This is an application for bail before arrest. On 9-6-1982 as the Police papers were not available with the learned Additional Advocate General I admitted the present applicants to interim bail which was extended on 15-6-1982 till today. The brief facts leading to the filing of the above application are that Mehrab son of Imam Bux Khoso lodged F. I. R. No. 17/82 .On 28-4-1982 at 9 a. m.
At the Police Station Mangan Taluka Kotli alleging therein, that his grand mother Mst. Sato aged 45 years was living with him alongwith her children Azim aged 18, Habib Aged 8 and Mst. Junal aged 4 years. It was also alleged that his grand father expired about 2 years back. It was also alleged that Mst. Sato's cousin Khan Muhammad son of Jumo Khoso came to the complainant's house about 5- 10 days before the incident and desired that Mst. Sato should come and stay in their village and he would get her married, to which she did not agree. It was further alleged that on the day of incident about 13 days back at night at about 1-00 a. m. The complainant woke up on the barking of dogs and saw present five applicants alongwith Ali Murad. Ali Akbar and Baqar, applicants in connec-- ted bail application No. 462/82 and one Punhal on the moonlight. Ali Akbar and Punhal were armed with guns, Moosa Jamal, Baqar armed with hatchets, whereas Miran, Ali Murad and Haji were armed with Lathis, It was also alleged that Punhal forcibly took away Mst. Sato, whereas Ali Murad dragged Habibullah and Ali Muhammad dragged Mst. Junal. On their cries they woke up. It was further alleged that the above incident was narrated to Nekmards Mian Bux and Ghulam Qadir who told the complainant that they would bring the abductees. It was also alleged that as their efforts failed the complainant was lodging the F. I. R.
It may be observed that the present applicants applied for bail before arrest before the Sessions Judge, which was originally granted by an order dated 10-5-1982 but on 25-5-1982 interim bail was not confirmed. The apple--cants have, therefore, filed the present application. It may be observed that the three accused namely Ali Murad, Ali Akbar and Baqar applicants in other criminal bail application No. 462/82 have already been arrested and are in judicial custody whereas the present applicants have not yet been arrested.
2. (a) In support of the above application, Mr. A. Q.Halepota, learned counsel for the applicants has urged the following points :-
(i) That the F. I. R. Cannot be relied upon as it was lodged after the expiry of 13 days.
(ii) That there could not have been identification with certainty in the moonlight.
(iii) That no overt act has been attributed to the present applicants.
(iv) That the investigation has already been completed and the challan has been submitted to the Sessions Court in which inter alia the present applicants have been implicated.
(b) On the other hand, Mr. Uris Muhammad Baloch, learned counsel for the complainant party, who has filed an application in opposition has made the following submissions:-
(i) That F. I. R. Discloses an offences punishable under section 11 of the Hadood Ordinance entailing life imprisonment.
(ii) That the names of the applicants are mentioned in the F. I. R.
(iii)that the delay of 13 days in lodging the F. I. R. Has been sufficiently explained as the complainant party contacted the Nekmards who promised to get the abductees released by private efforts.
(iv) That because the applicants have not been arrested the abductees could not have been recovered.
(v) That this court cannot consider the delay in lodging the F. I. R. At the stage of the bail nor the question of vicarious liability can be enquired into as in the F. I. R. The applicants have been charged inter alia under sections 145/147/148/149, P. P. C. Read with section 1 t of the Hadood Ordinance.
(c) Mr. Abdul Sattar Shaikh, learned Additional Advocate-General appearing for the State submitted that since the F. I. R. Was lodged after the expiry of 13 days, the possibility of false implication cannot be ruled out and that no specific part has been assigned to the present applicants in the F. I. R. And, therefore, it is a fit case for bail.
3. (a) Before taking up the above contentions, it may be observed that the name of Punhal son of Khan Muhammad to whom overt act of abducting Mst. Sato was attributed has been scored out in the bail application and, therefore, he is not present. In the pt ese;A application there are five accused, namely Mooso Jamal, who were allegedly armed with hatchets, Miran and Haji who were allegedly armed with lathies, and Shah Muhammad the alleged driver of the vehicle used in the abduction.
(b) I have heard the learned counsel for the parties. It will suffice to observe that since no specific part has been assigned to the present applicants and as the possibility of false implication cannot be ruled out particularly in view of the fact that the F. I. R. Was lodged after the expiry of about 13 days, the above case requires further probe. I, therefore, confirm the ad interim bail on the conditions that in case the applicants obstruct the progress of the case or it comes on record that they are obstructing recovery of the abductees or upon recovery Mst. Sato or airy of her children in their statement under section 161 or 164, Cr.P. C. Implicate the present applicants in the crime, the complainant party shall be at liberty to trove an application for cancellation of the bail before the Sessions Court, which will be decided in accordance with law. I also direct the S. P. Dadu to cause the recovery of the aforesaid alleged abductees at the address or addresses to be furnished by the complainant party or from any other place where the above adductees have been kept and to produce them before the trial Court for further order.
The application stands disposed of in the above terms.