' This revision application is directed against the order, dated 25-3-2006 passed by the learned Judge, Anti-Terrorism Court No,I, Karachi in Special Case No,76 of 2004, allowing the application dated 27-2-2006 seeking reopening of the side of prosecution and examination of Judicial Magistrates Mr. Fareed Anwar Qazi and Mr. Rehmatulla Morio. Objections to this application were raised by the defence but the same were overruled so far as calling of the two Magistrates for evidence was concerned. However, it was observed that the effect and evaluation of their evidence and that of confessional statements of co-accused would be sorted out while deciding the case.
2. Mr. Aamir Mansoob Qureshi, learned counsel for the applicant, has contended that the impugned order is contrary to the express provisions, of Article 43 of the Qanun-e-Shahadat Order, 1984 ("the Order"). He has also relied on an unreported judgment of this Court A.T.A. No,15 of 2005. He submitted that since the question goes to the very root of the proceedings, the same should have been decided first and if it was held that such evidence was admissible, only then he should have proceeded further instead of recording the evidence first and then deciding the fate thereof at a later stage.
3. Mr. Habib Ahmed, learned A.A.-G., has submitted that statement of one of the two witnesses, namely, Mr. Rehmatullah Morio, who recorded the confessional statement, has already been recorded and the matter can now be examined in detail by the learned trial Court.
4. It would be advantageous to reproduce Article 43 of the Order, which reads as under:-- "43. Consideration of proved confession affecting person making it and others jointly under-trial for same offence.--- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons is proved:--
(a) such confession shall be proof against the person; making it; and
(b) the Court may take into consideration such confession as circumstantial evidence against such other person."
' Thus, it would be seen that such confession is proof against the person making and against the person or persons jointly tried with him for the same offence. In the present case the situation is not such as the accused who confessed their guilt are not being tried with the applicant.
6. In the unreported judgment in Special A.T.A. No,15 of 2005, the same question has been examined by a Division Bench of this Court in which one of us, namely Rahmat Hussain Jafferi, J., was a member and author of the judgment, and it was held therein as under:- "34. Shahzad Bajwa and Ataur Rahman were not tried together with the appellants; therefore, the allegations made by them in the confessions cannot be used as circumstantial evidence against the appellants. Therefore, the said confessional statements carry no weight at all in this case.
' It was further held as under:-- "However, it is admitted fact that Shahzad Bajwa and Ataur Rahman were not tried with the appellants in this crime. If the prosecution wanted to use the confessions of Shahzad Bajwa and Ataur Rahman in this case then they could have examined them as witnesses in the case so as to prove the allegations made in these confessions but the prosecution did not examine them as witnesses apparently for the reason that they retracted from confessions as stated by the learned Advocate for the appellants and confirmed by the Special Prosecutor."
8. In this view of the matter, further proceedings and recording of statement of witness Fareed Anwar Qazi, Judicial Magistrate, before deciding the above question first by the learned trial Court would prejudice the rights of the accused. As point of admissibility of evidence is involved in this case, it is enquired to be decided by the learned trial Court at the moment when the objection is raised. In the present case the same has not been done. Therefore, before proceeding further, the trial Court is directed to decide the question of admissibility of evidence. If the Court comes to the conclusion that such evidence is admissible only then the evidence of the witness can be recorded and if it forms the opinion that the evidence is not admissible then the evidence of the Magistrate recorded earlier should be discarded. However, it is left with the learned trial Judge to decide the question in according to law.
9. We would, therefore, set aside the impugned order, dated 25-3-2006, and remand the case to the trial Court to first consider and decide the matter of admissibility of evidence as available on record before proceeding further with the matter. The application is allowed in the above terms.