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Criminal Miscellaneous No.1/B of 1986, decided on 8th April, 1986.

‑‑S.497‑‑Penal Code (XLV of 1860), S.302/34‑‑Bail, grant of‑‑No eye‑witness of occurrence and prosecution case resting on motive, Wajtakkar evidence and extra‑judicial confession‑‑Except the extra -judicial confession no evidence regarding motive existing on record‑‑No opinion could be given by Fire‑Arm Expert as to whether or not crime empties were fired from gun recovered from co‑accused‑extra‑judicial confession which is weakest type of evidence did not find any corroboration from any independent evidence against accused.‑‑Bail granted in circumstances.

A.W. Butt for Petitioner.

Syed Al‑Mustafa Imam for the Complainant.

Muhammad Naeem for the State.

Muhammad Arshad petitioner is involved in a murder case. He has moved this petition for bail.

2. The F.I.R. version is that on 13‑7‑1985 Tariq Saeed complainant went to Square Ne.45 to irrigate his land. Sajjad Haider deceased also accompanied him. At about 10‑00 p. m. Tariq Saeed diverted the water to his fields and went away to see the Nakkas leaving Sajjad Haider behind. When he was returning towards Sajjad Haider, some body fired twice taut he escaped unhurt. A short while after some body fired from the western side hitting Sajjad Haider who was immediately removed to D.H.Q. Hospital, Faisalabad, where he succumbed to his injuries on 18‑7‑1985. Tariq Saeed lodged the F.I.R. wherein he stated that he had no knowledge about the assailants.

3. There is no eye‑witness of the occurrence and the prosecution case against the petitioner rests on motive, Wajtakkar evidence furnished by Muhammad Ismail and Tufail P.Ws. and extra‑judicial confession allegedly made by the petitioner before Muhammad Rashid and Zaman Khan P.Ws.

4. Learned counsel for the petitioner contends that there is no evidence the motive and that extra‑judicial confession is the weakest type of evidence, therefore, there are no reasonable grounds for believing that the petitioner has committed the offence with which he has been charged. The learned counsel for the State and the complainant have opposed the prayer for bail. Learned counsel for the complainant submits that empties were recovered from the spot while a gun was recovered from co‑accused Nadir and extra‑judicial confession coupled with these recoveries connects the petitioner with the commission of offence.

5. Perusal of the file reveals that Muhammad Ismail and Tufail P.Ws. made statements under section 161, Cr.P.C. that on 13‑7‑1985 at 9‑00 p. m. they saw the petitioner with a gun going towards Chak No.133. He was accompanied by co‑accused Nadir. Muhammad Rashid P.W. stated that on 3‑8‑1985, Muhammad Arshad (petitioner herein) alongwith co‑accused Nadir Khan came to his clinic and told him that he had illicit relations with a girl of Chak No.133; the cousin of the girl namely, Tariq Saeed made a plan to kill him with the help of Sajjad Haider; since Sajjad Haider was also on friendly terms with him, he apprised him of the design of Tariq Saeed, on 13‑7‑1985 he (the petitioner) alongwith Nadir followed Tariq Saeed; Nadir fired twice at Tariq with the licensed gun of his father but he was not hit and thereupon he (the petitioner) took the gun from him and fired at Tariq but the fire hit Sajjad Haider deceased. Muhammad Zaman P.W. also made a similar statement. Extra‑judicial confession is the weakest type of evidence. In the instant case it does not find corroboration from any independent source. The learned State counsel concedes that except the extra‑judicial confession there is no evidence regarding the motive.

The empties recovered from the spot and the gun recovered from the co‑accused were sent to the Fire‑Arms Expert and he has reported that no opinion could be given as to whether or not the crime empties were fired from the aforesaid gun. In the circumstances, the petitioner is admitted to bail in the sum of Rs.25,000 (Rs. Twenty‑five Thousand only) with two sureties in the like amount to the satisfaction of Assistant Commissioner, Faisalabad.

H. A. K.

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