Akhtar Zaman Malghani, J.--By this order, we intend to dispose of Criminal Bail Application No, (S)
06 of 2009.
2. Briefly stated, facts of the case are that on 23.08.2008 a case under Section 302 PPC was registered in Baba Kot police station of District Nasirabad vide FIR No, 09/2008 on the report of Manzoor Ahmed Sial SI/SHO wherein it was stated that on account of publication of a news in newspapers about burial of five alive ladies a case is being registered and investigated. It appears froth the record that during investigation police arrested the applicants and also disintered two dead bodies of buried ladies namely Izat Bibi and Mst. Farida from a place situated in Kohang ravine at the pointation of applicant Ghous Bakhsh. The applicants after their arrest moved applications for grant of bail before Special Judge, Anti Terrorism Court, Nasirabad Division, Sibi which were rejected vide common order dated 21.01:2009. Hence this application.
3. We have heard learned counsel for applicants as well as learned State counsel. Learned counsel for applicants vehemently contended that PWs Rashid and Sher Muhammad have not nominated the applicants in the commission of offence except Arif, Zulfiqar and Umeed Ali, therefore; they were entitled to grant of bail. He further contended that the disclosure was allegedly made by Ghous Bakhsh on 01. 09.2008 whereas FIR had already been registered indicating that the police had knowledge of place of occurrence, as such; such disclosure had no evidentiary value. He next argued that confessional statements of applicants Umeed Ali and Beera alias Zeshan were contradictory to the account of eye witnesses, making the case of applicants one of further inquiry.
On the other hand, learned State counsel vehemently opposed the bail application and contended that not only applicant Umeed Ali and Zeshan confessed the guilt but also implicated other applicants in the commission of offence which in itself was sufficient to disentitle applicants to the concession of bail. She next contended that both the confessional statements were further corroborated by recovery of dead bodies of two ladies at the pointation of applicant Ghous Bakhsh wherein he also disclosed names of other applicants being accomplice in the commission of offence.
4. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the police record made available to us. Scrutiny of police record indicates that both ladies were buried in clandestine manner after committing their murder, however; news emerged in the newspapers about their alive burial, whereupon; this Court took Sun Moto notice and during such proceedings police registered a case under Section 302 PPC against the unknown persons. During investigation applicants were arrested, out of whom applicant Ghous Bakhsh on 01.09.2008 disclosed about commission of offence, names of other accused persons and place of occurrence where two ladies Izat and Farida were buried after murder. In consequence of such disclosure and at his pointation both dead bodies were exhumed. Prima-facie his disclosure leading to discovery of names of other accused persons involved in the commission of offence and recovery of dead bodies at his pointation was discovery of new fact within the meaning of Article 40 of Qanun-i-Shandat Order, 1984. Besides there are confessional statements of applicants Umeed Ali and Beera alias Zeshan confessing their guilt as well as implicating other applicants in the commission of offence, which confessional statements in themselves are sufficient to disentitle the applicants for concession of bail. In the judgment reported in 1990 SCM R 315 the Hon'ble Apex Court relying upon confessional statement of co-accused rejected the application of other accused persons who were implicated by such co-accused in his confessional statement.
Relevant observations are reproduced herein below:-- "Petitioner applied for release on bail on the ground that his name is not mentioned in the F.I.R. and the only evidence available with the prosecution consists of confessional statements of co- accused Muhammad Aslam and Mian Khan which cannot sustain his guilt on the charges levelled against him. Learned Additional Sessions Judge, Quetta rejected petitioner's request for bail on the ground that "a prima facie case is made out against the petitioner which disentitles him for the grant of bail." Thereafter, petitioner approached the High Court with the same request but it was also rejected by the impugned order mentioned above.
After having gone through the record of the case and the investigation papers made available by the learned Advocate-General we find that in refusing to release the petitioner on bail at this stage, learned Judge in the High Court has not violated any legal provision or principle of law governing bail in cases suclras this. The petition is therefore dismissed'.
Likewise; in the judgment reported in PLD 1997 SC 545 the Hon'ble Supreme Court of Pakistan held as under:-- "The confessional statement of the co-accused and the belated statement of witnesses recorded under Section 161 of the Code, could be looked into by the Courts for tentatively determining whether the allegations against the petitioners disclosed a reasonable ground for believing that the petitioners were guilty of a non-bailable offence, in view of the law laid down by this Court in the cases of Lal Muhammad v. Shah Muhammad 1990 SCM R 315, Shah Muhammad and another v.
State 1996 SCM R 981 and Abdul Aziz v. Shah Muhammad 1990 SCM R 346, already referred by my learned brother in his judgment. The finding recorded by the Courts below after taking into consideration the confessional statement of co-accused and the statements of witnesses recorded under Section 161 of the Code, that the petitioners are prima facie guilty of the offences alleged against them, therefore, does not suffer from any infirmity, The only other question which now remains to be examined in this case is, whether the discretion exercised by the Courts below in refusing to grant bail to the petitioners is opened to be interfered by this Court. This Court generally does not interfere with the discretionary order of grant or refusal of bail passed by the Courts below unless such order is found to be opposed to some principles laid down by this Court or it is passed in violation of any law or principle governing the administration of criminal justice or it is found to be perverse arbitrary or fanciful as held in Nasir Muhammad Wassan and another v. the State 1992 SCM R 501. The reasons given by the Courts below in refusing to exercise their discretion in favour of petitioners by admitting them to bail cannot be described as arbitrary so as to justify interference by this Court."
In view of what has been discussed above on the strength of confessional statements of applicants Umeed Ali and Zeshan and recovery of dead bodies at the instance of applicant Ghous Bakhsh prima-facie the applicants are involved in the commission of offence, as such; they are not entitled to grant of bail.
Hereinabove are the reasons of our short order dated 5.3.2009 whereby, bail applicant was dismissed.