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Criminal Procedure Code (V of 1898)--

--S. 497--Penal Code (XLV of 1860), S. 302/307/148/149--Bail- Prosecution witness/ abductee supporting prosecution case----Allegation against accused about his resorting to firing at time of occurrence and as such helping other accused in taking away abductee--Sufficient proof, held, existed in circumstances to believe that accused were guilty offence punishable with extreme penalty--Bail refused.

Allah Rakha v. Nazar Hussain 1979 S C M R 137 ref.

Sana Ullah v. State 1983 S C M R 15 rel.

Malik. Yar Muhammad for Petitioners.

Muhammad Akbar for the State.

Allah Rakha son of Din Muhammad, caste Metla and Shabbir Shah son of Mian Abdul Halim, caste Qureshi Hashmi residents of district Rahimyar Khan, have applied for the grant of bail in a case registered against them and 3 others under section 302/307/148/149, P.P.C., .at Police Station Zahirpir, district Rahimyar Khan.

2 Briefly the facts are that Shabbir Shah, petitioner, abducted Mst. Razia Begum wife of Abdul Ghafoor complainant in this case. She was restored to the complainant some 3/4 months before the present occurrence. On the night between 3/4-7-1983 Abdul Ghafoor and his wife Mst. Razia Begum were sleeping in their courtyard. They were awakened by the reports of gun fires at about Sehriwela and found near their Charpai Shabbir Shah armed with a pistol; Allah Rakha petitioner armed with a 12 bore pistol, Shabbir Punjabi armed with .32 bore revolver, -Moosa and Muhammad, Gopang by caste, armed with sticks. Allah Rakha, petitioner, started firing. The complainant raised alarm which attracted Haji Mehr Chandia and Abdul Majeed, deceased (maternal uncle of the complainant) to the spot. Moosa gave stick blow on the head of complainant and Shabbir Shah petitioner caught :hold of Mst. Razia Begum who readily accompanied him. The complainant and Abdul iMajid (deceased) went in their pursuit. At a distance of about 2 squares, aforesaid Abdul Majid took Mst. Razia in his grips in order to snatch her from the accused whereupon Allah Rakha, petitioner, and his companions exhorted Shabbir Shah, petitioner, to finish Abdul Majid and consequently Shabbir Shah fired at Abdul Majid with his .12 bore pistol hitting in his chest. Shabbir Punjabi shot at Abdul Ghafoor complainant hitting his leg. The petitioner and their companions thus succeeded in taking away Mst. Razia Begum. The report was made at Police Station' Zahirpir on the following morning at 7-30 a.m.

3. The petitioners applied for the grant of bail in the Court of Additional Sessions Judge-11, Rahimyar Khan, which -was declined, hence this petition. I have heard learned. counsel for the parties and also perused the record.

4. It is argued on behalf of the petitioners that the case is false and that Mst. Razia Begum, the abductee in this case, had sworn affidavit on 31-8-1983 - absolving them of the charge. It is next contended that apart from the complainant the only eye-witness Haji Mehr had also sworn affidavit to the effect that he did not see the occurrence. It is,* therefore, argued on the strength of a Supreme Court authority cited as Allah Rakha v. Nazar Hussain 1979 S C M R 137 wherein the order of High Court granting bail to the accused on the basis of the affidavit filed by the eye-witnesses absolving the accused was considered to be 'a case of further inquiry and was not interfered with, hence the petitioners deserve bail. Learned State counsel vehemently opposed the grant of bail saying that the complainant who was injured at the time of occurrence with afire-arm and Whose presence at the spot cannot be doubted, stands by the prosecution which provides reasonable ground to believe that the petitioners are guilty of committing offences of murder and murderous assault and abduction. He relied on Sana Ullah. v. State 1983 S C M R 15. In this precent the order of High Court dismissing the bail petition of the accused on the ground of the complainant alone in supporting 'the prosecution was not interfered with by the Supreme Court.

5. I have carefully considered the facts and circumstances of the case as well as the case-law cited at the bar and find that Mst. Razia Begum P.W. admittedly had soft corner for Shabbir Shah with whom she eloped prior to occurrence and again accompanied the accused readily on the night of occurrence yet the record shows that she supported the prosecution case in her statement recorded, on 15-10-1983 under section 164, Cr.P.C., Le. two months after she swore affidavit, dated 31-8-1983 favouring the petitioners. No doubt that Haji Mehr P.W. has denied his presence at the time of occurrence A in his affidavit, dated 7-2-1984 yet Abdul Ghafoor complainant who was injured with fire-arm at the time of occurrence stands by the prosecution case. There is specific allegation against Shabbir Shah that he shot at and killed Abdul Majid deceased. Likewise there is allegation against Allah Rakha, petitioner, that he also resorted to firing at the time 'of occurrence and thus helped Shabbir Shah and his co-accused in taking away Mst. Razia Begum. In the circumstances there exists sufficient proof to provide reasonable ground to believe that the petitioners' are guilty of offence punishable with extreme penalty.-

6: Respectfully following the dictum laid down in Sana Ullah's case-(supra) I find that in the circumstances of this case the petitioners are not entitled to the grant of bail. Consequently, this petition is, dismissed.

M. Y. H. Bail refused.

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