1. Applicants have been arrested in a case for an offence punishable under Sections 302, 201, 147, 149, P.P.C.
2. The F.I.R. of the incident was lodged by S.H.O. Muhammad Ali Soomro of Police Station, Mian-jo- Goth on 3.12.2003. He stated in the F.I.R. that on that day in the morning at 6.30 a.m. he received spy information that Khakoo @ Abdul Khaliq, his sons Rahab, Nooro and 2 others namely Sahib and Soobo both sons of Razo @ Rana Muhammad have killed Laloo & Lal Muhammad and Mst. Shabroz wife of Rahab on account of their illicit terms and buried the dead bodies in the graveyard of the village. He further stated in the F.I.R. that on this information he took his sub-ordinate staff namely A.S.I. Mehboob Ali, HC Mehar Ali and police constables and went to the said village where he confirmed through spy that Laloo and Mst. Shabroz were killed on the ground of illicit terms. After lodging of the F.I.R., statements of the above mentioned police officials were recorded under Section 161, Cr.P.C., but the dead bodies could not be recovered. On 12.12.2003 applicants were arrested and a hatchet was recovered from Rahib and Interim challan was submitted before the concerned Magistrate. A Board was constituted for the purpose of exhumation of the dead bodies and their post mortem examination. but the doctors failed to attend, the learned Magistrate. therefore, threated the challan as final and sent up the case to the Court of Sessions where applicants applied for bail, which was declined.
3. I have heard Mr. Muhammad Ayaz Soomro, learned counsel for the applicants and Mr. Muhammad Ismail Bhutto, learned counsel for the State, the latter concedes to the grant of bail as no evidence could be collected in this case directly involving the applicants.
4. Learned counsel for applicants contended that the entire case of prosecution is based on spy information and since the dead bodies were not exhumed, no post mortem could be conducted, as such mere recovery of hatchet by itself carries no evidentiary value. There is no confession on the part of the applicants and ocular evidence is absolutely missing. However, regarding the observations of the trial Court about another F.I.R. being F.I.R. No, 4 of 2004 recorded on 28.1.2004 he submitted that the applicants are not concerned in that case and the investigation in that crime has not yet been concluded. The trial Court was, therefore, not justified in rejecting the bail plea of the applicants on the basis of another case.
5. Mr. Muhammad Ismail Bhutto, learned State counsel conceding to the grant of bail submitted that the second F.I.R. recorded on 28.1.2004 was with regard to causing dis-appearance of dead bodies from graveyard and is under investigation.
6. I have considered all these contentions. As far the instant case is concerned, there is no ocular or medical evidence. The dead bodies have not yet been recovered. If at all another case has been registered about causing dis-appearance of the dead bodies. it is a separate offence and is still under investigation. As far the present case is concerned, the investigating agency has not collected any direct evidence to establish that the applicants are involved directly in the offence or were seen either causing injuries or busying the dead bodies. The dead bodies could not be secured by the investigating agency in the instant case, while the second case founded on the allegation of removal of dead bodies from the alleged graves is still under investigation. In absence of tangible evidence, prima facie connecting the applicants with the crime, the sole evidence based on spy information is not enough to deprive the applicants of the concession of bail.
7. In view of the above, the application is allowed. The applicants be released on furnishing one surety each in the sum of Rs, three hundred thousand and executing PR bond in the like amount, to the satisfaction of trial Court.