MUKHTAR AHMAD Versus THE STATE

ORDER

This is a petition for bail on behalf of Mukhtar Ahmad petitioner, in a case under sections 302, 364 and 201/34, P.P.C.

2. This petition came up for hearing before me on 27‑7‑1987 when Mr. Abid Iqbal counsel for the complainant, stated that the case had been fixed on 25‑8‑1987 for supply of. copies of statements under section 161, Cr.P.C. and the trial will commence on the next date to be fixed by the trial Court. The case was adjourned on his request as he wanted to produce a copy of the last order of the trial Court. A copy of the order has been produced which does not show that 25‑8‑1987 is fixed for supply of copies. Learned counsel for the petitioner states that the cases of 1986 are being fixed and this case will be taken up on its own turn.

3. The case was registered on 7‑4‑1987 on the report of Abdul Hamid, brother of Abdul Majid deceased, wherein he alleged that 15/20 days prior to the occurrence his cousin Mst. Maqsoodan, daughter of Mukhtar petitioner, was roaming about in the village; the deceased dissuaded her from doing so, upon which she exchanged hot words with him; the deceased gave her beating and handed her over to the petitioner and his sons Afzal and Arshad. On that day the in‑laws of Mst. Maqsoodan were staying as guests in the house of the petitioner; the petitioner and his sons felt insulted by the act of the deceased. On the night between 6/7‑4‑1987 at about 8‑00 p.m. the deceased left his house for the cattleshed. On the following morning at 7‑00 a.m. Abdul Hamid complainant went to the cattleshed for fetching milk and found that Abdul Majid was not there. He was looking for him when Zahid Bashir and Musthaq Ahmad told him that on the preceding night they were going with Abdul Majid when they saw the petitioner and co‑accused Afzal and Arshad standing in front of their Haveli. Mst. Razia who was then present in the Chowk took Abdul Majid with her telling him that she had to discuss some important matter with him. The complainant then approached the accused persons and inquired about the deceased. Co‑accused Muhammad Afzal told him that he would keep on searching for the deceased for ever. At about 1‑00 p.m. Asghar Ali P.W. told the complainant and Sardar Ali P.W. that on the preceding night when he was returning to the village from Adda Dad Fatiana, the petitioner and his co‑accused were going towards the canal at mid‑night and co‑accused Muhammad Arshad was carrying a gunny bag from which some fluid was oozing out. On his inquiry, they told him to mind his own business. In the F.I.R. the complainant expressed the apprehension that the petitioner and his co‑accused had either murdered Abdul Majid or concealed him somewhere with intent to murder him.

4. Co‑accused Muhammad Afzal and Mst. Razia were arrested on 8‑4‑1987. On the same day the dead body of Abdul Majid was recovered from the Lower Bari Doab Canal on the pointing out of co‑accused Afzal. Blood‑stained earth was also recovered from the house of the petitioner on the same day on the pointing out of Afzal and Mst. Razia. On the same day Mst. Razia made a confession before Muhammad Asghar and Sardar Ali PWs. that she had called the deceased to her house on the asking of the accused persons, where he was murdered by them; she had bolted the door from inside; her husband Afzal and Arshad severed his head by hatchet blows while her father‑in‑law Mukhtar Ahmad petitioner remained outside for a watch; thereafter they carried the dead body in a gunny bag for throwing it in the canal. On 9‑4‑1987 a blood‑stained hatchet was recovered at the instance of co‑accused Afzal. Petitioner and co‑accused Arshad were arrested on 16‑4‑1987 and a blood‑stained hatchet was recovered from co‑accused Arshad on the same day. On 28‑5‑1987 Hakam Ali made a statement during the investigation that on the night between 6/7‑4‑1987 he was returning to his Chak from Adda Dad Fatiana when he saw Mukhtar Ahmad, petitioner standing near the canal bridge. On inquiry, he told that he was waiting for somebody. He was still engaged in conversation with him when he heard the sound of something falling in the canal. In the torch light he saw Muhammad Afzal and Muhammad Arshad throwing the dead body in the canal. On his inquiry, they told him that they had avenged the insult.

4‑A. Learned counsel for the petitioner contends that the alleged extra‑judicial confession was made by Mst. Razia after she had been taken into police custody, there is no recovery from the petitioner; Hakam Ali P.W. appeared before the police for the first time on 28‑5‑1987, and this piece of evidence was fabricated after the rejection of the bail petition of Mst. Razia by the learned Sessions Judge on 17‑5‑1987 to strengthen the prosecution case. It is submitted that the evidence collected by the Investigating agency is not at all sufficient to connect the petitioner with the commission of offence with which he has been charged.

Learned State counsel and the learned counsel for the complainant have opposed the prayer for bail. They submit that the material collected by the Investigating Agency, prima facie, links the petitioner with the offence of murder.

5. There is no direct evidence of the murder and the case of the prosecution rests on circumstantial evidence consisting of the following items:‑

(i) Motive;

(ii) Presence of the petitioner and other two male accused in front of their house when Mst. Razia took the deceased inside the house on the pretext that she had to discuss some important matter with him;

(iii) Presence of the petitioner with other two male accused on the night between 6/7‑4‑1987 while they were going towards the canal and one of them, namely Muhammad Arshad, was taking a gunny bag from which fluid was oozing out;

(iv) Recovery of dead body from Lower Bari Doab Canal on 8‑4‑1987 on the pointing out of co‑accused Afzal;

(v) Recovery of blood‑stained earth from the house of the petitioner on the pointing out of Mst. Razia and Afzal;

(vi) Extra‑judicial confession made by Mst. Razia before Asghar and Sardar Ali;

(vii) Recovery of blood‑stained hatchet from Afzal on 9‑4‑1987.

(viii) Recovery of blood‑stained hatchet from co‑accused Arshad on 16‑4‑1987; and

(ix) Presence of petitioner near the canal bridge on the night between 6/7‑4‑1987 where the dead body was thrown by Afzal and Arshad when Hakam Ali P.W. was engaged in conversation with the petitioner.

6. The contention of the learned counsel for the petitioner that the alleged extra‑judicial confession was made by Mst. Razia after she had been taken into police custody is borne out by the record. It is also true that Hakam Ali P.W. is a witness of late appearance. He claims to have seen Afzal and Arshad accused throwing the dead body in the canal when he was engaged in conversation with the petitioner near the canal bridge. He further stated that on inquiry he was told by the accused that they had avenged the insult. He disclosed these facts for the first time more than one and a half months later, on 28‑5‑1987. If these two pieces of evidence are kept out of consideration, even then no case for bail is made out because the petitioner had a very strong motive against the deceased which coupled with other material referred to above prima facie, links the petitioner with the commission of offence with which he has been charged. I, therefore, do not consider it a fit case for the grant of bail at this stage. This petition is, therefore, dismissed.

H.B.T./M‑947 /L ???????????????????????????????????????????????????????????????????? Petition dismissed