' TALAT QAYUM QURESHI, J.--- Having been involved in case registered vide F.I.R. No,528, dated 4-7- 2000 under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Gul Bahar, Peshawar the accused-petitioner applied for his release on bail before the learned Judge, Special Court, Peshawar, but the same was dismissed vide order, dated 12-2-2000. He has now approached this Court for his release on bail.
2. Hassnain Kiayani, the complainant, on 4-7-2000 at 10-25' a.m. Reported that he was robbed by unknown persons. Four copies of Rs,15,000 denomination, 34 copies of Rs,750 denomination prize bonds 'and Rs,3-1/2 lakh (Rs,3,50,000) were snatched from him during dacoity.
3. Mr. Ishtiaq Ibrahim the learned counsel representing accused petitioner argued that there is no evidence against the accused-petitioner to connect him with the commission of offence. The petitioner was arrested on 7-7-2000 in a raid conducted on his house. At the time of his arrest Rs,1,31,000 were recovered from a room and on the following day i.e, 8-7-2000 Rs,2,40,000 were again recovered from the same room. The entire recovery is doubtful. It was further argued that co-accused Muhammad Saeed Jan made confession before the Judicial Magistrate on 12-7-2000, who was not competent to record the same. His statement is exculpatory and was recorded after 5 days of occurrence, hence cannot be relied upon at this stage. At the most the accused-petitioner, it was argued, can be charged under section 411, P.P.C., which is punishable only for 3 years and his case would not fall under the prohibitory clause of section 497, Cr.P.C.
4. On the other hand Mr. Akhtar Naveed, Advocate, the learned counsel representing the complainant and Mr. Tariq Javed, A.A.-G. Representing the State argued that not only co-accused Muhammad Saeed Jan in his confessional statement attributed role to the petitioner but sum of Rs,1,31,000 were recovered on 7-7-2000 and Rs,2,40,000 were recovered at his pointation on 8-7- 2000. Moreover, the snatched prize bonds were sold to prize bond dealer Bilal at Rawalpindi whose statement under section 164, Cr.F.C. Was recorded on 11-7-2000. He also identified the accused- petitioner for having sold the prize bonds to him for Rs,3,80,000. Therefore, there is ample evidence against accused-petitioner to connect him with the commission of the offence.
5. We have heard the learned counsel for the parties and perused the record.
6. No doubt none was charged in the F.I.R. Which was lodged after 25 minutes of the occurrence. It was on 7-7-2000 that the accused petitioner as well as Muhammad Saeed Jan co-accused were arrested. At the time of his arrest, Rs,1,31,000 were recovered from Almira of room of his house, on the following day i.e, 8-7-2000 on his pointation. A sum of Rs,2,40,000 was recovered from a brief- case lying in a room of his house. Muhammad Saeed Jan, co-accused, confessed his guilt before Judicial Magistrate on 12-7-2000 in which he attributed a specific role to the accused-petitioner. As per his statement, the snatched prize bonds were sold by the accused-petitioner and others to a prize bonds dealer namely Bilal at Raja Bazar, Rawalpindi. Statement of said Bilal was also recorded under section 164, Cr.P.C. On 11-7-2000 in which he charged accused-petitioner for having sold prize bonds for Rs,3,80,000. He also identified the accused-petitioner who was in police custody. All this indicate that there is a strong prima facie case which connect the accused-petitioner with the commission of offence.
7. The argument of the learned counsel for the petitioner that the confessional statement recorded by the Magistrate would not be a confession and would have no legal effect as the same should have been recorded by the trial Court has a force in it. Confession under Hudood cases must be recorded by trial Court and a Magistrate could not be competent to undertake this exercise and in consequence any statement recorded by a Magistrate would not be confession and, therefore, would have no legal effect. This proposition was exhaustively dealt with by a Full Bench of Federal Shariat Court in Muhammad Naseer v. The State PLD 1988 FSC 58 wherein it was held that:-- ' "It will be seen that trial of the offence of Zina has to be undertaken only by a Sessions Court as laid down in the second proviso to section 20 of the Ordinance VII of 1979 and the jurisdiction of a Magistrate has been expressly excluded. Any statement before a Magistrate, therefore, is not a confession under section 8(a) of the Ordinance VII of 1979 and, therefore, has no legal effect."
' Likewise in Mumtaz Khan v. The State 1992 PCr.LJ 412 it was held that confession in Hudood cases must be recorded by trial Court and Magistrate would not be competent to take that exercise. In the case in hand if the confessional statement of Muhammad Saeed Jan is not considered keeping in view the above cited judgments even then the recovery effected at the pointation of the accused-petitioner, statement of Bilal and the manner in which the offence was committed at 10- 00 a.m. In the busy area of the City there appears reasonable grounds for believing that he has been guilty of an offence punishable with 14 years and with whipping. We are, therefore, not inclined to release him on bail.
' Resultantly, the bail application in hand is dismissed. The prosecution is directed to put in the challan of the case within shortest possible period in the competent Court.