' Muhammad Ayub and 4 others, petitioners, seek bail in a case under section 377, P.P.C. Read with Article 12 of Zina (Enforcement of Hudood) Ordinance, 1979.
2. Brief facts of the case are that Amir Shah lodged on 28-4-1988 at 2-30 hours a report in Police Station Nourang, District Bannu, that on 27-4-1988 at about 9-00 a.m. Abdur Riaz and Mirza All had hired his Suzuki pick-up for Eid shopping. While returning from Bannu the petitioners intercepted their vehicle and after giving beating to the first informant and Abdur Riaz, caught hold of Mirza Ali a boy of 16 years and abducted him in their Suzuki car. The local police investigated this case under section 156, Cr.P.C. On 29-4-1988 at 14-10 Mirza Ali appeared before the local police and narrated the circumstances leading to his abduction and also for committing sodomy with him by Ayub and Mirullah Jan petitioners. His statement was recorded by a competent Magistrate under section 164, Cr.P.C. Wherein the victim of sodomy charged all the petitioners for abduction with 'common intention of all and Muhammad Ayub and Mirullah Jan for committing sodomy. During medical examination anal swa bs were sent to Chemical Examiner at Lahore which had confirmed the allegation of the complainant. Consequently the plea of bail by Muhammad Ayub and Mirullah did not find favour with the Illaqa Magistrate and the Additional Sessions Judge in the first round.
Thereafter, Mirza Ali the victim of sodomy and Amir Shah, the first informant, were again produced before the Illaqa Magistrate who again recorded the statements under section 164, Cr.P.C. In these statements it was asserted that the persons who had intercepted the Suzuki pick-up and had committed sodomy with the victim had muffled their faces. The Investigating Officer in his fresh investigation also found the accused to be innocent.
3. In this second round, the petitioners having failed to secure bail from the forums below have come up to this Court.
4. Mr. Saadullah Khan Miankhel, the learned counsel for the petitioners, in support of this bail application contended that the occurrence being of pitch dark in the dead of night, the accused- petitioners have been charged on mere suspicion and that there is patent inconsistency between ocular evidence of the first informant, the victim of sodomy and the medical evidence. He also submitted that the Investigating Officer has also found the petitioners to be innocent and that in view of the dictum of their Lordships of the Supreme Court in Amir Ali v. The State 1984 SCMR 521 the petitioners were entitled to the concession of bail.
5. The learned counsel appearing for the State while opposing the application submitted that in view of earlier statement of Amir Shah contained in the F.I.R. And that of Mirza All (VW.) recorded under section 164, Cr.P.C. Their subsequent statements under section 164, Cr.P.C. Are devoid of any evidentiary value qua the claim of innocence set up by the accused-petitioners. In so far as the opinion of the Investigating Officer qua the innocence of the accused-petitioners was concerned, he submitted that Amir Ali's case had distinguishing features and cited Iqbalur Rehman v. State PLD 1974 SC 83 wherein their Lordships of the Supreme Court were pleased to observe as under:- "We find that the first information report clearly asserts that lqbalur Rehman was present as a member of the unlawful assembly, that he fired with his gun at Yaqub alias Leela who was hit and died instantaneously. It was stated on behalf of the complainant as well as the State that these allegations in the F.I.R., which were made as a dying statement by the deceased Muhammad Khalid, have been supported by the prosecution witnesses. In the presence of these allegations and the supporting evidence, the High Court was right in observing that the opinion of the Investigating Officer regarding the innocence of Iqbalur Rehman or his absence from the place of occurrence at the relevant time could not justify the grant of bail at this stage. The plea of alibi put forward by him, and supported by several residents of the locality, would have to be examined at the proper time by the trial Court. It could not, therefore, be said that there were no reasonable grounds for believing that Iqbalur Rehman was guilty of an offence punishable with death or transportation for life. The High Court was, therefore, right in refusing bail. Petition No,317 of 1973 is, therefore, dismissed."
6. From the respective stands taken up by the learned counsel for the petitioners and the learned Advocate appearing on behalf of the State the following two propositions have emerged for determination:- (1)Whether the accused-petitioners would be entitled to the concession of bail on two sets of contradictory statements of P.Ws. Both recorded under section 164, Cr.P.C. Or one contained in the F.I.R. And the one subsequently recorded under section 164, Cr.P.C.
(2) Whether the accused-petitioners are entitled to bail on the opinion of Investigating Officer that they were innocent?
7. I have been able to lay my hand on an old case cited as Sajawal v. Emperor AIR 1932 Lah. 254(1) wherein Dalip Sing, J. Did not approve of the somersault of the two approvers examined twice under section 164, Cr.P.C. In the following words:- "There can be no doubt that the two statements are contradictory, and in my opinion the defence have failed to prove that the statements made before Mr. Maheen (a Magistrate) were extorted by police torture either to themselves or to their womenfolk. At the same time it has been held by the Full Bench of Bombay High Court that a statement under section 164, Criminal Procedure Code is not evidence in a stage of judicial proceedings within the meaning of Expl. 2 section 193."
8. It is also now almost settled that statement under section 164, Cr.P.C. Cannot be treated as substantive piece of evidence unless the accused had the opportunity to cross-examine the maker thereof. They are, as a matter of established practice, recorded lest a witness should resale from his statement at a later stage of the judicial proceedings. These statements can be used by the accused at the stage Of trial either to corroborate or contradict a witness and nothing more.
Consequently if the accused-petitioners in this case are apt to place reliance on the subsequent statement recorded under section 164, Cr.P.C. The prosecution can equally rely on the similar earlier statement also recorded under section 164, Cr.P.C. I must, therefore, hold that in the circumstances of the case, the accused-petitioner cannot avail of, at the bail stage, the subsequent statement of P.W. Recorded under section 164, Cr.P.C. Exonerating them from a criminal charge which runs counter to a similar in collator statement also recorded earlier under section 164, Cr.P.C. This settles the first proposition.
9. In Amir Ali's case their Lordships of the Supreme Court felt that view expressed by A.S.P., that the petitioners were not present at the spot was based on sufficient material. In the instant case I find no such material barring statements recorded under section 164, Cr.P.C. Which are contradictory to the earlier allegations contained in the F.I.R. And the earlier statement also recorded under section 164, Cr.P.C.
10. The allegations in the F.I.R. Coupled with the earlier statement under section 164, Cr.P.C. Of the victim of sodomy and the medical evidence in the shape of the report of the Chemical Examiner do not support the finding of the D Investigating Officer. This being so the accused-petitioners are not entitled to derive benefit of the opinion of the Investigating Officer qua their innocence when there appear reasonable grounds for believing that the petitioners have been guilty of the offence of abduction and subjecting a boy of 16 years to sodomy.
11. For aforesaid reasons, the application merits dismissal and is dismissed.