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Petition for Special Leave to Appeal No. 60‑P of 1978, decided on 17th August 1978.

(On appeal from the order of the Peshawar High Court, Peshawar, dated 29‑7‑1978 in Criminal Miscellaneous No. 511 of 1978).

Criminal Procedure Code (V of 1898)

‑‑‑ S. 497‑Bail ‑ [Murder‑case] ‑ Murder committed at midnight allegedly making it difficult to identify assailants with any certainty Statement of witness H though implicating accused petitioner yet her statement recorded after a month‑Incident reported after six months Witness G in his statement under S. 164, Criminal Procedure Code, 1898 adding names of two other assailants while exculpating himself Case, held, prima facie one of further inquiry and accused petitioners entitled to bail.

Qazi Muhammad Jamil, Advocate and M. Qasim Imam, Advocate‑on- Record for Petitioners.

Nemo for Respondents.

Date of hearing : 17th August 1978.

.‑The petitioners seek special leave to appeal against the order of the High Court dated 29th of July, 1978, by which bail was. refused to them. A case was registered against the petitioners and others at Police Station Aloch. Swat, under sections 149, 302 and 404 read with section 149, P. P. C. for killing Sardaray and for dishonestly misappropriating his property. Sher Muhammad, his first cousin, lodged a report on 20th of March, 1978, wherein he alleges that the deceased has not been heard of since six months ; and that he has gained knowledge that he has been killed by unknown persons. He further stated that he was friendly with Gul Farosh and that he was last seen with him on the evening of 21st of September 1977. Gul Farosh on being questioned had given evasive replies. Lastly, he showed his suspicion that at the behest of Gul Farosh his cousin was killed by unknown persons. Gul Farosh was arrested and it appears that in his statement, purported to have been recorded under section 161, Cr. P. C. on 28th of March, 1978, he has involved the petitioners, Amanullah, Matin and Mian Umar alongwith himself for causing the murder of the deceased with kulharis and hatchets. Subsequently, his statement under section 164, was recorded on 5th of April, 1978, in which he exculpated himself but further involved Umar Sadiq and Fazle Rahim. As the murder was alleged to have been committed in his house at mid‑night, the statement of his wife, Mst. Hussane Zeba was recorded on 1lth of April, 1978, in which she inculpated the petitioners as some of the assailants of the deceased. The dead body of the deceased was exhumed on 20th of March, 1978, and was identified by his mother. The post‑mortem examination revealed that the deceased had suffered injuries with a sharp‑edged weapon such as Kulhari or hatchet.

The High Court in refusing bail to the petitioners has relied primarily on his earlier statement recorded by the police in which he has attributed the killing to the petitioners who were stated be armed with a kulhari and hatchets. However, in his second statement he exculpated himself and stated that the petitioners, Sher and Abdur Rahim were armed with guns while Kotai with an axe and that they alongwith others had killed the deceased. The learned counsel, therefore, contended that the High Court could not have acted on his earlier statement, as it was inadmissible for the purpose of reaching the prima facie conclusion as it did. The learned counsel next contended that Mst. Hussane Zeba has merely stated that the assailants were armed with Kulharis and hatchets and, therefore, as it was mid‑night, it was not possible for her to have seen as to which one of the assailants had caused the injuries.

The learned Advocate‑General, N.‑W. F. P., on the other hand contended that there is ocular testimony of Mst. Hussane Zeba implicating the peti tioners and they were motivated to commit the crime as they wanted to avenge the murder of one of the brothers of the petitioners. As for the others taking part in the crime, he contended that he was on terms of illicit intimacy with Mst. Mahrooba and that they wanted to finish him, for this reason as well. We are, however, not impressed by this contention as not only the incident was reported after six months but we have also noticed that Gut Farosh in his 164 statements has added the names of two other assailants while exculpating himself. This murder was committed at mid‑night in which case, as contended, it might have been difficult to identify the assailants with any certainty. As to the statement of Hussane Zeba, no doubt, she has implicated the petitioners but her statement was recorded after a month and it will be for the trial Court to conside its weight in the context of the facts and circumstances of the case. . The High Court erred in relying on the earlier statement of Gul Farosh while refusing bail to them. Prima facie, therefore, it is a case of further inquiry so far as the petitioners are concerned.

Accordingly, we would convert this petition into an appeal and allow bail to the petitioners in the sum of Rs. 5,000 with one surety each in the like amount to the satisfaction of the Ilqa Magistrate, Swat.

Bail allowed.

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