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Petitioner: MUHAMMAD HUSSAIN VS Respondent: STATE
1994 M L D 1346
1994 M L D 1346
[Lahore]
Before Muhammad Nawaz Abbasi, .J
MUHAMMAD HUSSAIN ---Petitioner
versus
THE STATE---Respondent
Criminal Miscellaneous No.1792/B of 1993, decided on 28th February, 1994.
(a) Criminal Procedure Code (V of 1898)---
----S.497/498---Bail---Assessment of evidence---Inference of guilt or otherwise for the purpose of bail cannot be drawn without tentative assessment of the evidentiary value of the collected material---Court, however, is not supposed to examine the merits of the prosecution case or the defence plea testing the veracity of witnesses by making a deep appraisal of evidence: --[Evidence].
(b) Penal Code (XLV of 1860)---
----S.302/34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Confessional statement ---Confessional statement made by accused if voluntary and true and corroborated by other direct or circumstantial evidence can be relied upon for conviction.
(c) Criminal Procedure Code (V of 1898)---
----S.497---Penal Code (XLV of 1860), S.302/34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Bail, grant of-- Evidence of last seen already existed against the accused when he made a confessional statement immediately after his arrest which was corroborated by medical evidence---Sufficient grounds, thus, were available to connect the accused with the commission of offence---Bail was declined to accused accordingly.
Sh. Muhammad Faheem for Petitioner.
ORDER
The petitioner has moved this application for the grant of bail after refusal of the same by the learned Additional Sessions Judge, Vehari, vide order, dated 30-11-1993.
2. The petitioner was arrested in a case under section 302/34, P.P.C. read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) registered against him with Police Station Mailsi on the basis of opinion expressed by Ahmad Yar and Allah Ditta, Trackers in their statements under section 161, Cr.P.C. that the moulds of foot prints of culprits taken by them from the spot have enough resemblance and similarity with that of the petitioner. During the investigation it revealed that the petitioner on the day of occurrence was last seen driving tractor in the field of Rab Nawaz Khici and the dead body of Mst. Sakina was later found lying by Ghulam Nabi and Muhammad Hanif P.Ws. in the said field. The petitioner immediately after his arrest on 22-3-1993 rnade a judicial confession before a local Magistrate, stating that he after committing Zina with Mst. Sakina put her to death, causing injuries to her with sickle.
3. It has been contended by the learned counsel for the petitioner that the statements of trackers under section 161, Cr.P.C. were recorded on 17-3-1993 i.e. about 4/5 days before the arrest of the petitioner and that the judicial confession having been retracted by the petitioner lost its evidentiary value, hence with the exclusion of evidence of tracker and extra-judicial confession, there is left no evidence to connect the petitioner with the commission of crime. He argued that in any case, in absence of any direct and convincing evidence the case against the petitioner by virtue of section 497(2), Cr.P.C. requires further inquiry, entitling him to be released on bail.
4. The petitioner immediately after his arrest made an extra-judicial confession which he later retracted and in the normal course a retracted confession in absence of any other corroborative evidence is not considered sufficient for the purpose of conviction but if the judicial confession made voluntarily and was true and confidence inspiring seeking corroboration by the attending circumstances can have full utility to be based for conviction. According to Ghulam Nabi and Muhammad Hanif P.Ws. four days before the arrest of the accused i.e. on the day of occurrence, the petitioner was seen by them driving tractor in the field of Rab Nawaz Khichi near the place of recovery of dead body of Mst. Sakina. The petitioner in his confessional statement has admitted the driving of tractor in the field of Rab Nawaz and killing of Mst. Sakina after committing Zina with her. The commission of Zina with the deceased lady is proved from the medical evidence. The making of confessional statement immediately after the arrest apparently being free from any outside influence or concoction appears to have been made voluntarily, hence such confession, if true and confidence inspiring, seeking corroboration from other source even if subsequently retracted shall remain a convincing evidence to establish the-charge.
5. A person; accused of a non-bailable offence cannot be released on bail until there appears reasonable grounds for believing that he was not guilty of an offence punishable with death or imprisonment for life. Undoubtedly, without tentative assessment of the evidentiary value of material collected, an inference of guilt or otherwise for the purpose of bail cannot be drawn. However, the Court is not supposed to examine the merits of the prosecution case or the defence plea testing the veracity of witnesses by making a deep appraisal of evidence in favour or against the prosecution or defence to ascertain the correctness of the allegation and to rule out all possibilities of commission of offence by an accused, he is being charged.
6. A confessional statement made by a person if voluntarily and true and is also corroborated by other evidence direct or circumstantial available on record, can with no hesitation be given full effect to be relied upon for conviction. In the present case, the evidence, of last seen furnished by Ghulam Nabi and Muhammad Hanif P.Ws. already in existence, before making a confessional statement by the petitioner immediately after his arrest and corroborated by the medical evidence apparently provides sufficient grounds to connect the `petitioner with the commission of offence. Consequently, there being no good ground for grant of bail this petition stands dismissed.
N.H.Q./M-1522/L Bail declined.