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Criminal Bail Application No.1594 of 1986, decided on 4th December, 1986.

---S.497--Penal Code (XLV of 1860), S.302--Bail, grant of--Names of accused persons and prosecution witnesses given in F.I. R. and firing at deceased attributed to both the accused persons--Bail pressed on ground of contradiction between ocular testimony and medical evidence--Medical witnesses, however, yet to be examined and as such question whether deceased sustained injury by a single shot or more, not determined--Bail declined.

1980 S C M R 784 ref.

Nooruddin Sarki for Applicant.

Abdul Rahim Kazi, Add1.A.-G. for the State.

This is an application for bail on behalf of accused Sadhan and Sultan. The case of prosecution in brief is that on the night of incident at mid-night time complainant woke up on barking of dogs and flashed torch. He saw Sadhan and Sultan Chandios with guns in his house. He challenged them. In the meanwhile his brother Muhammad Azam and nephew Roshan also came and identified the accused. They saw that applicant Sadhan fired at Mehar who was sleeping in the shed who came running towards the courtyard. It is alleged that appellant Sultan fired directly at Nlehar due to which he fell down thereafter Sadhan again fired at him. Accused eleclared that Mehar is Karo. Mehar had fire arm injuries one below right arm and one near left arm. Due to odd hours complainant remained in house and on 9-4-1986 he went and lodged his report at Drigh Police Station District, Larkana at 7.00 a.m.

Mr.Nooruddin Sarki contended that there is contradiction between medical evidence and ocular testimony. His contention is that eye-witnesses Muhammad Azad and Roshan have in their 164 Cr.P.C. statements clearly stated that all the three fires hit Mehar whereas injury on Mehar is result of one gun shot injury. He has referred to the cases reported in 1980 S C M R 784 and others on Criminal Bail Applications No.271/84 and 858/85.

Mr. Abdul Rahim Kazi, Additional Advocate-General, has opposed the bail and argued that there is nothing in the FIR that all the fires hit the deceased. He has argued that allegation is that bolt; accused came duly armed in the house of complainant and fired at Mehar due to which he died.

The names of both the accused and eye-witnesses have been given in the FIR. It is also stated that both applicants were armed with guns and fired at deceased Mehar. Firstly deceased was shot by Sadhan while he was sleeping in shed and allegation is that gun was kept over him and fired then. Mehar came out when Sultan fired which hit him. Sadhan also fired again. I have gone through the post-mortem report according to which following injuries were found on Mehar.

(1) A fire-arm wound 5 c.m. x 5 c.m. x chest cavity deep on the right lateral wall of the chest margin inverted and bleeding around the wound.

(2) Eleven fire-arm wounds each " x " x chest cavity deep margin. Everted Secretion on the upper part of back of chest.

The nature of injuries is such that at this stage it cannot be said 5 c.m. x 5 c.m. injuries could be caused by a single shot. Medical Officer has not been examined. Blackening is there which shows that deceased was fired from close range. Doctor has stated that death is result of fire-arm wound. Moreover F I. R. does not show that all three fires hit the deceased. The empty was found from wardat and crime weapons i.e. guns were secured from the accused. The facts of the cases referred by Mr.Sarki are different. In case of 1980 S C M R 78 there were counter cases. In other cases there was definite opinion about injuries. In the present case Doctor nowhere stated that injury is by one shot. It is premature to go into details when Doctor has not been examined. The case in my view is not fit for bail. Application is dismissed. However it is open to applicants to repeat their application after the Doctor is examined.

S.G.D./S-57/K Bail refused.

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