1. Applicant/accused Nawal Roy Oad is facing trial before the learned Sessions Judge, Naushahro Feroze in Sessions Case No,133 of 2001 under sections 302, 34, P.P.C. The F.I.R. of the incident was registered on 2-9-2001 being Crime No,59 of 2001 of Police Station, Padidan.
2. The brief facts of the prosecution case as disclosed in the F.I.R. lodged by, A.S.-I. Ghulam Murtaza, Incharge of Police Post Darya Khan Mari and therefore, a Regular F.I.R. was registered at Police Station, Padidan on 2-9-2001 are reproduced hereinbelow:-- " On behalf of the State complaint is that we were present at Police Post Darya Khan Mari that one unknown person informed through telephone that in the southern side of village Molvi Gul Muhammad Khaskeli at the distance of about 2 Kilometers, barren/uncultivated land of Haji Khair Muhammad Brohi, in dense Jungle of BABBAR and LAOON one dead body of a person is lying. That on receipt of such information we with staff each Head Constable/Sanaullah Panhwar. Head Constable/Muneer Ahmed Jatoi, PC/Ali Sher Kalhoro. PC/Ghulam RasoolMari. uniformed and armed with ammunition proceeded, reached in the dense Jungle. That, we searched for the dead body. The dead body was lying beside the cluster of LAOON. On place of vardhat foot-prints of 3-4 persons, like DUFF/unclear and marks of scuffling were present. That we examined the dead body very well.
3. Beside his face, forehead, ear and eyes there were incised wounds of knife and back head was incised. A lot blood was oozed. Necessary paper formalities of dead body were completed and the dead body was brought out of the Jungle, where many peoples came there to whom dead body was shown, but nobody Identified the dead body. Thereafter, the dead body alongwith inquest report through PC/Ghulam Rasool, sent for postmortem at RHC Darya Khan Mari, thereafter, we enquired from nearby villages but the dead body could not be identified, thereafter, we went back to Darya Khan Mari where we made announcements on loudspeakers and mosque and nearby cities and villages, informed through telephone, but still no identification of the dead body has taken place, dead body is lying at RHC Darya Khan Mari as AMANAT. That now I appear here at Police Post Darya Khan Mari lodge complaint on behalf of the State that some unknown accused persons have murdered the unknown deceased with knife and blows of iron hammer on face, forehead and backside of the head due to some enmity. That we being the complainant on behalf of the State have started investigation in this case."
4. The police after usual investigation sent up the applicant and other co-accused to stand trial.
5. The applicant/accused applied for bail in the trial Court but his bail plea was refused. The applicant has preferred similar application before this Court.
6. It is contended by the learned counsel for the applicant that the name of the applicant/accused does not appear in the F.I.R. and the applicant/accused has been implicated only on the plea of last seen evidence which is weakest type of evidence and cannot be relied for awarding capital punishment. It is further urged that P.Ws. Allah Bux and Ali Bux after coming to know about the commission of incident have appeared at police station on 5-9-2001 and did not disclose about the plea of last seen to the Investigating Officer P.Ws. Kareem Bux. Bakar and Ameer Bux have falsely implicated the Applicant/accused and the statements of P.Ws. Allah Bux, Ali Bux and Kareem Bux were recorded on 2111-2001 and the statement under section 161. Cr.P.C. of P.Ws. Bakar and Ameer Bux were recorded on 29-11-2001. It is also argued that the Applicant/accused was arrested on 21-11-2001 and a Shirt was produced by him from his house and during the course of investigation an arm of the Shirt was produced by the accused which was blood-stained and there is no other evidence to connect the accused with the commission of crime. Learned counsel in support of his proposition has relied upon the cases reported as Abdul Saleem v. The State (1998 SCM R 1578) and Muhammad Jamal v. Shaukat Ali and - others (1996 SCM R 1685).
7. Conversely learned Assistant Advocate General Sindh appearing for the State has opposed the application and submits that there is evidence of four witnesses who have seen the deceased with the applicant/accused on 31-8-2001 and there is recovery of blood-stained arm of the Shirt which was produced by the accused during the course of investigation.
8. I have perused the material placed on record as well as police papers have been perused with the assistance of the learned A.A.-G. and the case law cited by the learned counsel for the applicant.
9. Admittedly the incident is witnessed and both the brothers of the deceased Ali Bux and Allah Bux came at the Police Post Darya Khan on 5-9-2001 immediately after they came to know about the news in the paper and they identified the clothes and the photographs of the deceased and it was stated by them on 5-9-2001 that on 31-8-2001 deceased had gone with the accused in their presence but the evidence of all the prosecution witnesses in respect of the last seen evidence was recorded on 21-11-2001 and 29-11-2001. The evidence of last seen does not place the accused and the deceased in a sufficient approximate to the time and space qua the offence of murder. The accused was neither named in the. F.I.R. and if there was any dispute between the deceased and the applicant it is impossible for the parties to accompany with each other to trust and to proceed to unknown place. There is no explanation with regard to theft belated disclosure of this fact that the deceased was seen lastly by the witnesses in company of the accused. Consequently, I am of the considered view that the case necessitates further enquiry as contemplated under section 497(2), Cr.P.C. while relying upon the dicta held in the abovecited cases, the applicant is entitled for grant of bail.
10. Resultantly, the bail is granted to the applicant/accused Nawal Roy Oad subject to furnishing one surety in the sum of Rs,200,000 (Rs, Two lacs only) and P.R., Bond in the like amount to the satisfaction of the trial Court.
11. The observations if any made herein above are of tentative in nature and the same may not be considered at the time of final adjudication of the case.