1. This application has been moved on behalf of A.I Sher son of Fateh Muhammad Lund for bail before arrest under section 498, Cr.P.C. The case has been registered against the present applicant being Crime No.159/91 at Police Station Mirpur Mathelo on 6-10-1991 at about 13-30 hours by one Jan Muhammad Chachar for offence under section 302, P.P.C. Read with section 302 Qisas and Diyat Ordinance. A bail before arrest application was moved before the Court of Sessions Judge, Sukkur but the same was rejected by learned Sessions Judge on 18th July 1993 and as such he has applied for bail before arrest before this Court.
2. The brief facts as alleged in the F.I.R. Lodged by Jan Muhammad are that the complainant and his brothers are Mureeds of Dargah Shareef of. Bharchoondi and there is a dispute between the Pirs and the Lund community. On the day of incident complainant alongwith his brother Khan Muhammad came to Jarwar Town for doing some work. After getting the work done he and his brother Khan Muhammad went to the shop of Chandoomal for shopping. It is alleged that he was doing shopping on the said shop whereas his brother Khan Muhammad was sitting in the shop. At about 11-45 a.m. One Alisher (the present applicant) came there armed with a double-barrel gun.
3. After entering into the shop he asked Khan Muhammad as to why he was praising the Pirs of ttharchoondi Sharif who were on inimical terms with the Lund community and as such he would not spare him. On saying so he fired at his brother Khan Muhammad from his gun, which hit him on the left leg knee, and he fell down. He raised cries, which attracted Abdul Majid Chachar and his brother Ibrahim Chachar and many other persons. After the arrival of above said persons the accused ran away alongwith his gun. They saw that Khan Muhammad was bleeding from his left leg and as such he was taken to Taluka Hospital, Mirpur Mathelo in an unconscious condition. Khan Muhammad however succumbed to the injuries and died. Afterwards the complainant went to the police station and lodged the F.I.R. At Police Station Mirpur Mathelo.
4. During the course of investigation the statements of some persons were recorded by the police in which they stated that the gun of the applicant was lying on the gunny bag and the same fell down from the gunny bag and on account of discharge from the gun the deceased was hit as a result of which he sustained injury on his leg and on account of bleeding he died.
5. It appears from the documents which have been produced before the Court during the hearing of this bail application that the police has not conducted the investigation properly and even police wanted to dispose of the case as an accidental death but the Superintendent of Police directed the Investigating Officer to challan the case before the Court.
6. The main contentions raised by the learned counsel for the applicant are that the witnesses mentioned in the F.I.R. Have not supported the case of the prosecution and they have not implicated the present applicant in their statements under section 164, Cr.P.C. As such according to him the applicant was entitled to be released on bail before arrest.
7. The learned counsel appearing on behalf of the State Mr. Abdul Sattar Chohan has stated that the Investigating Officer had recommended for the cancellation of this case. However, the Superintendent of Police did not agree with the view taken by the Investigating Officer and directed that the accused may be challaned in the Court of law. He has further contended that the witnesses possibly have tried to give obliging statements under section 164, Cr.P.C. Exonerating the accused. According to him no particular number of witnesses is required for the purpose of proving a case against the accused. He has further contended that the first informant has fully implicated the present applicant. The first informant is also an eye-witness and the name of the present applicant appears in the F.I.R. As such according to him the applicant is not entitled to the grant of bail.
8. I have heard learned counsel for the applicant and learned counsel for the State and I have also gone through all the documents produced before me for consideration of this bail application. I have also gone through the order passed by the learned Sessions Judge rejecting the bail before arrest application of the present applicant.
9. It has been observed in 1983 SCM R 15 that even if the only witness mentioned in the F.I.R. Having filed an affidavit stating therein not to have seen occurrence but the complainant who was also an- eye-witness may support the prosecution case, the High Court was justified under the circumstances in dismissing the bail application. In the present case also even if the eye-witnesses mentioned do not support the case against the applicant there still remains the evidence of the first informant who is also an eye-witness of the occurrence. He has fully implicated the present applicant in his F.I.R. This incident has taken place during day time and as such there could not be any possibility of mistaken identity. Besides when only one accused is involved in a case the substitution is very rare. Relying on the principle as laid down in the above Supreme Court judgment and without going deeper into the merits of the case at this stage I feel that the applicant has not been able to make out any case for being released on bail before arrest as he has been involved in an offence under section 302, P.P.C. Read with section 302, Qisas and Diyat Ordinance and the case of the present applicant comes within the prohibitory clause of section 497(1), Cr.P.C. And has been fully implicated by the first informant. Accordingly by a short order, dated 25-10-1993 I had dismissed the Criminal Bail Application No,486/93 and these are the reasons for the same.