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Criminal Miscellaneous No. 746-B of 1984, decided on 25th June, 1984.
---S. 497(2)--Penal Code (XLV of 1860), S. 364/302--Bail, grant of Co accused alone took away deceased from Dera towards place of murder-Neither ocular evidence of murder of deceased nor any incriminating recovery effected from petitioners--Question of guilt of petitioners, held, required further inquiry, in circumstances--Petitioners allowed ball.
Sardar Ahmad Khan and Malik Muhammad Din for Petitioners.
Muhammad Akbar for the State.
This is an application for bail on behalf of Rafiq Ahmad and Bashir Ahmad petitioners in case under section 364/302, P.P.C. registered at P.S. Shaidani vide F.I.R. No. 35/84 dated 4-3-1984.
2. The prosecution case is that Amir Bakhsh deceased was suspected of having illicit sexual relations with the daughter of Saeed Ahmad the brother of the petitioners and that on 3-3-1984, the petitioners alongwith Saeed Ahmad their brother took away the deceased and Ghulam Shabbir from their house in the presence of Ghulam Farid and Qadir Bukhsh P.Ws. on the pretext of helping them in irrigation and thereafter in furtherance of their common intention murdered him in the area of mauza Behar Khakhi.
3. Learned counsel for the petitioners contends that there is no ocular evidence of the occurrence and that the evidence collected by the Police during the investigation is not strong enough to exclude the hypothesis of the innocence of the petitioners. On the other hand, the learned counsel for the State assisted by learned counsel for the complainant vehemently opposed plea for the bail of the petitioners on the ground that the circumstantial evidence i.e. motive and of taking away the deceased from his house supported by Ghulam Farid and Ghulam Shabbir connects the petitioners with the commission of offences punishable under section 364/302, P.P.C.
4. I have considered the arguments advanced by the learned counsel for the parties with care. I find that there is no ocular evidence of the murder of the deceased; that no incriminating recovery was effected from the petitioners; that there is no evidence of extra-judicial confession made by the petitioners; and that according to the prosecution the petitioners and their co-accused Saeed Ahmad took the deceased to their Dera where all of them were enjoying T.V. Programme when Saeed Ahmad co-accused alone took away the deceased from that Dera towards the place of murder; that Wahid Bukhsh P.W. in his statement recorded under section 161, Cr.P.C. stated that Saeed Ahmad co-accused and deceased were lastly seen by him near the place of murder of deceased.
5. For what has been stated above, without making expression of opinion lest it may prejudice the merits of the case, I am of the view that in the peculiar circumstances of the case, the question of the guilt of the petitioners requires further enquiry. They are, therefore, admitted to bail in the sum of Rs. 10,000 each with one surety each of the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate, Rahimyar Khan.
S. G. D. Bail granted.
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