MUHAMMAD ASLAM Versus THE STATE

ORDER

Muhammad Aslam petitioner being accused of case F.I.R. No.433/1994 offences under section 460, P.P.C. with Police Station Gowalmandi, Lahore has approached this Court for the grant of bail after refusal of the same by the learned Additional Sessions Judge, Lahore vide order 16‑3‑1995.

2. The prosecution story, in brief, as narrated in the F1R. is that Muhammad Amin Manager, United Bank Limited, Lohari Gate Branch, lodged a report that on 19‑i1‑1994 when the Bank Staff came to their duty in connection with the deposits of bill amount, they found the main gate of the bank closed from outside and Rana Muhammad Arif Chowkidar of the bank was not available. At about 12‑00 noon, the main gate of the branch was opened after breaking open the locks. The bank saw gas cylinders lying near the strong room. The bank staff instead of entering into the premises of bank passed information to the Zonal Head on telephone who came at the spot and entered into the bank alongwith the staff members and found a dead body lying near the counter of Manager whereas another dead body was lying in bath room. Later, it transpired that the dead body on the ground floor was that of Asjad Mehmood, peon whereas the dead body in the bath room was that of Rana Muhammad Arif, Chowkidar. The door of strong room had been cut and an attempt was also made to cut cash safe. Locker No.30 had also been opened after cutting the same and near the said locker a golden necklace and a ring was found lying which had been melted due to the heat while cutting locker. During the investigation, the petitioner and three other co‑accused were arrested.

3. Learned counsel appearing for the petitioners raised a number of contentions; the strongest on which great stress was laid by the comi5el was that there was no direct evidence in the case, the case rests on circumstantial evidence viz. joint extra‑judicial confession, recovery of blood‑stained clothes from the Haveli of the petitioner on the pointing out of the co‑accused, while the petitioner was on judicial remand; nothing incriminating was recovered from him and the identification parade was a false as the petitioner was arrested on 18‑11‑1994 but was shown to have been arrested on 28‑11‑1995. Further he was produced on 29‑11‑1994 for identification parade; the identification parade qua the petitioner is of no legal effect.

4. Learned counsel for the State assisted by the A.S.I. conversely opposed the bail application and vehemently contended that very strong and formidable circumstantial evidence has been collected in the double murder case and attempted dacoity in a bank at mid night time; the blood‑stained clothes and pistol of co‑accused Yaseen and Nasir were recovered from the Haveli of the petitioner.

5. I have heard the lengthy arguments advanced by the learned counsel for the petitioner as well as the State and have perused the record.

6: True, the extra judicial confession made by the accused persons is not A admissible being a weak piece of evidence as observed in the following cases:

(1) Allah Ditta and others v. State 1988 PCr.LJ 1266,

(2) Basharit alias Fazal Elahi and others v. State 1986 PCr.LJ 1099,

(3) Faqir Bukhsh and others v. State 1988 PCr.LJ 1254, and

(4) Kalsoom v. State 1987 MLD 2630.

7. It is well‑settled principle of law that the power conferred by section 497, Cr.P.C. is not an arbitrary power; it has to be exercised with reference to the material brought before the Court; what should be the material; the answer has been provided in case of Manzoor and others v. State PLD 1972 SC 81 wherein the learned Judge observed that this material would consist of the "the accusation made in the report to the police, the nature and credentials of the evidence, which the prosecution proposes to lead in the case and all the other relevant circumstances surrounding the occurrence", therefore, the bail has to be allowed or rejected on the basis of other material; meaning thereby that the Court has to make a tentative assessment of evidence in order to decide the bail application. In the case in hand, the occurrence was unwitnessed; only joint extra‑judicial confession was made; the learned Additional Sessions Judge on the basis of material placed before him refused bail to the accused and observed that ability of eye‑witness account is not a condition precedent for the proof of the guilt of an accused person. This view of the Additional Sessions Judge is fully covered by the law laid down in case Rashid Begum v. Abdul Rashid and others 1990 SCMR 579 wherein their Lordships of the Supreme Court held:‑‑

"Respondent Abdul Rashid is involved in a murder case. There is no witness of the occurrence. Prosecution is relying on the circumstantial evidence which consists of the statement of Muhammad Aslam made by him before the police on 7‑9‑1988; recovery of hatchet from the respondent; statements of Javed Akhtar Khan made by them on 5‑6‑1988 before the police where they stated that saw the respondent and co‑accused Riaz throwing something in the canal on the night of occurrence. The deceased was killed by strangulation.

In the statement of Muhammad Aslam, it is alleged that the respondent borrowed a Parna which he used for the murder of Zaheer Ahmad.

This being a case of circumstantial evidence, it should have been left for the trial Court to examine the evidentiary value of such evidence.

It is not a fit case where respondent was entitled to the concession of bail. The appeal is allowed. Bail is cancelled."

8. There is prima facie strong circumstantial evidence in the instant case. It may be observed that in such sort of heinous crimes ocular evidence is never available, it is only circumstantial evidence coupled with extra‑judicial confession, recovery of incriminating articles and identification parade which are to be tentatively examined, therefore, the Courts being an important limb of the State has to play a heavy role in curbing such tendency.

9. The contention of the learned counsel that the identification parade is a false and has no legal consequences is without force as the identification I parades are held not as a rule of law but as a rule of prudence to eliminate the possibility of any mistake.

10. There are no reasonable grounds to believe that the applicant is not guilty of the offence; has been involved innocently and the petitioners involved in the double murder on the basis of so far collected evidence could not be ruled out of consideration. The order passed by the learned Sessions Judge is well‑founded and based on reasonings hence no interference is called. The bail petition is hereby dismissed.

N.H.Q./M‑2622/L ?????????????????????????????????????????????????????????????????????????????????????????? Bail refused.