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Criminal Bail Application No. 681 of 1979, decided on 11th August 1979.

Criminal Procedure Code (V of 1898) ----

---‑S. 497‑Four persons named in F. I. R. but Police challaning applicant alone and dropping remaining co‑accused though eye‑witnesses involving all of them‑An independent witness reaching spot immediately on hearing gun report but stating none of person removing deceased to his house having mentioned about any of persons named, in F. I. R. as assailants‑‑Case, against applicant, held, required further enquiry, as contemplated in cl. (2) of S. 4.97, Cr. P. C.‑Bail allowed in circumstances.

Muhammad Hayat Junejo for Applicant.

Sarfaraz Ahmed Asstt. A: G. for the State.

The facts according to the F. I. R. lodged by one Muhammad Ismail on 15‑4‑1978, at about 10‑00 p.m. at Police Station Dadu, are that the deceased was fired two persons, namely, the applicant and his brother Nazeer Ahmed while their other two brothers namely Muneer Ahmed and Mukhtiar Ahmed, who were both armed with guns also threatened them and fired in the air to scare the witnesses. The incident had taken place when Akbarali was sitting with the complainant and others in his house and was called out and inmates of the ‑ house immediately thereafter beard the. commotion and abuses outside the door, whereupon they came out at the door and in the electric light, they saw and identified Muneer Ahmed, Bashir Ahmed, Nazeer Ahmed and Mukhtiar Ahmed all sons of Shafi Muhammad Channa standing there, of whom Bashir Ahmed and Nazeer Ahmed were armed with revolvers and Muneer Ahmed and Mukhtiar Ahmed with guns. The complainant and others saw Bashir Ahmed and Nazeer Ahmed fired two revolver shots at the deceased Akbarali and he was hit with the shot fired by Bashir Ahmed, and fell down with a shriek. They all pleaded to them in the name of God, not to kill A7barali whereupon Munir Ahmed and Mukhtiar Ahmed threatened them and fired guns in the air. They further threatened them that they have killed Akbarali and others would also meet the same fate and then they left the place of incident.

The motive as per F. I. R. was that the complainant and his uncle Mir Muhammad were sitting in the cloth shop, when Murad younger brother of the applicant came and asked the uncle of the complainant to give him five or six Takias of lady silken cloth, to show in his house, and they would purchase as per their selection. Mir Muhammad handed over the three Takias of lawn and three of flat crepe. About an hour later Murad turned up with all six Takias and on checking the uncle of the complainant found‑ four Takias each short of three yards, and he told him that the said Takias had fallen short, and as such he would not accept it, and asked him to make good the shortage of cloth. But Murad went away throwing the Takias of cloth there at the shop. Then Mir Muhammad sent his son Sikandarali with instructions to tell Bashir to make good of the shortages of the cloth and on his return from there, he said "I told Bashir Ahmed about the shortage of 10th from our Takias, which was taken out by his family members. I asked him to get us back from them. On my so saying, Bashir Ahmad got very much annoyed with me saying, "you have branded our ladies, as thief' so saying, he started abusing and said that during that very day, they would get our men killed." It was on account of this enmity that Akbarali was called from the house and murdered with revolver. The Police after investigation challaned the appli cant to stand his trial under section 302, P. P. C.

The bail application was moved for the applicant which was rejected by the learned Additional Sessions Judge, Mehar at Dadu on the ground that the plea of alibi could only be accepted when it was supported by substantial proof which would be possible at the time of trial.

The learned counsel for the applicant 'contends that the complainant involved as many as four persons in the present case and the Police let off three and have shown their names in column two of the challan, for insuffi cient evidence and sent up the present applicant only. He further contends that there is no other piece of evidence except the ocular testimony of tine complainant rind P. Ws. Abdullah and Ghulam Hussain out o them Abdullah is cousin of the complainant as well as the deceased and Ghulam Hussain is their relative. The learned counsel also referred to a statement of one Sheikh Abdullah recorded under section 164, Cr. P. C., on 24‑4‑1978, in which, it has been mentioned that he was sitting in his house when he heard gunshot report and went out and found so many neighbourers standing there and the deceased Akbarali was being removed by the ladies to his house saying that some persons have fired al, the deceased with gun and revolvers and have killed him.

The learned counsel for the State does not deny the factual position and opposes the bail application on the ground that there was ocular testimony and there were reasons to believe that the applicant was connected with the offence punishable with death or imprisonment for life,. It would be, there fore, premature to allow bail at this stage.

After having heard the learned counsel for the applicant and the learned Asstt. Advocate‑General, I find that the incident had taken place at a place where so many independent persons were living and the statement of one such neighbour by name Abdullah, recorded under section 164, Cr. P. C. was very much relevant for the purposes of deciding this bail application. He being an independent person has very clearly said that the deceased Akbarali was being removed by the ladies to his house when he reached there on gun report and they did not mention about any of the person named in the F. I. R.

It has also been pointed out that four persons who were named in the F. I. R., the Police have preferred not to challan the remaining three though the eye‑witnesses have involved all the four brothers named in the F. I. R. and parts assigned to them in their statements recorded under section 161, Cr. P. C.

I find in the above circumstances, when three persons named in there F. I. R. have not been sent up by Police, therefore, the case of the applicant also requires further inquiry as contemplated in clause 2 of section 497, Cr. P. C. I, therefore, grant bail to the applicant and he shall be released on his furnishing solvent surety in the gum of Rs. 29,000 and PR bond in the like amount to the satisfaction of the trial Court.

Petition allowed.

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