' This is a bail application moved on behalf of Sajid Nazir, petitioner who is facing trial in the Court of Sessions Judge Mirpur for the commission of offences under section 302/364, P. P. C. On the charge of abduction of Arshid Mahmood alias Billo and his subsequent murder.
2. The brief facts leading to the filing of this application are that the petitioner was challaned in the Court of Sessions Judge, Mirpur or 8-2-1984 on the allegation that he suspected his friend Arshid Mahmood deceased of having illicit relation with his sister for which reason he decided to put an end to his life and to achieve that end he on 15-12-1983 a about 10 a.m succeeded in enticing away the said deceased to a 'pubblic near Sector F-2 of Mirpur Town about 3 to 4 Furlong away from the main road on the pretext of smoking Charas where the petitioner stabbed him to death with the 'Churri which he had taken with him for the purpose and that after having murdered the deceased he buried his dead body in the nearby ravine under the stories and mud from where it was recovered at his instance on his arrest on 22-12-1983. The petitioner applied for his bail before the trial Court when all the prosecution evidence except that of the Medical Officer who had performed the post-mortem examination of the dead body of the deceased and was the author of his post- mortem report, was recorded but was not successful as he was refused bail by the said Court vide its order dated 26-10-1985.
3. Feeling dis-satisfied with the above order of the trial Court refusing bail to him the petitioner has now approached this Court by way of this application for releasing him on bail.
4. I have heard the learned counsel for the petitioner and the complainant as well as the Additional Advocate-General and have also gone through the record of the case. The learned counsel for the petitioner has contended that the petitioner is entitled to the concession of bail as the case against him is one of further inquiry for the following reasons :-
(a) that there is no ocular evidence about the involvement of the petitioner in the murder of Arshid Mahmood, deceased and has been sent for trial for the said offence only on the basis of circumstantial evidence consisting of the recoveries alleged to have been made at his instance of the dead body of the deceased, the weapon of offence i,e, `Chhuri', the blood-stained cloths alleged to be worned by the petitioner at the time of occurrence and his extra judicial confession of his having murdered the said deceased before some of his friends ;
(b) that the prosecution witnesses before whom the petitioner is alleged to have confessed his guilt of having done to death Arshid Mahmood, deceased had denied the truth of the prosecution version about the petitioner having told them to have murdered the said deceased :
(c) that the witnesses of the recoveries-of `Chhurr and the bloodstained cloths at the instance of the petitioner from his house have deposed in their statements before the trial Court that the aforementioned incriminating articles were not recovered at the pointation of the petitioner from inside his house in their presence but they were told by the Investigating Officer who had alone gone alongwith the petitioner and his father into the house of the petitioner for the purpose of recovery to have been so recovered, and
(d) that as regards the recovery of the dead body from the ravine near a `pubbi' in Sector F-2 at the pointation of the petitioner, one of the witnesses of the said recovery namely Muhammad Din, P. W. Had altogether denied in his statement before the trial Court that the same had been recovered at the instance of the petitioner while the other namely Muhammad Yusuf, P.W. Had deposed that the memo. Of recovery of the dead body was not prepared at the spot but at the police station where his signature on it were obtained on the next day.
5. On the other hand, the learned counsel for the complainant and the additional Advocate- General opposed this bail application on the ground that at this stage when almost whole of the prosecution evidence has been recorded and the case is likely to be decided very soon, the petitioner's requests for bail does not merit consideration. On merits, they have contended that the circumstantial evidence produced by the prosecution in this case furnishes reasonable grounds for believing the petitioner to be connected with the murder of Arshid Mahmood, deceased and as such the grant of bail to him is barred under section 497 (1), Cr. P. C. And that any opinion by this Court regarding the credibility or otherwise of the evidence produced by the prosecation is likely to prejudice either of the parties to the case as it is likely to influence the decision of the trial Court.
6. After giving my due consideration to the above arguments of th learned counsel for the parties and going through the record of the cas I am firmly of the view that the case of the petitioner is fully covered by th provision of section 497 (2), Cr. P. C. Inasmuch as further inquiry is needed to find out as to whether or not the petitioner is connected with the commission of the offence with which he is charged. The prosecution had put up challan against the petitioner on the charge of murder of Arghid Mahmood, deceased on the basis of his extra-judicial confession of hi guilt, the recovery of dead body of the deceased at his instance, the recoveries of the weapon of offence and the blood-stained clothes alleged to b worn by him at the time of commission of the offence at his pointation from the bed room of his house. But during the trial, the prosecution witnesses produced to prove the extra-judicial confession of the petitioner of his guil before them, did not support the prosecution and unambiguously denied th petitioner having made any such confession before them. Similarly the witnesses of the recoveries of blood-stained Thhuri' and clothes allege to have been recovered from bed-room of the petitioner, .Did not support the prosecution that the same were recovered at the pointation of the petitioner in their presence and have only deposed that it was the Investigating Officer alone who had gone inside the house of the father of the petitioner alongwith the petitioner and his father and then it was again he who on coming out of the house had shown them the above article and told them that the same had been recovered at the instance of the petitioner from his bed-room.
7. So for the allegation that the petitioner had led to the recovery of the dead body of Arshid Mahmood, deceased from the ravine is concerned, only one out of the two witnesses of its recovery namely Muhammad Yusuf, P. W. Has stated before the trial Court that the petitioner had pointed out the place where it was buried but at the same time he also deposed tha before this recovery, the petitioner had not told in his presence that he had buried the same at the said place either at the police station or on th way to the place of the said recovery and that the recovery memo. In this regard was prepared at the police station which he had signed thereon th next day. The other witness namely Muhammad Din, P.W. Has deposed I his statement before the trial Court that the petitioner had neither told th police in his presence that he had buried the dead body of the - deceased in the ravine nor he had led to its recovery. He too states that the recovery memo was not prepared at the site and that his signatures were obtained on a plain paper. Thus, in view of the above nature of the evidence brought on record by the prosecution against the petitioner it remains to be seen by the trial Court as to whether or not the conviction of the petitioner can be based on such like circumstantial evidence and as such it becomes a case of further inquiry into the charge against the petitioner of its having committed the murder of the deceased, Arshid Mahmood thereby entitling him to the concession of bail under the provision of section 497 (2), Cr.
P. C. In 1984 P Cr. L J 3218 referred to by the learned counsel for the petitioner, the accused person in a murder case was released on bail against whom only circumstantial evidence was available.
8. Similarly, in 1981 P Cr. L J 1007, it was held to be a case of further inquiry and the accused were granted bail where the accused and his companions had pointed out the place from where the dead body of the deceased was found and in 1981 P Cr. L J 1210, the accused who had led to the recovery of revolver alleged to be the weapon of crime, was granted bail on the ground of his case falling within the scope of further inquiry as contemplated by section 497(2), Cr. P. C.
9. For the reasous stated above, this bail application is allowed and the petitioner is ordered to be released on bail on his furnishing bail bond in the sum of Rs, 2,00,000 with two sureties in the like amount each to the satisfaction of the trial Court.