Bhoora vs State etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

Crl. Misc. No.4897-B/2018

Bhoora Vs. The State & another.

S.No. of order/ Date of order/ Order with signatures of Judge, and that of parties or counsel, where proceeding proceeding. necessary.

11.01.2019 M/s Muhammad Javed Iqbal and Ch. Muhammad Manzoor, Advocates for the petitioners.

Mr. Sarfraz Khan Khichi, Deputy Prosecutor General with Afzal, SI.

Mr. Tahir Mehmood, Advocate for complainant.

By this single order, Criminal Miscellaneous No.4897-B/2018 and Criminal Miscellaneous No.6644- B/2018, arising out of the same FIR, are being decided.

2.Through the Criminal Miscellaneous No. 4897- B/2018 filed under section 497 Cr.P.C., the petitioner namely Bhoora is seeking post-arrest bail in the case FIR No.74 of 2018, dated 23.01.2018, registered at Police Station Muzaffarabad, District Multan, in respect of offences under sections 302, 34 PPC. Through the Criminal Miscellaneous No. 6644-B/2018 filed under section 497 Cr.P.C., the petitioner namely Mst. Mubeena Bibi is seeking post-arrest bail in the same case.

3.The narrative as contained in the FIR was that on 22.01.2018 at about 5.00 a.m., Ghulam Fareed alias Kala, a brother of the complainant left his house for vegetable market but did not return and on the next day i.e. 23.01.2018, his dead body was found lying in the drainage near Naseemwali Puli Mauza Kotla Abu-al-Fateh. It was alleged that some unknown

Crl. Misc. No.6644-B/2018

accused persons had murdered Ghulam Fareed alias Kala. Hence, this case was registered.

3.I have heard the learned counsel for the parties and have gone through the record of this case with their able assistance.

4.It has been noticed by this Court that there is a delay of one day in the registration of FIR which has not been explained by the complainant. Moreover, there is no eye- witness of the alleged occurrence and the prosecution is relying on the witnesses of extra judicial confession. The evidence of extra judicial confession of the petitioners has been tendered by Ghulam Dastigir and Mohammad Akram through their statements recorded under section 161, Cr.P.C., on 06.02.2018. Both of them namely Ghulam Dastigir and Mohammad Akram happened to be the real brothers of the deceased but they did not react at all to the confessional statements of the petitioners and calmly saw them leaving, one after the other, without even moving an inch. They have not mentioned in their statements that the accused held some weapon when they visited them to confess their guilt about the murder of Ghulam Farid which could have precluded these witnesses from apprehending the petitioners. Their conduct does not look much inspiring or natural. The petitioner, namely, Mst. Mubeena Bibi was arrested on 14.02.2018 and there is no explanation as to why her arrest was not effected after making of the alleged extra judicial confession. It has been held on so many occasions that extra judicial confession of an accused is a weak type of evidence which may be manoeuvred by the prosecution in any case where direct connecting evidence does not come their way. The prosecution is also relying on the evidence of Murid Hussain and Muhammad Afzal which is equally fragile, as both the

Crl. Misc. No.6644-B/2018

witnesses Murid Hussain and Muhammad Afzal did not say a word as to presence of some light at the place, where they allegedly saw the petitioners together on a motorcycle at 4.00 a.m. on 23.01.2018. Furthermore, these two witnesses namely, Murid Hussain and Muhammad Afzal, who were real nephews of the complainant, never uttered a single word to the complainant of having seen the petitioners together on the fateful night. Another aspect of the case is that after nominating the petitioners in the case through their statements recorded on 06.02.2018, the same witnesses namely Muhammad Akbar, Muhammad Akram and Ghulam Dastagir, got recorded their statements under section 161 Cr.P.C. on 08.02.2018 that the petitioners had committed the murder and they were the real killers. If the petitioners had allegedly made a confession before these witnesses on 06.02.2018, then there was no need to record these statements on 08.02.2018. This only points towards the presumption that the statements recorded under section 161 Cr.P.C. on 06.02.2018, with respect to alleged confession of the petitioners, are manipulated. It is settled law that evidentiary value of such type of evidence i.e. evidence of last seen and extra judicial confession shall be determined by 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:-

Crl. Misc. No.6644-B/2018

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 evidentiary 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.”

5.Learned Deputy Prosecutor General as well as counsel for the complainant further argued that during the investigation of the case the petitioner Mst. Mubeena Bibi led to the recovery of sleeping pills on 14.02.2018. The report of Punjab Forensic Science Agency, Lahore has been produced before the Court wherein the sleeping pills were declared to be comprising “Alprazolam and Procyclidin” whereas “Diazepam” and “Chloroquin” were detected in the liver but not in the stomach. Hence, the recovery of said sleeping tablets hardly connects the petitioner Mst. Mubeena Bibi with the crime complained of. Learned Deputy Prosecutor General as well as counsel for the complainant have also argued that during the investigation

Crl. Misc. No.6644-B/2018

of the case the petitioner Bhoora led to the recovery of a motorcycle. The said recovery could be used, at the most, for corroboration of the main evidence, but by itself it cannot be a basis for conviction. They further submitted that the petitioners Bhoora and Mst. Mubeena Bibi also pointed out the place of occurrence. The said memo of pointation is irrelevant and inadmissible as nothing was discovered as a result of such pointation. The place of occurrence as well as the place of throwing the dead body were already in the knowledge of witnesses prior to their pointation by the petitioners. Reliance is also placed on case law titled as " Ijaz Ahmad and Another v. The State " (1997 SCMR 1279) wherein it has been held by the august Supreme Court of Pakistan as under:-

" There is no ocular evidence to show that Muhammad Abbas was murdered by any of the present petitioners. Mere fact that Noor Muhammad and Muhammad Din saw firstly the deceased and after some distance they saw the petitioners going towards the same direction, did not mean that the petitioners were chasing the deceased or were accompanying him. Such evidence cannot be treated as evidence of last seen. Witnesses Ali Muhammad and Chand Khan do not figure in the F.I.R. Moreover, the evidence of extra‐judicial confession may not be by itself sufficient for conviction of the petitioners. In respect of evidence of recovery, it was rightly argued by learned counsel for the petitioners that the same could be used, at the most, for corroboration of the main evidence, but by itself it cannot be basis for conviction."

6.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 namely Bhoora was arrested in this case on 08.05.2018, since then he is behind the bars, he is previous non-convict, never involved in any case, investigation qua him is complete, his person is no more required for further investigation, therefore, his continuous incarceration would not

Crl. Misc. No.6644-B/2018

serve any beneficial purpose at this stage. Being woman, the case of the petitioner Mst. Mubeena Bibi is covered by first proviso to sub-section (1) of section 497, Cr.P.C. The petitioner is previous non-convict and never involved in any other case. She is behind the bars since 14.02.2018; nearly eleven months have elapsed but her trial has not seen any fruitful progress as yet. Investigation of the case is complete and the petitioner is no more required for further investigation, therefore, her further incarceration would not serve any useful purpose.

7.Learned counsel for the complainant has vehemently argued that the earlier petition, under section 498 Cr.P.C., filed by the petitioner namely Bhoora, was dismissed by this Court vide order dated 08.05.2018 and in presence of the said order the application under section 497 Cr.P.C. for grant of post arrest bail should also be dismissed. Suffice is to observe that that considerations for pre- arrest and post-arrest bail are totally different. Reliance in this regard is placed on case law titled as " Shah Nawaz v. The State " 2005 S C M R 1899 " wherein it has been held by the august Supreme Court of Pakistan as under:-

“Suffice it to mention that learned Judge of the High Court was persuaded to cancel the bail allowed to the petitioner on the ground that the same Additional Sessions Judge had granted after arrest bail who had earlier declined to grant pre-arrest bail to petitioner. It is now well-settled that considerations for pre- arrest and post-arrest bail are totally different, therefore, in our view the learned Judge had fallen in error to cancel the bail allowed to petitioner by the same Additional Sessions Judge.”

Crl. Misc. No.6644-B/2018

8.For what has been discussed above, the case of the petitioners becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. Liability of petitioners for the said offences would be determined by the learned trial court after sifting the evidentiary worth of the material produced before the same. Till then, case of petitioners would be within the domain of section 497(2), Cr.P.C. calling for further inquiry into the petitioners’ guilt. The petitions in hand are accepted and the petitioners are admitted to post-arrest bail subject to their 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.

9.Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court.

(Sadiq Mahmud Khurram) Judge

WAQAR

APPROVED FOR REPORTING

Judge