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Criminal Miscellaneous No. 3168‑B of 1985, decided on 12th January, 1986.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, grant of‑‑Prosecution mainly relying on evidence of recovery of dead‑body on joint pointation of two accused persons, their extra judicial confession, recovery of weapon of offence and recovery of some article allegedly belonging to deceased‑‑Evidence of extra‑judicial confession however, appearing to be a sheer fabrication at some later stage‑‑Petitioner also suffering from lungs infection‑‑Petitioner allowed bail, in circumstances.

Ch. Muhammad Hussain Chhachhar for Petitioner.

Haider Ali Shah for the State.

Date of hearing: 12th January, 1986.

Manzur petitioner alongwith another is involved in 'a case under section 302, P.P.C. He has moved this petition for bail.

2. Briefly the case was registered under section 564 , P.P.C. on 16‑5‑1985 on the report of Asrar Ali Shah complainant wherein he alleged that on 12‑8‑1984 at about Degarwela the petitioner and his CO‑accused Mukhtar took away his nephew Alam Shah deceased from his house and thereafter, he did not return home. It is further alleged that a week prior to the occurrence the petitioner had quarrelled with the deceased and there was a strong suspicion that the petitioner and his CO‑accused had abducted the deceased with a view to murder him.

3. Learned counsel for the petitioner contends that there is no direct evidence of the murder and the evidence collected by the investigating agency consists of last‑seen and recoveries which is sufficient to connect, the petitioner with the commission of offence is further submitted that the petitioner is a sick person and his heal, is deteriorating due to his detention.

Learned State counsel has opposed the prayer for bail. He submit, that besides the evidence of last‑seen and recoveries, there is also evidence regarding extra‑judicial confession allegedly made by the petitioner before Qutab Nisar and Khizar Hayat P.Ws. At this stage the learned counsel for the petitioner contends that this evidence does not find mention in the police report, dated 31‑8‑1985 nor the names or the witnesses of the extra‑judicial confession are mentioned therein and it appears to have been subsequently concocted by the investigation Officer with a view to strengthen the prosecution case.

4. I have gone through the relevant material. An uncertified cop; of the report under section 173, Cr.P.C., dated 31‑8‑1985 has been, placed on the file. There is no mention of any extra‑judicial confession, in this report nor the names of Qutab Nisar and Khizar Hayat P.Ns have been mentioned therein. Even the report, dated 12‑10‑1985 under the signatures of the S.H.O., P.S. Renala Khurd, does not contain the names of Qutab Nisar and Khizar Hayat P.Ws. who are alleged have made statements under section 161, Cr.P.C. regarding extra judicial confession on 11‑8-1985. The contention of the learned counsel that this evidence was fabricated subsequently, therefore, cannot be lightly ignored. The other evidence against the petitioner consists of recovery of dead‑body on the pointation of both the accused, recovery of wrist watch and radio of the deceased and the recovery of Khanyar. The recovery of the dead body on the joint pointation of both accused carries little weight, prima facie, the investigation appears tot have been conducted dishones0y. Furthermore, .the petitioner is a sick person. He was medically examined by T.B. Specialist, D.H.Q. hospital. Sahiwal, on 6th November. 1965 and the report is to the effect that he is suffering from bilateral pulmonary infiltration with cavitation in right lung kochs. In the circumstances, a case for the enlargement of the I petitioner is made out. I, therefore, admit him to bail in the sum of Rs.20,000 with two sureties in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Okara.

S.G.D. Bail granted.

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