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Criminal Miscellaneous No. 2445/B of 1974, decided on 8th August 1974.
----S. 498‑Extra‑judicial confession of co‑accused only implicating evidence against accused‑Whether such evidence to be used against accused or not yet to be determined‑Prosecution case resting on mere circumstantial evidence without any eye‑witnesses‑Bail granted to accused in circumstances of case‑‑Penal Code (XLV of 1860), S. 302/34/377.
S. W. R. Gillani for Petitioners.
Aziz Ajami for the State.
Shabbir Ahmad for the Complainant.
A dead body was found in the jungle, on 9th of April 1973, by Mohammad Latif, Forester (P. W. 3) and he reported the matter to the police. On the receipt of that information, the police reached the spot and sent the dead body for post‑mortem examination after preparing the inquest report. According to the post‑mortem report, the death was caused due‑ to throttling. The case was registered on 18th of April, 1973. The petitioners were challaned alongwith Mohammed Ishaque co‑accused the prosecution is in possession of following types of evidence against the two petitioners :‑
(i) Aziz Ahmad (P. W. 8) had seen the deceased in the company of the two petitioners 4/5 days before the present occurrence.
(ii) The petitioners made extra judicial confession before Muhammad Boota and Muhammad Yousaf.
(iii) Ishaque co‑accused confessed his guilt before Niaz Ahmad (P. W. 4) involving the two petitioners also.
(iv) Recovery of purse containing the photograph: of the deceased at the instance of Mushtaque petitioner and this recovery %vas supported by Mohammad Awais (P. W. 2) and Mohammad Latif (P. W. 3).
2. Statement of Aziz Ahmad (P. W. 8) was recorded by the police at the time of the preparation of the inquest report. He did not mention in that statement that he had seen the deceased in the company of the two petitioners 4/5 days before the present occurrence. His statement was recorded under section 161, Cr. P. C. In that statement too, he did not depose against the two petitioners, Mohammad Yousaf and Mohammad Boota, P. W. 12 and P. W. 15 respectively, have been examined by the Committing Magistrate. They have not deposed against the petitioners. Both of them were allowed to be cross‑examined by the P. I. at his request. The petitioners did not confess their guilt before Niaz Ahmad (P. W. 4). Niaz Ahmad stated that Iahaque co‑accused had confessed) the guilt before him and had involved the two petitioners as having, murdered the deceased. It is yet to be determined as. to whether the; statement of the co‑accused is to be used against the two petitioners or not.; It will be for the Committing Magistrate or the trial Court to see as toil what weight can be given to the evidence that Mushtaque petitioner had produced a purse containing the photograph of the deceased. The case of the prosecution hinges on the circumstantial evidence discussed above. There is no eye‑witness of the case. Taking the facts of the case into consideration, I allow bail to the petitioners in the sum of Rs. 10,000 each with one surety each in the like amount to the satisfaction of the Enquiry Magistrate. This order shall be without prejudice to the merits of the case.
Bail allowed.
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