2017 P Cr (PLP)

MOHAMMAD SHERAZ KIANI, J.

The captioned revision petition has been directed against the order of District Court of Criminal Jurisdiction Mirpur dated 28.04.2016 whereby the post-arrest bail application of accused-petitioner was rejected.

2. Precise facts forming the background of the instant revision petition are that an FIR illat No. 75/14 in offence 452/337 (AF), 34, A.P.C. was registered at Police Station Chaksawari on 27.12.2014 on the complaint of one Mst. Khanam Bibi widow of Gulab Din at 17:15 p.m. For the sake of brevity, the averments of FIR need not to be reiterated here because the same have sufficiently been incorporated in the impugned order passed by the learned District Court of Criminal Jurisdiction Mirpur on 28.04.2016. The accused-petitioner on 15.04.2016 applied for post-arrest bail before the District Court of Criminal Jurisdiction Mirpur which was refused, hence, this revision petition.

3. The learned counsel for accused petitioner submitted that the accused has been falsely implicated in the case based on concocted story. He is behind the bars for the last two years, so far the trial has not been completed. As already recorded evidence of the prosecution makes its case highly doubtful. Kh. Mumtaz Hussain, Advocate, further contended that it is alleged in the FIR that drug or some other poisonous substance was given to the deceased but no such report of chemical examiner has been furnished which may suggest that she was died due to some poisonous material effects. He further, argued that the bail has already been granted to the co-accused namely Liaqat and on the rule of consistency the accused petitioner is also entitled for the same treatment. He lastly contended that statement of the petitioner recorded under section 164 of Cr.P.C. is a result of torture and inducement which was not voluntarily made thus carries no legal importance. The learned counsel in support of his version referred the following authorities:- [2010 MLD 220], [2004 MLD 741], [1983 SCMR 124], [PLD 1983 SC(AJ&K) 8] and [1993 PCr.LJ 1922].

4. On the other hand, the learned counsel for complainant submitted that accused is nominated in the FIR and sufficient proof is available against him which connected the accused with the offence. The learned counsel further submitted that role of accused, Liaqat is quite different from the accused-petitioner and thus the rule of consistency does not apply in the present case. He next contended that only the statement recorded under section 164 of Cr.P.C. wherein the accused-petitioner confessed his guilt is sufficient for his guilt and he has made confession voluntarily without any duress or coercion. Finally, the learned counsel submitted that at this stage deeper appreciation of evidence cannot be made and only tentative bird eye view of the material can be taken for the purpose of grant or refusal of bail and the points raised by the learned counsel for petitioner requires deep analysis of the evidence which is not permissible at this stage.

5. The learned AAG owned the arguments of the learned counsel for complainant.

6. I have heard the arguments advanced by the learned counsel for the parties and gone through the record of the case.

7. It is true that if the case of accused appears to the Court identical to his co-accused then of course he becomes entitled for the same treatment but in the present case, co-accused, Liaqat who has been given concession of bail has been declared innocent after the investigation of police but accused-petitioner has been found involved in the case in investigation, so, his case is not at par with the other accused, thus, the rule of consistency, in my view, does not apply herein in the instant case.

8. The allegation against the accused-petitioner is that he trespassed into the house of deceased in the night of 27.12.2014 along-with the other accused. The deceased, complainant who was lying on her bed was tied up with clothes by the accused persons, she was given something orally due to which she became unconscious and remained in the same condition till next day. Her daughter Sultana and son in law Jahangir came there from Dadyal and she was released therefrom by opening knots, later on she was taken to the Hospital in Dadyal and while shifting her to Islamabad she died on the way.

9. The cause of death of the deceased is shown by Dr. Shazia Naveed as a result of cardiatic failure, so, due to this reason the learned counsel argued that the question of application of section 302, A.P.C. is a matter of further inquiry. Although this contention has some substance to the extent of application of section 302, A.P.C., but at the same time offence under section 452, A.P.C. has also been applied against the accused-petitioner which is also non-bailable. In fact allegation of house breaking at night time to keep the deceased in wrongful confinement is against him as it is alleged that he entered into the house of deceased at night time and tied her on the bed and thus she was put in wrongful confinement, prima facie, it attracts offence under section 458, A.P.C. wherein the punishment with imprisonment of 14 years has been provided for the offender. While recording his statement before the Magistrate on 12.01.2015 the accused-petitioner stated as under:- In the above statement the accused-petitioner while recording his statement under section 164 of Cr.P.C. has not implicated the other accused Liaqat, so, the role of other accused is not similar to the accused-petitioner in the present case, he confessed his involvement in the offence of house breaking by night.

10. The learned counsel for accused-petitioner tried his best to convince the Court that confessional statement was not recorded in the manner mentioned in sections 164 and 364 of Cr.P.C. and thus cannot be read against the accused-petitioner, but in my opinion, at this stage, deep appreciation of evidence cannot be made. It is the function of trial Court to analyze, evaluate and scrutinize the validity, truthfulness or falsehood of the confessional statement at the time of final decision. While deciding the bail matter the only requirements under section 497 of Cr.P.C. is that there should be some reasonable ground to believe that the accused is connected with the offence, in other words the material which is placed before the Court if it apparently indicates that the accused is connected with the offence that is sufficient to refuse the bail. There should not be a serious defect apparent on the face of record which may create serious doubt. If there is such deficiency in the record which gives rise to reasonable grounds regarding the involvement of the accused and the Courts come to the conclusion that some reasonable grounds exists to believe that it is the matter of further inquiry only then under subsection (2) of section 497 of Cr.P.C. the accused person can be released on bail which are though punishable with imprisonment of 10 years or more, otherwise, the offences come within the ambit of prohibitory clause of section 497, Cr.P.C. disentitle the accused person for the concession of bail.

11. Accused-petitioner is nominated in the FIR and a specific role is attributed towards him by the deceased complainant Khanam Bi. He has recorded the confessional statement before the Magistrate and it is established principle of law that confession under section 164 of Cr.P.C. cannot be brushed aside because its voluntariness and truthfulness can be taken into consideration by the Court at the time of trial and such evidence cannot be discarded at bail stage. My this view finds support from the case reported as 2006 SCMR 1292 wherein the apex Court of Pakistan at page 1298 held as under:- "We are conscious of the fact that there is a contradiction in FIR and confession but at this stage, this cannot be discarded. Learned High Court, however, had wrongly termed it as extra-judicial confession, which is incorrect statement of fact. Further it is also stated that the accused has retracted the confession as on 8th October, 2004, he submitted an application before the Sessions Judge retracting the same. Learned counsel appearing for respondent in this behalf explained that no sooner he got opportunity, he filed an application in this behalf before the Sessions Judge. In our considered opinion, even for this reason, the confession which is under section 164, Cr.P.C. cannot be brushed aside because its voluntariness and truthfulness shall be taken into consideration by the Court at the time of trial. However, confessional statement of Ehsan, prima-facie, had connected the respondent with the commission of offence. We failed to understand as to why the learned High Court termed it to be extra judicial confession, knowing well that it was recorded before the Judicial Magistrate under section 164, Cr.P.C. Be that as it may, learned High Court was not justified in any manner to discard this piece of evidence at the bail stage."

12. The Hon'ble apex Court of Pakistan in another case reported as 2007 SCMR 404 also held that question relating to intrinsic value of retracted judicial confession as to appraisal of evidence was not to be addressed at bail stage. Retracted judicial confession, if, (prima facie) found truthful and confidence inspiring, could be relied upon on the basis of tentative assessment of prosecution evidence and it was not possible to doubt credibility of judicial statement at bail stage.

13. So, in the light of above dictum laid down by the superior Courts, the contention of the learned counsel for petitioner that the confessional statement has not been voluntarily made is without any substance at this stage and thus the objection is hereby repelled. Therefore, under these circumstances, as the accused-petitioner is prima-facie connected with the offence, particularly, of house breaking by night for wrongful confinement of the deceased and thus, is not entitled for concession of bail. The authorities referred by the counsel for the accused-petitioner need not to be discussed due to distinguishable facts of the case. The crux of above discussion is that, no illegality has been committed by the learned Court below, therefore, finding no force in this revision petition, it is hereby dismissed. HBT/3/Sh. C. (AJ&K) Revision dismissed.