2012 PLP 1894 (MLD)

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.

Imran alias Sunny petitioner seeks his release on bail in case F.I.R. No.220 of 2011 dated 10-7-2011, registered under sections 302/201/337-J, 148/149, P.P.C. with Police Station City Renala Khurd, District Okara.

2. The criminal machinery was set into motion on the statement of the Mudassar Nadeem, who reported that on 4-7-2011, his sister Mst. Saima went to visit her "Khala" Mst. Halima Bibi at Renala Khurd and on 9-7-2011 at about 4 p.m. she went out of the house to fetch medicine but she did not return home and on 10-7-2011, her dead body was found in a sack lying in the under construction shops of Hussain Arcade Anwaar Shaheed Colony. On this report, the formal F.I.R. was lodged.

3. It is contended by learned counsel for the petitioner that initially the petitioner is not named in the F.I.R. who has been booked therein on the basis of supplementary statement of the complainant recorded on 11-7-2011; that the petitioner has been involved in the case on the basis of suspicion and that P.Ws. who had seen the deceased in the company of the petitioner were not locally resident, therefore, their statements cannot be relied upon to inculpate the petitioner; that no source of identification has been provided on the record in respect of the petitioner in connecting him with the commission of the crime; that witnesses who had seen on 9-7-2011 the deceased in the company of the petitioner did not inform the complainant of the case till 11-7-2011 the said fact, therefore, the case against the petitioner is highly doubtful and that the co- accused Shahzad having the similar role has been admitted to bail, therefore, the petitioner is also entitled for the same treatment; that after three months of the nomination an inculpatory statement under section 164, Cr.P.C. was recorded at the instance of the petitioner which subsequently was retracted, therefore, same cannot be relied upon to convict the petitioner and that the petitioner is facing incarceration since 29-10-2011, whose trial has not yet been concluded. Learned counsel for the petitioner has relied upon cases reported as Mir Zaman and 5 others v. The State and others (2012 SCMR 580), Muhammad Shafi v. Muhammad Raza and another (2008 SCMR 329), Aala Muhammad and another v. The State (2008 SCMR 649), Malik Jehanair Khan and others v. Sardar Ali and 2 others (2007 SCMR 1404), Shahid Hussain alias Multani v. The State and others (2011 SCMR 1673) and Abid Ali alias Ali v. The State (2011 SCMR 161).

4. The petition has been opposed by learned D.P.-G. assisted by counsel for the complainant who argued that the petitioner with his own free will had made statement on oath before the learned Judicial Magistrate on 29-10-2011 confessing that he had liaison with the deceased and murdered her on her blackmailing, with the help of his co- accused by administering sleeping pills to her. Learned counsel for the complainant has cited case-law reported as Farooq Mengal v. The State through A.G Sindh Karachi (2007 SCMR 404) and Raja Muhammad Irshad v. Muhammad Bashir Goraya and others (2006 SCMR 1292) in support of his contentions.

5. I have considered the contentions made by learned counsel for the parties and perused the record as well as case-law cited at the bar. The cases-law upon which the counsel for the petitioner has relied upon relate to the retracted judicial confession made in the case, which were decided by the trial courts finally and appeals were preferred in the apex Court. Only the case of Shahid Hussain alias Multani cited (supra) relates to the grant of post arrest bail but in that case the judicial confession was not made by the accused of that case. That case was based upon extra judicial confession of the accused of robbery. Similarly, the case of Abid Ali alias Ali is not related to the facts of the instant case in which the apex Court had made observations about the supplementary statement made by the complainant after registration of the F.I.R. With due reverence the cases cited by counsel are distinguishable from the facts of the case in hand. On the other hand, the cases cited by counsel for the complainant lead to the conclusion that the judicial confession even if retracted cannot be discussed at the bail stage and the trial court is competent forum to determine admissibility and veracity of such piece of evidence.

6. Admittedly, the case in hand is one which does not have any direct evidence regarding the murder of Mst. Saima but there is one piece of evidence available on the record i.e. in the form of statement made by the petitioner before the Magistrate 1st Class Renala Khurd. In his statement he has categorically admitted his illicit relations with the deceased lady; that she blackmailed him and extorted money and gold ornaments and being fed up, he planned to get rid off her and in this connection he along with his co-accused administered sleeping pills in the milk whereafter she was done to death and her dead body was thrown in the Academy. Subsequently, he with the help of his father removed the dead body from the Academy and after packing it in the bag thrown the same near Plaza Anwaar Sahheed Colony, Renala Khurd. From the examination of this statement, it is clear that the petitioner made voluntarily self-inculpatory statement admitting that he was the person who killed the young girl. So far as question of retracted of judicial confession is concerned, that question cannot be addressed at the bail stage. In this connection the cases of Farooq Mengal and Raja Muhammad Irshad (supra) provide proper guideline. There is ample incriminating evidence available on the record to connect the accused with the commission of the offence thus it is not a fit case for grant of bail to the petitioner. In the light of the afore referred judgments of the apex Court, I am not persuaded to extend the concession of bail to the petitioner. Accordingly this petition being bereft of merits is dismissed. MWA/I-30/L Petition dismissed.