FAROOQ HAIDER. J, Through instant petition, Muhammad Behroz Khan (petitioner/accused] seeks post-arrest bail in case arising out of FIR No. 418/2022 dated: 08.02.2022 registered under Sections 302, 34, P.P.C at Police Station: Shadbagh, District: Lahore.
2. After hearing learned counsel for the petitioner, learned Deputy Prosecutor General and going through the available record with their able assistance, it has been noticed that briefly, as per Crime Report (FIR) got registered by Naveed Ahmad (complainant), on 08.02.2022 at about 09:00 p.m., complainant, Adeel Ahmad (brother of the complainant and now deceased of the case) and his mother were present in the home, meanwhile Adeel Ahmad received call of his friend namely Usman and he (Adeel Ahmad) told that he is going to his friend namely Usman. On delay of his arrival to the home, mother made call on the mobile phone of Adeel Ahmad which was received by one unknown person who told that his brother has met an accident, mother of complainant told said fact in worried condition to the complainant who reached at the spot and came to known that some unknown for unknown reasons fired shot with pistol at forehead of his brother who succumbed to the injuries. Learned Deputy Prosecutor General under instructions of Police Officer (present before the Court) and after himself going through available record apprises that on 09.02.2022, Naveed Ahmad (complainant] nominated Muhammad Usman (co-accused) and Muhammad Behroz (present petitioner) as accused in this case through supplementary (statement and briefly as per said supplementary statement after 2/3 hours of registration of aforementioned case, Muhammad Mohsin and Muhammad Ramzan told to the complainant that his brother namely Adeel Ahmad has been murdered by Muhammad Behroz (present petitioner) and Muhammad Usman (co-accused) and they have been seen by Muhammad Mohsin and Muhammad Ramzan while fleeing away after committing the murder; Adeel Ahmad was running business of iron in Misri Shah whose friend Muhammad Usman was running mobile shop in Chowk Nakhuda, Muhammad Usman had been taking money as loan from Adeel Ahmad, brother of the complainant namely Adeel Ahmad demanded his said amount from Muhammad Usman and on the pretext of paying back said amount, Muhammad Usman made call to Adeel Ahmad and said that he is in Elahi Park whereas his cousin namely Behroz Khan is present in Chowk Nakhuda and asked him to come after boarding Muhammad Behroz on motocycle, when brother of the complainant Adeel Ahmad after boarding cousin of Muhammad Usman namely Behroz Khan reached to Usman at Elahi Park then Behroz Khan fired shot at front of forehead of Adeel and boarding on rear seat of motorcycle with Usman fled away, who while fleeing away were seen by Muhammad Mohsin and Muhammad Ramzan; .also adds that Muhammad Ramzan (aforementioned witness) also got recorded his statement under Section 161, Cr.P.C. while mentioning therein that he along with Muhammad Mohsin (aforementioned witness) were coming to their homes while walking on foot, when they reached at corner of Elahi Park near Tubewell of WASA then they heard report of fire and saw a motorcycle bearing No. AJR-4605, friend of Adeel namely Usman along with his friend Behroz (present petitioner) were going, Behroz (present petitioner) was having pistol in his hand whereas Usman was driving the motorcycle, they (both witnesses) went to their homes, at about 12:30 a.m. (night) Muhammad Mohsin intimated Muhammad Ramzan that he has received phone call of Naveed (complainant) that Adeel has been murdered in Elahi Park, he (Muhammad Ramzan) asked Muhammad Mohsin (aforementioned witness) to come at the spot and he (Muhammad Ramzan) also reached at the spot, he (Muhammad Ramzan) and Muhammad Mohsin (aforementioned witness) have seen with their own eyes Muhammad Behroz (present petitioner) going with Usman (co-accused) sitting on rear seat of motorcycle after committing murder of Adeel Ahmad while making firearm shot at him. This entire fact was told by him to Naveed (complainant). Muhammad Mohsin (witness) also narrated same facts in his statement recorded under Section 161 Cr.P.C. Although petitioner is not nominated in the FIR, however, after coming to know certain facts regarding the occurrence through Muhammad Mohsin and Muhammad Ramzan (witnesses, mentioned above), complainant nominated present petitioner along with Muhammad Usman (co-accused) through supplementary statement and Muhammad Mohsin as well as Muhammad Ramzan (both witnesses) also got recorded their statements under Section: 161, Cr.P.C in support of said information provided by them to the complainant (as detailed above). So, it cannot be said that this supplementary statement in the case was without any source; furthermore, Muhammad Afzal was also got examined during investigation through his statement under Section 161, Cr.P.C. with respect to receiving call of the mother of deceased on mobile phone and intimating her as well as coming of the complainant at the place of occurrence.
Perusal of copy of postmortem examination report (available on the record) reveals that death of deceased occurred due to receipt of firearm injuries on the head.
Empty Cartridge of .30-bore pistol was found near dead body at the place of occurrence during spot inspection and secured by the Investigating Officer through recovery memo. which was received by Punjab Forensic Science Agency, Lahore on 11.02.2022 i.e., before arrest of present petitioner because he was arrested on 14.02.2022. As per case of prosecution, during investigation present petitioner made disclosure regarding pistol and in furtherance of said disclosure, he also got recovered pistol .30-bore on 20.02.2022 which was received by Punjab Forensic Science Agency, Lahore on 23.02.2022 for the comparison of aforementioned empty cartridge which was received on 11.02.2022 and as per report of Punjab Forensic Science Agency, Lahore (copy whereof is available on the record brought by Investigating Officer of the case), aforementioned empty cartridge case was identified as having been fired in said pistol; relevant portion of the same is hereby reproduced:- "Details of Results and Conclusions Based on Test(s) Performed: The item P1 pistol was examined and found to be in mechanical operating condition.
The item C1 cartridge case was identified as having been fired in the item P1 pistol."
It is trite law that confession made by accused during custody of police is inadmissible but it is equally settled principle of law that if during investigation (custody of police), accused provides information through disclosure and then in furtherance of said disclosure gets recovered any fact which is perceivable by five sense i.e., having shape, colour and volume, etc., then same is admissible in evidence.
In this case, during investigation, petitioner provided information through disclosure about the pistol and in the light of said disclosure, he got recovered said pistol which was definitely having a shape, colour and volume perceivable by five senses as defined under Article: 2(1)(d) of the Qanun-e-Shahadat Order, 1984, which is hereby reproduced:- "2(1)(d) "fact" includes.
(i) anything, state of things, or relation of things capable of being perceived by the senses; and
(ii) any mental condition of which any person is conscious." therefore, said information relating to the discovered fact may be proved. When empty cartridge secured from the place of occurrence during spot inspection has been found as fired by aforementioned pistol then use of this pistol for making fire shot has been prima facie established and since said pistol has been got recovered at the pointing out of present petitioner in the light of information received from him through his disclosure hence it has prima facie attained character of relevant fact constituting incriminating material in this case; in this regard, Articles: 38, 39 and 40 of the Qanun-e-Shahadat Order, 1984 are hereby reproduced for ready reference:- "38. Confession to police officer not to be proved. No confession made to a police-officer shall be proved as against a person accused of any offence.
39. confession by accused while custody of police not to be proved against him. Subject to Article 40, no conession made by any person whilst he is in the custody of a police-offficer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
40. How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." (emphasis added)
Case of "Nazir Shehzad and another v. The State" (2009 SCMR 1440) can also be advantageously referred on the subject.
So, facts subsequently came into the knowledge/notice of the complainant through Muhammad Ramzan and Muhammad Mohsin (as detailed above in the supplementary statement of complainant and in the statement of said witnesses) have been corroborated by a relevant and incriminating piece of evidence i.e., aforementioned recovery of pistol which matched with the empty cartridge. Thus prima facie, at this stage, sufficient material is available against the petitioner to connect him with the commission of alleged offence; in this regard, case of "Allah Ditta v. The State" (2001 MLD 1123) can be referred and relevant portion from its paragraph No.5 is reproduced:- "Although the petitioner is not named in the FIR and there is no direct evidence yet complainant or PWs are not inimical against the accused. Worth of evidence of Ghulam Abbas and Muhammad Basher who saw the accused riding on the cycle of the deceased immediately after the occurrence will be examined by the trial court. Cycle of the deceased was recovered from the petitioner. Similarly on his pointation the gun was recovered from his house. He stands implicated in another case FIR No. 140 of 1996 dated 8-5-1996. The trial has already commenced and the case is fixed for prosecution evidence for 25.8.2000. Deep appreciation of circumstantial evidence is not possible at this stage. Since the trial has commenced I see no ground to admit the petitioner to bail at this stage. The petition has no merit and is dismissed."
Punishment of the alleged offence does fall in the ambit of prohibition contained in Section 497, Cr.P.C, trial has already been commenced in the case as intimated by learned counsel for the petitioner.
So far as grant of bail to co-accused namely Muhammad Usman Yousaf vide order dated: 16.12.2022 passed by this Court in Crl. Misc. No.44080-B of 2022 is concerned, suffice it to say that as per case of prosecution role of causing firearm injury was not attributed to him and nothing was available on the record to corrborate statements of Muhammad Mohsin and Muhammad Ramzan (witnesses) i.e., oscular version against him whereas case of present petitioner is not at par with him, therefore, principle of consistency does not apply to the case of present petitioner.
3. In view of what has been discussed above, instant petition filed by the petitioner for grant of post-arrest bail is without merits and same is hereby dismissed. It goes without saying that observations made hereinabove are just tentative in nature, strictly confined to the disposal of instant bail petition and will have no bearing upon trial of the case which will be conducted expeditiously and concluded by the trial court within three months, positively.