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Criminal Miscellaneous No.704/B of 1983, decided on 25th June, 1983.

---S. 497--Penal Code (XLV of 1860), S. 302--Bail, grant of--Evidence of extra-judicial confession coupled with other circumstantial evidence particularly of recoveries prima facie connecting petitioners with crime and affidavits obtained from prosecution witnesses indicating that evidence in fact tampered with--Bail declined, in circumstances.

Ch. Pervaiz Aftab for Petitioners.

Tassaddaq Hussain Jilani, Asatt. A.-G assisted by Ch. Abdul Sattar Goraya for the State.

Date of hearing: 18th June, 1983.

This is an application for bail on behalf of Allah Ditta and Muhammad Rafiq petitioners in a case under section 302/34, P.P.C.,, registered at P.S. Burewala, vide F.1.R. No. 78, dated 11-6-1982.

2. The prosecution case is that the petitioners and Saleem co-accused in furtherance of their common intention caused the death of Sharafat Hayat Ali on the night between 10/11-6-1982. The earlier application filed by the petitioners was dismissed by me on 7-3-1983.

3. The learned counsel submits that:--

(1) At the time of occurrence Allah Ditta was less than 16 years as per school certificate and his case falls within the second proviso of section 497, Cr.P.C.

(2) Muhammad Ramzan and Ali Sher, the alleged witnesses of Waj Takkar, have given the affidavits to the effect that they know nothing about the case.

(3) The alleged extra-judicial confession made before Abdullah P.W. is a joint one.

(4) The statements given by Arshad and Hafeez Ullah P. Ws. do not amount to a last seen evidence inasmuch as they saw the deceased alone going towards the house of Allah Ditta petitioner.

As against this, the learned Assistant Advocate-General assisted by the learned counsel for the complainant has opposed this application.

4. After hearing the learned counsel and going through the record I find that previously the application moved by the petitioners was dismissed by this Court on 7-3-1982, that according to birth entry which is on the record of earlier application, Allah Ditta petitioner was about 18 years at the time of occurrence; that from the statement Muhammad Abdullah P.W. it is very much clear that Muhammad Rafiq petitioner alone confessed before him and as such the confession cannot be termed as a joint confession; that the evidence of extra-judicial confession of the co-accused coupled with other circumstantial evidence particularly that of recoveries prima facie connects the petitioners with the crime and that the affidavits which have been obtained by the petitioners indicate that the evidence in fact has been tempered with.

5. For what has been found above it is not a fit case for the grant of bail. Dismissed.

S. G. D. Bail refused.

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