1977 P Cr (PLP)

The applicant is an accused alongwith one Tariq Hussain in a case under section 302 read with section 34, P. P. C. which is now pending in the Sessions Court at Karachi.

2. The prosecution case is that in the night between 19th and 20th September 1976 one Nazir son of Bashir was murdered in his house by the applicant and the said Tariq Hussain and the motive alleged is that the applicant, who is a cashier in the National Bank of Pakistan at Sialkot, had defrauded the deceased Nazir by withdrawing from his account large sums of money, nearly Rs. 60,000 by forging his cheques. Two other circumstances alleged against the applicant are his arrival from Sialkot to Karachi by obtain ing leave from 12‑8‑1976 to 29‑8‑1976 on the false ground of illness and pur chase by him and the co‑accused with whom he had developed friendship, a Chhuri and a Takwa from P. W. Muhammad Ishaque on which handles were got fixed by P. W. Ramzan another shopkeeper which were said to be the murder weapons.

3. In so far as the actual murder is concerned it was not discovered until the morning of 22‑9‑1976 when a report was received that foul smell was emitting from, a locked house situate on street No. 10, Block 'D' Shershah and on the receipt of which the Investigating Officer reached the house, broke open its outer and inner locks where he found a dead human body wrapped in a bed with injuries of a sharp‑cutting weapon on both sides of the neck end face, which body was identified by the owner of the house to be that of the deceased Nazir. In these circumstances the Investigating Officer lodged the First Information Report to the effect that in the midnight of 19.9‑1976 some unknown person on account of some previous grudge had committed this murder by giving the deceased hatchet blows.

4. The applicant earlier moved a bail application before the learned Sessions Judge, Karachi which was rejected on the ground that though there was no direct evidence against the applicant, the deceased had been last seen with the applicant and the co‑accused at Karachi and the circumstantial evidence does involve the applicant in the commission of the crime. It was also stated that the case having not yet proceeded it did not appear to be a case for grant of bail "at this stage".

5. Mr. Mohammad Hyat Junejo, the learned counsel for the applicant con tended that tie case against the applicant rests entirely on circumstantial evi dence and it is of utmost importance that the circumstances alleged must be carefully examined before any conclusion or inference adverse to the applicant is drawn. The learned counsel went on to argue that it was of prime impor tance for the prosecution to show that the applicant was in the company of the deceased within a very short time of his death, which may become conclusive evidence of his guilt in tae absence of any explanation from the accused but in certain circumstances, as was held in Fazal Ellahi v. The State (P L D 1953 F C 155) as much as an hour's extension may suffice to avoid even tire duty of furnishing an explana tion. In the present case the murder is said to nave taken place between the night of 19th and 20th September, 1976 and the only evidence of the applicant having been seen in the company of the deceased is that of P. W. Mohammad Bashir who had seen them together at Iftari time on 19th September, 1976 in the house of the deceased where his dead body was found. On the other hand according to witness Mst. Farida, a cousin sister of the deceased, the deceased had come to her to collect the keys of his house at 4 p. m. on 19th September, 1976 and thereafter he left with the husband of Mst. Farida to purchase a T. V. He returned with the T. V. and remain ed in, then went to his house and again the deceased was with Mst. Farida untill 10 p. m. watching the newly installed T. V. There is, therefore, at least prima facie substance in the contention of the learned counsel that the evidence does not show that the applicant was with the deceased shortly before his death.

6. The learned Assistant Advocate‑General laid great stress on the evidence of motive as well as purchase of Chhuri and Takwa by the applicant and the co‑accused Tariq Hussain. I will assume that the applicant had the motive alleged by the prosecution (though the police papers do not contain any report of the Handwriting Expert), but as is disclosed from the investigation, the deceased Nazir was some kind of recruiting agent who had taken Rs. 5,000,00 each from several persons with a view to procuring jobs for them abroad but bad filed to do so and did not return the amount from at least three P. Ws. and the fourth one got his refund of Rs. 5,000 only after a fight with the deceased. There is, therefore, subs tance in the argument of Mr. Junejo that the deceased had several enemies and the allegation that the applicant too had a motive must be apprised in this context.

7. Coming to the evidence of the purchase of murder weapons I am inclined to think that it given over importance in the absence of evidence that the applicant was last seen with the deceased shortly before the murder.

8. Lastly Mr. Junejo invited my attention to the following observations of the Supreme Court of Pakistan in the case of Manzoor and other v. The State (P L D 1972 S C 81) at page 83:‑ "It is obviously not correct to depend on the ipso dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question on his bail. As repeatedly held by this Court, bail in non‑bailable cases is a matter within the discretion of the Courts, which has to be exercised with due care end caution on the facts and circumstances of each case. Far an offence punish able with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing drat he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusation made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence."

9. The result, therefore, is that this application is granted and the applicant will be released on bail on furnishing surety in the 'sum of Rs. 20,000 (Rupees twenty thousand only) and P. R. Bond in the like amount to the satisfaction of the trial Court, unless required to be detained in any other case. Petition allowed.