2017 PLP 141 (YLRN)

MUHAMMAD SHERAZ KIANI, J.

The above captioned revision petition calls in question the validity and legality of the order passed by the District Court of Criminal Jurisdiction , Mirpur on 31.10.2016, whereby, the learned Court below has rejected the application for post -arrest bail.

2. Precise facts of the above captioned revision petition are that a case under sections 302/34,109, A.P.C. and 15(2)AA was registered against the accused-petitioner , herein and the other co-accused persons at Police Station Thothal on 11.10.2015, on the written report of the complainant ; Muhammad Ali. It was stated that his son namely, Muhammad Roohan was residing in Sector C-4, Mirpur along with his family in a house as tenant. It was further stated that on 11.10.2015 at 11-00 p.m. he was informed by his daughter in law, namely; Qamar Shahzadi, that at about 10.30 p.m., when, Muhammad Roohan was coming home from his shop, was fired at by two motor cyclists, who, after firing, fled from the place of occurrence through their motor cycle. After registration of the case, the accused was apprehended and after investigation, the challan has been submitted before the court of competent jurisdiction. During trial of the case, the accused-petitioner filed an application for bail before the District Court of Criminal Jurisdiction , Mirpur on 16.09.2016, which, after hearing the parties, has been rejected through the impugned order dated 31.10.2016, hence, the above titled revision petition.

3. The learned counsel for accused-petitioner; Mr. Khalid Rasheed Chaudhary, submitted that the accused has been falsely implicated in the case based on concocted story. The evidence of the prosecution makes its case highly doubtful. The learned counsel further contended that the other accused, Ushran has already been released by the Investigating Agency, under section 169 of Cr.P.C. The learned counsel maintained that the statement recorded under section 164 of Cr.P.C. is a result of torture and the confession was not made voluntarily, hence, it carries no legal importance. He contended that confession of an accomplice is not accepted against a co-accused. The phone data, collected by police does not suggest any contact of the petitioner with the accused; Aamir, he added. The learned counsel in support of his version referred the following authorities:- 1. 2015 SCR 325 2. 2010 SCR 402

4. On the other hand, Mr. Babar Ali Khan, Advocate, the learned counsel for complainant submitted that accused is nominated in the FIR and sufficient proof is available against him which connects the accused with the offence. The learned counsel further submitted that only the statement recorded under section 164 of Cr.P.C. wherein the Muhammad Aamir, accused has made confession and also implicated the petitioner as an abettor of the offence is sufficient to establish the involvement of the accused-petitioner, herein, and he has made confession voluntarily without any duress or coercion. It is contended that confession of a co-accused is a valid circumstantial evidence against the other accused under Article 43 of Qanun-e-Shahadat, 1984. The petitioner hired the other accused and abetted the offence by providing money and weapon of offence, (Pistol). Finally, the learned counsel submitted that at this stage deeper appreciation of evidence cannot be made and only tentative and bird eye view of the material can be made for the purpose of grant or refusal of bail and the points raised by the learned counsel for accused-petitioner require deep analysis of the evidence, which is not permissible at this stage. In support of his version, the learned counsel referred to and relied upon the following authorities:-- (1) 2006 SCMR 1292, (2) [PLD 2009 Supreme Court 385], (3) [2010 SCR 300 (4) 2007 SCMR 4049 and (5) 1990 SCMR 315.

5. The learned AAG adopted the arguments of the learned counsel for complainant and contended that the accused petitioner, is fully involved in the commission of offence and the learned Court below has rightly refused to extend the concession of bail towards him and the order of the Court below does not warrant any interference by this Court.

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

7. So far the objection of the learned counsel for the accused-petitioner that confessional statement of an accused cannot be read against the other accused is concerned, this argument is without any substance, as it can be treated as a circumstantial evidence against the co-accused. The relevant Article 43 of QSO, 1984 is reproduced, hereunder:-- 43- "Consideration of proved confession affecting person making it and others jointly under trial for same offence.-When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons is proved. (a) Such confession shall be proof against the persons, making it; and (b) the Court may take into consideration such confession as circumstantial evidence against such other person.

8. As far the contention that confessional statement is not in accordance with law is concerned, the truthfulness or otherwise of the confessional statement can only be adjudged and evaluated at the time of final conclusion of case and deep appreciation of the evidence, whatsoever, cannot be made at the 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 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. "

9. The Hon'ble Supreme 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 confrssion, if found prima-facie 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. 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 voluntarily been made is without any substance at this stage and thus the objection is hereby repelled. Thus, under these circumstances, the accused-petitioner is prima-facie connected with the offence.

10. In case titled, Mamaras v. The State [PLD 2009 Supreme Court 385], the proposition came under the consideration of the apex Court of Pakistan, wherein, Mr. Justice Khalil ur Rehman Ramday, Judge, (as his Excellency then was), has pleased to observe about the relevancy of the confession of co -accused as under:-- "

4. Even if it be presumed, for the benefit of Mamaras petitioner, that the above noticed judicial confessions were the only evidence available against him, he would still not qualify for his release on bail as according to the provisions of Art.43 of the Qanun-e-Shahadat Order of 1984, a judicial confession made by a co-accused person was a perfectly valid piece of evidence which could be taken into consideration and which could be used as circumstantial evidence against a co-accused of such a confessing accused. Needless to say that circumstantial evidence, even by itself, has never ever been considered not to be a valid basis for founding a conviction thereon. It was of course open to the petitioner to show that the said judicial confessions did not deserve any reliance but not even an attempt was made to indicate any reason why the said co-accused persons would have falsely and maliciously implicated Mamaras petitioner in such a heinous crime by specifically nominating him as one of the abettors of the same."

11. Similarly, in case titled Ashfaque Hussain v. State and another [2010 SCR 300], the apex Court of Azad Jammu and Kashmir, while dealing with the like matter, have opined as under:-- "

7. We may also observe here that the learned advocate for the appellant has attempted to convince us that there is no proof suggesting involvement of the appellant in the commission of offence by conspiring with or abetting the real killers of the deceased. This argument, if accepted, razes the whole of the prosecution story to ground which is not permissible for this Court to embark upon while deciding a bail matter. Similarly, non-application of Article 16 read with Article 43 of the Qanun-e-Shahadat Order, 1984 and its legal weight and value are in the domain of the trial Court while deciding the case against appellant and others after conclusion of trial when the case is finally heard on merits."

12. It may be observed here that in the instant case, the whole story of prosecution revolves around the accused-petitioner. The accused-petitioner is not only nominated in the confessional statement but it transpires from the evidence that the occurrence took place, only on the behest of the accused-petitioner. For proper appreciation of the `fact, relevant portion of the statement of Aamir is reproduced, which is as under:-

13. The above reproduced portion of the statement of the accused, prima facie connects the accused petitioner with the offence, therefore, it cannot be said that there is no reasonable grounds exist to believe the involvement of the petitioner that too, in the circumstances when, the accused-petitioner has not stated any ground for his false implication in such a heinous offence.

14. The crux of above discussion is that, no illegality has been committed by the learned Court below, while passing the impugned order, therefore, finding no force in this revision petition, the same is hereby dismissed. HBT/4/Sh.C.(AJ&K) Revision dismissed.