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Criminal Bail Application No.203 of 1987, decided or, 11th August, 1987.

---S.497--Penal Code (XLV of 1860), S.302/34--Bail, grant of- Complainant mentioning name of one accused in F.I.R. and other as unknown person--Two eye-witnesses mentioning second accused by different names--Pistol recovered from accused in F.I.R.-- Nothing incriminating recovered from second accused--Accused named in F.I.R, refused bail while case of other considered of further inquiry and granted bail.

1986 P Cr.L J 692; 1974 P Cr.,L J 433; P L D 1972 S C 81 and 1978 S C M R 11 ref.

Qurban Ali Chohan for Applicants.

Riaz Ahmed for the State.

Both the applicants seek bail in crime No.71/76 of P.S. Hatri in District Hyderabad in respect of an offence punishable under section 302 read with section 34, PPC. The crime was registered on 16-9-1986 at 8-00 p.m. on a report lodged by Karim Bhai. He alleged that his brother's son by name Nazar Ali Khawaja was done to death by two persons, one identified as Abdul Aleem Bhambhro and another unknown person at his cattle-pen at about 7-00 p. m. He further alleged that deceased Nazar Ali was shot dead from a pistol by Abdul Aleem and was given hatchet blows by the unknown assailant. He stated that Abdul Aleem was employed with the deceased Nazar Ali Khawaja at his cattle-pen and the deceased had reprimanded him on the previous day on his quarrelling with the other employee Mithoo. According to him, the incident was witnessed by him, Rajab Ali and Noor Mohammad, and two other persons by name, Sadaruddin and Deedar Ali had gone there on hearing commotion and were appraised of the incident. During the course of investigation, Abdul Aleem was apprehended and a pistol was recovered from him. Applicant Mohammad Bux also was arrested on his implication by Rajab Ali and Noor Muhammad. The case against them is pending in the Court of Vth Addl. Sessions Judge, Hyderabad. A bail application filed in the trial Court was dismissed by the learned trial Judge by order dated 8-2-1987.

The learned counsel for the applicants has urged that name of the applicant Mohammad Bug was not disclosed in the F.I.R., although one of the eye-witnesses Rajab Ali-mentioned his name in his 164 Cr.P.C. statement. He has further urged that the other eye-witness Noor Mohammad claiming to have known the second assailant has named him as Mithoo. According to him, the accusation against the applicant Mohammad Bux does not connect him with commission of the crime. He has placed reliance on a case reported in 1986 P Cr. L J at page 692. As regards the applicant Abdul Aleem, the contention of the learned counsel is that the witnesses could not have seen the incident from the place where they claimed to have been available at the time of incident. He has also contended that the witnesses are interested persons. He has cited a case reported in 1974 P Cr. L J 433 as the supporting authority. He has also relied upon a case reported in P.L.D. 1972 SC at page 81 to urge that all the facts and circumstances may be taken into consideration even at the stage of consideration of bail application.

The learned counsel for the State has opposed the application contending that name of the applicant Abdul Aleem was disclosed in the F.I.R. lodged without loss by time and name of the applicant Mohammad Bux was disclosed by the other two eye-witnesses Rajab Ali and Noor Mohammad who were knowing him. He has relied upon a case cited as 1978 S C M R 11. He has also contended that the deceased was assaulted without any altercation and it was an incident of culpable homicide amounting to murder. In this respect, he has relied upon a case reported in 1987 SCMR 1246.

The incident is alleged to have taken place at about 7-00 p.m. There are three eye-witnesses to the incident namely Karim Bhai, Rajab Ali and Noor Mohammad. Karim Bhai lodged report. He made mention of two assailants and named only one of them as Abdul Aleem and described the other person as unknown person. The other two eye-witnesses implicated not only Abdul Aleem but also name the other assailant. However, Rajab Ali named the other assailant as Mohammad Bux, while Noor Mohammad named him as Mithoo. A pistol is alleged to have been recovered from Abdul Aleem but nothing incriminating is alleged to have recovered from Mohammad Bux. Applicant Abdul Aleem does not have a case for grant of bail and application is dismissed in respect of him. As regards applicant Mohammad Bux, his complicity in the commission crime needs further enquiry. He is granted bail in the sum of Rs.40,000 with one surety to the satisfaction of the trial Judge.

S.A./A-155/K Application partly accepted.

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