1977 P Cr (PLP)

Riyasat Ali for Petitioners. Naeem Shakir for the State. One Suba was done to death between the night of 11 and 12‑7‑1975. In the morning at 8‑00 a.m. on 12‑7‑1975, his nephew Hassan Muhammad lodged an F. I. R. at Police Station Vehari, District Multan. It was , stated that while the deceased was asleep in :his Dera and the complainant was also there nearby, he heard a cry of Suba. He woke up. He saw that one person armed with a hatchet was standing towards his head side, while another one standing towards the head side of the deceased with a kulhari in his hand, was' inflicting injuries on Suba. On his and his aunt's noise the two persons ran away. He tried to get hold of the person who had killed his uncle but he got a back portion of his shirt in. his own hand and the person ran away. The motive given in the F. I. R. was that there was a dispute about some land which had been given at the time of his marriage to Mst. Zeba but afterwards the complainant's father had refused to hand over the possession.

2. During the course of investigation, it is‑ stated that the two petitioners went on 27‑7‑75 to Niaz Muhammad Lambardar of Chak No. 105/W Tehsil Vehari on his Commission Agent's shop in Chak No. 87/W, Tehsil Vehari and stated that they had come to know that the deceased had some money and they went there to steal the same and as deceased Suba woke up, he was killed by them. The two petitioners; then, went away. Khushi Muhammad alias Khushia, petitioner No. 1, was arrested on 29‑7‑1975 whereas Muhammad Arif was arrested on 28‑7‑1975. Khushi Muhammad is said to have led to recovery of one hatchet blood‑stained, a torn shirt and a wrist watch whereas Muhammad Arif to recovery of a kulhari which was not blood‑stained, a shoe said to have been left at the place of occurrence and one kundhala blood‑stained. Muhammad Arif is said to have made a judicial confession saying that he had been asked by Khushi Muhammad to come along to steal money from Suba deceased and although he dissuaded his companion but he went with him. The co‑accused Khushi Muhammad alias Khushi inflicted injuries on Suba were upon he himself ran away. After completion of investigation the case has been sent to the Court for trial. The petitioners applied for bail before the learned Sessions Judge but their application was rejected by the learned Additional Sessions Judge on 3‑6‑1976. They have applied for bail to this Court.

2. Learned counsel for the petitioners has contended that the motive given in the F. I. R. as regards the dispute about a piece of land has been given up by the prosecution and the case now set up is that the petitioners had gone to commit a theft and, they committed the murder. Learned counsel submits that the matter obviously requires further enquiry and the petitioners are entitled to bail. It is next contended that the extra judical confession allegedly made before Niaz Muhammad, Lamberdar is of no evidenciary value because not only it was said to have been made jointly but would be before an authority, and it would also appear to be unnatural that the Lamberdar would let the petitioners go if they had confessed before him. It is, further, submitted that the judicial confession of Muhammad Arif is of no consequence either, because it is exculpatory in character. Learned counsel also submits that besides that the recoveries were affected after 17 days or so would be of no avail by themselves to warrant a conviction of the petitioners; for the murder of the deceased. Learned counsel has also submitted that from the evidence collected by the prosecution, it would appear that the intention was to commit a theft; therefore, there was no intention to commit murder. Lastly, it is submitted that Muhammad Arif petitioner No. 2 had caused no injury to the deceased. Learned counsel has referred to Muhammad Yaqoob v. The State (1971 SC.MR756),

3. Learned counsel for the State has opposed the bail application on the grounds that the petitioners are involved in a case of murder punishable with death or imprisonment for life. It is submitted that no doubt the motive given in the F. I. R. is about a dispute in respect of a piece of land but during the course of investigation it transpired that not the persons concerned with the land but the two petitioners who were out for theft had committed the murder. Consequently, the fact that the investigation had led to the unfolding of the truth of the facts would not by itself mean that the petitioners are not involved in the case. On the other hand, it would show that the investigation has been made of facts, as they existed. It is, next submitted that the judicial confession made by Muhammad Arif is not quite exculpatory as submitted by the learned counsel for the petitioners but gives the story as to how the two accused joined together to go to commit a theft because Muhammad Arif petitioner No. 2 was useful to facilitate the crime as he was used to the dog at the Dera of Suba. He, went with the co‑accused for the said purpose. Therefore, it is submitted that Muhammad Arif, petitioner No. 2, was also quite willing and active party for the commission of the crime of theft and in the course thereof the murder has come about and he would be equally liable for the same.

4. It is quite correct that any benefit of doubt even at bail stage has to go in favour of the accused persons. They are to be presumed innocent until they are proved guilty. Under section 497, Cr. P. C. it is provided that "when any person accused of any non‑bailable offence is arrested or detained without warrant by an officer‑in‑charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be: so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life or imprisonment for 10 years". Therefore, unless there are no reasonable grounds to believe that the petitioners are guilty of an offence described above, they cannot be released on bail. The evidence collected by the prosecution against the petitioners consists of extra judicial confession of both the, petitioners, judicial confession by petitioner No. 2 implicating the petitioner. No, 1 as well and the recoveries. These pieces of evidence as these stands cannot be said to furnish no reasonable ground to believe that the petitioners' are not guilty of the offence of murder. Whether these approved on the trial or what their value or weight would be are matters, which have to be adjudged at the trial. No final opinion one way or the other at this stager can be given nor is called for. As regards the reference of the learned counsel for the petitioners to the case above‑mentioned, the same is not applicable here a5 that did not deal with the matter of bail pre‑trial.

5. In all the circumstances of the case, it cannot be said at this stage that there are no reasonable grounds to believe that the petitioners are involved in an offence punishable with death or transportation for life or imprisonment for 10 years. Therefore, there is no force in this petition for bail arid the same is, accordingly, dismissed. Petition dismissed.