' The petitioner and his co-accused Azhar Mahboob are involved in a case under sections 302 and 201, P.P.C. Read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Saddar, Wazirabad. Out of them the petitioner has applied for bail on the ground that there is no allegation that he had either committed Zina-bil-Jabar with the deceased Mst. Naseem Tahira, a girl of about 10 years nor that he murdered her. The only allegation against the petitioner is that he had removed the dead body in a gunny bag from place of ocurrence to the graveyard after joining hands with the principal accused namely Azhar Mahboob. Secondly it is contended that the offence under section 201, P.P.C. Is at the best made out against the petitioner which does not fall within the prohibitory clause and is bailable. Lastly it is contended that there is no direct evidence involving the petitioner in the case except that a joint confession was made by the petitioner and his co-accused Azhar Mahboob before Abdul Razzaq and Fazal P.Ws. The aforesaid joint confessional statement was bad in the eye of law as it was not in the words of the petitioner.
2. The bail application was opposed on the ground that the petitioner had joined hands with the co-accused who was guilty of the commission of heinous offence and since there was last-seen evidence removing the dead body by the petitioner and his co-accused to the graveyard, therefore, there was sufficient proof to link him with the occurrence.
3. I have considered the above submissions and find that according to the joint confessional statement the principal accused namely Azhar Mahboob had stated that on 4-8-1996 at about 4- 00 p.m. He had forcibly taken away the deceased Mst. Naseem Tahira aged about 10 years to his "Baithak" while she was passing through the street. After taking her to the Baithak she was subjected to Zina-bil-Jabar. She tried to raise alarm whereupon the aforesaid accused strangulated her to death with her "Dopatta". After the death of Mst. Naseem Tahira the aforesaid accused closed the door of his "Baithak" and played the deck loudly. During the night he with the help of his "Phophizad" i,e, the petitioner, removed the dead body of the deceased from his "Baithak" to the graveyard known as "Joori Shah".
4. It follows from above confessional statement that Azhar Mahboob is the principal accused in committing the murder of the deceased after committing Zina-bil-Jabar. The only role ascribed to the petitioner is that he helped the principal accused during the following night to remove the dead body in a gunny bag to the nearby graveyard. Though he was also seen by two other witnesses alongwith the co-accused while removing dead body in a gunny bag, but there is no allegation that he was either present at the time of murder of the deceased or had participated in any manner to take her life, therefore, it will become a case of further inquiry, particularly when there is only allegation that he helped the co-accused to remove the dead body as aforesaid. The petition is, accordingly allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs,50,000 (rupees fifty thousand only) with one surety in the like amount to the satisfaction of trial Court.