1. ' MRS. YASMEEN ABBASEY, J.--- Case of prosecution is that on missing of his brother from 8-5-2006 till morning on next day when he failed to contact him, he reported the matter at police station on 9-5-2006 at 1045 hours. On the same day at about 9-00 p.m. He received a call from Police Station Darakhshan to come at mortuary of Jinnah Hospital where dead body was lying, found from Phase "8", D.H.A., it had injuries on his person. The F.I.R. Already lodged by the complainant was converted under section 302, P.P.C. Against unknovn person.
2. ' These two Bail Applications bearing No,874 of 2007 (Muhammad Noman v. The State) No,884 of 2007 (Muhammad Ali v. The State) are outcome of same F.I.R. Under Crime No,213 of 2006. As the case of prosecution as well as defence taken up by both the applicants is almost same, hence I intend to dispose of them by this common order.
3. ' According to learned counsel for applicant Muhammad Noman during investigation on the first information given by complainant three persons namely Muhammad Akmal an. Estate Agent. Mst.
4. Sabra and Mst. Feroza were arrested on 15-5-2006 but as no case was made out against them therefore, they were released. Again complainant provided another three names of Malik Imran, Zaheerul Haq and Muhammad Waseem, they were arrested on 18-5-2006 but they too were released for want of evidence. Third time complainant named Muhammad Ali, who was arrested on 23-5-2006 under section 54, Cr.P.C. However, after investigating as he was found involved in the commission of offence, he was taken in custody as accused on 25-5-2006. As per prosecution during investigation applicant Muhammad Ali had named Noman as his accomplice, therefore, applicant Muhammad Noman was also arrested on 25-5-2006.
5. ' In context to the above facts, it is contended by learned counsel for applicant that it is a case of unseen incident. Prosecution tried its best to improve its case and in an attempt thereof both these applicants have been falsely implicated.
6. ' Questioning the authority of a Police Officer to arrest a person under section 54, Cr.P.C. It is contended by learned counsel for applicant Muhammad Ali that at the most if it is taken that Investigating Officer had sufficient material with him and reasonable suspicion exists against applicant to arrest him under section 54, Cr.P.C. He should had followed proper procedure for it but to the utter violation of law, he was detained for more than 24 hours upto 25-5-2007 without producing before Magistrate as required under section 60, Cr.P.C. And obtaining any order under section 167, Cr.P.C. From concerned Magistrate. Argument advanced by learned counsel appeal to reason and learned State counsel could not refute the same. This is a flagrant violation of law during investigation of case.
7. ' Point out next lapse, it is argued that section 156, Cr.P.C. Read with Article 18 sub-clause (4) of Police Order, 2002 speaks about investigation to be conducted in case of cognizable offence by any officer incharge of police station.
8. ' Sub-clause (6) of Article 18 further makes it clear that investigation shall not be changed except after due deliberations and recommendations by a board headed by an officer not below the rank of Senior Superintendent of Police and two Superintendents of Police, one being incharge of the investigation of the concerned District. Proviso of sub-clause (6) further provides that the final order for the change of investigation shall be passed by head of investigation in the general police area who shall record reasons for change of such investigation. Whereas in the present case, the contents of charge-sheet submitted on 17-6-2006 reveals that just by making any statement that on the direction of officers under order No,SSP/inv/2-ii/2483-85 dated 24-5-2006 investigation of the case has been transferred from Police Station Darakhshan to S.I.O. Police Station Aziz Bhatti namely Muhammad Afsar Ghulam Hussain. Neither any recommendation of the board is appearing on record nor reason for change of investigation has been assigned in the challan.
9. Learned counsel for the State is also silent on the point.
10. Apparently, thus, by itself order of transfer of investigation without assigning any reason therein and without recommendation of the board is a clear violation of proviso of Article 18 clauses (4) and (6) of Police Order, 2002.
11. ' Indeed, transfer of investigation from one police station to another may not have the effect of vitiating the trial, but will disrupt and jeopardize entrenched principle of law, which might reflect adversely to the credibility of the officer concerned.
12. ' Coming to the factual aspect of case it is pointed out by learned counsel for applicant that the case of prosecution is that on pointation of applicant Muhammad Ali pistol used in the commission of offence was recovered from his house on 25-5-2006. Again on 29-5-2006 applicant Muhammad Ali was taken to the same place for recovery of shoes and alleged amount of Rs,2,00,000. No reasonable excuse is appearing that when all the articles were at same places why they all were not taken at same time. This overwhelming conduct of Investigating Officer needs proper examination which could not be undertaken at bail stage, however, can be examined during trial. It is argued that even if, the alleged recovery is taken into account then no reason has been assigned that why residents of locality were not taken as Mashirs/witnesses of recovery of pistols, shoes of deceased and recovered amount from the house of applicant Muhammad Ali and only two brothers of the complainant all the time have been taken as Mashirs.
13. ' Conversely learned counsel for the State has mainly relied upon the confessional statement of the applicant Noman recorded on 29-5-2006 and has argued that just after four days of his arrest same was recorded without any delay, hence no adverse inference can be drawn.
14. ' At the first instance confessional statement cannot be used as substantive evidence of fact.
15. Moreso when there is clear delay of four days in recording such statement under section 164, Cr.P.C.
16. And applicant Noman had in mind that his custody again will be remanded to B police as was thine in the present case that applicant Muhammad Noman was sent to jail on 30-5-2006. In the circumstances observation made by Honourable Supreme Court in Muhammad Pervez and others v. The State and others 2007 SCM R 670 are very much relevant that:- ' In case all the facts are put in a juxtaposition, then it is crystal clear that confessional statement was recorded after five days as the appellant Pervez was remained in the custody of the local police. It is a settled law the delay of over 24 hours would normally be fatal to the acceptance of judicial confession as law laid down by this Court in Naqeebullah's case PLD 1978 SC 21 coupled with the fact that prosecution had failed to explain the delay in recording the confessional statement. This fact created doubt qua the confessional piece of evidence. See Khan Muhammad's case 1981 SCM R 597. It is no doubt that mere delay of 24 hours in recording the confessional statement is not fatal but surrounding circumstances are also to be considered qua believing or not believing the confessional statement. The circumstances in view of the statement of D.W.1 and D.W.2 show that the appellants were tortured by the local police, therefore, Courts below were not justified to come to the conclusion that confessional statement was voluntarily made by the said appellants. It is admitted fact that after recording the confessional statement of the appellants was handed back to the police. Such type of confession keeping in view the peculiar circumstances highlighted hereinabove appears to be irrelevant as law laid down by this Court in Khuda Bakhsh's case 1969 SCM R 390. It is an admitted fact that convict remained in police custody before and after recording confessional statement for 24 hours and the Magistrate had taken only one hour to record the, confession of the convict. Such type of confession would not fall in the category of voluntary confession."
17. ' Though after perusal of record some other material irregularities and improvements are appearing but at this stage it would not be appropriate to have a deep appraisal and detailed discussion on the evidence brought, as it may prejudice the merits of case of either party.
18. ' Learned counsel for the complainant and Mr. Sardaruddin Qureshi learned counsel for the State have also relied upon the recovery of crime weapon from the possession of applicant Muhammad Ali. According to them Ballistic Expert's report is also in positive. Bloodstained clothes of both the accused too were recovered from the house of accused Muhammad Ali, which is sufficient proof of involvement of the applicants in commission of offence. This statement of learned counsel for complainant about recovery of blood-stained clothes of both the applicants and shoes of deceased is subject to their examination in the light of report of Chemical Examiner if sent and no opinion at this stage can be formed. Even otherwise, it is above to believe that after committing murder of deceased on 9-5-2006 applicants will keep evidence with them for such a long time to have proof of commission of incident in against to them.
19. ' Anyhow in view of the guideline provided by the Honourable Supreme Court of Pakistan in Suba Khan v. Muhammad Ajmal and 2 others 2006 SCM R 66. "Deep appraisal and detailed discussion of evidence at bail stage so as to prejudice the merits of the case of either party at the trial cannot be permitted and we strongly deprecating the expression of opinion on the merits of the case at bail stage, observed that the Courts should be conscious not to cross the barrier of possible limits while making tentative assessm ent of the evidence at bail stage". I allow bail application of both the applicants being a case of further enquiry subject to furnishing surety in the sum of Rs,4,00,000 each and P.R. Bond in the like amount to the satisfaction of the learned trial Court.