2016 PLP 91 (YLRN)

S. 497(2)

Penal Code (XLV of 1860), Ss.302, 109 & 34

Qatl-i-amd, abetment, common intention

Bail, grant of

Further inquiry

Case being of bail after arrest, only tentative assessment was required at that stage

Accused was not nominated in the FIR, and his name had been introduced in the case for the first time through a supplementary statement got recorded by the complainant, after nine days of the occurrence, wherein only role of abetment had been attributed to accused

Supplementary delayed statement, without plausible explanation, had little value

Accused had been involved in the case on the extra judicial confession of co-accused, who had already been admitted to bail, and his bail granting order had never been challenged by the complainant

Case of accused, was at better footing than that of co-accused

Accused also deserved the concession of the bail on the ground of rule of consistency

Involvement of accused in the case on the basis of extra judicial confession of co-accused, had got no value and was inadmissible under the law

Said extra judicial confession made before the Police, was inadmissible in view of Arts.38, 39 of Qanun-e-Shahadat, 1984

Question of vicarious liability of accused, or sharing his common intention, with his co-accused, would be determined by the Trial Court after recording evidence in the case

Amount allegedly received by accused for murder of the deceased, was recovered from accused after one month and eleven days

Accused, who was involved in a case which carried death penalty would not keep such recovery in his custody

Accused was previous non-convict, was never involved in any criminal case

Accused was behind the bars since 14-1-2015, investigation was complete, challan had been submitted in the Trial Court

Mere heinousness of offence was no ground to withhold discretion of post-arrest bail in favour of accused

No useful purpose would be served by keeping accused behind the bars; and his further incarceration, would not serve any beneficial purpose at that stage

Case against accused called for further inquiry into his guilty covered by subsection (2) of S.497, Cr.P.C.

Accused was admitted to bail, in circumstances. [Paras. 2, 3 and 4 of the judgment] 2011 SCMR 161 ref. Irfan Zia, Deputy Prosecutor-General for the State and Atta Ullah, S.I. with record. Complainant in person. ORDER ABDUL SAMI KHAN, J.

Through this petition under section 497, Cr.P.C. Banyameen petitioner has sought bail after arrest in case FIR No.1185/2014, dated 9.12.2014 registered at Police Station Peoples Colony, Faisalabad in respect of offences under sections 302, 109, 34, P.P.C.

2. After hearing the learned counsel for the parties and going through the record of this case it has been noticed by this Court that this is bail after arrest and only tentative assessment is required at this stage. The petitioner is not nominated in the FIR and his name has been introduced in this case for the first time through a supplementary statement got recorded by the complainant on 18.12.2014, i.e. after nine days of the occurrence wherein only role of abetment has been attributed to the present petitioner. It is settled law that supplementary statement has got no value in the eyes of law. Reliance can easily be placed upon 2011 SCMR 161. "It is an admitted fact that name of the petitioner is not mentioned in the FIR but his name was included in the list of accused in supplementary statement. There is no explanation available in this regard, therefore, the case of the petitioner falls under the category of further inquiry, See Tahir Abbas v. The State (2003 SCMR 426). Although the challan has been submitted in the Court and the case was fixed for hearing but still prima facie the case of the petitioner appears to be one of further inquiry and is covered under provisions of section 497, Cr.P.C., then it becomes a right of accused that he be released on bail and practice of refusal in such cases where challan is submitted should not be bar to refuse a right. See Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585)". Even otherwise law has now been quite settled on the point that delayed supplementary, that too without plausible explanation has got little value. Admittedly the petitioner has been involved in this case on the extra judicial confession made by co-accused Arshad Jillani who has already been admitted to bail by this court and his bail granting order has never been challenged by the complainant till date. The case of the petitioner is at better footing than that of Arshad Jillani, hence, the petitioner also deserves the concession of bail on the ground of rule of consistency. It is settled law that involvement of the accused in the case on the basis of extra-judicial confession of the co-accused has got no value and is inadmissible under the law. Further more the learned counsel has laid stress on the point that the petitioner has made extra-judicial confession before the Investigation Officer. It may not be out of place to mention here that inculpatory statement in the shape of extra-judicial confession of the accused before the police is not admissible in view of Articles 38, 39 of Qanun-e-Shahadat Order, 1984. The question of vicarious liability of the petitioner or sharing his common intention with his co-accused would be determined by the learned trial court after recording evidence in this case. As far as recovery of amount allegedly received by the petitioner for murder of deceased and number plates of motorcycle used during occurrence, allegedly effected on 20.01.2015 (after one month and eleven days) is concerned, suffice it to observe that it is not expected from an accused who is involved in a case which carries death penalty that he would keep such recovery in his custody so as to get the same recovered to be used against him later on. The petitioner is previous non-convict, never involved in any criminal case, he is behind the bars since 14.01.2015, investigation qua him is complete, challan has been submitted in the learned trial court on 22.02.2015, mere heinousness of offence is no ground to withhold discretion of post-arrest bail in favour of an accused, no useful purpose would be served by keeping him behind the bars, thus, his further incarceration would not serve any beneficial purpose at this stage.

3. Apart from what has been discussed above it goes without saying here that an ultimate conviction and incarceration of a guilty person can be repaired by the wrong caused by a mistaken relief of bail granted to him but no satisfactory reprisal can be offered to an innocent person for his unjustified incarceration at any stage of case if he is acquitted in the long run.

4. For what has been discussed above the case against the petitioner calls for further inquiry into his guilt covered by subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs. 200,000/- (Rupees two hundred throusand only) with two sureties each in the like amount to the satisfaction of the learned trial Court. HBT/B-32/L Bail granted.