PLJ 2022 Cr.C. (Note) 23
Extra-judicial Confession--
----Extra judicial confession is a very weak type of evidence and more particularly when no time, date and manner of occurrence is given, is of no value. [Para 4] A
2000 PCr.LJ 1734.
Extra-judicial Confession--
----Extra judicial confessions were made before persons of influence and authority--Oral and medical evidence is fully corroborated--The challan has been submitted, although no charge has still been framed. [Para 5] B
PLJ 2006 Cr.C. (Lahore) 838, 2005 SCMR 635 and 2005 MLD 474.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(i)--Pakistan Penal Code, (XLV of 1860), S. 302--Post arrest bail, dismissal of--Prohibitory cause--Allegation of--Murder--Only tentative assessment is to be made--Prima facie sufficient material evidence is available on record to substantially connect petitioner with commission of offence--The contentions raised by learned counsel for petitioner goes into deeper appreciation of evidence and at bail stage when trial is progressing, allowing bail to petitioner would cause prejudice to trial of case as well as parties--The offence with which petitioner has been charged having attracted prohibitory clause of Section 497(1), Cr.P.C. bail petition is dismissed. [Para 7] C
PLJ 2006 Cr.C. (Lahore) 838.
Mr. Nazar Muhammad Fatiana, Advocate for Petitioner.
Malik Aftab Abbas Khan, Advocate for Complainant.
Mian Muhammad Bashir Bhatti, DPG for State.
Date on Hearing: 25.9.2007.
PLJ 2022 Cr.C. (Note) 23
[Lahore High Court, Multan Bench]
Present: Iqbal Hameed-ur-Rahman, J.
IMRAN AHMED--Petitioner
versus
STATE--Respondent
Crl. Misc. No. 1998-B of 2007, decided on 25.9.2007.
Order
Petitioner seeks post-arrest bail in a case Registered vide FIR No. 383/2006 dated 24.1.2006 under Sections 302, P.P.C. at Police Station City Khanewal, District Khanewal.
2. The allegations against the petitioner as the contents of the FIR recorded at the instance of Muhammad Zahid complainant are that his sister in law Nazia was married with Imran (petitioner) about 5/6 months ago: that in the start spouses had good relations but after about three months of the marriage, Imran accused asked his wife to hand over her golden ornaments to him and on her refusal the relations between the spouses became strained; that few days before the occurrence Imran had exchanged hot words with his wife whereupon complainant’s father brought Mst. Nazia to his house; that after 3/4 days Imran came to the complainant’s house and requested complainant’s mother to send Mst. Nazia with him whereupon complainant and his mother sent Mst. Nazia with Imran on 14.06.2006; that on the same day at 8.00 P.M. he was informed telephonicaily that his sister had died due to electric shock whereupon his brothers Javed, Imtiaz, Irfan went Khanewal and reached there at about 11.00 P.M. that the accused refused to hand over the dead body of Mst. Nazia to them, however, with the intervention of the respectables they received the dead body and took the same to Shaali Gharbi Tehsil Chistian, District Bahawalnagar on 15.06.2006 at morning time; that at the time of bath to the dead body, marks of violence were found on the dead body; that arm of Mst. Nazia was also found broken; that they intended to bring the dead body back whereupon accused extended threats to them of dire consequences; that the relatives of the accused had also been requesting the complainant and his family members to hush up the matter but he did not agree; that his sister had been murdered intentionally; that during the inquiry the DSP/DPO Sadar Circle Khanewal also found that Mst. Nazia died due to torture and violence; that accused Imran and his mother Safia Bibi were found guilty; that after the exhumation post-mortem report of Mst. Nazia had been received whereby injuries on her hyoid bone and left arm fracture were found in the post-mortem report; that in the light of the above circumstances;, the case was registered against the accused Imran and his mother Mst. Safia.
3. Pre-arrest bail of the petitioner had been declined by the learned Addl. Sessions Judge, Khanewal, vide order dated 04.01.2007. The post arrest bail of the petitioner has also been dismissed by the learned Addl. Sessions Judge, Khanewal vide order dated 06.03.2007.
4. It is contended on behalf of the petitioner that the occurrence had taken place on 24.11.2006 and thereafter the post-mortem of the deceased Mst. Nazia has been conducted on 18.11.2006 after a delay of more than five months; that during the post-mortem examination the viscera along with all articles were sent to the office of chemical examination and that of hytopathologist but no positive report has been received determining the cause of death. As far as the cause of death of the deceased the medical report is silent. Thereafter on 15.03.2007 a medical board was constituted for determining the cause of death. According to the report of the medical board the most likely the cause of death is asphyzia due to throttling. Moreover, the case of the prosecution is mostly based that extra judicial confession recorded on 09.12.2006 that of Syed Noor Hussain Shah, Wali Muhammad, Karamat Ali who are also residents of Bahawalnagar, about one mile away from the village of the petitioner, it is a stereotype of extra judicial confession made by the accused. It is further stated that when no date, time and manner of occurrence is elaborated in the joint extra judicial confession, it is not admissible in evidence; it is no more a waste paper. It is further stated that the recovery of Dopatta and iron rod have also been manipulated from Imran after his arrest on 09.01.2007. The recovery is not compatible and not corroborated with the FIR as well as the evidence or in the statement of the PWs. It is further stated that there is no eye witness in the version of the FIR, which has been got registered on 15.06.2006. It is further contended that at the time of bathing the dead body of the deceased Mst. Nazia it was at that time, the complainant had found the injuries on the person of the deceased and kept quite for a long time thus the story of prosecution is false and does not appeal to the reason. It was the proper time that the report should have been made to the police but the complainant kept mum in the matter and it was on 24.11.2006 that the instant FIR had been lodged and according to the post-mortem the cause of death could not have been determined; that after the exhumation of the dead body after about six months, bone fracture do occur in the process, as such, if an fracture is observed in the post-mortem report, the same may be caused at the time of the exhumation of the dead body. Further contended that at the time of bathing no sign of throttling has been noticed, as such, the cause of death is to be considered as to be shrouded in mystery. It is next contended that the extra judicial confession is a very weak type of evidence and more particularly when no time, date and manner of occurrence is given, is of no value. In this regard reliance is placed on the case of Abdul Qadir Motiwala vs. The State. (2000 PCrl.LJ 1734). Therefore, the petitioner is entitled for the grant of post arrest bail.
5. On the other hand, bail petition has been opposed by the learned counsel for the complainant as well as the learned Deputy Prosecutor General on the ground that the delay in reporting the case to the police in itself is mentioned in the FIR where it has been stated that:
جب نعش واپس لانے گئے تو ملزمان نے دھمکی دی کہ اگر کوئی کاروائی کی تو آپ کا حشر بھی نازیہ جیسا ہو گا۔
Therefore, the delay caused in the lodging of the FIR is fully explained; that there has been no deliberation in the same, as such, the same cannot be fatal to the prosecution case. Further stated that the petitioner is resident of Khanewal while the complainant is resident of Chishtian District Bahawalnagar; that in order to get the instant case registered against the petitioner, the complainant had approached the D.I.G. who forwarded the same to the D.P.O. Chishtian and thereafter the instant case was registered on 24.11.2006. The exhumation was conducted on 18.06.2006 and according to the medical report the cause of death is asphyxia due to throttling. Further stated that the petitioner is specially nominated in the FIR, there was no previous enmity; that the iron rod and Dopatta of the deceased has been recovered from the petitioner; that there are extra judicial confessions. Further stated that while applying the pre-arrest bail the petitioner in para 3 of his petition has mentioned that the deceased Mst. Nazia has died due to electric shock while before the police the petitioner had stated that the death had occurred due to fall from the stairs. It seems that the stance of the petitioner has been changed in view of the post-mortem report. It is further stated by the D.P.G. that on a day prior to the death of the deceased Mst. Nazia was taken by the petitioner from the house of her father and on the next day, the death had occurred. It was for the petitioner to explain under what circumstances the death had been caused, the petitioner has not been able to give any satisfactory explanation to the cause of death. Reliance is placed on the case of Muhammad Khurshid Khan vs. Muhammad Basharat and another (PLJ 2007 S.C. (AJ&K) 43). Moreover, the extra judicial confessions were made before the persons of influence and authority. Further it is stated that the oral and the medical evidence is fully corroborated. The challan has been submitted, although no charge has still been framed. Reliance is placed on the cases of Faheem Mir vs. State (PLJ 2006 Cr.C. (Lahore) 838), Syed Maqbool Muhammad vs. The State (2005 SCMR 635), and Muhammad Mansha vs. The State (2005 MLD 474).
6. Arguments heard. Record perused.
7. Only the tentative assessment is to be made. Prima facie sufficient material evidence is available on the record to substantially connect the petitioner with the commission of the offence. The contentions raised by the learned counsel for the petitioner goes into the deeper appreciation of evidence and at the bail stage when the trial is progressing, allowing bail to the petitioner would cause prejudice to the trial of the case as well as the parties. The offence with which the petitioner has been charged having attracted prohibitory clause of Section 497(1), Cr.P.C. therefore, this bail petition is dismissed.
(A.A.K.) Bail dismissed
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