' Through this single order, I intend to dispose of Criminal Miscellaneous No,11 of 1997 (Mian Muhammad Rafiq v. Mst. Rukhsana Naz and others) and Criminal Miscellaneous No,24 of 1997 (Muhammad Rizwan v. State and others) as both are arising out of F.I.R. No,110, dated 21-9-1996 of Police Station Doonga Gali. The former is an application for cancellation of bail granted to respondent by the learned Sessions Judge, Abbottabad vide order dated 16-1-1996 while the latter is application for bail where petitioner's prayer for the grant of bail was refused vide the same order.
2. The brief facts of the case are that on 21-9-1996 Munsif Khan I.H.C. Of Police Post Nathiagali on the basis of rumour that a dead body was lying near Chatriwala maur went to the spot and found the same to be correct. The deceased was a man of about 40 years of age and from his personal search Rs,5,229 alongwith some other name-cards were recovered. The Murasila was recorded on the spot and the dead body was sent to the District Headquarter Hospital, Abbottabad for post- mortem examination. It appears from the record that the dead body was identified by Muhammad Riaz son of Ghulam Qadir resident of Islamabad.
3. No one was charged in the F.I.R. As the same was not made by any relative of the deceased nor there was any eye-witness. It was on 24-9-1996 that during investigation one Mian Muhammad Rafique brother of deceased, Mst. Shamim Akhtar widow and Rashad Hamayun son of deceased charged the two accused namely, Muhammad Rizwan son of Qadar Bakhsh (herein referred to as petitioner) and Mst. Rukhsana Naz his sister both residents of Johar Town Lahore. The Investigating Officer proceeded to the spot and prepared the site plan. However, no other incriminating article was recovered from the spot. In the said site plan, later on more points were added on the pointation of the two accused showing the respective positions of the deceased and the accused and the events that had taken place on the scene.
4. After charge was levelled against the two accused the Police went to their house situated in Johar Town, Lahore on 26-9-1996 but they were not available. According to the record the two accused were arrested on 4-10-1996 and while in custody Mst. Rukhsana Naz on 7-10-1996 led the police to her house and on her pointation a pistol of .32 bore licensed in her name was recovered.
Similarly on 8-10-1996 both, Mst. Rukhsana Naz and Muhammad Rizwan pointed out different spots to the Investigating Officer of the occurrence. On 8-10-1996 petitioner Muhammad Rizwan while in custody has taken the police to S. Brother Denting and Painting Workshop situated on Temple Road, Lahore and pointed out the Motor car at that time bearing No, P.R.H. 182 and was parked in the workshop for the purpose of changing its colour. The original Number of the car was PRB 87. It was stated that the car was brought by the petitioner for the change of colour to Muhammad Safdar.
5. As there was no eye-witness in this case, during investigation the police got examined one Syed Ali Tajamal Wasti, Babar Javed, Aurangzeb, Mahmood Akbar Kiani, Muhammad Miskeen and Malik Riasat to bring on record some circumstantial evidence and the evidence of last seen of the deceased in the company of the two accused.
6. Petitioner Muhammad Rizwan is said to have made a confession before a Magistrate on 10-10- 1996.
7. The learned counsel for the petitioner Muhammad Rizwan while arguing his case submitted that no one is charged in the F.I.R. And although on 21-9-1996 the dead body was duly identified by Mian Muhammad Rafiq yet he did not charge any accused and it was only on 24-9-1996 that Mian Muhammad Rafique (brother of the deceased) alongwith the widow and son) brought a charge which shows that there is delay in levelling the charge. He also submitted that the last seen evidence and circumstantial evidence is also belated and fabricated. Further argued, that the police has manoeuvred a false charge against the petitioners and his sister Mst. Rukhsana Naz for ulterior motive. He also stated that the confession should be taken out of consideration as the same was the result of duress and torture and recorded after considerable delay. He submitted that in an answer to the question by the Magistrate recording confession the accused has stated that he has been tortured to some extent and that in another question about the period in custody the accused has said that he was arrested on 26-9-1996 whereas the police is showing his arrest on 4-10-1996 and hence the confession is involuntary and cannot be taken into consideration.
8. The learned counsel for the petitioner taking an alternate argument stated that as in this case there is no direct evidence connecting the accused-petitioner with the offence and for that matter Mst. Rukhsana Naz as well, the complainant party is left with no other material except the confession which even if voluntary is exculpatory in nature. While elaborating, the learned counsel submitted that the offence committed will not fall within the provision of section 302(a)(b), P.P.C.
And will be at best an offence under section 302(c), as the murder has been committed under grave and sudden provocation and the accused acted while deprived on such control and in Muslim Society no one can tolerate the disgrace of his women-folk. The learned counsel also took up the plea of self-defence and referred to sections 97 and 1u0(3) of the Pakistan Penal Code. In support of his argument the learned counsel relied on the following precedent judgments:
(i) 1994 PCr.LJ page 2012,
(ii) 1996 PCr.LJ 1976
(iii) 1985 SCMR page 1946-1950
(iv) PLD 1996 SC 274
(v) 1993 PCr.LJ 1919
(vi) 1986 Cr.LJ 763, 1020 ' While concluding his arguments he submitted that the petitioner is entitled to bail as there is no direct evidence and the only evidence is confession which evidence appears to be exculpatory and involuntary and cannot be used against the accused making it much less against the co- accused. On these grounds, he submitted that the petitioner is entitled to bail.
9. Taking up the case of Mst. Rukhsana Naz (respondent in Criminal Miscellaneous No,11 of 1997) he submitted that she is a lady and no role has been attributed to her, the pistol recovered allegedly at her pointation has not been proved to be used in the commission of the offence and also that bail once granted by the Court of competent jurisdiction the superior Courts of the country are always slow in upsetting the discretionary orders passed by the lower forums. As such, he submitted Mst. Rukhsana Naz was allegedly granted bail and she is entitled to remain on bail till the conclusion of the trial.
10 (The learned counsel appearing on behalf of the State and the complainant submitted that although there is no eye-witness in this case but there is sufficient circumstantial evidence. It was submitted that the confession of the accused although is an attempt to set up a case of grave and sudden provocation and also self-defence will be of no avail to the petitioner as the same appears to have been put into his mouth because prior to making the confession the petitioner has filed an habeas corpus petition through his brother in this Court wherein every opportunity to seek legal advice. It was submitted that no self-defence was available to the accused-petitioner, admittedly the deceased was unarmed. While relying on PLD 1994 Kar. 431 it was submitted that the question of Ghairat' is not so recognized under the Islamic Law. The conduct of the accused-petitioner and respondent Mst. Rukhsana Naz also shows that they were involved in the case as on 26-9-1997 at the time of their house search they were not available. Replying to the argument that accused has stated that he has been tortured the learned counsel for the complainant submitted that irrespective of this reply, in the forthcoming question when asked as to why you are making confession the accused stated that since he wanted to speak truth. It was further submitted that if the accused-petitioner and the respondent lady were not involved in the case they should not have taken the motor car belonging to the deceased to Lahore and more, particularly the fact that they took the car to a painter namely Muhammad Safdar for the change of its colour is sufficient evidence to show that the murder was committed by the accused petitioner and respondent lady in furtherance of their common intention and they later on came up with a false version of involving the question of "Ghairat' and self-defence. The learned counsel for the complainant and State relied on 1990 SCMR page 579, 1995 PCr.L.1,page 1583 and PLD 1996 Lah. Page 45.
11. After hearing the learned counsel for the parties, I intend to first take up the case of Mst.
Rukhsana Naz against whom cancellation application has been moved. The material collected against her, during the investigation is that on 7-10-1996 she has allegedly led the police to her house situated in Lahore and on her pointation a pistol of .32 bore was recovered which is licensed in her name. The said pistol cannot connect her with the crime, at this stage as no empty or spent bullet were recovered from the spot which could he wedded with the said pistol. Other piece of evidence with the complainant party is in the shape of pointation memo. Prepared at her instance whereby certain points were added in the site plan. The same could not be taken into consideration as it was Article 40 of Oanun-e-Shahadat Order, 1984 which provides that if any fact is discovered at the pointation of the accused while in custody where no discovery/recovery is made in consequence of information received from a person the same is inadmissible being statement made by the accused to the police.
12. Although, a test identification parade was held in respect of identification of Mst. Rukhsana Naz but the same was made on 16-10-1996. The said identification parade does not specify the role of the lady accused in the commission of the offence. A test identification parade is always held for two purposes one to establish identity of the culprit and the second to pin point the role played by the said accused in the commission of the offence. This being the position the identification parade in respect of Mst. Rukhsana Naz cannot create positive link. She being a lady is also to be differently treated under the Statute for the purpose of bail because her case will fall into proviso (1) to section 497, Cr.P.C. She has been granted bail by the learned Sessions Judge, Abbottabad there is no allegation against her, of the misuse of bail. In these circumstances Criminal Miscellaneous No,11 of 1997 seeking cancellation of bail to Mst. Rukhsana Naz is dismissed and she is allowed to remain on bail.
' Now taking up the case of Muhammad Rizwan the prosecution , at this stage, is equipped with the following circumstances:--
(a) his non-availability in his house on 26-9-1996 when the house was raided.
(b) his leading the police party to the workshop of Muhammad Safdar painter where he has pointed out motorcar registration No,87 P.R.B. Of which the number plate has been changed to P.R.H. 182 and was parked in the workshop by Muhammad Rizwan for changing its colour.
(c) the last seen evidence, his pointation to the scene of occurrence.
(d) his judicial confession recorded on 10-10-1996.
No doubt that petitioner Muhammad Rizwan was not charged in the F.I.R. And although Muhammad Rafique a brother of the deceased has identified the dead body on 21-9-1996 and did not level the charge on the said date but it is equally true that on 24-9-1996 said Muhammad Rafique, Mst. Shamim Akhtar widow of the deceased and Rashad Hamayun son of deceased have charged the petitioner. The delay in making the report in such like cases where there is no eye- witness is not of significance. The advantage, if any, of grant of bail which an accused would like to take, will only be available if some evidence is led to show any malice or ulterior motive on the part of the complainant for charging the accused. Events in this case which are different links of the chain prima facie connect the accused-petitioner with the crime, they are his non-availability in the house, last seen evidence, his pointation in respect of the recovery of motor car belonging to the deceased and more particularly a confession. The additions in the site plan at his pointation to be ignored as held earlier while dealing with the case of Mst. Rukhsana Naz. As in this case both the learned counsel for parties have argued the case at sufficient length and have dealt with each poini in details I would like to refrain by giving any finding either for or against as it may damage the cause of either party in the ensuing trial.
13. The most important point, which in the opinion of the learned counsel for the petitioner was, to determine the nature of the confession. He had two alternate arguments one that the same is involuntary and even if voluntary then in the alternative it has set up a plea of self-defence and also of grave and sudden provocation. As it was argued that the benefit of every doubt even at bail stage is to be extended to the accused.
14. The nature of confession whether the same was under the promise, duress or threat of the police or any defect in the form of the confession, its voluntariness or involuntariness is to be seen at the time of the trial when the Magistrate who recorded the same will appear in the witness-box.
As such I make no observation on this issue.
15 Taking up the contents of the confession, it is true that the petitioner has tried to set up a plea of sudden provocation and in way self-defence too. The coming of the petitioner alongwith his sister all the way long from Lahore and then going jointly to Murree and Ayubia all this may reflect on the conduct of Muhammad Rizwan petitioner.
' I leave the confession without touching it further, because the main question for determination hinges on the facts contained in the confession itself which is within the total domain of the trial Court.
16. It is true and correct that even at bail stage a Court can tentatively assess the evidence to be collected by the Investigating Agency for forming of opinion about the nature of the offence committed but in a case of this nature where the only evidence appeared to be confession of the accused-petitioner any such finding will tantamount to prejudging the case of the accused which is primarily the job of the trial Court. The accused-petitioner's conduct after the occurrence is very important. If the contents of the confession are taken true and correct then after the occurrence the accused-petitioner should not have straightaway gone to Lahore and that too in the motorcar of the deceased. His taking the motor car to the workshop or changing its colour also reflects his intention which, prima facie would show that he is charged with an offence which is in the purview of section 497, Cr.P.C., therefore, his application for grant of bail is rejected.
17. I have tried to be careful in making any observation on each and every fact argued before me by the either side. My all above observations are merely tentative and not final. It is open to the trial Court to form any independent opinion on the basis of evidence led before her.