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Criminal Miscellaneous No. 4.252-B of 1978, decided on 16th December, 1978.

S. 497(2)-Bail of petitioner accused of murder pressed on grounds that (i) co-accused released on bail; (fi) supplementary statement of informant not admissible in evidence; (iii) petitioner not identified at place of occurrence even in light of burning lantern; (iv) different sets of evidence individually insufficient for finding guilt against peti tioner-In view of evidence case against petitioner, held, needed further enquiry in circumstances-Bail allowed, in circumstances.

Abdul Malik v. State P L D 1968 S. C 359 ref.

Ch. Abdul Aziz for Petitioner.

S. A. Tughral for the State.

Date of hearing: 16th December 1978.

Muhammad Bashir an accused for the murder of Noor Muhammad deceased has applied for grant of bail.

2. Concisely the petitioner had pursuant to a conspiracy with the remaining accused named Abdul Rehman, Ramzan, and Abdul Sattar killed Noor Muhammad deceased on the night intervening 14th and 15th August 1-977. The case was registered at Police Station Balak, District Faisalabad on 15-8-1977 at the instance of Abdullah a real brother of the deceased. The report alleges that an unknown person had on the preceding night dealt injuries to the deceased with a Toka' in his hands. The informant and remaining family members lying nearby woke up on the groan of the deceased. The assailant, however, made good his escape. Supplementary statement of the informant was also recorded same day during investigations which alleges that the informant had the knowledge that the deceased was carrying on with Mst. Rani a real sister of the petitioner who was married to Sher a real brother of the deceased and the informant. The deceased had also illicit relations with the sister of Abdul Sattar, wife of Muhammad Ramzan. The latter is brother of Abdul Rehman. The four accused had a week before the incident conspired and planned to kill the deceased. The petitioner was arrested on 9th September 1977 and a blood-stained 'Toka' was recovered at his instance same day from a graveyard close to the site of the incident. The petitioner had also allegedly confessed the crime before Sher Khan and Bahadur Khan on the day be was apprehended by the police. A Tracker had correctly identified footprints of the petitioner at: an Identification Parade held on 8th October 1977.

The remaining three accused charged with conspiracy have since been released on bail by the Court below. The petitioner was declined bail by learned Sessions Judge, Faisalabad for reason that Abdullah complainant had in his supplementary statement charged the petitioner having caused fatal blows to the deceased and his case was distinguishable from that of the remaining three accused in the case who were "only conspirators".

3. It should be conceded at the outset that the supplementary statement of the informant recorded by the police after they had taken steps to investigate, was not admissible in evidence and the observations of learned Sessions Judge that the petitioner was named as actual assailant by the informant in his supple mentary statement is factually incorrect. Learned counsel for the petitioner contended that the petitioner was related closely to the informant. It is unlikely that the petitioner if he was the assailant could not have been identified at the site where, according to first information report, a lantern was burning. The case against the petitioner, therefore, rests on circumstantial evidence compris ing of identification of footprints, recovery of Toka' and extra judicial confes sion. Delay of three weeks in the identification parade speaks for itself. Evi dence of extra judicial confession is generally introduced in such cases to fill up lacuna in the case of the prosecution. These different sets of evidence were individually sufficient for a finding of guilty against the accused unless corroborated in material particulars by some independent evidence. The above sets of evidence also could not be used for corroboration inter se. A weak piece of evidence which required corroboration could not corroborate a similar weak piece of evidence. On these premises it was argued that the facts of the case did not justify the view that there were reasonable grounds for believing that the petitioner was guilty of the charge as evidence in the hands of the prosecution if allowed to stand unchallenged and unrebutted will not furnish a safe premises for the conviction of the petitioner. In any case there was a serious doubt that case against the petitioner was that of further enquiry. Such doubts have to be resolved in favour of the accused for the purposes of grant of bail.

As against it learned State counsel was of the view that the arguments raised on the side of the petitioner entrenched upon merits of the case which could not be foreclosed at this stage. Deeper appreciation of evidence is not permissible for disposal of application for bail. The charge against the petitioner was punishable with death. The case, therefore, falls under subsection (1) of section 497, Cr. P. C. The normal rule is refusal to grant bail in such cases.

4. On a careful consideration I am led to the view that it is not correct to say that the question of bail must be foreclosed summarily as the accused was charged with offence punishable with death. A tentative assessment of facts of the case cannot be avoided for the decision if there were reasonable grounds for believing that the accused was guilty of the charge. The question whether or not there are reasonable grounds for believing that the accused was guilty must be decided judicially. Jurisdiction of Court to grant bail in such cases is excluded only if it is found that there are reasonable grounds for believing that the accused was guilty of the charge. This view finds full support from the judgment of their Lordships of Supreme Court in Abdul Malik v. State (P L D 1968 S C 359). The contention that in view of evidence in the hands of prosecution, the case against the petitioner was that of further enquiry under subsection (2) of section 497, Cr. P. C. has a persuasion in it. Accord ingly, the application is accepted and the petitioner is allowed bail in the sum of Rs. 10,0 0 (ten thousand) with two sureties with personal bond in the like amount to the satisfaction of Assistant Commissioner Faisalabad (Saddar). Hail/Personal bonds shall after attestation be sent to learned Sessions Judge for record.

Petition accepted.

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