Badost V. The State,

2015 Y L R 2420

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

BADOST ---Applicant

Versus

The STATE---Respondent

Crl. Bail Application No.11 of 2015, decided on 24th February, 2015.

(a) Criminal Procedure Code (V of 1898) ---

----S. 497(2) ----Penal Code (XLV of 1860), Ss. 302, 324, 353, 186 & 427 ---Explosives Substances Act (VI of 1908), Ss. 3, 4 & 5---Anti -Terrorism Act (XXVII of 1997), S.7 ---Qatl -i- amd, attempt to commit qatl- i- amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, mischief causing damage to the amount of fifty rupees, causing explosion likely to endanger life or property, attempt to cause explosion or for making or keepi ng explosive with intent to endanger life or property, making or pos -sessing explosives under suspicious circumstances, terrorism --- Bail, refusal of ---Judicial confession---Retraction -- Relevance and reliance at bail stage--- Accused were alleged to have at tacked and fired at police personnel, while they had been raided by police, and as a result of said firing, one of the police personnel was killed---Accused, while making statement before Magistrate, had categorically admitted his guilt---Accused had made the confessional statement voluntarily ---Question as to retracted confession could not be decided at bail stage ---Retracted judicial confession if found out to be true and confidence -inspiring could be relied upon ---Ample incriminating material was availab le on record to connect accused with commission of alleged offences ---Bail application was dismissed accordingly.

Farooq Mengal v. The State through A.G. Sindh Karachi 2007 SCMR 404 and Raja Muhammad Irshad v. Muhammad 'Bashir Goraya 2006 SCMR 1292 rel.

(b) Criminal trial ---

----Non -prosecution---Effect ---Cases cannot be decided and dismissed for non- prosecution.

Munir Ahmed Mengal for Applicant.

Malik Sultan Mehmood, Special Prosecutor for the State.

Date of hearing: 20th February, 2015.

JUDGMENT

MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---The applicant Badost seeks bail in FIR No. 28 of 2014 registered with Police Station City, Kharan on 3 -3-2014 under Sections 302, 324, 353, 186, 427 of the Pakistan Penal Code ("PPC"), Sections 3, 4, 5 Explos ive Substances Act read with Section 7 of the Anti -Terrorism Act, 1997 ("the Act").

2. That prior to instant bail application an application for grant of bail has been dismissed by the Special Judge, Anti -Terrorism Court, Khuzdar ("trial court") vide ord er dated 23rd May, 2014.

2A. Brief facts of the case as narrated in the FIR are that the complainant SHO Mir Muhammad Yousuf lodged a report before the Police Station City, Kharan on 3- 3-2014 averring therein that on the stated date, time and place he al ong with Deputy. Commissioner, Risldar Moula Bakhsh and other levies personnel raided at accused Muhammad Raheem's house. The applicant/accused along with co -accused persons made firing upon them, in retaliation the police party also made firing. One of le vies personnel namely Umer Shah died during the firing. He further alleged that the accused persons also threw grenades upon the levies personnel, however, the accused persons made their escape good from the scene of crime, but one of the accused persons namely Khuda Bakhsh apprehended and a Kalashnikov along with cartridges were recovered from his possession. Thus, the said FIR was lodged.

3. Learned counsel for the applicant/accused was not in attendance on the date when this case was finally heard. Thi s application was filed on 21- 1-2015 and came up for hearing on 28- 1- 2015. Ever since then the applicant's counsel did not turn up on 4- 2-2015, 9- 2-2015, 12- 2-2015, 16-2-2015, 19-2-2015 and 20- 2-2015. Keeping in view the principle that the criminal cases cannot be decided and dismissed for non- prosecution, therefore, I have decided to proceed with the matter on basis of the arguments advanced by the learned special prosecution and the available record.

4. The learned Special Prosecutor strongly opposed the plea of bail and contended that on basis of circurhstantial evidence, prima facie the case is made out against the applicant; therefore he is not entitled for the relief claimed. He urged with vehemence that the applicant/accused has recorded his confess ional statement before the learned Judicial Magistrate, wherein he has admitted his guilt. He contended that the offence committed by the accused/applicant is heinous in nature and falls within the ambit of prohibited degree of Section 497, Cr.P.C. He fina lly submitted that at this stage granting bail to the accused/applicant and rendering any observation thereto may affect the merits of the case, therefore, this application is liable to be dismissed.

5. Heard.

6. Admittedly, the evidence available on t he record i.e. in the form of statement made by the applicant/accused before the Judicial Magistrate Kharan. In his statement he has categorically admitted'his guilt; that co -accused Raheem called him and told to him to go to Shahzada son of Malang, who wi ll give him Kalashnikov, rounds and money, as no one would doubt if he would bring the said articles being an old man. From the examination of this statement, it is clear that the co -accused voluntarily made inculpatory statement. So far, the question of r etracted judicial confession is concerned, that question cannot be addressed at the bail stage. In this connection the case of Farooq Mengal v. The State through A. G Sindh Karachi (2007 SCMR 404) and Raja Muhammad Irshad v. Muhammad Bashir Goraya (2006 SC MR 1292) provide proper guideline. In the case of Farooq Mengal supra the Hon'ble Supreme Court in para 5 of the judgment observed as under: --

"5 This is settled principle of, criminal administration of justice that B retracted judicial confession if found truthful and confidence -inspiring, can be relied upon and on the basis of tentative assessment of the prosecution evidence, it would not be possible to doubt the credibility of the confessional statement at this stage."

Whereas in the case of Raja Muhammad Irshad supra it was observed by the Hon'ble apex Court in para 13 that: ---

"13 .As now the confession of a co- accused can be used as circumstance and not as an exclusive evidence for the purpose of recording of the conviction. Besides, the judgm ent which has been referred to hereinabove also pertains to final determination of the case for the purpose of considering the same as material confession of co -accused cannot be used, but for cancellation of bail, such statement, implicating the accused, can be validly taken into consideration. Reference in this behalf can be made to Naseem Malik v. The State 2004 SCMR 283."

There is ample incriminating evidence available on the record to connect the applicant/accused with the commission of the offence; thus it is not a fit case for grant of bail. In the light of the afore referred judgments of the apex Court, I am not persuaded to extend the concession of bail to the petitioner. Accordingly this application being bereft of merits is dismissed.

However, the observations made herein are tentative in nature, which shall have no bearings on the merits of the case.

SL/88/Bal Application dismissed.