1. MUKHTAR AHMAD JUNEJO, J. ---Petitioners Ijaz Ahmad and Sher Bahadur have sought leave to appeal against a judgment dated 3-12-1996 by the Lahore High Court dismissing their application for bail.
2. The to petitioners have been arrested for murder of Muhammad Abbas, who left his house on 28- 9-1995 at 10-00 p.m. For the land. Muhammad Abbas never returned to his house and his brother informant Abdul Razzaq learnt on 1-10-1995 at 11-00 a.m. That dead body of a person was spotted at a certain place. He with his father rushed to see the dead body, which he identified to be of his brother 'Muhammad Abbas. Informant was informed by witnesses Noor Muhammad and Muhammad Din that on 28-9-1995 at 10-30 p.m. They saw Muhammad Abbas going towards his land and he was followed at somedistance by petitioners Ijaz Ahmad and Sher Bahadur and some others. Informant was also told, that 2-1/2 months prior there was a quarrel and exchange of abuses between Muhammad Abbas and 1jaz and Khan Bahadur, but this was followed by a compromise. On knowing this and having seen the dead body of Muhammad Abbas, informant Abdul Razzaq reported the matter to police at Police Station Badomali, District Narowal, where F.I.R.
3. Was registered on 1-10-1995 at 12-30 midnight. Police took over investigation after registering the case. Police recorded the statement of Chand Khan and Ali Muhammad in whose presence the petitioners were said to have made extra judicial confession with regard to murder of Muhammad Abbas. Police secured a mauser from Ijaz Ahmad and deceased's identity card, wrist-watch and some cash from Sher Bahadur. Present petitioners were found to be guilty by Investigating Officer, who found that the remaining accused were innocent.
4. Petitioner's request for bail was turned down by learned Sessions Judge, Narowal. They moved the Lahore High Court by filing Criminal Miscellaneous No. 1640-B of 1996, which was dismissed under the impugned judgment. Hence this petition.
5. Mr. Waheed-ud-Din Virk, learned counsel for the petitioners argued that there was no ocular evidence in the case, that the evidence of P.Ws. Noor Muhammad and Muhammad Din cannot be treated as evidence of last seen and that the evidence about extra judicial confession was brought on record at a late stage of the investigation and the same was unreliable.
6. Chaudhry M. Ibrahim, learned counsel for Advocate-General, Punjab opposed the petition and argued that it was a case where the offence allegedly committed was punishable with death or transportation for life and that there was evidence of recovery against the petitioners.
7. 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 F.I.R. 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 corroboration of the main evidence, but by itself it cannot be basis for conviction.
8. In the circumstances, the petitioners appear to have made out a case for bail. This petition is converted into appeal, which is accepted and the petitioners are granted bail in the sum of Rs.1,00,000 (Rupees one lac) each with P.R. Bonds in the like amount to the satisfaction of the Sessions Judge, Narowal.