1. This bail application has been filed on behalf of the applicants/accused Bachando son of Agha Dino Keerio and Walo alias Wali Muhammad Jarwar, who are facing murder trial with other co- accused in the Court of Additional Sessions Judge, Kotri, hereinafter called the trial Court.
2. Briefly stated the facts are that on 1-9-1999 one Rajoo son of Meero Khan Khoso, who is a Grazier was grazing his camels and when he at sun-set time reached near Morho Jabal, he found a dead body of an unknown person under a Gum tree. The deceased was wearing, fast blue colour shirt and Shalwar and beneath his head red boot, and baggarly type cap was lying about a feet away from his head. He came back to his village and due to odd hours he could not come out of his house. On 2-9-1999, in the morning, he informed Dildar Khan Khoso, a Nekmard of his tribe, who took him to Police Station Khanote. The police treating it an accidental death under section 174, Cr.P.C., did not register the F.I.R., but entered it into daily diary vide Entry No,11 at 3-00 p.m. And sent the dead body to Medical Officer, L.M.C.H. Jamshoro through Head Constable Qamaruddin for postmortem.
3. The medical report, dated 2-9-1999, reveales that the unknown deceased who was aged ,about 40/45 years had head injury leading irreversible shock and cardio respiratory failure. In the opinion of the Medical Officer, cause of death of the deceased was due to severe head injuries caused by hard blunt object. On receipt of the Medical Certificate, the daily diary entry, dated 2-9-1999 was converted to homicidal death and F.I.R. Was registered on 6-10-1999 at 7-00 p.m. As Crime No,19 of 1999.
4. It appears that no one came forward to claim the dead body of the unknown deceased as such, the dead body was buried through Edhi Authorities. However, on 17-10-1999, according to Mr. Agha Khuda Bux learned Assistant Advocate-General that statements under section 161, Cr.P.C. Of prosecution witnesses Wazir Ali, Lakhano and others were recorded, who on seeing the cloths, cap and photographs of the dead body, identified the deceased to be Shafi Muhammad son of Abdullah Fakir Jarwar. The prosecution witnesses in their statements before police disclosed that on 26-8-1999 the deceased Shafi Muhammad Jarwar went in company of Rano Shah, Bachando, Waloo alias Wali Muhammad (applicants) and others from the hotel of prosecution witness Wazir Ali, brother of deceased to Gajelo Sharif where a Mela was being celebrated. Later on accused Rano Shah demanded Rs,2,00,000 (two lac) as ransom from prosecution witness Lakhano, another brother of deceased for his return. It appears that on the strength of the statements of the above prosecution witnesses, the police arrested main accused Rano Shah and the present applicants/accused. On 18-10-1999, statements under section 164, Cr.P.C. Of prosecution witnesses Wazir Ali, Lakhano, Saleem Khan, Bachayo, Ghulam Nabi and Muhammad Fakir were recorded by Judicial Magistrate, Kotri, wherein they reiterated the facts stated herein- above. They, however, added in their statements that on 11-9-1999, they came to know about the recovery of the dead body of deceased Shafi Muhammad by Khanote Police Station.
5. After usual investigation Khanote Police sent up the accused Rano Shah, Bachando, Wali Muhammad and seven other absconding accused under section 302, P.P.C. To stand trial.
6. The applicant/accused applied for bail before the trial Court but their bail plea was dismissed by the trial Court vide impugned order, dated 20-12-1999 on the ground that the deceased was lastly seen in the company of accused Rano Shah, present applicants/accused and other absconding accused. Moreover, accused Rano Shah had demanded rupees two lacs from the brothers of the deceased as ransom amount for the restoration of deceased Shafi Muhammad.
7. I have heard Syed Madad Ali Shah learned counsel for the applicants/accused and Mr. Agha Khuda Bux learned Assistant Advocate-General on behalf of the State.
8. Mr. Syed Madad Ali Shah, learned counsel appearing for the applicants/accused argued that the applicants are innocent and case against them is false. He contended that as per contents of the F.I.R., the case is an unwitnessed incident and there appears no ocular evidence as to who, when and where killed the deceased. According to the learned Counsel for the applicants/accused that the dead body was not exhumed for the purpose of proper identification through prosecution witnesses, thus, it is doubtful and yet to be proved that the dead body found on 1st September, 1999, as per F.I.R. Was in fact dead body of deceased Shafi Muhammad son of Abdullah Jarwar, as claimed by the prosecution witnesses Wazir Ali and Lkhano brothers of the deceased Shafi Muhammad. The learned counsel further submitted that the names of the applicants or any other culprit do not transpire in the F.I.R., the medical certificate is also silent about the time, period and duration of death of the deceased, as such, possibly it may be a case of suicide or accidental death. According to the learned Counsel that as per prosecution case, the dead body was not recovered from the applicants or at their pointation. Lastly the learned counsel for the applicants argued that alleged evidence of last-seen is a weak type of evidence under the law and even if it is accepted, it do not connect the applicants/accused with the alleged murder of deceased as there is no evidence that from 26-8-1999 till his death the deceased was found in the company of the applicants/accused. The learned Counsel argued that there is no allegation of any demand of ransom amount by the present applicants/accused and it is a fit case for probe into guilt of the applicants/accused, as such, there case requires further enquiry as contemplated under section 497(2), Cr.P.C. And they are entitled to bail.
9. Mr. Syed Madad Ali Shah learned Counsel for the applicants in support of his arguments has placed reliance on the case of Abdul Saleem v. State reported in 1998 SCM R 1578, Muhammad Jamil v. Shoukat Ali 1996 SCM R 1685, Muhammad Akbar Tariq v. The State 1997 PCr.LJ 540, Rasool Bux v. Syed Safdar Ali Shah and others 1988 PCr.LJ 30, Abid and others v. The State 1983 PCr.LJ 912 and Feroz Muhammad Shah and others v. The State 1983 PCr.LJ 1944.
10. Mr. Agha Khuda Bux, learned Assistant Advocate-General for the State opposed the grant of bail to the applicants/accused and learned Assistant Advocate-General argued that all the prosecution witnesses in their statements recorded under section 164, Cr.P.C. Have stated that the deceased was seen last alive in company of the applicants/accused and absconding accused; that the accused Rano Shah had demanded ransom amount of rupees two lacs for the deceased from his brother, as such, the bail application is premature and the applicants/accused are not entitled to bail at this stage. He further, argued that there is evidence of extra-judicial confession against the applicant/accused as they confessed their guilt before the police in their statements, as such, no case for further enquiry has been made out by the applicant for grant of bail.
11. The perusal of record shows that the dead body of the deceased was not recovered on the pointation of the applicants/accused or any other co-accused. The complainant at whose pointation the dead body was recovered is stranger and is not connected with the deceased or accused. It is also an admitted position that the incident is unwitnessed one. There is no evidence as to who, when and where killed the deceased. The medical certificate issued by the Medical Officer, L.M.C.H. Jamshoro is also silent about time period and duration of the death of the deceased. The names of the applicants or any other co-accused do not transpire in the F.I.R.
12. The allegations of demand of ransom amount have not been levelled against the applicants/accused. As per statements of prosecution witnesses they came to know on 11-9-1999 about the dead body of the deceased and they contacted the S.H.O. Concerned but neither their statements were recorded by the police on 11-9-1999, nor the prosecution witnesses disclosed about last-seen of deceased in company of applicant/accused. They disclosed before the police about the complicity of the applicants/accused on 17-10-1999 and on 18-10-1999. There is no evidence as to what happened with the deceased from 26-8-1999 to 1-9-1999. The record do not disclose that during this period the deceased was last-seen with the accused/applicants near the place where his dead body was found.
13. In the case of Abdul Saleem v. The State reported in 1998 SCM R 1578, bail was granted by the Honoutable Supreme Court in a murder case under similar circumstances on the ground that the accused was neither named in the F.I.R. Nor any recovery had been effected from him and there was no eye-witness of the incident. There was only evidence of last-seen that the deceased was taken away by the accused.
14. In the case of Muhammad Jamil v. Shoukat Ali reported in 1996 SCM R 1685, Honourable Supreme Court declined to cancel the bail granted to the accused Shoukat Ali and another by the Lahore High Court on the ground of last-seen. The relevant observations of Honourable Supreme Court are reproduced herein below:-- "After hearing the learned Counsel, we find that there is no direct evidence against the respondent No,1. The .Dead body of Shakeel was found near a Nullah on 17-11-1993. Muhammad Rashid P.W.4, appeared before the police on 21-11-1993, and stated that he had seen Shakeel and the respondent No,1 together in the Suzuki van in the Bazar of Kallar Syedan on 11th November, 1993. The Bazar of Kallar Syedan is not near to the place were the dead body was found. The exact time of the murder is not known.
15. In this view of the matter we feel 'that the last-seen evidence collected by the police during the investigation may not be sufficient enough to exclude the hypothesis of the innocence of the accused. The reasons given by the High Court for the grant of bail are fully convincing. No case for interference with the well-reasoned order of High Court is made out."
16. In the case of Muhammad Akbar Tariq v. The State reported in 1977 PCr.LJ 540, this Court granted bail to the accused on the ground that the deceased was not lastly-seen accused shortly before his death.
17. In the case of Rasool Bux v. Syed Safdar Ali Shah and 2 others 1988 PCr.LJ 30, this Court declined to cancel pre-arrest bail granted to the accused Safdar Ali Shah and others in murder case by the trial Court as there was no direct evidence against the accused and only allegation was that the deceased was last-seen with one of accused a day prior to recovery of the dead body and there was no evidence that deceased remained with accused till his death.
18. In the cases of Abid and others v. The State reported in 1983 PCr.LJ 912, and Feroz Muhammad Shah and others v. The State reported in 1983 PCr.LJ p.1944, Lahore High Court granted bail to the accused on the ground that only piece of evidence against the accused was that of deceased last-seen in their company.
19. In the present case, there is no other evidence except version of the prosecution witnesses that the deceased went with the applicant/accused to the Mela of Gajan Shah on 26-8-1999 and later on Rano Shah had demanded ransom amount.
20. The contention of the learned Assistant Advocate-General that there is evidence of extra-judicial confession against the applicants/accused as they confessed their guilt before the police has no force in view of Article 38 of Qanun-e-Shahadat Order as it is well-settled that no confession or extra- judicial confession made before police is admissible in evidence.
21. Looking towards the peculiar facts and circumstances of the case I am of the considered view that the bail plea of applicants/accused merits consideration. Consequently, the applicants/accused are granted bail in the sum of Rs,2,00,000 (two lac) each and P.R. Bond in the like amount to the satisfaction of the trial Court.
22. By my short order, dated 13-1-2000 bail was granted to the applicants/accused and above are the reasons for the same. The observations made hereinabove are of tentative nature. The trial Court will be at liberty to arrive at its own independent finding while adjudicating the matter, without in any manner being influenced by whatever has been observed in this order.