MUHAMMAD NAWAZ ABBASI, J.- The petitioner namely Shahid Naseem son of Abdul Latif is facing trial before the learned Additional Sessions Judge. Gujar Khan for the charge of committing murder of Muhammad Taj son of Muhammad Akbar.
2. Miran Dad father-in-law of Muhammad Taj deceased upon information supplied to him bv Muhammad Qadir nephew of Muhammad Taj deceased at about 9 p.m. On 8-6-1997 that he alongwith Babar son of Karamat Hussain, while going on kacha road leading towards village Kund found the dead body of Muhammad Taj with his motorcycle lying on the said kacha road lodged report of the occurrence on the same day at 11.00 p.m. At Police Station Mandra and in consequences thereof a case was registered against the unknow n persons through FIR No. 107.
3. Muhammad Sharif and Allah Ditta relatives of-the complainant, appearing before the Police, subsequent to the registration of the case, stated that three days earlier i.e. On 4-6-1997. Petitioner expressing his grievance before them against the deceased, stated that deceased by earning illicit connection, with his mother disgraced him in the village and that he w ould not spare him.
4. Rafaqat and Abdul Razzaq claimed to have seen the petitioner near the place of occurrence shortly before the incident at some distance from the deceased on 8-10-1997. Who was going on motorcycle and after hearing fire report noticed the petitioner boarding on a bus at Mandra Bus Stand. The I.O. Upon the statements made by the above-named persons before him declaring the petitioner reponsible for the commission of murder of Muhammad Taj made him accused in the case.
5. The crime empty allegedly recovered from the spot by the I.O. During the spot inspection was found matched with the licenced (30 bore) pistol of the petitioner subsequently recovered from him on his arrest.
6. The application for grant of bail moved by the petitioner before the learned Additional Sessions Judge, Gujar Khan was refused through order dated 6- 10-1997 with the observation that the petitioner was seen by the PWs near the place of occurrence before and after the occurrence and also disclosed his intention before them three days prior to the occurrence. The positive result of fire-arm expert regarding the matching of the crime empty with the pistol of petitioner was considered another factor for dismissal of the bail application of the petitioner.
7. The learned counsel for the petitioner contends that the circumstantial evidence of last seen and the disclosure of the petitioner of his intention to kill, having no substance to connect the petitioner with the commission of offence, the case against him falls within the purview' of sub-section (2) of Section 497 Cr.P.C. He added that excluding the above said pieces of evidence from consideration, the matching of crime empty allegedly recovered from the spot with the licenced pistol of the petitioner itself is not an evidence of murder and that it being a blind murder, the petitioner due to suspicion was involved in the case through-artificial evidence.
8. Learned counsel appearing on behalf of the complainant contends that the, case was under- trial before, the learned Special Court and was at advance stage w hen it was transferred tp the learned Sessions Judge, Rawalpindi, He opposing the grant of bail to the petitioner prayed for the issue of direction to the learned trial Court for early-conclusion of the trial. He with reference to Qasim Ali. The Stare (1993 M LD 2260-Lahore) and Naseeb Ullah v. The State (1991 SGMR 2450) contended that after commencement of the trial normally bail is not granted in the cases of capital punishment.
9. Learned State counsel supporting the contention raised by the learned counsel for the complainant prayed for the dismissal of this application.
10. I have heard the learned counsel for the patties at length and also perused the record. Without causing prejudice to the prosecution case, while making tentative assessment of the evidence the admitted position is that the deceased was not seen by the PW'S in the company of the petitioner as such before the occurrence rather their evidence was to the effect that the accused and deceased were seen by them with a distance of 500 600 yards from each other. Thus the question for determination would be, whether it can legally be called and used as last seen evidence in a case of capital punishment. Similarly, the evidence of disclosure of the PWs about the intention of the petitioner to kill the deceased three day s before- the occurrence whether can be taken as confessional statement before actual commission of offence and if so what is its nature and credibility. The legal status as well as the admissibility of the last seen evidence and the alleged disclosure of the petitioner being still ascertainable, the refusal of bail with observation that prima facie petitioner was connected with the crime and there existed reasonable grounds to believe that he committed the offence with which he was being charged amounted to prejudge the guilt of the petitioner. In such cases through the tentative assessment of the evidence, the apparent correctness of the allegation is ascertained as the statements of the persons recorded by the police are not subjected to cross-examination and therefore, cannot be considered as sacrosanct for the purpose of decision on bail application. Thus, the Court has to take a tentative sifting of the evidence to Judge the prima facie case at bail stage avoiding from raising any inference adverse to accused and stretching the law in favour of prosecution. In bail for offence under section 302 PPC. The Judge seized of the matter should consider the whole case on the date available on record and if any doubt arises, the benefit of the same must be given to the accused.
11. Keeping in view the above principle, the evidence against the petitioner being traceable on record pertaining to the presence of the petitioner near the place of occurrence and disclosure of intention to kill alongwith matching of crime empty with the licensed pistol of the petitioner cannot' be considered as positive proof of the guilt of the petitioner unless the same is put to the test pf cross-examination and the doubt and dents arising in it are removed. Thus before determining the guilt of the petitioner at the trial, the benefit of the doubts for the-purpose-of hail will necessarily be given to the petitioner and the concession pf bail in such circumstances cannot be refused merely for the reason that the case is under trial.
12. As per post-moriem report, the death probably accrued at sometime before 8-0 p.m. When it was not vet dark but the witnesses despite hearing fire report remained unconcerned and attracted to the scene, therefore, taking Police of the attending circumstances, the possibility of false implication of petitioner being not ruled out there would be a reasonable ground learning towards the plea of innocence, which makes room for further inquiry into the guilt of the petitioner.
The Courts while considering the question Of bail are not to keep in view only the maximum sentence of death or imprisonment for life provided under the law but at 'bail stage, if there appears reasonable ground that a person was not guilty of offence with which he was being charged, such person by virtue of sub-section ,(2) of Section 497 Cr.P.C, would be entitled to bail and the prohibition, contained in sub-section (1) of Section 497 Cr.P.C. Will, not crate a bar for grant of bail.
13. It was held by the Supreme Court of Pakistan in Manzoor v The State (PLD 1972 SC 81) as under:- "For an offence punishable with death on transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available iii the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence."
The apex Court commenting upon the subject further held asunder:- "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in Jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim to him. But no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run".
14. Without prejudice to the case of the prosecution. I do not find much credential in evidence in the hands of the prosecution to suggest reasonable grounds to believe that the petitioner is responsible for the murder of the deceased. Thus in view of the principle laid down by the Supreme Court of Pakistan in Manzoor v. The State (PLD 1972 SC 81) the petitioner being entitled to be given the benefit of doubt for the purpose of bail. I am inclined to allow this application. The petitioner is granted bail, subject to his tendering bail bonds in the sum of Rs. One Lac with to sureties each in the like amount to the satisfaction of the trial Court.