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Criminal Pail Application No. 129 of 1981, decided on 29th April, 1981

---S. 497‑Bail‑[Murder‑case] ‑-Dead body of alleged deceased person not found, no incriminating recoveries made no indication that Kari also killed by petitioners and possibility of identification being also existing‑A case for grant of bail, held, made out, in circumstances.

Muhammad Daud A. Baloch for Applicants

Hasan Akbar, Asstt. A.‑G. for the State.

This bail application has been filed by four applicants, namely Wassayo, Ahmedan, Abdul Kareem and Gulloo. These 4 accused and one absconder Gul Baig are facing trial under section 302064/201/148 and 149, P. P. C. The applicants had filed a bail application before the Sessions Court and the learned Additional Sessions Judge, Kandhkot dismissed the bail application by his order dated 9th April, 1981. Hence this bail application.

2. According to the F.I.R. lodged at 12 noon on 11th February, 1981, the complainant and his son deceased Allah Wassayo were looking after the paddy dera of one Haji Gul Mohammad Khoso. The deceased was sleeping and all of a sudden 5 persons came there. The complainant Meeral had a torch and he flashed his torch and identified the 5 assailants. According to the complainant, applicants Wassayo and Ahmedan had guns while the rest of the 3 accused had hatchets. The accused dragged the deceased and on enquiry, the accused told the complainant that the deceased was Karo' and therefore he had to be killed. On cries of the complainant, P. Ws. Aaloo, Ghulam Mustafa, Kamal and Sultan arrived at the scene but they did not go near the accused due to fear. The accused then took away the deceased with them. In the morning at some distance away from the dera the complainant party noticed drops of blood going with the foot‑prints of the accused. It is in these circumstances that at 12 noon the complainant filed his F.I.R. Apart' from this evidence there is the statement under section 164. Cr. P. C. of P. W. Abdul Ghani who has stated that applicants Abdul Kareem and Wassayo had met him and they were going with a bullock cart. Abdul Ghani exchang ed news with these two applicants and while exchanging news, these two applicants, according to Abdul Ghani, informed him that the deceased was on illicit terms with Mst. Mithal wife of applicant Wassayo and that on the preceding night the 5 accused dragged the deceased out of the dera of Haji Gul Mohammad and then murdered him by throttling the deceased and after that they put the dead body in the bullock cart. The other 3 applicants went home and the two applicants were taking the dead body of the deceased in the bullock cart in order to throw the body in the river. According to P. W. Abdul Ghani, he found the dead body of the deceased lying in the bullock cart. According to Abdul Ghani, the two applicants then took the bullock cart and went towards the river. The other piece of evidence, according to the prosecution, is the confession made by the applicants before P. Ws. Baggan and Karam Din but this confession is alleged to have taken place before the Police and learned Assistant Advocate‑General conceded that no weight at all could be given to this extra‑judicial confession before the Police.

3. Mr. Mohammad Daud Baloch, learned counsel for the applicants, has contended that this is a case without a dead body as till now the dead body has not been recovered, no recoveries have been made, and the pieces of evidence are the evidence of the complainant and 4 other persons who are supposed to have seen the accused at the time they are alleged to have dragged the deceased from the dera of Haji Gul Mohammad and the extra‑judicial confession of Wassayo and Abdul Kareem before P. W. Abdul Ghani. According to learned counsel, the identification of the accused is doubtful in the sense that according to the complaint himself he was able to identify these persons with a. torch and if his evidence is to be believed, then apparently he flashed torch on all the accused turn by turn for purposes of recognition. According to learned counsel this is doubtful identification. Further argument was that the other 4 persons who ate alleged to have seen the accused dragging the deceased away is also doubtful as the night must be dark otherwise there was no necessity of the complainant using his torch for purpose of identification. It was contended that if the complainant could see the accused with the help of torch how could be the other 4 witnesses see the accused in that dark night. It was then contended that the F.I.R. has been lodged very late after nearly 12 hours and that although the allega tion is that the son was dragged away but the father and other 4 P, Ws. sit quietly for 12 hours and no action is taken in this period which throws doubt on the veracity of the prosecution case.

4. In view of the fact that the dead body has not been found, no recoveries have been made, there is no indication that the 'kari' has been killed, there is possibility of the identification being doubtful and also there is doubt about the plausibility of the statement of P. W. Abdul Ghani and in view of the special circumstances of the case, I am of the view that the applicants have made‑ out a case for grant of bail. Mr. Hassan Akbar, learned Assistant Advocate‑General, had opposed the bail but on my observation that 1 was inclined to grant the bail, learned Assistant Advocate‑General stated, that at least 2 sureties be taken from each applicant.

5. I accordingly grant bail to all the four applicants on each of them furnishing two sureties in the sum of Rs. 20,000 with P. R. bonds in the like amount to the satisfaction of trial Court. I may snake it clear that the observations made in this order are tentative in nature and are for purposes of bail only. The observations will be ignored by the trial Court who will not be influenced by any observations made herein.

Bail allotted.

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