' Allah Wasaya and Muhammad Fazil respondents real brothers accused in a case under section 302/326/34, P.P.C. Registered at Police Station Kot Chitta, Dera Ghazi Khan at the instance of Ayyaz Ahmad, the present petitioners have been granted post-arrest bail by the learned Special Court No, VII, Dera Ghazi Khan, constituted under Suppression of Terrorist Activities Act, 1975.
2. Ayyaz Ahmad petitioner has moved this application under section 497(5), Cr.P.C. Before this Court for cancellation of their bail.
3. As per prosecution case contained in the F.I.R., the complainant after attending a marriage party in his coaster in the night of 23/24th December, 1993, at about 10-00 p.m. After parking the vehicle leaving Murad All conductor with the vehicle left for his house and at about 12-30 in the midnight came to know that the coaster having set at fire was burnt to ashes. Murad Ali, Conductor of the coaster while sleeping inside the vehicle also burnt and died. A case under section 302/436, P.P.C.
Was registered against unknown culprit on the report lodged by Ayyaz Ahmad complainant.
However, later the respondents were arrested as accused on their making extra-judicial confession before P.Ws. Rana Faiz Muhammad and Manzoor Ahmad Dareshik a local Advocate on 1-2-1994.
4. Allah Wasaya accused suspecting Murad All deceased carrying illicit relation with his daughter, while in his employment expelled him from service who later was employed by the complainant.
The accused having grudge against Ayyaz for engaging the services of Murad All set the coaster at fire and also caused death of Murad Ali who was sleeping in the coaster at the time of occurrence.
5. The major consideration for the grant of bail to the respondents was that the confessional statement allegedly made by them having been retracted after third day of its making was possibly not free from element of coercion, threats and torture to be voluntary.
6. It is contended by the learned counsel that the Special Court on the basis of presumption and flimsy reasons excluding sound evidence of judicial and extra-judicial confession with other strong circumstantial evidence connecting the respondents with the commission of offence granted them bail with no legal justification. He urged that the Special Court through deep appraisal of evidence and judging the evidentiary value of the confessional statement of the respondent in the bail application has in fact disbelieved the prosecution case at this pre-trial stage.
7. The learned counsel appearing on behalf of the respondents submitted that the trial has already commenced and the case is fixed for evidence for some date in the month of November, 1994. He argued that the consideration for cancellation of bail being different to that of for the grant of bail, the concession of bail extended to the respondent by the learned Special Court in its discretion is not liable to be interfered. He with reference to PLD 1989 SC 585, 1985 SCM R 1691, 1992 P Cr. L J 222 and 1977 SCM R 469 argued that it being a case of further inquiry, the respondent by virtue of section 497(2), Cr.P.C. Are entitled to the concession of bail.
7. An A.S.I. With record present in Court stated that there is nothing on record to suggest that respondents were found innocent by the local police or the D.S.P. According to him, they were found guilty by Asghar Ali, Inspector in the investigation conducted by him and were accordingly challaned.
8. The respondents/accused made following confession statement before Manzoor Ahmad and Faiz Muhammad P.Ws. On 1-2-1994: {{URDU TEXT}} ' Rana Faiz All and Manzoor Ahmad Dareshik, Advocate the two independent persons before whom the respondents confessed their guilt have deposed in proof of the commission of offence by them.
The accused petitioner made a similar disclosure in their judicial confession before a Magistrate on the very next day of their arrest.
' Needless to go into the question of evidentiary value of extra judicial confession, Manzoor Ahmad Dareshik, a senior Advocate of Dera Ghazi Khan being an entirely independent person was not supposed to make a false statement against the (sic) have sent to judicial lock-up next day after their arrest and making of judicial confession. The circumstances and the manner under which the judicial confession was recorded immediately after their arrest proves it to be voluntary containing of element of torture, coersion and undue influence. The respondents spent only one night in police custody before they made the confessional statement, hence it was improper to hold the same involuntary at this stage.
The respondents having suspicion of illicit relation of deceased with daughter of Allah Wasaya accused had strong motive to commit the crime and the prosecution intends to produce Ghulam Akbar cousin of deceased and Ghaus Bakhsh an independent person to prove the motive. The retracted judicial or extra-judicial confession not always necessarily requires corroboration, if otherwise confidence inspiring and truthful. In the present case, the extra judicial confession and the judicial confession having been made by the respondents before reliable and truthful witnesses cannot be excluded from tentative assessment of the evidence available on the record clearly proving the involvement of the respondents in the case provides reasonable grounds to believe that they have committed an offence punishable with death or imprisonment for life. The grounds on which the respondents were admitted to bail do not hold the field in view of the findings of guilt given by Muhammad Asghar, Inspector as a final result of the investigation carried out by him.
' Keeping in view the special feature of the case discussed above, there being no scope of further inquiry, into the guilt of the respondents under section 497(2) Cr.P.C. The respondents were not entitled to the concession of bail in a case of capital charge. The to the respondents by the learned Special Judge vide order, dated 21-3-1994 is hereby recalled.