MUMTAZ HUSSAIN Versus THE STATE

ORDER

Mumtaz Hussain petitioner an accused in a case under section 302/364/465/34, P.P.C. has moved this petition for grant of bail, after refusal of the same by the learned Additional Sessions Judge, Pakpattan Sharif, vide order, dated 4-4-1994.

2. Initially a case under section 365, P.P.C. was registered on the complaint lodged by Ghulam Haider father of Ali Ahmad deceased but later on recovery of dead body of the deceased, section 302/34, P.P.C. was added. As per report lodged by the father of deceased, Mumtaz Hussain petitioner taking undue benefit of his position as employer of deceased developed illicit liaison with Mst. Jamila wife of deceased. The deceased having remained out of the village for the last one year before the registration of case, Ghulam Haider his father when enquired from Mst. Jamila, she without satisfying him stated that deceased had gone to Lahore to earn his livelihood. The complainant having come to know about the relation of Mst. Jamila with the petitioner and their intention to contract marriage inter se through Bashir Ahmad and Tufail P.Ws. suspecting some foul play and mischief on their part put them under observance. It is stated that the petitioner confessed his guilt before Zubair Ali P.W. on 14-12-1993 i.e. after about three months of the registration of case. Fee in police custody also pointed out the place of recovery of an unidentified dead body by the police of another police station much before the arrest of petitioner.

3. Learned counsel contends that the extra-judicial confession allegedly made by the petitioner before Zubair Ali P.W., a relative of the deceased after about a year of the occurrence and three months of registration of case is of no use and value to be relied upon to prove the guilt in absence of any other evidence direct or circumstantial connecting the petitioner with the commission of offence. He argued that the sole evidence of extra judicial confession even if is accepted correct, it being not a strong proof of the charge, the guilt of the petitioner calling further inquiry shall need determination at the trial.

4. Learned counsel for the State argued that the extra-judicial confession coupled with the evidence of pointation of the place of occurrence by the accused/petitioner sufficiently connects him with the commission of an offence punishable with death or imprisonment for life.

5. Having given due consideration to the contentions raised by the learned counsel for both the sides and examination of record, I find that except the extra-judicial confession, no other admissible evidence was collected by the concerned police agency to substantiate the allegation. The place of recovery of dead body admittedly being already in knowledge of police, the pointation of same by the accused is not an admissible evidence to be used against the accused and shall remain excluded from consideration unless the lack of earlier knowledge is proved at the trial. Similarly, the. complainant having no direct knowledge of illicit liaison of petitioner with Mst. Jamila, the motive attributed to him for the commission of offence calls a detailed scrutiny. Further the question as to whether the sole evidence of extra-judicial confession even if is believed to be correct, shall be sufficient to make basis of conviction also needs determination. The extra-judicial confession having been disowned by the petitioner, the case requires serious consideration to judge the weight and evidentiary value of alleged confession made by the petitioner to make the basis of conviction. Undoubtedly, a retracted confession whether judicial or extra-judicial can legally be taken into consideration against the maker, if it is found true and voluntary and can be made basis of conviction, but the question would be that whether this test can be made applicable to sole evidence of retracted extra-judicial confession to withhold the bail, the answer shall be in the negative. The Court cannot possibly in the facts and circumstances of the given cask act upon the confession to form a positive opinion of guilt or innocence of the accused, unless it is corroborated in material particulars to satisfy the Court to consider it true. The sole evidence of extra-judicial confession of less weight and evidentiary value to be awarded the status of true confes6ion at this stage provides reasonable grounds to believe that the petitioner has not committed an offence punishable with death or imprisonment for life and he by virtue of section 497(2), Cr.P.C. is entitled to the concession of bail pending disposal of the case against him. Consequently, I allow this petition and direct that the petitioner be released on bail subject to his furnishing bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Pakpattan Sharif

N.H.Q./M-1839/L

Bail allowed.