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Criminal Miscellaneous No. 4097/B of 1974, decided on 7th November 1974.

----S. 498‑Bail‑Only one witness examined during one year elapsing since occurrence and his evidence at least making matter open to further inquiry if not doubtful‑First Information Report also not ascribing any overt act to petitioners‑Petitioners, held, entitled to bail in circumstances‑Penal Code (XLV of 1860), S. 302/366/376/ 109.

Muhammad Siddique Chughtai for Petitioners.

Muhammad Hanif Khitiana for the State.

The two petitioners Mohammad Ismail and his son Sardar are facing enquiry along with two other accused in a case under section 302/366/376/109, P. P. C. for the murder of Noor Ahmad and the abduction of his daughter Mst. Hanifan on account of some previous enmity. They were refused bail by the learned Addl. Sessions Judge, Sahiwal, and have consequently approached this Court with the same request through a petition under sec tion 498, Cr. P. C. on the ground that they were attributed no overt act during this deadly assault and were later implicated at the instance of his enemies.

2. A notice was, therefore, issued and I have heard the learned State Counsel and also perused the file with his assistance which has disclosed that Muhammad Ismail petitioner had woke up Noor Ahmad (deceased) on the eventful night and told him that Abdul Hamid alias Nikko Shah (accused) had called him to his house, but he refused to go there. Shortly thereafter aforesaid Abdul Hamid alias Nikko Shah and an unidentified person came there armed with a rifle and gun respectively followed by the two petitioners who had no weapons but carried a lantern and in their presence Abdul Hamid accused giving a lalkara that he was told by Muhammad Ismail petitioner that he (Noor Ahmad deceased) was manoeuvring his arrest fired a shot at him from his rifle, which hit him on his shin and felled him to ground. Thereafter Abdul Hamid alias Nikko Shah and his unidentified co‑accused forcibly carried away Mst. Hanifan P. W. with them. She had come out of the room with the other inmates of the house on hearing the report of the rifle shot. Noor Abroad was then removed to Renala Hospital during the same night when Sub‑Inspector Muhammad Ishaq recorded his statement which dying declaration forms part of the record as a first informa tion report in the case.

3. It is contended that Mohammad Ismail petitioner might have acted as an innocent messenger or sent under threat to call the deceased as he took no further part in this deadly assault on him or was later victimised for betraying the plans of Noor Ahmad (deceased) to Abdul Hamid alias Nikko Shah as proclaimed by him at the spot.

4. Anyhow Abdul Karim, one of the attesting witnesses of this dying declaration, has since been examined by the Enquiry Magistrate, who has weakened the sanctity attached to this document by deposing that he was the first person attracted to the spot on hearing the report of the rifle shot and told on enquiry by Noor Ahmad about it that only Abdul Hamid and the other unidentified persons were responsible for this assault on him and the abduction of his daughter Mst. Hanifan without attributing any role to Muhammad Ismail or his son Sardar in this affair. He added that during the journey to Renala. Noor Ahmad (deceased) was accompanied by many persons including Ashiq and Abdur Rashid, who remained closed with him. He also conceded that Mohammad Ismail and Sardar petitioners were also among the persons who had collected in the house and taken the injured person to the hospital. It was urged that Noor Ahmad (deceased) seemed to have implicated him after this consultation. Anyhow Abdul Karim is the only witness, who had so far been examined during the one year that elapsed since this occurrence and his evidence has rendered their implication in this crime, if not doubtful, at least open to a further enquiry in the matter entitling them to bail especially when no overt act had been ascribed to them during this occurrence. I have, therefore, to accept this petition and direct that they shall be released from custody on their furnishing a bond each in the sum of Rs. 10,000 (Rupees ten thousand) with one surety each in the like amount to the satisfaction of the Illaqa/Duty Magistrate.

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