' Brief facts of the case giving rise to the instant bail application by Abdul Aleem and Asghar Abbas accused/petitioners are as follows:--
2. On the 29th of March 1992 at 19-10 hours, Shakeel Ahmad, a shopkeeper, reported the occurrence of theft to Abdul Jalil, S.H.O. Of Police Station Cantt., D.I. Khan. The report so made was that about 18-45 hours when he was sitting in the shop situated at Circular Road, D.I. Khan, a person with muffled face entered the shop and at pistol point demanded the key of the motor-cycle standing out of the shop and asked him to deliver whatever he had with him. The complainant gave him Rs,10,100 and then the unknown person started search of the shop and while going out of the shop took a V.C.P. Threatening the complainant not to move and throwing the key taken from the complainant where after he went towards another person with muffled face standing at some distance on the road on a motorcycle and then both of them decamped from the spot on the motor-cycle. On the basis of the report, the case was registered vide F.I.R. No,561 at Police Station Cantt., D.I. Khan on the same day at 19-10 hours. During investigation of the case, one V.C.P. And a revolver were recovered from one Abdul Sattar. The currency notes of Rs,7,000 were also recovered from the father of Abdul Aleem petitioner. The motor-cycle used in commission of the offence was taken into possession. The confessional statements of the accused/petitioners were recorded on 8-4-1992. The identification parade was held on 20-4-1992. The petitioners moved bail applications in the lower Courts and having not succeeded to get bail have now applied to this Court for bail.
3. Mr. Jehangir Awan, counsel for the accused/petitioners contended that they are entitled to bail, inasmuch as they are not charged by name in the F.I.R., the details of V.C.P., motor-cycle and the currency notes have not been given in the F.I.R. And that the Courts below were wrongly influenced by the confessions of the two petitioners, as the same are not confessions in the legal terms having not been made before the competent Court. Reliance was placed on 1992 PCr.LJ 412. Learned counsel for the petitioners further contended that the confessions were not voluntary and were obtained by torture and coercion by the police. The identification parade was also challenged on the ground that the complainant was provided opportunity to identify the petitioners before conducting the identification parade. The recoveries of the articles were effected from the houses of Abdul Sattar and Muhammad Rafique and not from the houses of the petitioners.
4. Malik Hamesh Gul Khan, Advocate, learned State counsel, in reply, argued that the confessional statements of the accused/petitioners, identification parade held, and recoveries made all go to show that the accused/petitioners have committed the offence of theft liable to Ta'zir and as such they are not entitled to bail. He was of the view that there being no motive for false. Charge, the petitioners' allegations are not correct.
5. I have heard learned counsel for the parties and have also perused the record carefully. The bail matters are always to be considered in the light of the provisions of section 497, Cr.P.C. Keeping in view the provisions of section 497, Cr.P.C. It is to be seen whether in the facts and circumstances of the case in hand, the petitioners can be allowed bail or not. In case there appear reasonable grounds for believing that the petitioners have been guilty of an offence punishable with death, imprisonment for life or imprisonment for ten years, the bail is refused, and when there are not reasonable grounds for believing that the accused has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt, the accused can be released on bail.
The findings are required to be given on the tentative appraisal of evidence available on the record. In the instant case, the tentative appraisal of evidence have led me to hold the view that there are reasonable grounds for believing that the accused/petitioners have been guilty of the offence punishable with rigorous imprisonment for a term which may extend to ten years and fine under section 382, P.P.C. And Article 20 of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979. The statements and confessions have been recorded by the Magistrate under sections 164 and 364, Cr.P.C. During investigation of the case: The statements and confessions recorded by the Magistrate under the provisions of the Cr.P.C. Cannot be taken at par with the confessions recorded during the trial. It is only at the trial that competency of the Court in recording the confession is taken into consideration. Article 7 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 provides for proofs of the theft liable to Hadd. One of the proofs is that accused pleads guilty of the commission of theft liable to Hadd. It is this mode of proof which is to be recorded by the competent Court. The statement before the Magistrate cannot be equated with the statement made before the competent Court as provided under Article 7 of the Ordinance ibid. This being the legal position, I am unable to subscribe to the view taken in the case of Mumtaz Khan v. The State 1992 PCr.LJ 412 Peshawar. In re: Muhammad Nasir v. The State PLD 1988 FSC 58 referred to in Mumtaz Khan's case, the Federal Shariat Court was seized of the matter for the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at the trial stage and not at the bail stage. The mode of proof in the case of Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 and in the case of Zina (Enforcement of Hudood) Ordinance, 1979 is quite different.
In the case of proof of Zina-bil-Jabr liable to Hadd, one of the modes for proof is that the accused under the law has to record his confession before the competent Court and it is this mode of proof which was the subject-matter of discussion before the Honourable Federal Shariat Court in the aforesaid case of Muhammad Nasir. The dictum laid down reads as under:-- "Confession, in a case of Zina, for the purpose of Hadd sentence, must be made four times in four different meetings and the accused should be free from any outside influence, pressure, coercion or duress. It means that the confession must be independent and should be made because of the fear of Allah and the hereafter, in order to purge him of the effect of the offence. Section 8(a) of the Ordinance VII of 1979 further provides that it must be made before a Court of competent jurisdiction. Exactly, the same is the view taken by Muslim Jurists on the point".
The dictum referred to above is not to be applied in bail matters. As stated earlier, the bail matters are to be considered in the light of the provisions of section 497, Cr.P.C. And this being the position, the accused/petitioners' confessional statements recorded before the Magistrate cannot be brushed aside only on the ground that these were not made before a competent Court. The evidentiary value of the confession shall be considered at the trial. Similarly, the matters with regard to the non-description of the stolen property, recoveries and identification parade are to be dealt with at the trial stage. From the perusal of the evidence on the record, there appear reasonable grounds for believing that the accused/petitioners have been guilty of the non- bailable offence liable to Ta'zir for which the punishment provided is rigorous imprisonment for ten years and fine. With this view of the matter, I am not inclined to allow bail to the accused/petitioners. Hence their application is dismissed.