' Pir Ghulam, petitioner stands involved alongwith Ghulam Mustafa Shah co-accused, in case F.I.R.
No.184 registered at Police Station Saddar, D.I. Khan on 14-6-2002 under sections 302/34, P.P.C.
2. Complainant Muhammad Naqi Shah son of Syed Tabarak Hussain Shah, resident of Basti Saidanwali, D.I. Khan on 14-6-2002 at 1-30 p.m. Made a report at Police Station Saddar, D.I. Khan to the effect that on 13-6-2002 his brother Muhammad Taqi Shah after offering "Peshin" prayers in the mosque, went to the rainy water channel, Mandhran Saidanwali and did not come back till night.
On search, his dead body was found in the rainy channel. Nobody was charged in the report.
3. During investigation of the case, the petitioner was arrested on 21-6-2002 and on the following day i.e. 22-6-2002 he made confessional statement. The petitioner applied to the trial Court i.e. Judge, Anti-Terrorism Court, D.I. Khan for his release on bail which was dismissedon 1-9-2003. The petitioner has approached this application, contended inter alia that there is no direct or circumstantial evidence to connect the petitioner with the guilt; that the alleged judicial confession placed on file is inadmissible in evidence and obtained by the local police under torture and maltreatment and that the petitioner is entitled to the concession of bail on the principle of consistency as the co-accused has already been released on bail by this Court by virtue of order dated 31-1-2003. He placed reliance on Zahid Hussain petitioner v. The State respondent (1979 SCM R 38).
5. Conversely, Mr. Shaukat Hayat Khakawani, learned Deputy Advocate-General assisted by Muhammad Karim Anjum Qasuria, Advocate for the complainant, opposed the bail application and contended that prosecution is in possession of sufficient material to connect the petitioner with the guilt and bail has been refused to the petitioner for valid and cogent reasons. To support the pleas, they placed reliance on Rehman petitioner v. Ghulam Qadir Khan alias Qadir Khan and another respondents (1992 PCr.LJ 1513 (Peshawar) and Ghulam Abbas and another applicants v.
The State respondent (1995 PCr.LJ 1125 (Karachi).
6. I have heard the arguments of learned counsel for the parties at some length with reference to material on record and the case-law cited at the bar.
7. To consider the bail of. An accused person involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence shall not be released on bail unless case is covered by any of the provisions in subsection (1) of section 497, Cr.P.C. If it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds but there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail under subsection (2) of section 497, Cr.P.C.
' The power conferred by section 497, Cr.P.C. Is not arbitrary power. It has to be exercised by reference to material placed before the Court and as to what that material should be. That material shall consist of accusation made in the report to the police, nature and credential of evidence which the prosecution proposes to lead in the case and all other relevant circumstances surrounding the occurrence. The relevant circumstances including the evidence produced by the accused and bail has to be allowed or refused on the basis of this material. It follows that the Court has to make a tentative assessm ent in order to decide a bail application as the section does not in terms contain any restriction on the Court's power to assess the evidentiary value of the material produced before it.
8. It is a settled principle of law that at bail stage, the Court has only to see whether the accused was connected with the commission of crime or not. For that purpose, only tentative assessment of evidence is to be made and deeper appreciation is not called for. It is the mind of the Court which is to be satisfied that the case under its consideration is fit case or not for grant of bail.
9. A perusal of the record would reveal that petitioner was arrested on 21-6-2002 and he confessed his guilt on 22-6-2002. The Crime weapon i.e. "Churi" was recovered from water channel at the pointation of the petitioner. Site-plan was also prepared at his instance. Legality and propriety of confessional statement can be determined at trial and not at the stage of bail. The role assigned to co-accused Ghulam Mustafa Shah is quite distinguishable from the role attributed to the petitioner. There is sufficient material on record to connect the petitioner with the murder of Muhammad Taqi Shah deceased, a young boy 22 years of age and I do not feel inclined to admit him to bail. The application fails which is hereby dismissed.