' After refusal of the bail plea from the Court of Additional Sessions Judge, Abbottabad vide his order, dated 26-5-1998 the petitioners have approached this Court through this application for the concession of bail in case F.I.R. No,173, dated 25-4-1998.
2. According to the aforesaid F.I.R. Registered under section 17(3) of the Offences Against Property (Enforcement of Hadd) Order, 1979, Police Station Havelian 4/5 persons looted Rabbani Filling Station at 4-30 a.m. And took away a double-barrel shot-gun from Afzal Khan complainant and an amount of Rs,25,000/30,000 from the cashier and confined them in a room and thereafter, fled away.
3. Learned counsel for the petitioners contended that more than 40 persons were interrogated by the police but could not succeed to lay hand on the culprits. On 30-4-1998 one Abdul Aziz was examined who stated to the Investigating Officer that he visited a cave on 25-4-1998 at afternoon time which he used as cattle shed where 5 persons namely Mushtaq, Asif, Manan, Khakan and Riaz duly armed, who were known to him, were sitting there. On his inquiry Khakan told him that he had committed a murder in love affairs. Thereafter, they went towards Khokhar Mera. The police arrested Mushtaq Ahmed who in his confessional statement recorded on 4-5-1998 stated that he alongwith Khakan, Asjf, Shahzaman and Riaz committed the dacoity of the Petrol Pump and looted a sum of Rs,9,700 out of which he was given Rs,1,700 whereas the others were given Rs,2,000 each.
4. Learned counsel for the petitioners submitted that no incriminating article had been recovered from the petitioners. He contended that the confessional statement of Mushtaq Ahmed which was recorded after long police custody cannot be used as evidence against the present petitioners. He urged that no identification parade was held, therefore, there are no reasonable grounds to connect the accused with the commission of the offence.
5. On the other hand the learned State Counsel argued that the confessional statement of the accused coupled with statements of the accused under section 161, Cr.P.C. Can be taken into account for consideration of bail matter.
6. Admittedly, large number of people was interrogated but no clue could I found from the interrogation. Abdul Aziz in his statement, dated 30-4-1998 stated that he saw five persons named above sitting in his cattle shed who upon his arrival went towards Khokhar Mera. According, to police record Mushtaq and two others were arrested on 1-5-1998 while the remaining two were arrested on 3-5-1998 but their statements under section 161, Cr.P.C. Were recorded on 4-5-1998 when the confessional statement of Mushtaq Ahmed similar to his police statement was recorded.
Afzal Khan, complainant, Wajid and Zahid consistently stated that the dacoits snatched a double barrel gun from the Chowkidar (complainant) and Rs,4,000 from the helper (Wajid) and Rs,25/30 thousand inclusive of Rs,4,000 from the cashier (Zahid). The Chowkidar and the other staff of the pump could neither produce the license of the allegedly snatched double-barrel gun nor could provide any other information to the police about the said gun. After confessional statement of Mushtaq Ahmed the cashier had to modify and amend his statement regarding the looted money, which was brought in line with the confession vide his application, dated 4-5-1998 to Rs,9,700 and accordingly, his supplementary statement was also recorded on 4-5-1998 i,e, the same date on which confession of Mushtaq Ahmed was recorded. The change in the version of the cashier after the confessional statement is very significant which has created serious doubts in the case. In the instant case the petitioners have not been, named in the F.I.R. And in so far as the statement of Abdul Aziz is concerned he has not said even a word about the implication of the aforesaid accused in the present case nor any communication was made to him with regard to the present offence. The petitioners were not subjected to any identification test nor any incriminating recovery has been made from them. The recovery of currency notes allegedly at the instance of the petitioners from the third person shall be examined at the trial as at this stage it does not lend any link so as to connect the petitioners with the commission of the crime. Mere fact that the petitioners have been named for the commission of the crime by the co-accused in his confessional statement is not conclusive evidence in the attending circumstances of the case as its evidentiary value is yet to be determined by the trial Court. In view of the above, the prosecution needs some more material to connect the petitioners with the alleged offence and as such it is a case of further inquiry. In the circumstances, the petitioners are admitted to bail in the sum of Rs,two lacs (Rs,2,00,000) with two sureties each in the like amount and to the satisfaction of Illaqa/Judicial Magistrate. The Magistrate must ensure that the sureties are local and men of means.