' The petitioners, Khalil Ahmad and Muhammad Saleem through the instant petition have sought for after-arrest bail in case F.I.R. No,386 dated 6-11-2002 under section 302/34, P.P.C. Registered with Police Station Seetpur, District Muzaffargarh.
2. Briefly the allegation against them is that they and their co-accused Muhammad Idrees on 6-11- 2002 at about 2-00 a.m. In furtherance of their common intention have committed the Qatal-e- Amd of Rab Nawaz, the brother of the complainant Ghulam Sadiq.
3. It has been contended on their behalf that they have falsely been roped in: that there is no tangible evidence on record against them; that no incriminating article was recovered from thou; that the police after two days of the occurrence have fabricated some evidence against them in the shape of statement under section 161, Cr.P.C. Of Allah Bakhsh and Abdul Hameed to the effect that in the night of occurrence they had been seen by them and their said accused running near them and talking that they had finished Rab Nawaz and of Mst. Aisha. The widow of the deceased that he (deceased) had told her that he had illicit relation with the wife of one of the accused and they may murder him: that such an evidence carries no value in the eyes of law; and that they are behind the bars and previous non-convict.
4. Conversely, the learned State Counsel has opposed the petition on the ground that as per statement recorded under section 161, Cr.P.C. On 8-11-2002 of Allah Bakhsh, Abdul Hameed and Aisha Mai, they are connected with the crime, which is not only heinous in nature but also covered under the prohibitory clause of section 497(1), Cr.P.C.
5. I have carefully considered the submissions made by the learned counsel for the parties with the help of available record.
6. The fact remains that the petitioners and their said co-accused are not named in the F.I.R. They were also not put to any identification test. Admittedly, no incriminating article was recovered from them.
7. The only evidence against them is in the form of statement recorded under section 161, Cr.P.C. Of Abdul Hameed, Allah Bakhsh and Aisha Mai shown to have been recorded on 8-11-2002. According to the statement of Abdul Hameed and Allah Bakhsh. They and their co-accused Idrees were seen running near them on the night of incident and they were saying to each other that Rab Nawaz had been done to death. The statement of Mst. Aisha is to the effect that the deceased had told her that one of the accused had suspicion of illicit liaison of his wife with him and they may do away with him and she is sure that they have done him to death.
8. These statements, however, show that they had not seen these petitioners doing away with the deceased at the relevant time. The question that if they on the basis of their such statement alone can be held for the alleged offence or not and from this angle their case certainly requires further inquiry into their guilt and so the same is covered uncle subsection (2) of section 497, Cr.P.C. They are behind the bars and stated to be previous non-convict.
9. In these circumstances, I find them entitled to bail. The petition, therefore, is accepted and they are admitted to bail provided they furnish bail Bonds in the sum of Rs,1,00,000 (Rupees one lac) each with one surety each in the like amount to the satisfaction of the learned Sessions Judge, Muzaffargarh/trial Court.