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Criminal Bail Application No.211 of 1986, decided on 25th February, 1986.

--S.302--Motive--Enmity--Double-edged weapon which cuts both ways.

---S.497--Penal Code (XLV of 1860), S.302--Bail--Ocular evidence coupled with evidence of motive making out a prima facie case against accused--Bail refused.

Khudayar and others v. The State 1985 P Cr. L J 2849 and Muhammad Aslam and 4 others v. The State 1985 P Cr. L J 2449 ref.

Mrs. Salima Nasiruddin for Applicant.

Abdul Ghafoor Mangri, A.A.-G. for the State

The applicant Shahabuddin alongwith co-accused Sodho have been sent up for trial on the charge of murdering one Naair Ahmed. The occurrence took place on 15-3-1984 at about sunset when deceased Nazir Ahmed was killed by gunshot fired by applicant Shahabuddin. It is alleged that besides complainant Ali Murtaza, his cousin Rahim Bux witnessed the incident. Thus there is ocular evidence of two witnesses against the applicant.

The learned counsel for the applicant has contended that evidence of the said eye-witnesses is not reliable in view of their enmity with the accused. In support of her argument, she referred to the F.I.R.which shows that Muhammad Sharif uncle of applicant Shahabuddin was killed five years ago and in that case besides others, Ali Akbar, elder brother of the complainant is facing trial. It would appear that this enmity has been used by the prosecution as motive for commission of the murder. Of course enmity is regarded as double-edged weapon which cuts both ways. In the instant case apparently accused party were nursing the grudge and wanted to avenge the murder of their man, Muhammad Sharif. It is yet to be proved by them that the complainant's party had falsely implicated the accused on account of the above enmity.

It is further argued on behalf of the accused that nothing has been recovered from him. If no recovery is made, that is no reason to release the accused on bail. It is to be seen if there are sufficient grounds to believe that accused has committed the offence.

In my opinion the ocular evidence referred to above coupled with the evidence of motive makes out prima facie case against the accused, which if believed, can lead to his conviction. Therefore this is not a fit case for granting bail to the accused.

In support of his arguments the learned counsel for the applicant has placed reliance on the case reported as Khudayar and others v. The State 1985 P Cr. L J 2849. It is found that the facts of the above-reported case are distinguishable from that of the instant case and as such the said authority is not helpful to the learned counsel. Similarly the other authority reported as Muhammad Aslam and 4 others v. The State 1985 P Cr. L J 2449 relied upon by the learned counsel is also not applicable in the present case for the simple reason that the facts of the said authority are totally different.

In view of the above I see no merit in the bail application which is accordingly dismissed.

M.Y.H./S-70/K Bail refused.

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