1. Respondents herein Mirzan son of Amir Bux, Bakhat Ali son of Amir Bux, Ali son of Bakhat Ali. Shahid son of Bakhet Ali are involved in Crime No.121/1983 under sections 302, 307, 201, 342 and 311, P.P.C. Of P.S. Ghotki in district Sukkur, registered on 12-6-1983 at about 0.40 hours. They have been challaned in the Sessions Court, Sukkur. They were granted bail by learned Incharge Second Additional Sessions Judge, Sukkur by order dated 29-3-1984. An application for cancellation of bail was filed in the Sessions Court by the complainant Sulemen son of Badal. The application was dismissed by the learned IIIrd Additional Sessions Judge, Sukkur, by his order dated 3-5-1984. This application under section 497(5), Cr.P.C. Has been filed in this Court thereafter.
2. The learned counsel for the applicant has urged that the learned Incharge IInd Additional Sessions Judge. Sukkur granted bail to the respondents on the ground that the case against them is based on the evidence of only identification test on a torch light and he relied upon the cases reported in PLD 1964 Kar. 275: 1970 P Cr. L J 633 and 1981 P Cr. L J 882. According to the learned counsel, the learned Judge lost sight of the corroborative evidence in the form of recoveries of weapons, motive and securing corpse of the deceased Jogi from a 'Landhi of respondent Bakhat Ali. He has also urged that there is evidence fully supported by the medical evidence. He has further that presence of eye-witness Muhammad cannot be doubted the that he had sustained injuries as confirmed by the medical evidence has, therefore, pressed the application for cancellation of bail of the respondents Mirzan, Ali and Shahid, the 4th respondent Bakhat Ali having died after the grant of bail.
3. On the other hand, the learned Advocate for the respondents has contended that the prosecution story is improbable and that the identification torch-light is beak piece of evidence and the evidence alleged recovery also cannot be relied upon as the Mashirs are not local persons.
4. According to him, the deceased Jogi and injured had gone to the village of respondents in order to commit a offence and they were chased by village people and captured there is no evidence that they were assaulted by the respondents has added that the motive attributed to the respondents is far-fetched He has placed reliance on the cases reported in 1983 P Cr. L J 572; 1970 P Cr. L J 633 and PLD 1972 SC 277.
5. The learned A.A.-G. Has opined that there is ocular evidence of two witnesses Muhammad and Suleman complainant, recovery of crime empties from the Vardet, recovery of crime weapons from the respondents Mirza and Ali as well as from respondent Bakhat Ali (who is since dead) and also recovery of corpse of Jogi from the 'Landhi' in the house of respondent Bakhet Ali and the respondents did not deserve to be released on bail.
6. The incident is described in the first information report lodged by the complainant Suleman, an eye-witness in the case during the course of the night of incident. He alleged that he and his brother Jogi were returning to their village during the night of the incident after enquiring about health of their friend at Mirpur Mathelo, and were accompanied by the witness Muhammad when they were attacked, that he way' by Mirzan, Bekhat Ali, Ali and Shahid. He further alleged guns jogi was shot by Mirzan and Bakhat Ali from their respective and Ali and Shahid gave blows with a, hatchet and a Lathi, respectively, to Jogi and Muhammad. He also alleged that assailants carried away Jogi and Muhammad to their village. Evidently, there is ocular evidence of two witnesses to the incident. The corpse of deceased Jogi was allegedly recovered from a 'Landhi' in the house of Bakhat Ali assailant. The factum of occurrence et the given place is supported by the factum of recovery of crime empties. Blood was found there. There is further evidence of recovery of guns from respondent Mirzan and Bakhat Ali and a blood-stained hatchet from respondent Ali. It has been alleged that the respondents had grievance against the deceased Jogi as he was allegedly involved in murder of one Sobdar, a brother of the respondent Bakhat Ali: The learned Additional Sessions Judge did not attach importance to the evidence of identification on torch light and granted bail without giving due consideration to, the circumstantial evidence mentioned above.
7. The cases relied upon by him did not apply to the facts of the case. The cases cited by the learned Advocate for the respondents also do not apply to the facts of the case against the respondents.
8. The respondents did not deserve to be released on bail and the learned Additional Sessions Judge was at gross error in granting them bail. Accordingly, the application is allowed and the bail granted to the respondents Mirzan, Ali and Shahid by the learned Incharge IInd, Sukkur, by order, dated 29-3-1984, is cancelled. The fourth respondent 'Bakhat Ali has since expired. The respondent Mirzan, Ali and Shahid: shall surrender to their bail bonds in the trial Court, failing which the trial Court shall cause them arrested and remanded in accordance with law.