1990 P Cr (PLP)

This application for bail has been presented on behalf of Mehrullah and Khalil Ahmed alias Khairullah both sons of Ubedullah, who are facing trial for offence under sections 302/34, 109, P.P.C. vide Crime No.223/88 of Police Station Kandhkot, in the Court, of First Additional Sessions Judge, Kandhkot. The prosecution case as per F.I.R. is that on 10/11th December, 1988 during night time the brother of complainant Dr. Allahdin, named Ghulam Kadir had accompanied Abdul Jabar, who had come to call him on the pretext that Khalil Ahmad Lashari was ill and needed treatment. On the morning of 11th of December, 1988 the complainant found his above-named brother missing from the cot and upon enquiry made from the other brother Ghulam Sarwar, who was sleeping on the adjoining cot, he came to know that Ghulam Kadir had not returned, last night. The complainant, therefore, alongwith Ghulam Sarwar went to the house of Khalil Ahmed alias Khairullah, on the way one Ourban Ali also joined them. On reaching the house of Khalil Ahmed alias Khairullah Lashari, Khairullah as well as Mehrullah both sons of Ubedullah Lashari, the accused named above, came out of the house and informed complainant and his companions that last night they had declared Ghulam Kadir Karo with Mst. Laila wife of Khalil Ahmed alias Khairullah and had murdered him as well as the lady. The complainant and his companions went in their house and saw the dead bodies of Ghulam Kadir and one woman lying in the Verandah. Deceased Ghulam Kadir had hatchet injuries on throat, neck, back and left ear while the woman appeared to have died due to throttling. F.1.R. was lodged by Dr. Allahdino on 11-12-1988 at 7-05 a.m. at Police Station Kandhkot, District Jacobabad. The accused/applicants were arrested on 31st December, 1988. The application for bail presented on their behalf before the learned trial Court failed, learned counsel for the applicants made the following submissions in support of this application: (1) That there was inordinate delay in filing the F.I.R. inasmuch as the Police Station Kandhkot is about two furlongs from the place of incident; (2) That it was an unwitnessed incident although the population of Kandhkot is about 15,000 persons, who belong to different castes. (3) The extra judicial confession has allegedly been made by both t' e`aecused jointly and hence it has no value in the eye of law. It was, therefore, according to him, to be brushed aside as being inadmissible. In support of this plea the learned counsel placed reliance on two orders reported in 1987 P Cr. L J 2030 and 1986 P Cr. L J 109(1). In the first cited case, a learned single Judge of Lahore High Court observed: "I have gone through the relevant material. Perusal of the statements of Ghulam Muhammad, Nur Ahmed and Mst. Sharifan, as originally recorded, leaves the impression that all the accused made a joint statement before them that they had killed Oasim Ali deceased. Seemingly statements were subsequently changed so as to read that each accused had made statement separately. It appears that in their statements words were added subsequently. The other cited case is also of Lahore High Court where a learned Single Judge allowed bail in a murder case to the accused on the ground that the alleged extra-judicial confession was jointly made by the accused and the recovery of the dead body was also made on the pointation of the accused as it was according to him, a case of further enquiry. (4) Lastly the counsel submitted that the age of accused Khalil Ahmed alias Khairullah is about 15 years as per school leaving certificate issued by Head Master, G.H.S. Kandhkot on 14th January, 1989. Relying therefore, upon the order in Asad Khan v. State 1985 P Cr. L J 1676 Lah. and another order of this Court in Muhammad Rafiq v. The State 1987 P Cr. L J 1360, the counsel contended that the accused Khalil Ahmed alias Khairullah applicant above named is entitled to the grant of bail as his case is covered by section 497(1), Cr.P.C. In the above-referred Lahore case the age of the accused was below 16 years at the time of the commission of the offence of murder; whereas in the above-referred Karachi case the age of the accused, who was involved in murder case, was found to be between 16 and 17 years. In both the cases the bail was granted to the accused on the ground of age. Learned A.A: G. also did not oppose the bail application inasmuch as, in his opinion, the submissions made by the learned counsel for the applicants were weighty and tenable in law. He submitted that there was no direct evidence available in the case connecting the applicants with the commission of offence and hence it was obviously a case of further enquiry. I have given due consideration to the submissions made at the Bar as well as the facts of the case and I am also of the opinion that the accused above named are entitled to be enlarged on bail as it was a case of further enquiry inasmuch as no one had seen the applicants committing the murder of the two B above named deceased persons. Besides, undisputedly accused Khalil Ahmed alias Khairullah is even otherwise entitled to the benefit of age. The above-cited cases are squarely applicable to the facts of the instant case in so far as the effect of making alleged extra-judicial confessions by the accused is concerned. Likewise, as already observed, the Courts have granted bail to accused of tender age in case of murder as well. For the aforesaid facts and circumstances of this case I would grant bail to both the applicants above named on their furnishing two sureties each in the sum of Rs.30,000 with P.R. in the like amount to the satisfaction of the trial Court. SA./M-1075/K Bail granted.