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Criminal Miscellaneous No. 642‑B of 1982, decided on 21st June, 1982.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, grant of‑‑Bare perusal of medical report showing injury to be result of one shot‑‑Exit wounds result of pellets coming out‑‑Accused allegedly armed with pistol‑‑Fire shot of accused might not have hit deceased‑‑Case of further enquiry, held, made out‑‑Bail granted.

Muhammad Akmal Salimi for Petitioners.

Nisar A. Saeed for the State.

Muhammad Akram Sheikh for the Complainant.

Date of hearing: 21st June, 1982.

The petitioners seek bail in case F.I.R. No. 316, dated 17‑9‑1981 of Police Station, Arifwala, District Sahiwal.

2. The occurrence is stated to have taken place at 10‑00 p.m. during the night between 16th/17th of September, 1981, in front of the house of Barkhurdar deceased. According to the F.I.R. which was lodged by Muhammad Hanif, brother of the deceased, Barkhurdar deceased was lying on a cot in front of his house when Muhammad Asghar, co‑accused, Muhammad Aslam petitioner, armed with guns, accompanied by Muhammad Anwar, petitioner armed with a pistol, came there raising Lalkara that they will not spare Barkhurdar. Muhammad Asghar, co‑accused is stated to have fired a gun shot which hit the deceased on the left leg. Muhammad Aslam petitioner fired his gun which hit the deceased on both the legs. Barkhurdar fell to the ground. Muhammad Anwar petitioner after exhorting his sons to finish the deceased fired a shot with pistol which hit the deceased on his right leg. It is stated that the motive for the occurrence was that four years prior to the occurrence, two cases had been filed by the complainant side against the accused party and one case had been filed by the accused party against the complainant party but the cases were disposed of on account of compromise. It is stated that the accused, however, continued having grudge against the complainant party and this occurrence was committed by them for unreason.

3. Learned counsel for the petitioners has contended that there is only one wound of entry on the right leg of the deceased, the other wound on the right leg is an exit wound. According to him, the entry wound on the right leg, which is described as injury No. 2, could not be the result of more than one fire‑arm injury. It is further contended that since the allegation against Muhammad Aslam petitioner is that the shot fired by him had hit the deceased on both the legs of the deceased, there is no explanation regarding injury said to have been inflicted by Muhammad Anwar petitioner. It is also contended that the exit wound was stated to be the result of pellets and there was no injury by a pistol on the right leg and since according to the prosecution Muhammad Anwar was holding a pistol, no corroboration of this allegation is coming forth. It has also been contended that during the investigation, the S.D.P.O. had expressed the opinion that the petitioners were innocent and that later on the investigation was transferred to the A.S.P., who had clearly expressed his opinion that though the petitioners were found to be present at the time of occurrence during investigation, but his investigation revealed that none of them had fired at the deceased.

4. Learned counsel for the State/ Complainant have controverted the arguments of the learned counsel for the petitioners and have argued that the fact that there were nine exit wounds shows that they could not be the result of one shot. It is also stated by the learned counsel for the complainant that no clear finding was given by the S.D.P.O. regarding innocence of the petitioners and that the A . S. P. , in spite of his opinion had directed the S.H.O. to submit a challan to the Court.

5. I have considered the arguments of the learned counsel for the parties and have also perused the medico‑legal report and the post‑mortem examination. Injury No. 2, which was on the right' leg of the deceased, is the only entry wound on right leg. The margin of wound was scorched. It seems difficult at this stage to conclude that the two shots fired by two persons would each have caused scorching. As the possibility of two shots having been fired from some distance and by same velocity of fire‑arms can be examined after the evidence is recorded. A bare perusal shows that injury No. 2 was the result of one shot. Since Muhammad Anwar petitioner was allegedly armed with a pistol, and all the exit wounds are the result of coming out of pellets, it does not seem to be unreasonable to conclude that his fire may not have hit the deceased. This fact finds support from the investigation of the A . S. P. , according to whose investigation Muhammad Anwar petitioner was found to be present at the time of occurrence, but he was not found to have fired at the deceased. In these circumstances, a case of further inquiry is made out in the case of Muhammad Anwar petitioner and I feel inclined to exercise my discretion in this favour. Muhammad Anwar shall be released on bail provided he furnishes a bail bond in the sum of Rs.25,000 with two sureties each in the like amount, to the satisfaction of the Assistant Commissioner, Pakpattan.

The case of Muhammad Aslam petitioner, however, stands on different footing. He is stated to have been armed with a gun and the shot fired by him hit the deceased on his right leg. No case for bail is, therefore, made out in his case. Petition qua him is, therefore, dismissed.

S.A./4339/L Order accordingly.

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