MUHAMMAD ASIF REKI, J. Through the instant criminal bail application, the accused/applicant seeks post-arrest bail under section 497 Cr.P.C., in FIR No.08 of 2024 registered with LS Saranan District Pishin under sections 302, 365, 395 and 34, P.P.C.
2. Briefly stated facts of the case are that a case was registered vide FIR No.08/2024 on the complaint of Ainullah, son of Rehmatullah with the allegation that on 15.05.2024 at about 3:00 pm his brother namely Amanullah in his vehicle bearing registration No. AVG-327 took an amount of Rs.10,00,000/- and proceeded with the contention that he has to make his transaction in respect of the vehicle. It has been further alleged that on 16.05.024 at 3:30 pm he came to know through social media that the dead body of his brother was lying behind Saranan Bazar, who had been murdered brutally by unknown accused persons and also took away an amount of Rs. 10,000,000/-mobile phone, pouch and CNIC of the deceased. Hence, the crime report.
3. After registration of the FIR, the accused/applicant was arrested, who filed an application for grant of post-arrest bail and the same was rejected by learned Sessions Judge, Pishin ("trial court") vide order dated 04.12.2024, whereafter the instant application was filed.
4. The learned counsel for the applicant has mainly contended that the applicant has falsely been implicated in the case based on CDR, but the alleged vehicle number is not registered in her name; accused is a house wife having minor children; that no recovery has been effected from her possession; that the alleged mobile number was brought on record through supplementary statement after 22/23 days of registration of the FIR; that the investigation of the case has been completed and she is no more-required for further investigation, therefore, she is entitled for the concession of bail.
5. Conversely, learned State Counsel intensely opposed the bail application of the accused/applicant on the ground that the co-accused has nominated the accused (applicant) with a specific role, therefore, the application deserves to be dismissed.
6. The arguments advanced by learned counsel for the parties have been heard and the record of this case has been perused with their able assistance. This is bail after arrest and only tentative assessm ent is required at this stage, therefore, without going into a deeper appreciation of the material available on the record, it has been noticed by this court the accused/application is not nominated in the FIR. There is no eye-witness of the occurrence. The dead body was recovered by the police and after recovery of the dead body, the co-accused was arrested, and made disclosure before the police. Subsequently, the accused/application was also arrested, and also made disclosure before the police, such evidence i.e. disclosure of the accused/application before the police is a weak type of evidence. The Hon'ble Supreme Court in case titled, "The State through Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayum" reported in (2001 SCMR 14), while dilating upon the evidentiary value of the statement of co-accused made before the police in light of mandates of Article 38 of the Qanun-e-Shahadat Order, 1984, held that "statement of co- accused recorded by police during investigation is inadmissible in evidence and cannot be relied upon". A similar view has been reiterated by the apex Court in the case titled, "Raja Muhammad Younas v. The State" reported in (2013 SCMR 669), by holding as under:- "After hearing the counsel for the parties and going through the record, we have noted that the only material implicating the petitioner is the statement of the co-accused Amjad Mahmood, Constable. Under Article 38 of Qanun-e-Shahadat Order, 1984, admission of an accused before the police cannot be used as evidence against accused."
So far the Call Data Record (CDR) is concerned, which was taken by the police and no detail was given in the challan whether there is any connection of the deceased with the co-accused applicant. Even otherwise, in the absence of any concrete material, the CDR is not a conclusive piece of evidence to ascertain the guilt or otherwise of the accused.
7. Though the above-alleged piece of evidence is the sole evidence, and the question is whether this sole evidence can result in the conviction of the applicant/accused to the extent of awarding a death sentence or not?, is still to be seen by the trial court; as such, the case of the accused/applicants falls within the ambit of further enquiry. Thus, I am of the view that holding the trial does not create a bar in the way of the superior court, which has ample jurisdiction to grant bail to the accused if the accused is found entitled irrespective that the trial has commenced and the evidence has begun, or it has been recorded or concluded.
8. I would also like to add here that it is a matter of great importance for the court that a person who is entitled to the grant of bail should not be kept in jail, as even a single day of detention of an innocent accused could not be compensated, after his acquittal at the conclusion of the case.
Since the case of the applicant, as discussed above, falls within the ambit of "further inquiry" therefore, application is accepted and consequent thereto, the applicant/accused namely Bibi Siddiqa wife of Muhammad Younas is granted bail in the case FIR No. 08 of 2024 of LS Saranan District Pishin subject to furnishing surety to the tune of Rs. 6,00,000/- in the like amount to the satisfaction of Additional Registrar of this court/trial court.
The above observations are only tentative for the purpose of decision on this application which should not be used to influence the adjudication of the case by any party and these should be kept limited for the sole purpose of this application. The trial court has obviously to decide the case upon its own merits after the application of judicial mind and independent conscience to the facts and circumstances of the case.