1994 P Cr (PLP)

Accused/applicant Hubdar Ali Shah has been arrested an challaned in Crime No.34 of 1993 of Police Station Salehpat for offence under section 302/34, P.P.C. read with section 302, Q&D Ordinance. Complainant Ali Dino Katper lodged the F.I.R. on 23-8-1993 at about 9-40 a.m. at the Police Station Salehpat, alleging therein that deceased Allah Rakhio was his elder brother and Hatim son of Khamiso is his Massat, who was residing in Village Garhi Taluka Rohri. About 6 months back, it is alleged that accused/applicant Hubdar Ali Shah suspected his wife to be on illicit terms with Hatim Katper and declared her to be Kari. Hatim had shifted from Village Garhi and was residing with complainant in his Village Moula Abad, on which accused/applicant Hubdar Ali Shah and others were annoyed and had issued threats to Allah Rakhio. It is further alleged that last night Allah Rakhio went to sleep in the courtyard of the house after taking night meals. When at about 3-30 a.m. in the night, there was a gun shot and the complainant woke up, Nihal brother of the complainant and his relatives Jan Muhammad and Allah Dino and other villagers carne running over there. On the electric light, they saw Allah Rakhio as dead having received fire-arm injuries in the head and they found there, the footprints of three persons around the cot. Complainant started taking footprints which left towards surrounding of Village Garhi. It is further alleged that complainant party came back and informed their Zamindar Syed Aftab Hussain Shah who advised them to lodge ; the report. The F.I.R. was lodged stating therein that accused/applicant Hubdar Ali Shah, Ashique Ali Shah and Pahlwan Magsi have killed his brother Allah Rakhio. During the investigation, the police let off Ashique Ali Shah and Pahlwan Magsi and challaned the present accused/applicant Hubdar Ali Shah in this case. The motive attributed in this case is that Allah Rakhio deceased got his Massat Hatim Katper shifted to his village and that accused/applicant Hubdar Ali Shah has declared Hatim to be his Karo with his wife. 'The accused/applicant moved the trial Court for bail, but the same was rejected vide order, dated 22-1-1994 hence he has approached this Court with the same prayer. I have heard Mr. Abdul Fattah Malik, learned counsel appearing for the applica,at, who has contended that there is a inordinate delay in lodging of the F.I.R. without any plausible explanation as the incident is alleged to have taken plaice at 3-30 a.m., whereas.the F.I.R. is lodged at 9-45 hours and the distance, between police station and the scene of offence is about 6 k.ms. and that there is no any ocular evidence against accused/applicant Hubdar Ali Shah except suspicious and his alleged retracted judicial confession. It has been contended by Mr. Malik that the alleged judicial confession (retracted) was recorded 15 days after his arrest and that one Abid Shah son of Ghulam Hussain S ah has sent telegram to the Honourable Chief Justice on 31-8-1993, stating the ein that the police arrested Hubidar Ali Shah and others and that the police as torturing them. He has also produced certified true copy of the telegram I t the hail application which is at page 43 Annexure "D" of the bail application and that in order to prove the sanctity of the alleged judicial confession as it has become tainted and is neither voluntary nor true. He has further contended that alleged recovery of a pistol by police from the Otak of Zahid Shah is not from the exclusive possession of accused Hubidar Ali Shah. In support of his contentions, learned counsel for the applicant has relied upon P L D 1972 SC 277, 81; 1969 S C M R 442; 1973 S C M R 162; 1968 P Cr. L J 1174; 1985 S C M R 1946; 1986 P Cr. L J 7.53; 1993 P Cr. L J 119; P L D 1964 Kar. 269; P L D 1960 75; P L D 1982 Pesh.

85. I have also heard Mr. Abdul Sattar Chohan, learned counsel appearing for AA.-G. for the State who has opposed the bail application in view of the judicial confession of the accused/applicant coupled with motive and recovery of the pistol at the pointation of accused/applicant Hubdar Ali Shah from the Otak of Zahid Shah. I have heard Mr. Habibullah Shaikh, learned counsel appearing for the complainant at length. Learned counsel for the complainant has relied upon P L D 1960 SC 313; P L D 1964 Kar. 197; P L D 1964 SC 813; 1989 S C M R 446; 1974 P L J Cr. Cases 492; 1991 M L D 2001 and 1992 P Cr. L J 1513. He has also contended that in view of the judicial confession of the accused/applicant Hubdar Ali Shah coupled with motive with the commission of crime and the recovery of weapon i.e. pistol at the pointation of accused/applicant Hubdar Ali Shah from the Otak of Zahid Ali Shah, has vehemently opposed the grant of bail to the accused/applicant. I have gone through the police papers and have also gone through the alleged judicial confession (retracted). I have also gone through the authorities cited by the learned counsel for the parties. Without going into deeper appreciation of the evidence which may prejudice the case of the either party suffice to say that the alleged judicial confession is verbatim copy of the statement of the accused recorded by the police on 4-9-1994 which is available in the police papers. There is no any difference whatsoever in the statement recorded by the police under section 161, Cr.P.C. and the alleged judicial confession recorded by Mukhtarkar and F.C.M. Sikandarabad on 5-9-1993. It is held in the D.B. Muhammadia v. Zari Badshah P L D 1982 Pesh.

85. The judicial confession is verbatim copy of Urdu statement of accused before police translated into English by the Magistrate not relied upon. Apart from this two mandatory questions which ought to have asked by the Magistrate are missing from the confession. Q.1. It was incumbent on the Magistrate to have asked from the accused as to why are you making this confession? 0.2. Whether you give confession or not, you will not be remanded back to police custody? My attention has been drawn to the P L D 1964 Kar. 269, Qalander Bux v. The State in which it has been held, that circumstances already known to police which could be tutored to the accused cannot serve as corroboration. Facts in advance knowledge of the police stated in confession can only corroborate the confession when confessor had not done so at the instance of the prosecution. Amir Ali v. The Sate P L D 1960 Kar.

753. Here in this case the facts which are given in the confession are already in the knowledge of the police as earlier pointed out, the alleged judicial confession is verbatim copy of statement of accused recorded by the police on 4-9-1993. So for the recovery is concerned, it is alleged that it was affected by the police at the pointation of the accused/applicant Hubdar Ali Shah from the Otak of Zahid Shah and Mashirnama of alleged recovery shows that two Mashirs of alleged recovery A are one HC 692 Sadoro Khan of Police Station Salehpat and second Mashir is P.C. 1782 Nizamuddin Bullo of Police Station Salehpat. The alleged recovery from the Otak of Zahid Ali Shah in presence of two police Mashirs prima facie at the pointation of the accused/applicant cannot be established as recovery: from the exclusive possession of the accused/applicant. Upshot of the above discussion without prejudice to the merits or demerits of the prosecution case is that prima facie the case of the accused/applicant is that of further enquiry. 1, therefore, order that the accused/applicant Hubdar Ali Shah may be released on bail on his furnishing one surety in the sum of Rs.2,00,000 (Rs. two hundred thousand only) and P.R. Bond in the like amount to the satisfaction of the learned trial Court. These observations are tentative in nature so for the bail application is concerned, the trial Court should apply its mind independently and appreciate the evidence as whole when it is recorded. N.H.Q./H-381/K Bail allowed.