' Bashir Ahmad Butt alias Bashira Butt son of Ghulam Qadir alongwith others is charged with the murder of Hakim Ali, S.I.
2. The prosecution case in brief is that a secret information was received by the Chenab Rangers that gold was to be smuggled to India. Consequently a NAKABANDI was held in a Bail near Indo-Pak border on the night between 1st and 2nd March, 1992 at about 3-30 a.m. The NAKABANDI party saw some persons proceeding towards India. On being challenged they opened fire at the NAKABANDI party. The latter also retaliated. In the encounter S.I. Hakim Ali was killed. The smugglers/assailants, however, managed to run away leaving 900 Tolas of gold which was seized by the NAKABANDI party. In order to apprehend the culprits, the Chenab Rangers set on fire bushes growing in the Baila and succeeded in arresting Muhammad Mushtaq co-accused with burns on his body. He was produced before A.C., Narowal on 3-3-1992 where his statement under section 164, Cr.P.C. Was recorded. He confessed that Bashir Ahmad Butt petitioner and one Basharat was also accompanying him when the encounter in question had taken place. He further disclosed that the S.I. Was killed by the shot fired by the present petitioner.
3. The petitioner pleads for bail on merits and the statutory ground. According to him he was arrested in this case on 13-8-1993 but the trial has not concluded as yet. A report was called from the learned trial Court. No doubt, from the said report it appears that the petitioner had also sought adjournments for the non-availability of his counsel but those adjournments caused a delay of less than two months.
4. On merits, it is contended that the petitioner is not named in the F.I.R. Nor was subjected to any identification test nor was apprehended at the spot nor was any recovery made from him. He is being involved on the basis of confession allegedly made by his co-accused Muhammad Mushtaq.
5. No doubt, under the law confession of an accused can be taken into consideration as a circumstance against his co-accused when both are being jointly tried but that by itself may not be sufficient to secure his conviction.
6. In the above circumstances, I admit the petitioner to bail in the sum of Rs,1,00,000 (Rupees one lac only) with two sureties in the like amount to the satisfaction of the learned trial Court.