2005 PLP 1689 (YLR)

Through this petition Muhammad Ashraf and Muhammad Arshad, petitioners have sought post-arrest bail in case F.I.R. No.271 registered at Police Station, Sadar, Mandi Bahauddin on 13-5-2004 for an offence under section 302, P.P.C. During the investigation section 460, P.P.C. was added to the F.I.R.

2. The occurrence in this case had taken place in the darkness of a night and admittedly the murder in issue had remained unwitnessed and the culprits perpetrating the said offence had remained unknown in the beginning. The petitioners' names had not figured in the F.I.R. in any capacity whatsoever. The petitioners' names had surfaced in this case for the first time through an application submitted by Mst. Sagheera Bibi, a daughter of the deceased, on 24-6-2004, i.e. more than a month after the alleged occurrence and in that statement. Mst. Sagheera Bibi had never claimed to be an eye-witness herself. In the said statement Mst. Sagheera Bibi had alluded to Wajtakkar evidence .and an extra-judicial confession allegedly made by the petitioners. The Wajtakkar evidence was subsequently provided by Pathan Khan P. W. through his statement recorded on 21-10-2004, i.e. after more than five months of the alleged occurrence. Admittedly the other witness of Wajtakkar referred to by Mst. Saghera Bibi in her application had never made any statement before the Investigating Officer of this case. The evidence regarding extra-judicial confession was provided before the investigating agency by Maqsood Haider P.W. through his statement made on 2-10-2004, i.e. more than four months after the alleged occurrence. A perusal of the statement made by Maqsood Haider P.W. under section 161, Cr.P.C. shows that the extra-judicial confession allegedly made by the present petitioners before him apparently has the trappings of a joint confession which is inadmissible in evidence. The said statement made by the said witness further shows that on one occasion the petitioners had maintained before the said witness that they had committed the alleged murder but on another occasion the petitioners had maintained before the said witness that they were innocent. If the alleged extra-judicial confession is taken out of consideration at this stage on the issue of its admissibility being doubtful then the only piece of evidence left in the field is in the shape of Wajtakkar evidence provided by Pathan Khan P. W. after more than five months of the alleged occurrence. The learned counsel for the petitioners has pointed out that the said Pathan Khan is inimically disposed towards the present petitioners on account of an ongoing enmity between' them, stemming from a murder feud. In these circumstances the worth and evidentiary value of the evidence regarding Wajtakkar surely calls for further probe at this stage. It is not disputed that the petitioners had been recommended by the investigating agency for discharge and subsequently their names had been placed in column No.2 of the challan submitted before the learned trial Court.

3. For what has been discussed above the case against the petitioners calls for further inquiry into their guilt. This petition is, therefore, allowed and the petitioners are admitted to bail subject to furnishing bail bonds in the sum, of Rs.50,000 (rupees fifty thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court.

4. Copy dasti on payment of usual charges. B.B.T./M-850/L Bail granted.