ALI SHER vs THE STATE
This matter arises from a post-arrest bail petition filed by Ali Sher seeking release in a murder case registered under sections 302, 109, and 34 of the Pakistan Penal Code 1860 at Police Station Ghaziabad, District Sahiwal. The core legal question revolves around whether the petitioner is entitled to post-arrest bail where the initial F.I.R. was regarding a blind murder, the petitioner was implicated nine months later based on a joint extra-judicial confession, the recovered weapon was not sent to a Firearm Expert, and co-accused similarly situated had already been granted bail. The Lahore High Court accepted the petition and held that the case fell within the scope of further inquiry under section 497 of the Code of Criminal Procedure 1898, and that the petitioner was entitled to bail on the rule of consistency given that co-accused had already been released. The key principles laid down include the diminished immediate evidentiary value of joint extra-judicial confessions and unverified weapon recoveries at the bail stage, and the applicability of the rule of consistency in granting bail.
- Whether an accused is entitled to post-arrest bail when implicated solely on the basis of a belated joint extra-judicial confession in a blind murder case?
- Does the failure to send a recovered weapon to a Firearm Expert make a case one of further inquiry under Section 497 of the Code of Criminal Procedure 1898?
- Is an accused entitled to post-arrest bail on the ground of the rule of consistency when co-accused facing similar allegations have already been released on bail?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 174, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
' HASNAT AHMAD KHAN, J.---Ali Sher petitioner has sought post arrest bail in case F.I.R. No,200 dated 2-7-2004 under sections 302, 109 & 34, P.P.C. Police Station Ghaziabad District Sahiwal.
2. Shorn of unnecessary details, the prosecution story as unfurled in the F.I.R. Lodged at the instance of Muhammad Rashid, is that on 29-6-2004 the complainant along with his son Abbas Ali went to his cotton field where he discovered two dead bodies of unknown persons lying in a water course, whereupon the matter was reported to the police and report under section 174 Cr.P.C. Was recorded. After getting the autopsy conducted on the said dead bodies, the same were buried.
Finding no clue regarding the identification of the deceased and the manner in which they had been murdered, Investigating Officer closed the investigation on 15-9-2004. However, after the expiry of about nine months the investigation of the case was re-opened. After recording the statements of Wali Dad and some other persons who claimed that the petitioner along with 'Falak Sher, Ijaz Safdar and Murad All co-accused had made extra-judicial confession of murdering Sarfraz and Qamar-uz-Zaman, the petitioner and his co-accused were arrested on the allegation of murder of Qamar-uz-Zaman son of above said Wali Dad and Sarfraz. After the investigation the petitioner had been sent to judicial lock-up.
3. Above titled bail application filed by the petitioner is pending before this Court since 4-9-2006.
On numerous occasions the case was adjourned for the service of the complainant who after being ultimately served engaged Malik Muhammad Tariq, Advocate who appeared on 10-1-2007 before this Court. On said date the bail application was adjourned and sent to the Honourable Chief Justice for constitution of the appropriate Bench whereafter the case was entrusted to me by the Honourable Chief Justice. On 8-3-2007 the case was listed before me but same was adjourned for non-appearance of the learned counsel for the complainant. However, the office was directed to fix the same after intimation to the learned counsel for the complainant. On 21st March, 2007 and 10th of April, 2007 the case was adjourned for non-appearance of both the parties. Thereafter the office fixed the case for today and the notice was duly dispatched to the learned counsel for the complainant who however, has opted not to appear before this Court. There is no genuine excuse for further adjournment of this bail application, which is lingering on for the last eight months, especially when the State is duly represented by the State counsel.
' In support of this petition it has been contended that F.I.R. Did not contain name of any accused; that it is a case of no evidence and the petitioner has only been involved on the basis of extra- judicial confession which was recorded after nine months of the alleged occurrence; that extra- judicial confession being a joint confession the evidentiary value of the same would be open to serious criticism at the relevant stage, that Muhammad Safdar and Ijaz Ahmad co-accused have already been released on bail by this Court and the case of the petitioner is at par with that of said co-accused; that the case of petitioner being of further inquiry, the petitioner who is suffering pre- trial punishment since 18-4-2005, is entitled to bail as a matter of right..
4. Conversely, the learned State counsel opposed the bail application on the ground that the petitioner is duly nominated by Wali Dad and other witnesses before whom the petitioner had made an extrajudicial confession; that during the investigation a gun was recovered from the possession of the petitioner and, therefore, the petitioner is not entitled to bail.
5. Heard. File perused.
6. It has been straightaway noticed that it is a case of blind murder which was reported to the police through a report made under section 174 Cr.P.C. By one Muhammad Rashid, who had found dead bodies of two incognito persons. I have further gathered that the petitioner and his co- accused were involved in this case on the basis of statement recorded under section 161 Cr.P.C.
Whereby it was claimed that the petitioner and his co-accused had made extra-judicial confession of murdering both the deceased. The record shows that extra-judicial confession recorded by the police is in the form of a joint statement of all the accused. The gun alleged to have been recovered at the instance of the petitioner was not sent to the Firearm Expert, hence the evidentiary value of the same would be open to serious criticism. To put in a nutshell, a case of further inquiry within the meaning of section 497 Cr.P.C. Has been made out in favour of the petitioner say the least.
7. Ijaz and Muhammad Safdar, co-accused have already been released on bail by this Court vide orders dated 31-5-2006 and 5-7-2006 passed in Crl. Misc. No,837-B of 2006 and Criminal Misc.
No,1714-B of 2006 respectively. State counsel has failed to show that said orders were challenged before the Honourable Supreme Court. Apparently the case of the petitioner is at par with that of said co-accused. Consequently on the principle of rule of consistency also the petitioner who is undergoing incarceration since 18-4-2005 is entitled to bail.
8. For what has been stated above, I am inclined to accept the petition in hand. Resultantly the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac) with two sureties in the like amount to the satisfaction of the trial Court.