ABDUL REHMAN alias Baan vs STATE and another
The petitioner sought post-arrest bail in a murder case registered under Sections 302 and 34 of the Pakistan Penal Code 1860, involving allegations of conspiracy to murder by administering sedatives. The prosecution's case relied heavily on the extra-judicial confession and a statement under Section 164 of the Code of Criminal Procedure 1898 made by a co-accused, Mst. Fouzia. The Court observed that the petitioner had no opportunity to cross-examine the co-accused, rendering the admissibility of the Section 164 statement questionable under Section 265-J of the Code of Criminal Procedure 1898. Furthermore, the Court noted that the chemical examiner's report, which found diazepam in the deceased's organs, contradicted the complainant's initial allegation of poisoning, as diazepam is a sedative, not a poison. Given that the petitioner had been incarcerated since 2014 without the prosecution examining any witnesses, the Court held that there was no sufficient incriminating evidence to deny bail. Consequently, the Court found a case for further inquiry under Section 497 of the Code of Criminal Procedure 1898 and granted post-arrest bail.
- Can a statement recorded under Section 164 of the Code of Criminal Procedure 1898 be considered conclusive proof against a co-accused without cross-examination?
- Does the presence of diazepam in a deceased's body support an allegation of poisoning?
- Is the confession of a co-accused sufficient to deny bail when there is no other incriminating evidence?
- Does the failure of the prosecution to examine witnesses for a prolonged period justify the grant of bail?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
- Section 265-J, Code of Criminal Procedure 1898
- Article 43, Qanun-e-Shahadat Order 1984
- Section 497, Code of Criminal Procedure 1898
ORDER
Abdul Rehman alias Baan, the petitioner seeks the grant of post-arrest bail in case FIR No, 367/2012 dated 17.12.2012 registered under Sections 302 & 34, PPC at Police Station Sinawan, District Muzaffargarh.
2. The allegation against the petitioner is that he was a paramour of Mst. Fouzia, wife of Talib Hussain deceased, who gave her some sedative medicine to administer it to Talib Hussain by mixing it into milk. When he was fast asleep, co-accused, Sajjad Hussain and Javaid Iqbal grasped him by his legs, whereupon co-accused, Allah Ditta alias Mitho and Farooq strangulated Talib Hussain to death.
3. Arguments heard. Record perused.
4. The case of the prosecution rests on the statement of co-accused Mst. Fouzia, who allegedly made extra-judicial confession, implicating herself and the petitioner. She is also stated to have got her statement recorded under Section 164, Cr.P.C. to the same effect. But since the petitioner was not provided with an opportunity to cross-examine her, the admissibility of such a statement recorded under Section 164, Cr.P.C. is open to question in view of the provisions contained in Section 265-J, Cr.P.C. Be that as it may, in none of her statements, Mst. Fouzia ever alleged that the petitioner directly carried out murder of Talib Hussain. Furthermore, confession of a co-accused might be relevant in terms of Article 43 of the Qanun-eShahadat Order, 1984, and the same might be taken into consideration as a circumstantial evidence against co-accused, but the same is never regarded as a conclusive proof of the guilt of the co-accused.
5. A great deal of emphasis was laid down on the fact that on the disinterment of the deceased, parts of his liver, spleen and kidneys were examined by the Chemical Examiner, who reported that they contained .5 M G/L diazepam. At this stage, it is pertinent to mention that initially it was alleged by the complainant that his brother. was done to death by administering some poison to him. However, the existence of .5 MG/L diazepam negates the initial stance of the complainant inasmuch as diazepam is normally prescribed by the doctors for sound sleep, and it cannot by any stretch of imagination be regarded as a poisonous substance.
6. The petitioner has been behind the bars since 03.01.2014. Charge is said to have been framed but the prosecution has not examined any witness to this day. It goes without saying that there is no concept of pre-trial punishment. As things stand, there is hardly any incriminating evidence in possession of the prosecution to connect the petitioner with the commission of offence. The value to be attributed to extra judicial confession of Mst. Fouzia or her statement recorded under Section 164 Cr. P. C. could be determined only after the holding of a full-fledged trial. ##ES##
7. For what has been stated above, the petitioner has been able to make out a case for further inquiry into his guilt within the purview of Section 497, Cr.P.C., entitling him to be admitted to post- arrest bail, subject to his furnishing surety/bail bonds in the sum of Rs,2,00,000/- (Rupees Two Hundred Thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.