Asad Ali vs The State and another
The matter arises from a post-arrest bail petition filed by the accused, Asad Ali, seeking release in case FIR No. 79/2018 registered under sections 302 and 34 of the Pakistan Penal Code 1860 at Police Station Ganda Sing Wala, District Kasur. The core legal question revolves around whether post-arrest bail should be granted when the accused is not named in the initial FIR, is implicated merely through a delayed supplementary statement based on an extra-judicial confession of a co-accused, and where police investigation lacks corroborative evidence. The Lahore High Court accepted the petition and held that a statement of a co-accused recorded by police during investigation is inadmissible under Article 38 of the Qanun-e-Shahadat Order 1984, making the case one of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The key principles laid down include that the ipse dixit of police is not binding on courts, statements before police by co-accused carry no evidentiary value against other accused, and prolonged incarceration without trial violates fundamental rights to a fair and speedy trial.
- Whether post-arrest bail can be granted when the accused is not named in the initial FIR and is implicated solely through a delayed supplementary statement based on a co-accused's confession?
- What is the evidentiary value of a statement of a co-accused recorded by the police during investigation under Article 38 of the Qanun-e-Shahadat Order 1984?
- Does the opinion or finding of guilt by the police during investigation bind the court during bail adjudication?
- When does further inquiry under Section 497(2) of the Code of Criminal Procedure 1898 become applicable in bail matters?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
- Article 38, Qanun-e-Shahadat Order 1984
ORDER
SARDAR MUHAMMAD SARFRAZ DOG AR, J.---Through this petition, Asad Ali, the petitioner has sought post arrest bail in case FIR No.79/2018, dated 24.03.2018, offences under sections 302, 34, P.P.C. registered at Police Station Ganda Sing W ala, District Kasur .
2. Precisely , as per contents of FIR, in the intervening night of 23/24.03.2018, unknown persons committed the murder of Ghulam Rasool alias Bilal (deceased). Thereafter , on 22.11.2018, complainant Niamat Ali nominated the petitioner along with co-accused Mst. Kalsoom Bibi and Muhammad Sadiq for the commission of of fence.
3. Arguments heard. Record perused.
4. It is post arrest bail and only tentative assessment is to be made IA and deeper appreciation is neither permissible nor desirable at this stage. Record reflects that the petitioner was not nominated in the FIR rather he was implicated in this case on the basis of extra judicial confession of co-accused Mst. Kalsoom Bibi. By making basis on the extra judicial confession of co-accused Mst. Kalsoom Bibi, the complainant of the case made supplementary statement on 20.11.2018, which is also after delay of almost 08-months of the alleged incident. The statements of witnesses B of extra-judi cial confession, namely , Shahab Din, Sabir Ali and Hafiz Muhammad Rafique, perused, but the same does not contain any manner of commission of offence. It is also not found from the record that who had strangulated the deceased. Moreover , only recovery of Rassi has been effected from the petitioner which has not been sent to the FSL for analysis. It is settled principle of law that question of vicarious liability c can be determined at the time of trial and not at the time of bail. Guidance is sought from "Khan Sardar and another v. The State and another" (2009 YLR 1076 ). As regards contention of learned counsel for the complainant that the petitioner has been declared guilty during investigation, suffice to say that it is well settled that ipse dixit of police D is no binding upon the Court and even for the purpose of bail, law is not to be stretched in favour of the prosecution. Guidance is sought from " Abid Ali alias Ali v. The State" (2011 SCMR 161 ).
5. Admittedly , the petitioner has not been named in the initial FIR rather he was nominated by the co-accused in his statement recorded, under section 161, Cr.P.C. Except the statement of co-accused under section 161, Cr.P.C., there is no any evidence collected by the Investigating Agency , making the case of petitioner that of turther inquiry under section 497(2), Cr.P.C. for the purpose of bail. The Hon'ble Supreme Court in case titled, "The State through Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayum " reported in (2001 SCMR 14), while dilating upon the evidentiary value of statement of co-accused made before the police in light of mandates of Article 38 of the Qanun-e-Shahadat Order , 1984, held that statements of co-accus ed recorded by police during investigation are inadmissible in evidence and cannot be relied upon. Similar view has been reiterated by the apex Court in case titled, "Raja Muhammad Younas v. The State " reported in (2013 SCMR 669), by holding as under:- "After hearing the counsel for the parties and going through the record, we have noted that the only material implicating the petitioner is the statement of co-accused Amjad Mahmood, Constab le. Under Article 38 of Qanun-e- Shahadat Order , 1984, admission of an accused before police cannot be used as evidence against the co- accused". It will not be out of place to mention here that G the evidence of an accomplice is ordinarily regarded suspicious; therefore, extent and level of corroboration has to be assessed keeping in view the peculiar facts and surrounding circumstances of the case.
6. The investigation is complete. The petitioner is no more required by the police for further investigation. He is behind the bars since his arrest without any progress in the trial. Fair and speedy trial is one of the fundamental rights of petitioner . No moral or legal compulsion exists to keep the petitioner behind the bars for an indefinite period, which would amount to punish without trial.
For the above reasons, this petition is hereby accepted . The petitioner is admitted to post arrest bail subject to furnishing his bail bopds in the sum of Rs.2,00,000/- with two sureties in the like amount to the satisfaction of the learned trial Court. It is, however , clarified that the observations made hereinabove are tentative in nature, and strictly confined to the disposal of instant bail petition.