2020 PLP 1896 (MLD)

SADIQ MAHMUD KHURRAM, J.--Through this petition, the petitioner is seeking cancellation of post-arrest bail granted to the respondent No.2, namely, Fakhra Bibi widow of Muhammad Nasir Javed by the learned Additional Sessions Judge, Ahmadpur East, vide order dated 05.06.2020 in case FIR No.83 of 2020, dated 07.02.2020, registered at Police Station Uch Sharif, District Bahawalpur, in respect of offences under sections 302 and 34 P.P.C.

2. The allegation against the respondent No.2, namely Fakhra Bibi widow of Muhammad Nasir Javed, culled from the evidentiary material produced before the Court, is that she, in collusion with her co-accused namely Hadi Raza, got committed the Qatl-i-Amd of Muhammad Nasir Javed, her husband.

3. I have heard the learned counsel for the petitioner and perused the record appended with the petition.

4. A perusal of the record reveals that the FIR was registered on the statement of the deceased, then injured, namely Muhammad Nasir Javed. The statement of the deceased was recorded at the RHC Uch Sharif on 07.02.2020 at 10.45 p.m., i.e. just after 30 minutes of the occurrence. In his statement Muhammad Nasir Javed, then injured later deceased, had got recorded that he and his wife, the respondent No.2, namely, Fakhra Bibi, were travelling together when an unknown person fired at him hitting him on the left side of his chest. In his statement Muhammad Nasir Javed, then injured later deceased, further stated that the occurrence was witnessed by his wife, the respondent No.2, namely, Fakhra Bibi, Muhammad Saleem and Muhammad Asad. According to the record of the investigation, subsequent to the registration of the FIR, the statement under section 161 of the Code of Criminal Procedure 1898 of the respondent No.2, namely, Fakhra Bibi was recorded by the Investigating Officer on the same night as a witness of the occurrence. However, during the investigation of the case, statements under section 161 of the Code of Criminal Procedure 1898 of two witnesses namely Muhammad Arshad and Maqbool Hussain were recorded by the Investigating Officer on 10.05.2020 who stated that the respondent No.2, namely, Fakhra Bibi confessed to have got murdered her husband namely Muhammad Nasir Javed with the help of her co-accused namely Hadi Raza. A perusal of the statements under section 161 of the Code of Criminal Procedure 1898 of two witnesses namely Muhammad Arshad and Maqbool Hussain reveals that the same were recorded with delay as allegedly the respondent No.2, namely, Fakhra Bibi confessed to have got murdered her husband namely Muhammad Nasir Javed with the help of her co-accused namely Hadi Raza on 08.05.2020 whereas the witnesses got their statements recorded on 10.05.2020. This inordinate delay in reporting the matter of confession of the respondent No.2, namely, Fakhra Bibi is daunting and casts a shadow of doubt upon the prosecution evidence as against the respondent No.2, namely, Fakhra Bibi. The delay mentioned above is conspicuous by its magnitude. The delay is sufficient to prima facie cull the statements of the witnesses as against the respondent No.2, namely, Fakhra Bibi. It would only be the trial court which would be in a position to judge the evidentiary value of the said statements of the witnesses as against the respondent No.2, namely, Fakhra Bibi, after recording of evidence. At this stage, no opinion can be formulated against the respondent No.2, namely, Fakhra Bibi on the basis of the said delayed statements of the witnesses mentioned above. Furthermore, the two witnesses namely Muhammad Arshad and Maqbool Hussain did not react at all to the said alleged confessional statement of the respondent No.2, namely, Fakhra Bibi and calmly saw her leaving, without even moving an inch. Muhammad Arshad and Maqbool Hussain, witnesses, have not mentioned in their statements that the respondent No.2, namely, Fakhra Bibi had some weapon with her which could have precluded the witnesses from apprehending the respondent No.2, namely, Fakhra Bibi when they had heard the respondent No.2, namely, Fakhra Bibi confess to her guilt about the murder of Muhammad Nasir Javed (deceased). The conduct of the witnesses namely Muhammad Arshad and Maqbool Hussain does not look much inspiring or natural. During the investigation of the case the respondent No.2, namely, Fakhra Bibi was arrested as an accused on 13.05.2020 by the Investigating Officer and there is no explanation as to why her arrest was not effected after hearing of the alleged extra judicial confession by the witnesses. It is part of the record that after the alleged extra judicial confession of the respondent No.2, namely, Fakhra Bibi and her arrest, she was not produced before any Magistrate to get her confession recorded. If the respondent No.2, namely, Fakhra Bibi was so willing to confess her guilt then nothing precluded her from doing the same before a Magistrate. Furthermore, there was no reason for the respondent No.2, namely, Fakhra Bibi to have detailed the occurrence in her meeting with the witnesses after a period of about three months of the occurrence specially when no purpose existed to do the same. This story of the respondent No. 2, namely, Fakhra Bibi confessing her guilt is to be taken with a pinch of salt and cannot be relied upon implicitly. Additionally, it has been held on so many occasions that extra judicial confession of an accused is a weak type of evidence which may be maneuvered by the prosecution in any case where direct connecting evidence does not come their way. It is a settled law that evidentiary value of such type of evidence i.e. evidence of extra judicial confession shall be determined by learned trial court at an appropriate stage. Reliance is placed on the case of "Rahat Ali v. State" (2010 SCMR 584), Muhammad Hussain v. Afzal Ahmed and another (1995 SCMR 932). The august Supreme Court of Pakistan has held in the case of "Abid Mehmood v. State" (2017 SCMR 728) as under:- Reliance in this regard is also placed on case law titled as "Allah Ditta v. The State and others 2012 SCMR 184" wherein it has been held by the august Supreme Court of Pakistan as under:- "The evidence regarding wajtakkar and extra-judicial confession being relied upon by the prosecution against the petitioner and his above mentioned co-accused namely Hussain Bakhsh has already been opined by the Lahore High Court, Lahore in its order dated 2-12-2010 passed in Criminal Miscellaneous No. 13309-B of 2010 to be weak types of evidence and the evidentiary value whereof would be seen at the time of the trial. The investigation of this case has already been finalized and, thus, confirmed custody of the petitioner in jail is not likely to serve any beneficial purpose at this stage." Learned counsel for the petitioner has vehemently argued that during the investigation of the case a report of Punjab Forensic Science Agency, Lahore was obtained showing that the respondent No.2, namely, Fakhra Bibi had remained in contact with her co-accused Hadi Raza. There is no evidence on record regarding the voice record transcript of any conversation between the respondent No.2, namely, Fakhra Bibi and her co-accused namely Hadi Raza. Though the learned counsel for the petitioner has laid great stress upon the fact that Call Data Record was collected which showed that the respondent No.2, namely, Fakhra Bibi and her co-accused namely Hadi Raza had remained in contact but it does not reveal as to in what capacity they were in contact with each other. As mentioned earlier, there is no voice record transcript available. In view of the above discussion, it cannot be said that the involvement of the respondent No.2, namely, Fakhra Bibi in the case by the prosecution is supported by any cogent evidence. Even otherwise, the case of prosecution is that it was Hadi Raza, the co-accused of the respondent No.2, namely, Fakhra Bibi , who had fired at the deceased at the time of occurrence. The august Supreme Court of Pakistan has already directed in the case of "Shahid Imran v. The State and others" (2011 SCMR 1614) that considerations for grant of bail and those for its cancellation are entirely different. It has been held in the case of Shahid Imran v. The State and others (supra)as under :- "It has pertinently been noticed by us that the learned Judge-in-Chamber of the Lahore High Court, Lahore had cancelled the petitioner's bail granted to him earlier by the learned Additional Sessions Judge, Malikwal, District Mandi Baha-ud-Din without appreciating that considerations for grant of bail and those for its cancellation are entirely different. No allegation had been levelled against the petitioner regarding any misuse or abuse of the concession of bail by him and even today the complainant has not been able to level any such allegation against the petitioner. It had also not been appreciated by the learned Judge-in -Chamber of the Lahore High Court, Lahore that the investigation of this case had already been finalized and a Challan had been submitted before the learned trial Court and at such a stage no useful purpose was likely to be served by cancelling the petitioner's bail. It is trite that bail ought not to be cancelled merely for wreaking vengeance, of the complainant party." The august Supreme Court of Pakistan has also observed in the case Dr. Muhammad Tariq v. The State and others (2017 SCMR 1944) as under:- "It is trite that considerations for grant of bail and those for its cancellation are entirely different."

5. In view of the discussion above, this Court finds no reasons to set aside the order dated 5-6-2020 passed by the learned Additional Sessions Judge, Ahmadpur East, whereby, the post-arrest bail was granted to the respondent No.2, namely, Fakhra Bibi in case FIR No.83 of 2020, dated 07.02.2020, registered at Police Station Uch Sharif, District Bahawalpur, in respect of offences under sections 302 and 34, P.P.C. as the same is not based on misreading or non-reading of the evidentiary material produced before the court or illegal, perverse or infirm, hence, this petition is dismissed. SA/M-111/L Petition dismissed.