2012 Y L R 2056
[Balochistan]
Before Ghulam Mustafa Mengal, J
MUHAMMAD ADNAN ---Applic ant
Versus
THE STATE ---Respondent
Criminal Bail Application No.41 of 2011, decided on 22nd March, 2011.
Criminal Procedure Code (V of 1898) ---
----S. 497 ---Penal Code (XLV of 1860), Ss.302/34 ---Qanun -e-Shahadat (10 of 1984), Art. 40 -
--Qatl-e-amd, common intention ---Bail, refusal of ---Recovery of articles from the accused on
the pointation of the co -accused ---Nature and admissibility of such evidence ---Allegation
against the accused was that he and the co -accused had murdered the deceased ---Conten tions
of the accused were that the F.I.R. had been lodged against unknown persons and there was
no independent evidence which could connect the accused with the commission of the
offence, and that the only evidence against the accused was his extra -judici al confession
made to the police , which was not admissible in law ---Validity ---Investigating officer had
taken prize bonds into custody from the bedroom of the deceased ---During interrogation the
co-accused disclosed the name of the accused in the commiss ion of the offence and at his
pointation prize bonds and a mobile phone, belonging to the deceased, were recovered from
the house of the accused ---Such disclosure and pointation on part of the co -accused was
discovery of new facts within the meaning of Ar ticle 40 of the Qanun -e-Shahadat, 1984,
which were sufficient to disentitle the accused from the concession of bail ---Offence in which
the accused was involved carried the penalty of death/life imprisonment, which fell within the
prohibitory clause of S. 4 97, Cr.P.C ---Bail application of the accused was dismissed, in
circumstances.
Mst. Zulekhan Bibi v. The State 2001 PCrLJ 171; Abdul Saleem v. The State 1998 SCMR
1578 and Tayyab Hussain Shah v. The State 2000 SCMR 683 distinguished.
Syed Ayaz Zahoor for Applicant.
Abdul Sattar Durrani Addl: P.G. and Zafar I.O. for the State.
Date of hearing: 16th March, 2011.
ORDER
GHULAM MUSTAFA MENGAL, J. ---The applicant Muhammad Adnan son of Waheed -
ud-Zaman seeks bail in Crime No.2 of 2011 lodged by compla inant Allah Dad Khan son of
Muhammad Hayat Khan, under section 302 Qisas and Diyat Ordinance read with section 34,
P.P.C. with Police Station, Bijli Road, Quetta on 2 -1-2011 at 9 -30 a.m. with the averments
that on 1 -1-2011 he along with the deceased Ghulam Rasool went to Mandokhail Plaza,
Mission Road to see residential flats and thereafter at 4 -30 p.m. Ghulam Rasool left him from
Lalazar Market and went to his house. On 2 -1-2011 at 8 -15 a.m. one Muhammad Hussain,
who was working with Ghulam Rasool in his h ouse informed him on phone that some one
has murdered Ghulam Rasool in his house. After receipt of this information he informed S.P.
Arbab Amjad Ali Kasi and thereafter he along with S.H.O and his subordinate staff went to
the house of Ghulam Rasool, where they found him dead. F.I.R was lodged against un -known
accused persons.
After arrest a bail application was moved by the applicant before the Session Judge, Quetta
which was transferred to the file of Additional Session Judge -III, Quetta, who after hea ring
the parties rejected the same vide order dated 21 -2-2011, hence this bail application.
Syed Ayaz Zahoor, learned counsel for the applicant contended that the applicant is innocent.
He has not committed any offence and has been falsely implicated in this case. He further
contended that the F.I.R has been lodged against the unknown accused persons and there is
no independent evidence which could connect the applicant with the commission of the
offence under section 302/34, P.P.C. He further argued that the only evidence against the
applicant is his extra -judicial confession. He further argued that in view of Articles 38 and 39
of the Qanun -e-Shahadat Order, 1984 no extra -judicial confession made to a Police Officer
by an accused person while he is in po lice custody is admissible in law. Learned counsel has
placed reliance on the cases of Mst. Zulekhan Bibi v. The State (2001 PCrLJ 171), Abdul
Saleem v. The State (1998 SCMR 1578) and Tayyab Hussain Shah v. The State (2000 SCMR
683).
On the other hand Mr. Abdul Sattar Durrani, learned Additional Prosecutor -General has
vehemently opposed the bail application on the ground that not only the applicant and his co -
accused had confessed the guilt but also on pointation of applicant mobile phone of deceased
and the Prize Bonds belonging to the deceased were also recovered from the possession of
the applicant, which in itself was sufficient to disentitle the accused/applicant to the
concession of bail.
I have considered the contentions of the learned counsel f or the parties and gone through the
impugned order as well as the Police record made available to me. Scrutiny of Police record
shows that initially F.I.R was registered against the un -known accused persons. On 2 -1-2011
a list of Prize Bonds was taken into custody by the Investigating Officer from the bedroom of
the deceased containing S.Nos. of Prize Bonds. During investigation co -accused Ali Khan
was interrogated, who disclosed about the commission of offence, name of the applicant and
other co -accused pe rson. In consequences of his disclosure and at his pointation a digital
camera and Prize Bonds were recovered from the house of Ali Khan, while the remaining
Prize Bonds and a Nokia Mobile Phone bearing No.2330 was recovered from the house of
applicant, on the pointation of Ali Khan, thus prima facie the disclosure of co -accused Ali
Khan leading to the names of applicant and other co -accused person involved in the
commission of offence and recovery of Prize Bonds, Digital Camera, from the house of
accused A li Khan and recovery of Nokia Mobile Phone as well as Prize Bonds from the
house of applicant belonging to deceased Ghulam Rasool at the disclosure and pointation of
co-accused was discovery of new facts within the meaning of Article 40 of Qanun -e-
Shahadat Order, 1984, therefore, the same are sufficient to disentitle the applicant for
concession of bail. Moreover, the offence with which the applicant is involved carries penalty
of death/life imprisonment, which falls within the prohibitory clause of section 497, Cr.P.C,
therefore, no case for grant of bail is made out.
Whereas the case -law relied upon by learned counsel for the applicant, I find that same are
distinguishable from the facts and circumstances of this case.
In view of above discussion, I am of the considered opinion that the applicant has failed to
make out a case for grant of bail, therefore, his bail application is hereby dismissed.
However, the learned trial Court is directed to record the evidence of the material witnesses
and conclude t he trial expeditiously as required by law. The applicant shall be at liberty to
repeat his bail application before the trial Court after recording the evidence of the material
witnesses.
The observations made herein above are tentative in nature and shal l have no bearing on
merits of the case.
Application stands disposed of in the above terms.
M.W.A./37/Q Bail refused.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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