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Criminal Miscellaneous No. 1518-B/BWP, of 1984, decided on 2^nd December, 1984.

Criminal Procedure Code (V of 1898)--

---S. 497(2)--Penal Code (XLV of 1860), S. 302/34--Joint extra-judicial confession--Grant of bail--Complainant only eye-witness of occurrence found not present at spot during investigation--No other incriminating evidence except that of joint extra-judicial confession available Question of guilt of accused in circumstances, held, required further enquiry- Bail, therefore, was allowed.

M.Asif Khan for Petitioners.

Rai Muhammad Aiam Khan for the State.

Date of hearing: 2nd December, 1984.

This is an application for bail on behalf of Dharia, Bharia Gi, Prubbo and Mana petitioners in case under section 302/34, P.P.C. registered at P.S. Saddar Khanpur vide F.I.R. No.138/84, dated 10-5-1984.

2. The prosecution case is that the petitioners caused the death of Mst. Boob on the night between 10/11-4-1984. As for the petitioners it has been alleged that Purbo and Mana caught hold of the deceased whereas Dharia and Bharia strangulated her to death.

3. The learned counsel for the petitioners submits that during the investigation, the presence of the complainant namely Girdari has not been established and that the remaining evidence collected by the police is not sufficient to exclude the hypothesis of the innocence of the petitioners. Conversely the learned counsel for the State has opposed the plea for the bail of the petitioners.

4. I have considered the arguments advanced by the learned counsel for the parties with care. I find that according to the F.I.R., Girdari complainant alone saw all the petitioners near the place of occurrence. He saw Dharia and Bharia throttling Mat. Booti to death; that during the investigation, the police found that Girdari was not present on the spot and had not witnessed the occurrence; that the evidence of extra judicial confession supported by Lakhoo, Gordan and Samar P.Ws is that of a joint extra-judicial confession and that except joint extra judicial confession there is no other incriminating evidence against the petitioners.

5. For what has been found above, I am of the view that the question of the guilt of the petitioner requires further enquiry within the meaning of section 497(2), Cr.P.C. they are therefore, allowed bail in the sum of Rs.10,000 each with one surety each in the like amount to the satisfaction of Assistant Commissioner/ Duty Magistrate, Rahimyar Khan.

S.A. Petition accepted.

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