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Initializing Secure Chambers
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Initializing Secure Chambers
Petitioner: GHULAM HUSSAIN VS Respondent: THE STATEHonorable Justice Wahid Bux BrohiMuhammad Ishaque Khoso,Nisar Ahmed Unar,Rasheed A. Qureshi
2004 P Cr
2004 P Cr. L J 495
[Karachi]
Before Wahid Bux Brohi, J
GHULAM HUSSAIN ‑‑‑Applicant
versus
THE STATE‑‑‑Respondent
Criminal Bail Application No.83 of 2003, decided on 21st July, 2003.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/201/109‑‑‑Bail, refusal of‑‑‑Accused had a strong motive to commit the offence‑‑‑Prosecution witnesses had stated that the accused had been found guilty of having illicit terms with the wife of the deceased who was a co‑accused in the case and for which she had apologized‑‑‑Was too early to draw an inference against the prosecution case at such stage‑‑‑Bail plea was premature and the same was rejected accordingly.
Ehtesham Yousuf v. State 1997 PCr.LJ 1615; Afzal Chohan v. State 2003 PCr.LJ 142 and Criminal Bail Application No.591 of 2000 distinguished.
Muhammad Ishaque Khoso for Applicant.
Nisar Ahmed Unar for the Complainant.
Rasheed A. Qureshi, Asstt. A.‑G.
Date of hearing: 21st July, 2003.
ORDER
Applicant alongwith another is facing trial for an offence punishable under sections 302, 201/109, P.P.C.
The allegations as per F.I..R. are that applicant Ghulam Hussain and one Usman had illicit relations with Mst. Pathani (co‑accused) the wife of deceased Mir Khan and a Faisla was held in this respect wherein the applicant and the other one were found guilty who submitted apology, but they did not refrain from the same act. On the night between 3rd and 4th January, 2003 Mst. Pathani awakened complainant Muhammad Mithan the brother of deceased at 1‑30 a.m. telling him that Mir Khan had committed suicide by hanging himself with a rope in central wooden beam of the house. Complainant, his brother Muhammad Siddique, mother Mst. Khatiaja and brother Ghulam Muhammad rushed to the scene and found Mir Khan hanging and dead. The police was informed alleging that Ghulam Hussain, Usman and Mst. Pathani had killed Mir Khan. Pathani was arrested on 24‑1‑2003 and on the following day she gave a judicial confession wherein she disclosed that she had administered pills to Mir Khan and then alongwith aforementioned accused they had killed him.
I have heard Mr. Muhammad Ishaque Khoso and Mr. Rasheed A. Qureshi, Assistant Advocate‑General for the State. Mr. Khoso contended that no recovery has been effected from applicant Ghulam Hussain and that the sole judicial confession of Mst. Pathani was not enough to withhold the concession of bail as she. is co‑accused. He placed reliance on the case of Ehtesham Yousuf v. State 1997 PCr.LJ 1615, Afzal Chohan v. State 2003 PCr.LJ 142 and an unreported order of this Court passed in Criminal Bail Application No.591 of 2000.
Mr. Rasheed A. Qureshi, Assistant Advocate‑General vehemently opposed the bail on the ground that it would be too early to make a deeper assessment of evidence at this stage and overlook the judicial confession of Mst. Pathani.
I have considered all these contentions carefully in the light of facts and circumstances of this case and the precedents cited at the bar. In Ehtesham Yousuf's case 1997 PCr.LJ 1615 no doubt there was a judicial confession of co‑accused but the learned Court had additionally taken note of the attending circumstances, since the statement of the injured witness recorded under section 161, Cr.P.C. appeared to be at variance with the details of the incident given in the F.I.R. and no identification parade was held in the case although the injured eye‑witness had not named anyone. The facts of the instant case are, therefore, absolutely distinguishable. As regards Afzal Chohan's case 2003 PCr.LJ 142, the bail plea was mainly advanced on' the principle of consistency and the cited order does not describe the facts of the case so that it could be verified if on all scores it is an identical case or not. In the unreported precedent there are many additional factors which have been taken into consideration. For instance, the statement of a lady was recorded under section 161, Cr.P.C. wherein she did not implicate anybody and in her statement recorded by C.I.A. she implicated applicant in that case. The wife of deceased was arrested at the later stage and only for the first time she disclosed that she had illicit terms with the accused; moreover, her judicial confession in a way was exculpatory. The facts of the case are therefore, distinct. In the instant case there is a strong motive for which the witnesses have said that the accused had been found guilty of having illicit terms with Mst. Pathani and had apologized.
In consequence of the above discussion, I agree with learned A.A.‑G. that it would be too early to draw an inference against the case of prosecution at this stage. Bail plea as such is premature and the application is dismissed.
N.H.Q./G‑158/K Bail refused.