' KAZIM ALI MALIK, J.---On 24-10-2008 Khan Muhammad (deceased) a brother of Dost Muhammad complainant went missing. His whereabouts could not be located or traced out by the complainant and other close relations despite all possible efforts. On 25-10-2008 in the evening his dead body was found in a graveyard of Mohallah Islam Pura, Rawalpindi. The dead body had sharp edged weapon injuries on different parts. While lodging the F.I.R. Dost Muhammad complainant did not cast doubt of the crime against any one. During course of investigation Arzoo Mand and Mumtaz petitioners herein were arrested and declined bail by a learned Addl. Sessions Judge, Rawalpindi vide order, dated 5-12-2008. Hence, this bail petition on facts' and law in case F.I.R. No, 463 of 2008 of P.S. Peer Wadhai, Rawalpindi.
2. A perusal of the record would show that the petitioners were arrested and lodged in judicial lock up on the charge of murder on the basis of following pieces of circumstantial evidence:---
(i) Blood-stained chhuri had been recovered at the instance of the petitioner on 3-11-2008 vide recovery memo. Attested by Dost Muhammad complainant and his maternal uncle Ziarat Gul.
(ii) On 24-10-2008, the deceased was last seen alive with the petitioners by Wali Muhammad and Fazal Ghani, P.Ws.
(iii) On 28-10-2008 the petitioners confessed their guilt before Ijaz Hussain and Ghulab Zar, P.Ws.
(iv) Motive for the occurrence as disclosed by the witnesses of extra judicial confession was that the deceased committed sodomy with Arzoo Mand, petitioner and a brother of Mumtaz, petitioner.
3. Learned counsel for the petitioners has contended that it was a case of no evidence as all the witnesses including the complainant exonerated the petitioners of the charge before the learned Addl. Sessions Judge. On the other hand, the learned Law Officer opposed the bail application half heartedly on the ground that the parties attempted to affect a compromise before inception of trial.
4. I have heard both sales, and perused the record very carefully.
5. The recovery witnesses, and the witnesses of last seen alive exonerated the petitioners of the charge before the learned AddL Sessions Judge Ijaz Hussain and Ghulab Zar, P.Ws. Before whom the petitioners confessed their guilt as per prosecution case are present in Court and have been identified by Zafar Iqbal, Sub-Inspector. They have disowned their statement under section 161, Cr.P.C. Through their affidavits by stating that the petitioners did not confess their guilt before them.
The father of the deceased also A appeared before the learned Addl. Sessions Judge and made a statement that he was not interested in prosecution of the petitioners as they were not the killers of his son. To the hard luck of the petitioners, the above said state of record did not find favour with the learned Addl. Sessions Judge and the chose to dismiss the bail petition despite the fact that it was not difficult for him to understand in the light of hostile attitude of all the prosecution witnesses towards the prosecution case that the case giving rise to the bad petition would not end in conviction of the petitioners. For the sake of arguments, if it is admitted that the parties effected a compromise at bail stage, due weight should have been given to the factum of compromise as the offence against the petitioners is compoundable. Keeping in view the factum of compromise between the parties and the admitted fact that divorcing the above said pieces of circumstantial evidence disowned by the P.Ws., the prosecution is not possessed with an iota, of evidence against the petitioners.
6. For what has been discussed above, I feel no difficulty in concluding that the bail refusing order by the learned Addl. Sessions Judge is offensive to the establish and recognized principles government the subject of bail. I, therefore, allow this petition and admit the petitioners to bail subject to furnishing a bail bond in the sum of Rs,1,00,000 each with one surety each of the like amount to the satisfaction of the learned trial Court.