assistant A.‑G. submitted that in Cr. P. S. L. A. 11/10. Supreme Court has cancelled the bail allowed by the High Court in a case under section 302, P. P. C. where High Court had based its order of grant of bail on the mere factum of inconsistency between the deposition of witnesses and the doctors certificate. However, there were other circumstances in that case before the Supreme Court like the occurrence-taking place during the day which weighed with the Supreme Court in the decision of cancellation of bail. Moreover, in that case before the Supreme Court the inconsistency was whether the injuries had been caused by hatchet or by burnt weapon. Witnesses had deposed' that the injuries had been caused by hatchet while the medical report showed that the injuries were accused by blunt weapon. The Supreme Court took the view that it was difficult to disbelieve the witnesses merely on the basis of that report as the injuries could have been caused by the blunt side of the weapon. Therefore, the circumstances in that case of the Supreme Court were different from the present case where the presence of indigested food in the stomach does provide reasonable basis for enquiry into the time of offence whether it had taken place during the night or at 6 a. m. in the morning. However, the whole matter shall have to b2 determined at the time of the consideration of evidence and the observations that I have made are relevant for the purposes of bail only and to extent of necessity of further enquiry. These observations will not be pertinent for assessment of final evidence and the same will be ignored by the trial Judge.

5. In view of the above discussions I would grant bail to the applicant on furnishing two sureties in the sum of Rs. 20,000 each with P. R. in the same amount to the satisfaction of the IInd Additional Session Judge, Jacobabad.

Bail granted,

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