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Criminal Bail Application No. 38 of 1982, decided on 7th February 1982.

‑‑ S. 497/498 and Penal Code (XLV of 1860), S. 302/34‑Bail Instead of satisfying Court that there is a prima facie case against petitioners State counsel emphasizing on emotional aspect of case Petitioners, held, cannot be detained for sentimental reasons‑‑Two out of three eye‑witnesses having changed and mashir of recoveries not supporting prosecution case‑Prima facie case not made out against petitioners‑Bail granted.

Ghulam Qadir Jatoi for Applicant.

Agha Saifuddin for the State.

This bail application has been preferred by accused Rind Ali, Khamiso and Jagan who are facing trial for the murder of Ellahi Bux, brother of complainant Gambo in the Sessions Court, Shikarpur.

On the day of incident which took place on 10th December, 1980, at 9‑45 a. m., both the brothers were on their way to the Sessions court to attend the case relating to the murder of Mashooq Ali, brother of accuse Rind Ali, in which they figured as accused persons. It is said that all the three petitioners who were armed with hatchets emerged from the nearby bushes and attacked the deceased causing his instantaneous death.

Beside complainant Meer Ali and Jio were alleged to have witnessed the murder. Mr. Ghulam Qadir Jatoi, learned counsel for the applicants has referred me to the statements of Meer Ali and Jio who have admitted in their evidence that the faces of the assailants were muffled. Manifestly they have deviated from their original stand only to favour the accused. If their statements are excluded from consideration, the prosecution will be left with solitary word of the complainant. His evidence being interested and inimical will require corroboration. But it is stated at bar the mashir of recovery of blood‑stained hatchets from the petitioners has not supported the prosecution case.

Opposing the bail application, Mr. Saifuddin Agha, the learned State counsel, has argued that the petitioners are responsible for a daring murder which was committed just near the Sessions Court of Shikarpur and, therefore, they do not deserve any concession of bail. Instead of satisfying the Court that there is prima facie case against the petitioners the learned counsel has emphasized the emotional aspect of the case. Surely the petitioners cannot be detained for sentimental reasons. In fact by changing from their previous version, the important eyewitnesses who are deeply interested in the result of the case have created an impression as if the parties themselves are not keen that justice be done in the case. If so, justice cannot be thrust on them.

With two of three eye‑witnesses having changed and even the mashir of recoveries not supporting the prosecution case, it is difficult to hold that prima facie case is made out against the petitioners.

For above reasons bail is allowed to the petitioners in the sum of Rs. 25,000 each and P. R. of the same amount to the satisfaction of the trial Court.

M.Y.H. Bail granted.

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