2002 PLP 3575 (YLR)

Muhammad Rafiq Rajput for the State. Date of hearing: 11th June, 2002. Mujahid Waseem petitioner has sought his post‑arrest bail in case F.I.R. No.21 registered at Police Station Noor Shah. District Sahiwal on 16‑1‑2001 for offences under section 395/458/412/109, P.P.C.

2. The petitioner was arrested in this case on 23‑1‑2002 and is in judicial lock‑up.

3. According to F.I.R. four unidentified persons who were armed with tire‑arm committed a dacoity in the house of complainant on the night in between 13/14‑1 2001. It is further stated in the F.I.R. that the complainant and. other inmates of the house raised alarm after the commission of dacoity which attracted Muhammad Tariq a neighbour of the complainant and Mujahid Waseem, petitioner. A tractor was also hired by the complainant to trace out the accused.

4. Although the petitioner was mentioned as a witness in the F.I.R. his status was changed to that of accused during the investigation of the case. The precise allegation against the petitioner is that he abetted the offence.

5. The learned counsel for the petitioner has argued that no incriminating evidence is available against the petitioner. He was certainly not one of the accused who had committed the dacoity and that petitioner has been roped in the case because of differences which cropped up between the petitioner and the complainant subsequently. The learned counsel for the State and the learned counsel appearing on behalf of the complainant have vehemently opposed the grant, of bail to the petitioner and have argued that the petitioner made extra‑judicial confession before Muhammad Rafiq, Muhammad Akbar, and Muhammad Ahmad. P.Ws. and their statements were recorded by police on 30‑5‑2001. It is further argued that the petitioner also admitted commission of offence before Mehram and Ahmad Ali, P. Ws. three days prior to his arrest. It has further been argued that the petitioner admitted his involvement in the offence before a 'Punchayat' and was a member of gang and responsible for the occurrence for, offences which securely fall within the prohibitory clause of section 497, Cr.P.C. and; therefore, the petitioner should not be admitted to bail.

6. I have heard the learned counsel for the parties and have also gone through the record of the case including the police record which is available today. It has been noticed that no recovery was effected from the petitioner. Admittedly, he was not one of the accused who committed dacoity. The statements of Muhammad Rafiq, Muhammad Akbar and Muhammad Ahmad, P.Ws. relating to extra‑judicial confession were recorded on 30‑5‑2001 more than five months after the occurrence. A perusal of these statements reveals that these P.Ws: reported the matter to policy, after many days of the alleged confession made before them. As far as the statements of Mehram and Ahmad Ali, P. Ws. are concerned, they were recorded after more than a year and they related to concession of offence by the petitioner before police which, I am afraid, is not admissible in evidence.

7. Considering all the above‑mentioned circumstances the allegation against the petitioner needs further probe and inquiry within the ambit of subsection (2) of section 497, Cr.P.C. Therefore, I admit the petitioner to bail subject to his furnishing bail bond in the sum of Rs.1,00,000 (rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court. H.B.T./M‑1435/L Bail granted.