ASJAD MEHMOOD vs THE STATE and another

ORDER

SHAHID HAMEED DAR, J.---Asjad Mehmood seeks bail after arrest in case F.I.R. No.295 of 2010 dated 20-11-2010, under sections 302, 34, P.P.C. Registered at Police Station Mandra, District Rawalpindi on the complaint of Raja Riffat Mehmood, the father of the deceased.

2. Precisely, the prosecution case as unfurled by the complainant in the F.I.R. Is that his son Faizan aged 12, who had gone along with his elder brother Ehsan Riffat on his Suzuki van, did not return home along with his elder brother who informed his father/ complainant that Faizan had gone missing at the Adda; the poor child did not return home throughout the night and the complainant despite his best efforts failed to track down him; it was at 10-00 a.m. On 20-11-2010 when Khurram, nephew of the complainant telephonically informed him that the dead body of Faizan was lying near a nullah not far off from Matial road and on receipt of this information, the complainant along with other members of his family reached the spot and found the dead body of his son, drenched in blood; the complainant identified the dead body of his son and mentioned in the F.I.R. That he had no enmity or grudge against anyone but at the same moment, he expressed doubts about the probable killer of his son namely. Abdul Waheed as lie had exchanged hot words with the sons of the complainant, couple of days earlier.

3. The complainant got recorded his supplementary statement on 21-11-2010 under section 161, Cr.P.C. Before the I.O. Wherein he showed his "firm belief" that his on Faizan had been murdered by Asjad Mehmood (petitioner) and Adnan. On 22-11-2010 Zeeshan, the real brother of the wife of the complainant and Raja Muhammad Taj, the real paternal uncle of the complainant joined investigation and stated before the I.O. That they had seen both Asjad and Adnan standing at Matial road at about 5-00 a.m on 20-11-2010 whom they offered 'lift' for going back to the village but they refused. M/s. Muhammad Ikhlaq a friend of the complainant and Shahid Yaqub, paternal cousin of the complainant got their statements recorded under section 161, Cr.P.C. Before the Investigating Officer on 25-11-2010, wherein, they adopted.The version that they had seen the deceased in the company of Asjad Melunood (petitioner), Adnan and Bilal at 2-30 p.m. On 19-11- 2010.

4. Muhammad Basharat and Muhammad Naseer, real brothers inter se were allegedly contacted by Asjad Mehmood (petitioner) and Adnan on 25-11-2010 and stated before him jointly that they had committed the murder of Faizan deceased and that they were immensely perturbed as the police was after them so they entreated both the witnesses to seek pardon for them from the complainant and other members of the family of the deceased. Both of them formed the extra judicial confession account of the prosecution case.

5. Accused Asjad Mehmood was arrested on 12-12-2010 by the police who while in police custody made pointedness to the place of occurrence on 17-12-2010 in presence of the witnesses and the Investigating Officer drew a memo. In this respect duly attested by Muhammad Zafran and Khurram Melunood, P. Ws.

6. The Investigating Officer, during spot inspection took into possession a blood-stained rock weighing 30 kg. From the place of occurrence. The dead body of the deceased was dissected at 9- 00 a.m. On 20-11-2010 at THQ Hospital Gujar Khan.

7. After having heard learned counsel for the parties and perused the record, I find this case one of circumstantial evidence which was produced by the complainant before the 1.0. During the course of investigation in different intervals. The presence of the petitioner and his co-accused, was allegedly noticed by Zeeshan. And Raja Muhammad Taj witnesses at Matial road, not at a distant point from the place where the dead body of the deceased was found. The deceased was allegedly seen in the company of the accused-petitioner and his co-accused, at 2-30 p.m. On 1941-2010 by Muhammad Iklilaq and Shahid Haneef witnesses who appeared before the I.O. To get their statement recorded on 25-11-2010. The statements of Muhammad Basharat and Muhammad Naseer related to the alleged extra-judicial confession of the petitioner and that of his co-accused.

Their statements, on the direction of the court, have been read out by the learned counsel for the petitioner which A reveal that both the accused, allegedly visited them for seeking pardon and had jointly admitted their guilt before them. It would be crucial to assess the admissibility of such evidence which should better be left for the trial Court to assess so as to avoid the question of prejudice. One -aspect of the case is mind boggling and that is, if the witnesses of Wajtakkar and last seen evidence had spoken truth before the Investigation Officer, in their statements under section 161, Cr.P.C. Why they kept tacit and did not disclose this fact to the complainant till 21-11- 2010 as the supplementary statement of the complainant does not divulge the names of said witnesses and he instead, of referring to their names as a source of his information, has relied upon his 'firm belief' to implicate the accused-petitioner and his co-accused in this case. Had the witnesses of Wajtakkar or last seen evidence been good enough, they without wasting any time must have disclosed the above said facts before the complainant being his close relatives.

8. It has been held time and again by this court as well as by the Hon'ble Supreme Court of Pakistan that the circumstantial evidence is In the weakest type of evidence and it can be procured easily by the prosecution wherever direct connecting evidence does not come their way. The detail of the occurrence is heart rendering but the courts are not driven by the emotions. What matters with the courts is the evidence produced by the parties during the course of investigation to prove their respective pleas. Here in this case I have no hesitation in holding that the petitioner's case calls for further probe into his guilt within the scope of C section 497(2), Cr.P.C.

Therefore, the instant petition is allowed and the petitioner is admitted to post-arrest bail provided he furnishes bail bonds in the sum of Rs. 1,00,000 with two sureties each in the like amount to the satisfaction of learned trial Court.