PLJ 2024 Cr.C. (Note) 62
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
MUHAMMAD SHAHBAZ--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 4116-B of 2023, decided on 23.6.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 302 & 34--Confession of co-accused--Relevant evidence--Independent incriminating material--Related witness--Previous involvement--Post Arrest Bail Petition--Grant of--Confession allegedly made by co-accused of the petitioner, shall be proved during the trial and till then, the same cannot be used as relevant evidence against the petitioner--Without any other independent incriminating material corroborating the confessional statement of co-accused of the petitioner, the prima facie involvement of petitioner cannot be determined--Complainant and the witnesses all closely related to the deceased, remained mum for as many as more than 16-days and also did not explain any reason for their such conduct--Enormous delay in reporting the alleged confession of the accused, being unexplained--Complainant and the witnesses closely related to the deceased, did not react at all to the said alleged confessional statement of the accused and calmly allowed the accused to leave the place of the meeting--There was no reason for the accused to have detailed the occurrence in their meeting with the witnesses--This story of the accused confessing their guilt is to be taken with a pinch of salt and cannot be relied upon implicitly--Investigating Officer of the case has concluded that the deceased had, on his own, proceeded to the house of co-accused of the petitioner and thereafter, being under deep stress, committed suicide and the fact of suicide was also confirmed by the report of the Punjab Forensic Science Agency--Petitioner is admitted to post-arrest bail.
[Para 4] A, B, C, D, E, H
PLD 2021 SC 738; 2022 SCMR 676 ref.
Criminal Procedure Code, 1898 (V of 1898)--
---S. 497--Pakistan Penal Code, (XLV of 1860), S. 302--Extra judicial confession--Extra judicial confession of an accused is a weak type of evidence--Evidentiary value of such type of evidence is to be determined by the learned Trial Court at an appropriate stage.
[Para 4] F & G
2010 SCMR 584; 1995 SCMR 932; 2017 SCMR 728;
2012 SCMR 184 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Bail--Mere involvement in a heinous offence is no ground for refusing bail to an accused who otherwise becomes entitled for the concession of bail. [Para 4] I
Khawaja Qaiser Butt, Advocate for Petitioner.
Mr. Abdul Quddos Khan Tareen. Advocate for Complainant/ Respondent No. 2.
Mr. AnsarYasin, Deputy Prosecutor General for State.
Date of hearing: 23.6.2023.
Order
Through this petition filed under Section 497 Cr P.C. the petitioner, namely Muhammad Shahbaz seeks post arrest bail in case FIR No. 111 of 2023 dated 18.01.2023, registered in respect of offences under Sections 302 and 34, P.P.C. at the police Station Gulgasht, District Multan.
2. The allegations against the petitioner, namely Muhammad Shahbaz, culled from the evidentiary material produced before
the Court, are that he, along with his co-accused, committed the
Qatl-i-Amd of Jabbar Khan (deceased), the husband of the complainant of the case.
3. I have heard the learned counsel for the petitioner, the learned counsel for the complainant, the learned Deputy Prosecutor General and perused the record with their able assistance.
4. A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the inference that no reasonable ground exists for believing that the accused has committed a non bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should confine itself to the material placed before it by the prosecution to see whether some perceptible evidence is available against the accused, which if left unrebutted, may lead to inference of guilt. Reasonable grounds are not to be confused with mere allegations or suspicions nor with tested and proved evidence, which the law requires for a person’s conviction for an offence. The term “reason to believe” can be classified at a higher pedestal than mere suspicion and allegation. It is a fact of the prosecution case that the Qatl-i-Amd of Jabbar Khan (deceased) was not witnessed by any one. The complainant of the case got recorded in the F.I.R that her husband was taken to the house of Abbas Khan, the co accused of the petitioner, forcibly and thereafter, Mst. Nishat Kanwal, the other wife of the deceased, told the complainant of the case on 21.12.2022 that Jabbar Khan (deceased) had died. Initially, the death of Jabbar Khan (deceased) was treated as a suicide and proceedings under Section 174 Cr.P.C. were initiated. According to the facts of the case, the F.I.R was got lodged by the complainant on 18.01.2023 wherein, she stated that it was on 02.01.2023, that the petitioner and his co-accused visited the house of the complainant and in the presence of the witnesses namely Muhammad Musharib and Ameer Hamza, Abbas Khan, the co-accused of the petitioner, confessed to their guilt. The perusal of the statements of Muhammad Musharib and Ameer Hamza recorded under Section 161, Cr.P.C. on 18.01.2023, also contain the same statement that it was only Abbas Khan, the co-accused of the petitioner, confessed to their guilt. The confession of a co-accused can only be used against the petitioner only after the same has been proved. According to Article 43 of the Qanun-e-Shahadat Order, 1984, the confession of a co-accused can be considered as circumstantial evidence against a co-accused, however, only when the said confession is proved. Suffice is to observe that the confession allegedly made by Abbas Khan, the co-accused of the petitioner, shall be proved during the trial and till then, the same cannot be used as relevant evidence against the petitioner. Moreover without any other independent incriminating material corroborating the confessional statement of Abbas Khan, the co-accused of the petitioner, the prima facie involvement of petitioner cannot be determined. The august Supreme Court of Pakistan in the case of “Muhammad Sarfraz Ansari vs. The State etc” (PLD 2021 Supreme Court 738) has held as under:
“However, this Court has, in several cases, held that Conviction of a co-accused cannot be recorded solely on the basis of confessional statement of one accused unless there is also some other independent evidence corroborating such confessional statement. The principle ingrained in Article 43 of the Qanun-e-Shahdat is applied at the bail stage and the confessional statement of an accused can lead the Court to form a tentative view about prima facie involvement of his co-accused in the commission of the alleged offence; but as in the trial, at the bail stage also, the prima facie involvement of the co-accused cannot be determined merely on the basis of confessional statement of other accused without any other independent incriminating material corroborating the confessional statement.”
Reliance is also placed on the case of “Abdul Majid Afridi versus The State and another” (2022 SCMR 676) wherein, the August Supreme Court of Pakistan has held as under:
“The statement of one of the assailants recorded under Section 164, Cr.P.C. in all fairness is a statement of co-accused, hence, no deviation can be made against the established principle of law that statement of one accused cannot be used against the other in absence of any attending material produced by the prosecution. Reliance is placed on Nouman Khan v. The State (2020 SCMR 666) and Muhammad Sarfraz Ansari v. The State (PLD 2021 SC 738).”
As mentioned above, despite the alleged confession being made by Abbas Khan, the co-accused of the petitioner on 02.01.2023, the F.I.R was got registered on 18.01.2023 and the statements of the witnesses namely Muhammad Musharib and Ameer Hamza were also got recorded on 18.01.2023. It is strange that the complainant and the witnesses namely Muhammad Musharib and Ameer Hamza all closely related to the deceased, remained mum for as many as more than 16-days and also did not explain any reason for their such conduct. The delay with which the complainant and the witnesses namely Muhammad Musharib and Ameer Hamza, reported the matter of the confession of the accused, is haunting and also inordinate. This enormous delay in reporting the alleged confession of the accused, being unexplained, is in itself sufficient to discard the same. This Court has also noted with concern that the complainant and the witnesses namely Muhammad Musharib and Ameer Hamza, all closely related to the deceased, did not react at all to the said alleged confessional statement of the accused and calmly allowed the accused to leave the place of the meeting and also themselves left the said place after hearing the alleged confession of the accused, without making any effort to apprehend the petitioner or the other accused. The complainant and the witnesses namely Muhammad Musharib and Ameer Hamza have not mentioned in their statements that the accused had some weapon which could have precluded them from apprehending them when they had heard Abbas Khan, the co-accused of the petitioner, confess to their guilt about the murder. Their conduct does not look inspiring or natural. There is no explanation as to why the arrest of the accused was not effected after hearing of the alleged extra judicial confession by the complainant and the witnesses namely Muhammad Musharib and Ameer Hamza. There was no reason for the accused to have detailed the occurrence in their meeting with the witnesses. This story of the accused confessing their guilt is to be taken with a pinch of salt and cannot be relied upon implicitly. Additionally, it has been held on so many occasions that extra judicial confession of an accused is a weak type of evidence which may be maneuvered by the prosecution in any case where direct connecting evidence does not come their way. This only points towards the likelihood that the statements of the complainant and the witnesses namely Muhammad Musharib and Ameer Hamza with respect to alleged extra judicial confession of the accused are manipulated and wrought. It is settled law that evidentiary value of such type of evidence i.e. extra judicial confession and seeing the accused near the place of occurrence is to be determined by the learned trial Court at an appropriate stage Reliance is placed on the case of “Rahat Ali v. State” (2010 SCMR 584) “Muhammad Hussain versus Afzal Ahmed and another” (1995 SCMR 932). The august Supreme Court of Pakistan has held in the case of “Abid Mehmood v. State” (2017 SCMR 728) as under:
.......واقعاتی شہادت فوجداری قانون میں درجہ بندی کے لحاظ سے کمزور حیثیت رکھتی ہے ۔۔۔ جب تک واقعاتی شہادت کی تمام کڑیاں اس طریقے سے فراہم نہ کی گئی ہوں کہ ایک متواتر انجیر کی شکل اختیار کرے اور مقتول اور قاتل کے درمیان نہ ٹوٹنے والا سلسلہ قائم کرےسزا/ عمر قید کسی کو دینا انصاف کے اصولوں کے منافی ہے۔ ]صفحہ 732[ E
Reliance in this regard is also placed on case law titled as “Allah Ditta versus The State and others” 2012 SCMR 184” wherein it has been held by the August Supreme Court of Pakistan as under:
“The evidence regarding wajtakkar and extra-judicial confession being relied upon by the prosecution against the petitioner and his above mentioned co-accused namely Hussain Bakhsh has already been opined by the Lahore High Court, Lahore in its order dated 2-12-2010 passed in Criminal Miscellaneous No. 13309-B of 2010 to be weak types of evidence and the evidentiory value whereof would be seen at the time of the trial. The investigation of this case has already been finalized and, thus, confirmed custody of the petitioner in jail is not likely to serve any beneficial purpose at this stage.”
It Is also a fact that the Investigating Officer of the case has concluded that the deceased had, on his own, proceeded to the house of Abbas Khan, the co-accused of the petitioner on 19.12.2022 and thereafter, being under deep stress, committed suicide and the fact of suicide was also confirmed by the report of the Punjab Forensic Science Agency, Lahore and that the story of the accused visiting the house of the complainant on 02.01.2023 to confess was also false as proved by the fact that on 04.01.2023, Muhammad Musharib, the son of the deceased, obtained the death registration certificate of the deceased where the cause of death was stated to be natural. The said conclusions of Investigating Officer of the case are incorporated in Case Diary No. 26 dated 18.05.2023. The investigation of this case has already been finalized, a report under Section 173, Cr.P.C. has been submitted and the physical custody of the petitioner is no longer required at this stage and his continued incarceration is not likely to serve any beneficial purpose. Mere involvement in a heinous offence is no ground for refusing bail to an accused who otherwise becomes entitled for the concession of bail. The petitioner was arrested in this case on 23.03.2023 and since then he is behind the bars. The petitioner is a previous non-convict. The investigation qua him is complete and his person is no more required for further investigation, therefore, his continued incarceration would not serve any useful purpose.
5. For what has been discussed above, the petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 500,000/-(rupees five hundred thousand only) with two sureties each, in the like amount, to the satisfaction of learned trial Court.
6. It is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of this particular petition, having no nexus and relevance with the trial, which shall be concluded quite independently and purely on merit. Additionally, a direction is issued to the learned trial Court to conclude the trial of the case expeditiously, preferably within a period of six months from the receipt of the certified copy of this order. It is made clear that if the petitioner or any person acting on his behalf causes delay in the conclusion of the trial or if the petitioner absents himself from the learned trial Court or if the petitioner misuses the concession of bail in any manner, the learned trial Court would also be at liberty to cancel his bail, in accordance with the law.
(M.A.B.) Petition accepted
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