SAEEDUR REHMAN KHAN Versus ISLAM BARI SIDDIQUI
ORDER
1. Applicant/accused Zulfiqar Ali seeks bail in Crime No.1 of 1996 lodged with Police Station, Gaibidero for an offence under section 302, P.P.C.
2. Brief facts of the case, according to F.I.R., are that complainant Muhammad Mithal alongwith Ghulam Qadir, Muhammad Hanif and Zulfiqar Ali (present applicant) went to their fields. Zulfiqar Ali used to say that Ali Sher son of Muhammad Ramzan Budhani Chandio was his Karo; that at about 2 p.m. when they reached near the watercourse of Punhal Khan, they saw Ali Sher son of Muhammad Ramzan Chandio and Mst. Husna wife of Zulfiqar Ali embracing each other in bed of the canal. On seeing them, Mst. Husna ran away. Zulfiqar Ali had a rifle who fired direct shot upon Ali, Sher who raised cries and fell down on the ground. They shouted upon Zulfiqar Ali who decamped towards west. They went and noticed fire-arm injuries on the right lumber region of abdomen of Ali Sher, was bleeding and was dead. Complainant left Ghulam Qadir and Muhammad Hanif as guard over the dead body and lodged the report stating that Zulfiqar Ali seeing his wife Mst. Husna in objectionable position with Ali Sher by firing from rifle has committed murder of Ali Sher due to Ghairat. F.I.R. was lodged on 4-1-1996 at 5-30 p.m. After lodging of the F.I.R. police started investigation on same day i.e. 4-1-1996 and at 6-30 p.m. inspected the Wardat where dead body of Ali Sher was lying in the bed of the canal from where police at a distance of about 80 paces, secured empty of 7 mm rifle from which recent smell of powder was coming out. Police prepared Mashirnama in presence of Mashirs Liaqat Ali and Muhammad Qasim and also prepared Danishnama of deceased Ali Sher in presence of same Mashirs. On the same day police also examined Ghulam Qadir and Muhammad Hanif. On 5-1-1996 police searched the house of applicant/accused for his arrest but he could not be arrested as he was not available in his house and had slipped away after commission of crime. Police prepared such Mashirnama on the same day at 8-30 a.m. Police during investigation received spy information that accused was going towards Shalo Bus Stop. On such information, S.H.O. arranged a raid alongwith Mashirs and on 9-1-1996 at 4 p.m. applicant/accused was arrested from Shalo Bus Stop alongwith unlicensed 7 m.m. rifle with two live bullets of 7 m.m. On 10-1-1996 accused was produced by the police before Civil Judge and F.C.M., Kamber who recorded his judicial confession and on the same day the same Magistrate recorded 164, Cr.P.C. statements of Muhammad Hanif and Ghulam Qadir in presence of accused Zulfiqar Ali who did not cross-examine the witnesses though opportunity was provided to him. 164, Cr.P.C. statements bear the signatures of witnesses and required certificate is recorded' by the concerned Magistrate. After finalization of investigation, charge-sheet against applicant/accused was submitted in the Court. Bail application on behalf of applicant/accused was moved before the learned Additional Sessions Judge, Kamber on 26-8-1996 mentioning therein that complainant Muhammad Mithal, P.Ws. Ghulam Qadir and Muhammad Hanif and Mashirs Liaqat Ali and Muhammad Qasim have sowrn their affidavits exculpating the applicant/accused from commission of crime. Notice to the D.D.A. was issued and police papers were called for on 9-9-1996 on which date complainant Muhammad Mithal eye witnesses Ghulam Qadir and Muhammad Hanif and Mashirs Liaqat Ali and Muhammad Qasim were produced before the learned trial Court. According to endorsement, the witnesses admitted the contents of the affidavits which are drafted in English and date of filing of the affidavits is not mentioned whereas it is mentioned "verified and signed this the day of August, 1996 at Kamber". Learned Additional Sessions Judge, Kamber was pleased to reject the bail application of applicant/accused on 3-11-1996, hence this application.
3. I have heard Mr. Muhammad Afzal Soomro, learned counsel for the applicant/accused who has contended that complainant Muhammad Mithal, eye witnesses Ghulam Qadir and Muhammad Hanif and Mashirs Liaqat Ali and Muhammad Qasim have sworn affidavits before the trial Court in which they have exonerated the accused/applicant' from commission of, crime; that judicial confession is on oath and has not been properly recorded; that at the earliest opportunity same has been retracted being recorded under duress; that it has no evidentiary value as the same is hit by section 304 of Qisas and Diyat Ordinance, that it is same as 161, Cr.P.C. statement of applicant/accused; that even otherwise, on the facts and circumstances of the case, offence would not fall under section 302, P.P.C. i.e. "Qatl-i-Amd" but same would fall under section 303(b), P.P.C. i.e. "Iqrah-i-Naqis" as the applicant has acted under duress i.e. under the impulse of grave and sudden provocation. Learned counsel has cited plethora of case-law:--
(1) Gulab Khan and another v. The State PLD 1971 Kar. 299,
(2) Rehniat Ali and another v. The State 1979 SCMR 30,
(3) Allah Bakhsh v. Nazar Hussian Shah and another 1979 SCMR 137,
(4) Ali Gul and 3 others v. The State 1986 PCr.LJ 433,
4. (5)Muhammad Hayat and others v. The State 1988 SCMR 474,
5. (6)Muhammad Nawaz and others v. The State 1989 PCr.LJ 1126,
6. (7)The State v. Muhammad Hanif and 5 others 1992 SCMR 2047,
7. (8)Khan Muhammad v. The State unreported Criminal Bail Application No. 17 of 1995
(9) Ghulam Hussain alias Gudu v. The State 1996 PCr.LJ 368
8. Mr. Riaz Hussain Mughal, learned Assistant Advocate-General contended that incident is that of day time at about 2 p.m. accused has been assigned specific role of firing from 7 m.m. rifle which has hit the deceased; empty of 7 m.m. and tile rifle has been secured from the Wardat as per Mashirnama of the place of incident prepared by the police; that accused after commission of crime ran away from his permanent residence and subsequently on spy information, he was arrested on 9-1-1996 near Shalo Bus Stop alongwith unlicensed 7 m.m. rifle which he was carrying with two live bullets and on 10-1-1996 judicial confession- of the accused was recorded by the Magistrate, 164, Cr.P.C. statements of P.Ws. Muhammad Hanif and Ghulam Qadir were recorded by the Magistrate in which cross-examination by accused was not carried on though opportunity was afforded to him; that affidavits of witnesses who are not legal heirs of Waliges of the deceased have been filed; prima facie these witnesses are related to accused; that trial has not yet taken place: that any decision at the stage of bail either to accept the affidavits of the witnesses in which they have exonerated the accused or to discard the judicial confession recorded by the Magistrate and at this stage to hold that offence is not likely to fall under section 302, P.P.C. i.e. Qatl-i-Amd but is likely to fall under section 303, P.P.C. Iqrah-i-Naqis will prejudice the case of prosecution and practically will amount a judgment before the trial has taken place.
9. I would like to discuss the case-law cited by the learned counsel for the applicant/accused.
10. In this case trial has taken place and the learned Sessions Judge awarded the conviction to accused Gulab Khan and Ali Akbar for an offence under section 302, P.P.C. Gulab Khan was sentenced to death while Ali Akbar was awarded transpiration for life. In appeal and for confirmation of death sentence, the learned Division Bench examined the evidence so recorded and particularly referred to the judicial confession which was as follows
11. "After giving all these warnings, the accused is asked to give his true statement which he believes to be true before God Almighty. As such accused Ali Akbar gives the statement. "
12. So far the contention of learned consul that confession of the applicant/accused is on oath is not borne out from record. Under these circumstances, in my humble view, until and unless trial has not taken place, the judicial confession of the accused has not been produced and exhibited and the concerned Magistrate has not appeared, it would be premature to dilate upon this aspect of the case.
(2) 1979 SCMR 30
13. In this case first information was recorded at the instance of brother of deceased who subsequently in his statement under section 164, Cr.P.C. resiled from his version given in the F.I.R. Apart from this, the mother and sister of the deceased also submitted affidavits to vouch for the innocence of the accused petitioners. Under these circumstances, Honourable Supreme Court was pleased to allow bail. Whereas, in this case neither complainant is brother of deceased nor other witnesses are closely related to the deceased whereas, prima facie it appears that they are related to accused Zulfiqar Ali at whose instance they have submitted affidavits.
(3) 1979 SCMR 137
14. In this case also learned High Court keeping in view the affidavits of eye-witnesses exculpating the accused/respondents from the commission of crime granted bail to the respondents and Allah Bakhsh petitioner approached the Supreme Court for cancellation of bail and his petition was dismissed. Nowhere in this case, it is mentioned that either 164, Cr.P.C. statements of the eye witnesses were recorded by the Magistrate during investigation or judicial confession of accused/respondents were recorded by the'- Magistrate during investigation and whether both these facts were considered by the Lahore High Court or by the Honourable Supreme Court. Whereas, in this case, 164, Cr.P.C. statements of the witnesses were recorded during investigation by the Magistrate in presence of accused who did not cross-examine the witnesses though opportunity was afforded; judicial confession of the accused was recorded immediately after arrest by the Magistrate, certified true copy of the same was filed by the learned counsel, prima facie all the necessary formalities, as required under section 164, Cr.P.C. have been duly complied with, necessary certificate as required by the Magistrate has been appended. Under these circumstances, this authority, in my humble opinion, is not applicable and not relevant to the facts of present case.
(4) 1986 PCr.LJ 433
15. In this case also Munawar Ali Khan, J. (as he then was) after considering the affidavits of the witnesses was pleased to allow bail to the applicants/accused but nowhere in the case it is mentioned that whether judicial confession of the accused persons recorded by the Magistrate was available on the file which was also considered by the learned trial Court or by the Honourable Judge of the High Court. Whereas in this case, judicial confession of the accused is coupled with 164, Cr.P.C. statements of witnesses recorded by the Magistrate alongwith recovery of unlicensed 7 m.m. rifle from the possession of applicant/accused at the time of his arrest whereas allegation of prosecution is that deceased was done to death by accused by firing direct shot from 7 m.m. rifle and one empty of 7 m.m. rifle has also been secured from the place of Wardat. With all humbleness at my command and with due respect to the authority, I am of the view that facts of the present case are somewhat different and this authority is- not applicable and helpful to the case of applicant/accused.
(5) 1988 SCMR 474
16. In this case Honourable Supreme Court considered the fact that husband of Mst. Sultana had divorced her on 4-10-1985 and that thereafter she had voluntarily entered into Nikah with Muhammad Hayat on 20-7-1986. Case was registered against appellant on 11-9-1986. The Honourable Supreme Court considered that divorce was pronounced by the Arbitration Council and since it had been admitted, and Mst. Sultana was entitled to enter into second marriage.
17. Consequently affidavits of eye-witnesses were filed and the appeal was allowed and bail was granted. I am afraid facts of this authority in any case have no relevance with the facts of present case.
(6) 1989 PCr.LJ 1126
18. In this case also 3 eye-witnesses had filed affidavits before the Sessions Court in which they had mentioned that accused persons were not identified as their faces were muffled and night was dark, names of accused persons were not mentioned in the F.I.R. and in the 164, Cr.P.C. statements of the remaining eye-witnesses, Sajjad Ali Shah, J. (his Lordship as then was) considered the aspect of the filing of the affidavits and granted bail. This authority, on the face of it, is not relevant to the facts of the present case, as mentioned hereinabove in earlier part of this order.
(7) 1992 SCMR 2047
19. The facts of this case as given in this judgment are as follows:--
20. "The trial Court totally disbelieved the presence of the two eye witnesses. They were held to be chance witnesses and had not satisfactorily accounted for their presence. Their testimony was further found to be intrinsically unsound. Besides, it was held that the occurrence having taken place in the Bazar, some evidence should have been available independently of such interested and uninspiring witnesses. The medical evidence also found to be consistent inasmuch as hatchet injuries attributed to two of the co-accused, were not found present on the deceased. The recoveries were also totally disbelieved. The Court concluded as hereunder:--
21. In this case the ocular evidence has been disbelieved, medical evidence does not fully corroborate the prosecution story and the recoveries have been planted on the accused. The proof of motive does not prove the prosecution case as it is a corroborative piece of evidence. When the ocular witnesses have been disbelieved, the evidence of motive also loses its force. A vast net has been cast to entangle as many persons of the family of Allah Mehar as the complainant could.'
22. On the legal question, whether the act of Muhammad Hanif on the established facts amounted to Qatl-i-Amd liable to Qisas or not, the trial Court has held as under:--
23. ' Muhammad Hanif has taken the plea of grave and sudden provocation which is not available to him now as section 300, P.P.C. has been substituted by a new section 300, P.P.C. and the exception contained in the old section have been deleted. The definition of Qatl-i-Amd has been given in the new section 300, P.P.C. Anyhow it serves as a mitigating circumstance in favour of Muhammad Hanif. Another fact that he has taken revenge of murder of his brother Khurshid is also an extanuating circumstance which goes in his favour. I find Muhammad Hanif guilty under section 302(c), P.P.C, and award ten years' rigorous imprisonment. Muhammad Hanif accused is also directed to pay Rs.25,000 as Arsh to the heirs of the deceased, in default further s~: its , undergo the rigorous imprisonment for two years.'
24. The other co-accused of Muhammad Hanif respondent No.1 were acquitted of the charge. "
25. The Honourable Supreme Appellate Court rightly dismissed the appeal filed by the State. In my opinion, facts of the cited case are quite different and distinguish able from the bail application in hand. In the reported case, medical evidence was found to be inconsistent and hatchet injuries attributed to the two co-accused were not found, recoveries were also disbelieved whereas on the plea that of grave and sudden provocation raised by Muhammad Hanif during the trial while recording his statement under section 342, Cr.P.C., the trial Court rightly convicted him and accepted his own version whereas rest of the prosecution case was found m be incorrect. Here in this case, medical evidence is not in conflict with the ocular evidence; judicial confession as referred hereinabove has been recorded promptly and required questions have been recorded by the Magistrate alongwith required certificate. It is nowhere mentioned before the filing of the bail application in the trial Court that accused/applicant has retracted the judicial confession or has submitted any application to that effect which at least is not borne out from the record filed with the bail application. Whereas the stage to record the statement of accused has yet to come which will be recorded after prosecution is able to conclude the evidence which still is to be recorded by the trial Court and his statement, if any, is still to be taken by the learned trial Court which stage has not yet come. In these circumstances, this authority is not helpful to the case of present applicant/accused. .
(8) Unreported Criminal Bail Application No. 17 of 1995
26. In this case complainant Shabir was brother of accused Khan Muhammad and according to prosecution case, his daughter Mst. Majeeda was married to the son of accused and that on the day of incident, when he alongwith P.Ws. Shamo and Shamsuddin were sitting in the Otaq of Ali Chandio and that they heard cries of his daughter Mst. Majeeda and ran towards that direction where they saw the deceased Mst. Majeeda alongwith Ghous Buz Shahrani both lying dead behind the house of the accused and they also saw the accused having a gun in his hand who told the complainant and the P.Ws. that he had seen the deceased Mst. Majeeda with deceased Ghous Bakhsh in an objectionable position and have provocated gravely and fired at them which resulted in their death. Saying so accused ran away. On the face of it, the facts of this bail application in any case are not relevant, as in this case Mst. Majeeda and Ghous Bux were done to death on the spot and their dead bodies were lying there. Whereas in this case, unfortunately, case of the prosecution according to confession of the accused is that deceased Ali Sher was Karo who had illicit relations with his wife Mst. Husna and according to prosecution case, Mst. Husna made her escape good. Even she did not receive any scratch or injury but Ali Sher was done to death with rifle shot, therefore, this authority is not helpful to the case of present accused.
(9) 1996 PCr.LJ 368
27. According to facts of this case, deceased Fida Hussain had friendly terms with Moula Bux alias Papoo who used to accompany him to the house. On 1-2-1995 deceased had come to the house of complainant alongwith two above friends and as usual he went inside his room with these persons. It was at about 22-45 hours that complainant saw Ghulam Hussain and Moula Bux coming out of the house who went away. Thereafter, complainant himself went to sleep and on the next day in the afternoon, he knocked the door of the deceased and after breaking open the said door, he saw that the deceased was lying on a couch with his neck having been slit. Complainant informed his other brothers who also came there. Subsequently F.I.R. was registered, after usual investigation, accused were arrested and challan was submitted. The learned Judge of this Court considered the case to be un witnessed one and in confession learned Judge found that applicant has given judicial confession on the directions given to hire. Whereas in this case, complainant himself has lodged the F.I.R., specific role has been assigned to accused who subsequently appeared before Magistrate and his judicial confession was recorded wherein he has not mentioned that he has made the confession on any direction or duress. The facts of this case are quite different and are not relevant to the facts of the present case.
28. I have gone through the material placed with the matter. I have also minutely perused the authorities referred by learned counsel for the applicant/accused which in my humble opinion, discussed hereinabove in the earlier part of this order, with due respect, all the authorities so cited, in my humble opinion, are quite different and distinguishable from the facts of the present case and are not relevant to the matter in hand. Some of the authorities are such where evidence was recorded by the trial Court which was examined and analysed and decisions awarded which were agitated at the appellate forum. In many cases, bails were granted by the Honourable Judges, considering the affidavits sworn by the parties either who were kith and kin of the deceased or were related to the deceased. Nowhere it is mentioned in the cases that judicial confessions of the accused persons were also recorded by the Magistrate promptly without any delay and the Courts have rightly granted bail. Whereas in this case, accused after commission of crime himself slipped away from his residence which was raided by the police immediately after incident. On 9-1-1996 he was arrested by the police on receiving spy information that he was to leave from the Shalo Bus Stop wherefrom he was apprehended alongwith unlicensed 7 m.m. rifle which was also secured by the police and a case under section 13(d), Arms Ordinance was lodged. Immediately after arrest and without any loss of time, accused was produced before the Civil Judge and F.C.M., Kamber who after observing all the legal formalities, recorded his confession which was read over to him, such certificate was also appended by the Civil Judge and F.C.M., Kamber which is to this effect:-
29. Certificate
30. "I have explained to the accused Zulfiqar Ali that he is not bound to make a confession and that, if he does so, any confession he may make, may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and written in my hand and was read over to the person making it and admitted by him to be true and correct and it contains full and true account of his statement made by him. He put his L.T.I.
31. The accused, after his confession has been recorded by me, is forwarded to the Jail custody.
32. (Sd.) 10-1-1996
33. Civil Judge and F.C.M., Kamber."
34. The contention of the learned counsel is that this confession is same as 161, Cr.P.C. statement of accused recorded by Magistrate which is not borne out from the record submitted by police which was available with Assistant Advocate-General and has been perused by the Court. On the one hand contention of learned counsel is that judicial confession has been retracted by the accused at an earliest opportunity which is also not borne out from the record and that same has been recorded under duress is also not borne out from the record; that this confession has no evidentiary value and may be discarded whereas in the same argument contention of learned counsel is that accused has committed the offence under sudden and grave provocation and that offence would fall under section 303(b), P.P.C. i.e. "Iqrah-i-Naqis". The actual contents of the paragraph No.6 to this effect mentioned in the bail application are as follows:--
35. "That even otherwise, on the facts and circumstances of the case, the offence would not fall under section 302, P.P.C. i.e. Qatl-i-Amd but the same would fall under section 303(b) i.e. called Iqrah-i-Naqis as the applicant has acted under duress i.e. under the impulse of grave and sudden provocation. "
36. In my humble opinion, this plea if allowed 'to the accused, advisedly, would be premature. The statement of the accused is still to be recorded by the trial Court after evidence by the prosecution is concluded. Advisedly, 1 refrain further to dilate upon this aspect which may prejudice case of either party. However, prima facie, keeping in view the role assigned to the applicant in the F.I.R., 164, Cr.P.C - statements recorded by the Magistrate on 10-1-1996, judicial confession of the accused recorded by the Magistrate on 10-1-1996 without any loss of time observing legal formalities coupled with recovery of unlicensed 7 m.m. rifle from the possession of the accused at the time of his arrest and recovery of empty of 7 m.m. rifle from the place of Wardat, in my humble opinion, there are reasonable grounds to believe that accused/applicant is guilty of offence for which he has been challaned.
37. Finding no merit/substance in. the bail application, the same was dismissed by short order and these are the reasons for the same.
38. N.H.Q./Z-16/K Bail refused.