2007 PLP 404 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution has been directed against the judgment dated 13-2-2006 passed by a learned Judge in Chamber in the High Court of Sindh, at Karachi, whereby the request of petitioner for bail, who is facing the charge of murder of his wife, has been declined.

2. Dr. Mirza Iftikhar Baig, brother of deceased, lodged a complaint at Police Station Clifton, Karachi on 14-10-2004 that Mst. Afreen his sister, who was married with Farooq Mengal (petitioner) and was living with her husband in extension phase "V" Defence Housing Authority Karachi, has been murdered in her house. According to the complainant, he on information conveyed to him by Noman Ahmed, an employee of the petitioner that on the fateful day, petitioner directed him on telephone from Lahore to enquire that why the telephone calls being made by him at his house were not responded, went to the house of her deceased sister and on receiving no reply of the call bell, entered in the house by breaking open the door of kitchen with the help of one Imdad and found Mst. Afreen lying in injured condition in tub in the bath room of a bed room on the upper storey of the house. She was immediately taken to Mid-east Hospital and on examination, it transpired that she was dead and had sustained injuries on her wrist and ankle with strangulation mark on her neck. Muhammad Bakhsh, driver of the deceased and Mst. Zubeda, his wife were found missing and were suspected as culprits. Subsequently, they on arrest during the course of investigation, led to the recovery of cash with golden ornaments and Muhammad Bakhsh also confessed that murder was committed at the instance of Farooq Mengal, petitioner. This accused was produced before the Magistrate, South Karachi on 21-10-2004, who recorded his confession as under:-- The High Court refused bail to the petitioner with the following observations:-- "Admittedly as per directions of this Court dated 5-4-2004 the trial Court had recorded the evidence of Magistrate who recorded the confessional statement of co-accused Muhammad Bakhsh. The trial Court also recorded evidence of Dr. Mirza Iftikhar Baig. Admittedly co-accused Muhammad Bakhsh was working as driver of the deceased and Mst. Zahida was maid servant in the house of the deceased. After the incident both the accused have disappeared from the house. P.W. Imdad Ali had seen them while leaving the house of complainant along with articles in suspicious condition. Accused Muhammad Bakhsh on the same day presented a cheque of deceased in Alflah Bank. At that time Deputy Manager Mst. Fareeda Irfan has suspected the signature of the deceased therefore, she made a ring on telephone mobile of Arfeen Baig and one lady picked the phone and posed herself as Arfeen Baig and told her to cash the cheque and hand over the amount to driver Muhammad Bakhsh. There is evidence of Fasihuddin who was working as cashier in the said bank. It is disclosed by him that at the time of arrival of accused he received a cheque of Rs.2,80,000 for cash and he also informed Deputy Manager as to the "difference of signature" who made telephone call. The co-accused after getting' the money along with Mst. Zahid went away. Thereafter they proceeded to Punjab and on 6-10-2004 the police arrested them and recovered Rs.11,450 from Muhammad Bakhsll and a bag containing Rs.1,50,000 and various other article. The confessional statement of co-accused Muhammad Bakhsh was recorded in which he has given full account of incident and implicated accused Farooq Mengal, husband of the deceased, by disclosing that it was promised by him to pay him Rs.10 lacs. As per motive that applicant/accused Farooq Mengal was annoyed with the deceased as he was under the impression that the deceased used to meet with her ex-husband and there was fight between them. It is further disclosed by the co-accused that the applicant/accused Farooq Mengal had told him that they both are Baloch therefore, she should be killed. Since the trial Court had recorded the evidence of the Magistrate and the complainant and the remaining witness will be examined in near future. This Court has already issued the directions to the trial Court to proceed with the case and record evidence. Since the trial has been commenced and there is likelihood to conclude the same in a short time therefore, hearing of bail application is not a requirement of law but propriety demands that Courts of concurrent jurisdiction should take off their hands from bail applications in which cases have been transferred to some other Courts notwithstanding the fact that they had taken cognizance in earlier bail applications by their dismissal or rejection as withdrawn. The trial Court has already recorded some evidence and case had already been fixed for trial. In that view of the matter I think that when the trial is to be concluded shortly and a date has already been fixed by the Court some witnesses have been examined and detailed cross-examination has been made by the defence counsel, it is not fair to go into the merits of the case in the form of bail application at this juncture and the case is therefore, not fit for grant or bail. The applicant/accused was husband of the deceased. The co-accused Muhammad Bakhsh had made confessional statement before the Magistrate who has been examined by the trial Court. The trial Court has to examine whether the applicant/accused made a conspiracy to murder his wife through Muhammad Bakhsh and co-accused Mst. Zahida. There is recovery of cash amount, ornaments and cloths from the co-accused. There is evidence of bank employees regarding the presentation of cheque of the deceased by the co-accused Muhammad Bux in presence of co-accused Mst. Zahida. The cash amount was also recovered from the co-accused therefore, it is not feasible to examine the evidence of Magistrate who recorded the confessional statement as well as deposition of the complainant as the trial Court has to evaluate, the evidence as well as to the confessional statement, therefore, there is no substance for grant of bail in favour of the applicant/accused. It is golden rule that the superior Courts ordinarily do not decide the bail applications on merits when the case is to be commenced because such exercise being directly related to the question of prejudice or is likely to prejudice to the accused facing trial. Consequently, bail application of applicant/accused is dismissed."

3. The allegation against the petitioner of his being involved in the crime is based on the circumstantial evidence and learned counsel for the petitioner in support of this petition, has contended that the occurrence was unseen and except the retracted judicial confession of the co-accused of the petitioner, there was no evidence, direct or circumstantial to connect him with the crime and it was yet to be determined whether it was homicidal death or not and unless the question relating to the true character of confession of the co-accused whether inculpatory or exculpatory and its admissibility against its maker as well as evidentiary ' value is ascertained, the withholding bail to the petitioner would amount to curtail his liberty. The learned counsel forcefully argued that retracted judicial confession subject to its evidentiary value at the most can be used as corroborative evidence and is not a substantial evidence to prove the charge, therefore, the case against the petitioner being of further inquiry, would squarely fall within the ambit of subsection (2) of section 497, Cr.P.C. and he would be entitled for grant of bail as of right. The learned counsel emphasized that in such a case of no evidence, the law does not approve the detention of an accused in jail for indefinite period without trial as in case of ultimate acquittal, there can he no repair to the loss caused to a person on account of his detention and in the present case, despite specific direction of the High Court the trial was standstill.

4. The learned special prosecutor appearing on behalf of State, on the other hand, has opposed this petition with the contentions that the star-witnesses of the prosecution have been examined and without recording the statement of certain other material witnesses, it would not be .possible to ascertain the questions of admissibility and evidentiary value of the judicial confession made by Muhammad Bakhsh implicating the petitioner in the crime and argued that apart from the confessional statement of the co-accused of the petitioner, the repeated telephone calls made by him from Lahore to Noman Ahmed (P.W.3) showing his anxiety to known about the situation at his house coupled with the motive behind the scene, would suggest that he was privy to the crime. The learned counsel added that the medical evidence and the circumstances which led to the happening of fateful occurrence, would evidently provide a link to connect the petitioner with the murder. He submitted that the conclusion of trial would not be attributable to the prosecution as on a number of dates, case could not proceed due to the non-availability of the learned defence counsel. The learned counsel for the complainant having adopted the arguments advanced by the learned special prosecutor, strongly opposed this petition.

5. The contention that the retracted judicial or extra-judicial confession whether inculpatory or exculpatory, cannot be given any credence even against its maker unless it is found truthful and confidence inspiring whereas in the present case, except the retracted judicial confession of co-accused, there was not an iota of evidence to connect the petitioner with the crime and there was no possibility of his ultimate conviction on the basis of such an inadmissible evidence, cannot be appreciated at this stage. The question relating to the intrinsic value of a retracted judicial confession relating to the appraisal of evidence cannot be gone into at bail stage. This is noticeable that co-accused of the petitioner after the occurrence disappeared from the house and then immediately after arrest made a judicial confession and in that the question as to whether the subsequent retraction would ipso facto make his confessional statement doubtful or inadmissible or what is its evidentiary value can be determined only after the entire evidence is brought on record. This is settled principle of criminal administration of justice that a retracted judicial confession if found truthful and confidence-inspiring, can be relied upon and on the basis of tentative assessment of the prosecution evidence, it would not be possible to doubt the credibility of the confessional statement at this stage. The record of telephone calls made by the petitioner and the statement of Norman Ahmed (P.W.3) has been brought on record as a supportive piece of evidence to prove the prior knowledge of the petitioner of the occurrence. Be that as it may, we would not comment upon the merits of the case lest it may not prejudice the case of either party at the trial.

6. The contention that petitioner by virtue of subsection (2) to section 497, Cr.P.C. was entitled to the grant of bail has been raised on the basis of rule that in a case falling within the ambit of section 497(2), Cr.P.C. bail can be claimed as of right but the learned counsel in the facts and circumstances of the present case, has not been able to convince us that there were sufficient grounds to believe that petitioner was not involved in the crime or that the case against him was that of further inquiry. This is admitted that out of 25 witnesses only three have been examined and as stated, the delay in the conclusion of trial was caused due to non-cooperation of defence counsel, therefore, in such circumstances, the accused has to face the consequence of' delay. Be that as it may, we deem it proper to direct the trial Court for expeditious conclusion of the trial without granting unnecessary adjournments to either party and in case, the trial is not concluded within reasonable time, the petitioner shall be at liberty to file fresh petition for grant of bail before the appropriate forum.

7. In the light of foregoing discussion, this petition is dismissed and the short order, dated 2-3-2006 is treated as part of this judgment. Leave is accordingly refused. S.M.B./F-24/SC????????????????????????????????????????????????????????????????????????????????? Petition dismissed.