2012 PLP 2056 (YLR)

GHULAM MUSTAFA MENGAL, J.

The applicant Muhammad Adnan son of Waheed-ud-Zaman seeks bail in Crime No.2 of 2011 lodged by complainant Allah Dad Khan son of Muhammad Hayat Khan, under section 302 Qisas and Diyat Ordinance read with section 34, P.P.C. with Police Station, Bijli Road, Quetta on 2-1-2011 at 9-30 a.m. with the averments that on 1-1-2011 he along with the deceased Ghulam Rasool went to Mandokhail Plaza, Mission Road to see residential flats and thereafter at 4-30 p.m. Ghulam Rasool left him from Lalazar Market and went to his house. On 2-1-2011 at 8-15 a.m. one Muhammad Hussain, who was working with Ghulam Rasool in his house informed him on phone that some one has murdered Ghulam Rasool in his house. After receipt of this information he informed S.P. Arbab Amjad Ali Kasi and thereafter he along with S.H.O and his subordinate staff went to the house of Ghulam Rasool, where they found him dead. F.I.R was lodged against un-known accused persons. After arrest a bail application was moved by the applicant before the Session Judge, Quetta which was transferred to the file of Additional Session Judge-III, Quetta, who after hearing the parties rejected the same vide order dated 21-2-2011, hence this bail application. Syed Ayaz Zahoor, learned counsel for the applicant contended that the applicant is innocent. He has not committed any offence and has been falsely implicated in this case. He further contended that the F.I.R has been lodged against the unknown accused persons and there is no independent evidence which could connect the applicant with the commission of the offence under section 302/34, P.P.C. He further argued that the only evidence against the applicant is his extra-judicial confession. He further argued that in view of Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984 no extra-judicial confession made to a Police Officer by an accused person while he is in police custody is admissible in law. Learned counsel has placed reliance on the cases of Mst. Zulekhan Bibi v. The State (2001 PCrLJ 171), Abdul Saleem v. The State (1998 SCMR 1578) and Tayyab Hussain Shah v. The State (2000 SCMR 683). On the other hand Mr. Abdul Sattar Durrani, learned Additional Prosecutor-General has vehemently opposed the bail application on the ground that not only the applicant and his co-accused had confessed the guilt but also on pointation of applicant mobile phone of deceased and the Prize Bonds belonging to the deceased were also recovered from the possession of the applicant, which in itself was sufficient to disentitle the accused/applicant to the concession of bail. I have considered the contentions of the learned counsel for the parties and gone through the impugned order as well as the Police record made available to me. Scrutiny of Police record shows that initially F.I.R was registered against the un-known accused persons. On 2-1-2011 a list of Prize Bonds was taken into custody by the Investigating Officer from the bedroom of the deceased containing S.Nos. of Prize Bonds. During investigation co-accused Ali Khan was interrogated, who disclosed about the commission of offence, name of the applicant and other co-accused person. In consequences of his disclosure and at his pointation a digital camera and Prize Bonds were recovered from the house of Ali Khan, while the remaining Prize Bonds and a Nokia Mobile Phone bearing No.2330 was recovered from the house of applicant, on the pointation of Ali Khan, thus prima facie the disclosure of co-accused Ali Khan leading to the names of applicant and other co-accused person involved in the commission of offence and recovery of Prize Bonds, Digital Camera, from the house of accused Ali Khan and recovery of Nokia Mobile Phone as well as Prize Bonds from the house of applicant belonging to deceased Ghulam Rasool at the disclosure and pointation of co-accused was discovery of new facts within the meaning of Article 40 of Qanun-e-Shahadat Order, 1984, therefore, the same are sufficient to disentitle the applicant for concession of bail. Moreover, the offence with which the applicant is involved carries penalty of death/life imprisonment, which falls within the prohibitory clause of section 497, Cr.P.C, therefore, no case for grant of bail is made out. Whereas the case-law relied upon by learned counsel for the applicant, I find that same are distinguishable from the facts and circumstances of this case. In view of above discussion, I am of the considered opinion that the applicant has failed to make out a case for grant of bail, therefore, his bail application is hereby dismissed. However, the learned trial Court is directed to record the evidence of the material witnesses and conclude the trial expeditiously as required by law. The applicant shall be at liberty to repeat his bail application before the trial Court after recording the evidence of the material witnesses. The observations made herein above are tentative in nature and shall have no bearing on merits of the case. Application stands disposed of in the above terms. M.W.A./37/Q Bail refused.