' Having been involved in case registered vide F.I.R. No,556 under section 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, section 452/324/34, P.P.C. In Police Station City Mansehra, the accused-petitioner moved bail application in the Court of learned Judicial Magistrate, Mansehra but the same was rejected vide order, dated 6-1-1999. He then moved the Court of learned Sessions Judge, Mansehra for his release on bail but his application was rejected vide order, dated 17-3-1999. He has now moved this Court for his release on bail.
2. Brief facts of the case are that Asad son of Ghulam Rehmani in injured condition in D.H.Q.
Hospital, Mansehra reported to police that on the night of occurrence he was sleeping in his room alongwith his brother Wajahat whereas his father and inmates of the house were sleeping in other rooms of the house. Four persons entered their house. All of them had muffled their faces. They took him and his brother out of the room into Verandah and they asked him about the other inmates of the house, gold, ornaments and safe. In the meanwhile the father of the complainant also got up.
The accused wanted to take complainant, his father and brother to the room but his father refused, on which one of the accused fired with pistol, as a result of which the father of the complainant, namely, Ghulam Rehmani got injured on the left side of his abdomen. Another accused also fired at him (complainant) with which he got injured on his left thigh. On the hue and cry of neighbourers the culprits ran away from the spot. The complainant claimed that he could identify the culprits if brought before him.
2. Mr. Ghulam Mustafa Khan Swati and Mr. Ejaz Afzal Khan, Advocates argued that nobody was charged by name in the F.I.R. And complainant in the F.I.R. Had claimed that he could identify the persons if brought before him. Nadeem was arrested on 2-8-1998 and Saqib Mani was arrested on 30-9-1998 but no identification parade has been conducted by the prosecution till date. It was further argued that there is no direct or circumstantial evidence to connect the accused-petitioner with the commission of offence and it was not known as to with whose firing the injuries were caused. The only, piece of evidence so far collected by the prosecution is the confession of co- accused Nadeem which too is in conflict with the F.I.R. And has not been corroborated with any independent evidence. The confession of the co-accused is not conclusive proof of the guilt of the petitioner and the same cannot be relied upon unless corroborated with other piece of evidence.
The confession it was argued was retracted. It was further argued that accused-petitioner Saqib had on the same day at 3-15 a.m. Lodged a report vide F.I.R. No,557 about his injury.
3. On the other hand, Mr. Tehmas Khan Jadoon, Advocate and Mr. Muhammad Akbar Khan Swati, Advocate for complainant and Qazi Muhammad Ghazanfar, A.A.-G. For State while repelling the arguments of the learned counsel for the petitioner argued that there is sufficient evidence available on record to connect the accused with the commission of offence. In the episode, two persons, namely, Ghulam Rehmani Kiyani and Asad were injured. Ghulam Rehmani Kiyani succumbed to injuries on the same night. One Saqib son of Muhammad Farid in his statements recorded under sections 161 and 164, Cr.P.C. Has supported the case of prosecution. All the accused were seen by Saqib P.W. At 3 p.m. In his shop duly armed with pistols. The ,medico-legal reports of Ghulam Rehmani Kiyani and Asad corroborated the prosecution version and the prompt judicial confession made by co-accused Nadeem also supports the case of prosecution. The motor car used in the commission of offence which belongs to the father of the accused-petitioner was also taken into possession by the Investigation Officer. Blood recovered from the spot, 4 empties of .30 bore recovered from the place of occurrence and Fire-arm Expert Report showing that the empties were fired with different weapons also fully lend support to the case of prosecution. Regarding case registered vide F.I.R. No,557 by accused Saqib Jilani, the learned counsel argued that the said F.I.R.
Has been cancelled by the local police being false and frivolous and notice under section 182, P.P.C.
Has been issued against him by the local police.
4. I have heard the learned counsel for the parties and perused the record carefully.
5. No doubt no person by name was charged in the F.I.R. By the complainant Asad. Nadeem one of the accused was arrested on 2-8-1998 and he made confessional statement promptly on 3-8- 1998 and narrated the entire story in his confessional statement. He not only named the other co- accused but also assigned them specific roles in his confessional statement. The argument of the learned counsel for the petitioner that the confession of co-accused Nadeem was involuntary and the same has been retracted, therefore, it is inadmissible. This argument is not tenable because voluntary or involuntary, truthfulness, legality and propriety of the confessional statement cannot be scrutinized at bail stage as it would be the trial Court to go into such details. In this regard I am guided by principles laid down' in Abdur Rehman v. Abdul Qadar 1992 PCr.LJ 1513 and Abdul Malik v.
The State 1988 MLD 1307. Moreover, the. Court can look into the confessional statement of the co- accused and statement of witnesses recorded under section 161, Cr.P.C. In order to tentatively determine as to whether reasonable grounds for believing that the petitioner was prima facie connected with the commission of offence. In this regard reliance is placed on Imtiaz Ahmad and others v. The State PLD 1999 SC 545.
6. The argument of the learned counsel that the complainant in his F.I.R. Had stated that he could identify the persons if brought before him and despite arrest of two accused no identification parade has been held till date, hence petitioners are entitled to be released on bail. This argument of the learned counsel for the petitioner cannot help him at this stage because it has been clearly mentioned in the F.I.R. That all the accused had muffled their faces, hence the question of their identity by the complainant does not arise at all. Even otherwise in the peculiar circumstances of this case, holding of identification parade in case of dacoity and robbery is not requirement of law.
Identification parade is held as a matter of caution. Two co-accused are still absconders and there is every possibility that on their arrest the identification parade if required by prosecution, shall be held, therefore, the accused-petitioner at this stage cannot claim benefit for not holding identification parade of the arrested accused.
7. So far as report lodged by accused-petitioner vide F.I.R. No,557 is concerned the same has been found to be baseless, false and frivolous by the Investigation Officer and the local police has recommended for the cancellation of the case and proceedings against him under section 182, c P.P.C., so the ease registered by him is of no help. It is rather another corroborative piece of evidence which shows that accused was injured during the occurrence as narrated by co- accused Nadeem. This piece of evidence also prima facie connects him with the commission of offence.
8. The next argument of the learned counsel for the petitioner is that nobody has been charged by name in the F.I.R. And there is no material available against the petitioner to connect him with commission of offence. This argument is also of no help to the petitioner. It has been clearly stated in the F.I.R. That all the four accused persons had muffled their faces at the time of occurrence, therefore, how the complainant could charge them by name. However, Nadeem co-accused in his confessional statement has taken the names of his co-accused and has assigned them specific roles also. So far as the evidence which connects the accused-petitioners with the commission of offence is concerned, there is a confessional statement of co-accused which was recorded promptly. He was arrested on 2-8-1998 and his confessional statement was recorded on 3-8-1998.
Four empties recovered from the spot, recovery of blood, medico-legal reports regarding deceased Ghulam Rehmani Kiyani and Asad complainant and the report of the Firearm Expert that the recovered empties were fired from different weapons and statement of Saqib son of Muhammad Farid recorded under sections 161 and 164, Cr.P.C., prima facie, connect the accused- petitioner with the commission of offence.
9. The argument of the learned counsel for the petitioner that it is not clear as to from whose shot the injuries were sustained by complainant and deceased. At this stage it would be sufficient to say that it is wholly immaterial as to whose shot proved fatal and the same would be seen at trial. The tentative assessm ent of material on record shows that there exists prima facie case connecting the accused-petitioners with the commission of offence. No case, therefore, for grant of bail to the accused-petitioner is made out. The application in hand is dismissed in circumstances.