1. ' This order will dispose of the bail application submitted on behalf of two applicants namely Nabi Dino and Arab who are facing trial in S.C. No,186 of 1996 (vide F.I.R. No,90 of 1996 registered at Police Station Sujawal for offences under section 17(3) Haraba Ordinance). Their bail application was rejected by the learned Sessions Judge Thatta on 8-12-1996.
2. ' The alleged incident took place on 8-8-1996 at 1930 hours and the matter was reported to the police on 6-9-1996 at 1230 hours. The English translation of the F.I.R. Lodged by complainant Ashok Kumar reads as under:-- ' "I own a medical store in Sujawal Town which is run by me. In the evening of 8-8-1996, my brother Naresh Kumar Hindu, uncle Parbho Das son of (not written) Hindu and I went to Belo Town by motor-cycle for personal work and after being free from the work at 7.30 p.m., when we reached near the road of Dargah Belo town on way back to Sujawal, four (4) unmasked persons were standing there. Two of them were standing to the west bank of the road, while two of them were standing to the east of the road. Two were armed with pistols. All of a sudden (sic) before us.
3. Therefore, we fell from the motorcycle and all of these four persons surrounded us. They took us to jungle to the west of the road. They asked us to hand them amount and articles whatsover was available with us. Due to fear I handed them my Rado watch, gold armlet, gold ring and one currency note of Rs,50. They conducted search of person of my brother Naresh Kumar and uncle Parbho Das but they could not find anything from them. Thereafter, all the four accused persons went into jungle to the west of the road. Then we came to Sujawal by motor-cycle. We continuously tried to track them out on our own but we did not succeed. Today, I have appeared and lodge complaint that aforesaid witnesses and I have thoroughly seen to all the four persons in the light of motorcycle who have robbed me of below described articles at gun point. We can identify them on seeing again. Investigation be made.
4. Details of robbed property.
5. 1One Rado watch worth Rs.13,000.
6. 2One gold armlet weighed 3 tolas worthRs.20,000.
7. 3One gold ring weighed 1 tola worth Rs.6,000.
8. 4One currency note of Rs.50.
9. Total Rs.39,050 ' The only explanation given in the F.I.R. For delay is that the complainant party tried to track the culprits through their own efforts but they could not succeed.
10. ' Without making any comment on this delay it would be relevant to consider the submission of the learned counsel for the applicants that out of seven witnesses five material witnesses including the complainant have filed their affidavit exonerating the applicants/accused. From the perusal of the impugned order it appears that similar submission was made before the learned Sessions Judge Thatta but the same was not accepted. However, I am inclined to follow the dictum laid down by the Hon'ble Supreme Court in Allah Bux v. Nazar Hussain Shah and another, 1979 SCM R 137 that after the affidavits are filed by the eye-witnesses exculpating the accused from the commission of the offence the matter becomes that of further inquiry falling under section 497(2), Cr.P.C. And on this legal ground the accused would be entitled to bail.
11. ' In Muhammad Nawaz and others v. State 1989 PCr.LJ 1126 it was as held by Sajjad Ali Shah, J. (as his Lordship then was) as follows:-- ' "In the instant case all the three eye-witnesses who are closely related to the deceased have sworn affidavits which tend to exonerate the applicants. Previously they had named applicants and absconding co-accused specifically in their various statements but now they say in the affidavits that faces of culprits were muffled and they had not given out the names By giving such affidavits whole ocular testimony of prosecution is exposed to doubt. Minus ocular testimony the remaining evidence proposed to be produced by the prosecution does not seem to be adequate so as to refuse bail. Incident took place on 31-3-1987, applicants Muhamamd Nawaz and Muhammad Ayub were arrested on 28-4-1987, at the instance of Muhammad Ayub, dagger was recovered from bush on the bank of Begari canal on 4-4-1987, which was found to be stained with blood. Nothing is recovered from Muhammad Nawaz who was empty handed. Mashirs are yet to be examined. Till then keeping in view all the concomitant circumstances of the case as stated above this is a case which requires further inquiry, as such I admit applicants to bail in the sum of Rs,50,000 with one surety and P.R. Each in the like amount to the satisfaction of the trial Court."
12. ' Mr. Suleman Habibullah, learned counsel for the State has conceded to the grant of bail and stated that the learned Sessions Judge while rejecting bail application of the applicants ought to have properly appreciated the case law.
13. ' Since all the main witnesses in this case have exonerated the two applicants, therefore, in my humble view the matter requires further inquiry. Following the dictum enunciated in Allah Bux's case a learned Single Judge of Lahore High Court also granted bail in the judgment reported as Muhammad Akram v. The State (1995 M LD 1826, Lahore).
14. ' In view of the above case law and keeping in view the facts and circumstances of the case I have come to the conclusion that the matter require further inquiry. Therefore, the applicants are admitted to bail on furnishing of one surety each in the sum of Rs,1,00,000 (Rs, one lac only) and P.R.
15. Bonds in the like amount, to the satisfaction of learned trial Court.
16. ' Criminal Bail Application No,100 of 1997 stands disposed of.