SADIQ MAHMUD KHURRAM, J.---Through this petition filed under section 497, Cr.P.C. the petitioner , namely , Nehrasit Khan seeks post-arrest bail in case FIR No.203 of 2019, dated 19.08.2019, registered at Police Station Saddar , District Attock in respect of of fences under sections 302, 365, 201 and 34, P .P.C.
2. The allegation as against the petitioner , culled from the evidentiary material produced before the Court, is that he along with his co-accused committed the Qatl-i-Amd of Muhammad Anwar (deceased), father of the complainant.
3. I have heard the learned counsel for the petitioner , the learned Deputy District Public Prosecutor , the learned counsel for the s complainant/respondent No.2 and have gone through the record of this case with their able assistance.
4. It is evident from the perusal of the record that there is no eye-witness of the alleged occurrence and the prosecution is relying on circumstantial evidence to prove its case against the petitioner . In this respect, it is observed that in the FIR it was narrated that on 18.08.2019 the deceased accompanied two unknown persons on their car and did not return thereafter . The name of the petitioner namely Nehrasit Khan cropped up as an accused during the investigation of the case when the statement of Shabbir Ahmad was recorded by the Investigating Officer of the case on 20.08.2019 who stated that on 18.08.2019 at about 8.00 p.m. he had seen a car No.818/XLI standing on the road on whose driving seat Muhammad Taj, the co-accused of the petitioner was sitting whereas the petitioner Nehrasit Khan and three unknown persons were standing outside the car with Muhammad Anwar (deceased) and in his view they all proce eded to Sunjwal road on the same vehicle. This witness namely Shabbir Ahmad further stated in his statement under section 161, Cr.P.C. that he had suspicion upon the petitioner and his co-accused regarding the abduction of Muhammad Anwar (deceased). Shabbir Ahmad was the resident of the same area as of the deceased however , never reported his witnessing the deceased on 18.08.2019 to the complainant. No reasonable explanation has been offered by the witness Shabbir Ahmad, who allegedly had seen the deceased in the company of the petiti oner and his co-accused on 18.08.2019 for not reporting the matter to the police or to the complainant for as many as two days. This delay is conspicuous by its magnitude and the said delay raises a presumption that the same was used to concoct and fabricate a false story against the petitioner .
This only points towards the deduction that the statement, recorded under section 161, Cr.P.C., with respect to alleged last seeing of the petitioner with the deceased, by the witness namely Shabbir Ahmad, is concocted and wrought. Moreover , the statement of this witness namely Shabbir Ahmad requires further inquiry and probe in view of the fact that the witness allegedly had seen the petitioner along with the decease d and other co-accused at 8.00 p.m. on 18.08.2019, whereas the FIR in the case was recorded on 19.08.2019 but this witness was not named in the said FIR. Furthermore, Mst. Anwar Jan widow of the deceased had got recorded in her statement under section 161, Cr.P.C. that an unknown person came to her house on 18.08.2019 at 7.45 p.m. asking for her husband and she called Razi Khan to ask about her husband if the was with him and her husband came to the house 10/15 minutes later and subsequently left with the persons who had come to the house on a car. This sequence of the arrival of the accused at the house of the deceased, the arrival of the deceased at his house and his subsequent departure with the then unknown accused , as mentioned in the statement of Mst. Anwar Jan, is irreconcilable with the statement of Shabbir Ahmad son of Muhammad Akram who allegedly had seen the petitioner and the deceased on a passage at 8.00 p.m. while going to his house. Furthermore, according to the prosecution case an effort was under way for the search of the decease d being undertaken by the complainant and the witnesses however , this witness namely Shabbir Ahmad was neither contacted by the complainant nor himself reported the matter of seeing the deceased in the company of the petitioner near to the place of occurrence. This failure of the witness to report the matter to the complainant is prima facie indicative of his false statement. There does exist a possibility that the statement of the witness namely Shabbir Ahmad son of Muhammad Akram recorded under section 161, Cr.P.C. on 20.08.2019, with respect to allegedly seeing of the petitioner with the deceased, is invented and fashioned which needs further inquiry and probe. It is settled law that evidentiary value of such type of evidence i.e. last seen and wajtakkar shall be determined by the learned trial court at an appropriate stage. Reliance is placed on the case of "Rahat Ali v. State " (2010 SCMR 584), Muhammad Hussain v. Afzal Ahmed and another (1995 SCMR 932).
The august Supreme Court of Pakistan has held in the case of "Abid Mehmood v. State " (2017 SCMR 728) as under:- {{URDU TEXT}} Reliance in this regard is also placed on case law titled as "Allah Ditta v. The State and others 2012 SCMR 184" wherein it has been held by the august Supreme Court of Pakistan as under:- "The evidence regarding wajtakkar and exra judicial confession being relied upon by the prosecution against the petitioner and his above mentioned co-ac cused namely Hussain Bakhsh has already been opined by the Lahore High Court, Lahore in its order dated 2.12.2010 passed in Criminal Miscellaneous No. 13309-B of 2010 to be weak types of evidence and the evidentiary value whereof would be seen at the time of the trial. The investigation of this case has already been finalized and, thus, confirmed custody of the petitioner in jail is not likely to serve any beneficial purpose at this stage."
Furthermore, during the investigation of the case no identification parade was held with regard to the petitioner so as to establish his identity as being the one who had left the house of the deceased with him in view of Mst. Anwar Jan.
5. The learned Deputy District Public Prosecutor and the learned counsel for the complainant have also argued that the petitioner was arrested in the case on 21.08.2019 by the Investigating Officer along with Muhammad Taj the co- accused of the petitioner and on the same day i.e. 21.08.2019 the petitioner namely Nehrasit Khan and Muhammad Taj the co-accused of the petitioner pointed out the place of F burial of the deceased and on their pointing out, the dead body of Muhammad Anwar was also recovered. It is obvious from the perusal of the record that Investigating Officer only prepared a memo of pointing out of the place of burial of dead body by the two accused including the petitioner however , no memo of taking into possession the dead body of the deceased from the said place G of recovery exists on record. In absence of such a memo no reliance can be placed upon the statements of the witnesses against the petitioner . In this regard reliance is placed on the cases of "Abdu l Mateen v. Sahib Khan and others" (PLD 2006 SC 538) and "Mst. Sultana Bibi alias Rubi v. State" (2011 SCMR 951).
Furthermore, according to the prosecution case, the dead body was discovered on the joint pointing out of the petitioner as well as his co-accused Muhammad Taj. The law in this regard is well-settled that the recovery of dead body on the pointing out of several accused and preparation of a joint recovery memo in this regard has no evidentiary value. The evidentiary value of such joint pointing out of the place of recovery of the dead body of the deceased shall be better determined by the learned trial court. Reliance is placed on the case of "Muhammad Mushtaq v. Mustansar Hussain and another" (2016 SCMR 2123 ) wherein the august Supreme Court of Pakistan observed as under:- "The alleged recovery of the dead body was admittedly a joint recovery which is inadmissible in evidence."
Reliance in this regard is also placed on the cases of "Manzoor v. The State " (1986 PCr.LJ1401), "Liaquat Ali v.
The State " (1993 PCr.LJ 1737), "Fazal Amin alias Toray v. Shahid Zaman and another" . (2015 YLR 1952 ), Javed lqbal v. The State (2008 PCr.LJ 1578) Wahid Bakhsh and others v. The State (1984 MLD 1549 ) and "Basharat alias Fazal Elahi and others v . The State " (1986 PCr .LJ 1099 (1))"
6. The learned Deputy District Public Prosecutor and the learned counsel for the complainant have also argued that the Investigating Officer recorded the statement of Sakhawat Hussain on 27.08.2019 who stated that he was running the business of renting out cars and Car No.818/Q had been taken on rent by Muhammad Taj, the co- accused of the petitioner . The said witness did not mention in his statement recorded under section 161, Cr.P.C. as to the date when Muhammad Taj, the co-accused of the petitioner , had taken the said car on rent from him.
Furthermore, the said witness in his statement under section 161, Cr.P.C. did not name the petitioner Nehrasit Khan as being involved in any manner and in this way the case of the petitioner is quite distinct from his co- accused namely Muhammad Taj.
7. The learned Deputy District Public Prosecutor as well as learned counsel for the complainant argued that during the investigation of the case on 01.09.2019 the petitioner namely Nehrasit Khan got recovered the keys of the motorcycle of the deceased and property papers. In the FIR as well as in the statement of Mst. Anwar Jan, the widow of Muhammad Anwar (deceased), it was not mentioned that the deceased had taken any keys or property papers at the time when he left his house with the unknown accused on 18.08.2019. Furthermore, the evidentiary value of such recovery of articles of the deceased from the possession of the petitioner shall be better determined by the learned trial court. In respect of evidence of recoveries, it was rightly argued by learned counsel for the petitioner that the same could be used, at the most, for corroboration of the main evidence, but by itself it cannot be basis for conviction. Reliance is also placed on case law titled as "Ijaz Ahmad and another v. The State" (1997 SCMR 1279 ) wherein it has been held by the august Supreme Court of Pakistan as under:- "There is no ocular evidence to show that Muhammad Abbas was murdered by any of the present petitioners. Mere fact that Noor Muhammad and Muhammad Din saw firstly the deceased and after some distance they saw the petitioners going towards the same direction, did not mean that the petitioners were chasing the deceased or were accompanying him. Such evidence cannot be treated as evidence of last seen. Witnesses Ali Muhammad and Chand Khan do not figure in the FIR. Moreover , the evidence of extra judicial confession may not be by itself sufficient for conviction of the petitioners . In respect of evidence of recovery , it was rightly argued by learned counsel for the petitioners that the same could be used, at the most, for corroborat ion of the main evidence, but by itself it cannot be basis for conviction."
8. Mere involvement in a heinous offence is no around for refusing bail to an accused who otherwise becomes entitled for the concession of bail. The petitioner is a previous non-convict and never involved in any other case. He is behind the bars since 21.08.2019, but the trial has not seen any fruitful progress as yet. Investigation of the case is complete and the petitioner is no more required for further investigation, therefore, his further incarceration would not serve any useful purpose.
9. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. Liability of the petitioner for the said offences would be determined by the learned trial court after sifting the evidentiary worth of the material produced before the same. Till then, case of petitioner would be within the domain of section 497(2), Cr.P.C. calling for further inquiry into the petitioner's guilt In view of the above discussion, this petition is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.1,000,000/- (rupees one million only) with two sureties, each in the like amount, to the satisfaction of learned trial court.
10. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court. Additionally a direction is issued to the learned trial court to conclude the trial of the case expeditiously , preferably within a period of three months from the receipt of copy of this order . It is made clear that if the petitioner or any person acting on his behalf causes delay in the conclusion of the trial then the trial court shall be at liberty to cancel the bail of the petitioner in accordance with law .