SHEHROZE alias SHEHRI vs THE STATE and another
This criminal petition was filed by Shehroze alias Shehri seeking post-arrest bail in respect of case F.I.R. No. 881/07 registered at Police Station Sadar DG Khan for offences under sections 302, 324, 394, and 412 of the Pakistan Penal Code. The core legal question was whether the petitioner was connected to the alleged dacoity and murder through sufficient incriminating evidence to warrant the denial of bail. The Lahore High Court held that the petitioner's case called for further inquiry under section 497(2) of the Code of Criminal Procedure, as the primary culprits were identified as co-accused who made extra-judicial confessions and from whom recoveries were effected, whereas the petitioner was not present at the direct scene of occurrence, no weapon or incriminating material was recovered from him, and his alleged confessional statements made in police custody or improperly noted by a magistrate carried no evidentiary value. The court admitted the petitioner to post-arrest bail subject to surety bonds.
- Whether an accused not present at the scene of the crime and against whom no recoveries are effected is entitled to post-arrest bail?
- What is the evidentiary value of an alleged confessional statement made by an accused while in police custody?
- Can a statement not recorded in the manner prescribed under Section 164 of the Code of Criminal Procedure 1898 be treated as a valid judicial confession?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 394, Pakistan Penal Code 1860
- Section 412, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
' MALIK SAEED EJAZ, J.- Through this petition, Shehroze alias Shehri-petitioner has sought post-arrest bail in case F.I.R. No,881/07 dated 27-11-2007 for offences under sections 302/324/ 394/412, P.P.C.
Registered at Police Station Sadar DG Khan. Earlier petition for bail of the petitioner has been dismissed by the learned Sessions Judge, Dera Ghazi Khan, on 29-1-2008.
2. Brief facts of the case, as narrated in the F.I.R. By Muhammad Bakhsh/ complainant, are that his son Zulfiqar alias Bachu along with his wife Sohaila Yasmin was returning home on a motorcycle, while the complainant and Sana Ullah were following them on a separate motorcycle. When Zulfiqar reached near old Chit Sarkani Road, he was stopped by two persons, who were on their motorcycle, one of whom was riding the motorcycle, while the other was armed with a Kalashnikov, who tried to snatch the motor cycle of Zulfiqar but he resisted; resultantly, the person having Kalashnikov fired at him, which hit him on his belly, as a result of which Zulfiqar fell down. Second fire shot by the accused hit Mst. Sohaila Yasmin on her leg. She was also injured. Both the accused succeeded to take the motorcycle of Zulfiqar.
3. Learned counsel for the petitioner submits that there were 'only two accused mentioned in the F.I.R. And during investigation Afzal and Budha were found involved in the case. They both made extrajudicial confession before Sana Ullah and the complainant on 16-12-2007 and motorcycle was also recovered from Budha accused. As such, petitioner has not been found present at the scene of occurrence and no fire is attributed to him. He has been shown to be standing empty-handed at some distance from Afzal and Budha, accused. Neither recovery of weapon has been effected from him nor any incriminating evidence is available with the Investigating Officer against him.
4. On the other hand, learned D.P.G. Assisted by the learned counsel for the complainant, submits that petitioner is the person who managed the alleged occurrence and he sent Afzal and Budha, co-accused, for committing the murder and for snatching the motorcycle. Further submit that petitioner had made extra-judicial confession before the police and when the police produced him before the learned Magistrate for recording of his statement under section 164, Cr.P.C., the learned Magistrate did not record the same by saying that since he had admitted the statement already recorded by police, therefore, there was no need to record his statement under section 164, Cr.P.C.
5. After considering the arguments from both the sides and perusing the record minutely, it has been noticed that there were two persons who were seen by the deceased and the injured P.W.
And in the police investigation, the two accused Afzal and Budha were found the actual culprits who murdered the deceased Zulfiqar and injured his wife and also snatched the motorcycle.
Recovery of motorcycle was also got effected from them. As such, allegation against the" petitioner to manage the occurrence is not supported by any evidence on record. As far as the statement of the petitioner allegedly recorded by the police is concerned, the same has no value, as the same has been shown to be recorded while he was under custody. As regards his statement under section 164, Cr.P.C. Recorded in the manner as mentioned above, the same has also no value and it cannot be treated a statement recorded under section 164, Cr.P.C. It is also an admitted fact that the petitioner was not found present at the scene of occurrence; rather he was standing at some distance from the place of occurrence. Nothing has been recovered from him.
6. In view of the above, the case of the petitioner is of further inquiry. The incriminating material available on record needs further probe to connect the petitioner with the commission of the offence. As such, I am inclined to admit the petitioner to bail subject to furnishing bail bonds in the sum of Rs,2,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.