Allah Ditta, Mannan son of Fateh Muhammad and Akbar Ali son of Atta Muhammad were accused of the murder of Muhammad Anwar vide F. I. R. Dated the 13th of November 1964, lodged at Police Station Ichhra, Lahore. The case is pending enquiry in the Court of Mr. Javed Dastgir Mirza, Magistrate Ist Class, Lahore.
This is an application under section 561-A; Cr. P. C. For the quashment of proceedings against Akbar Ali son of -Atta Muhammad accused.
2. The facts of the case briefly stated are that Muhammad Anwar deceased was named as an accused person in an F. I. R. Under section 307, P. P. C. Dated the 6th of October 1964, (Police Station Choong), in which he was accused of having fired at a Police Officer, whereafter he absconded. As a result of the above-noted F. I. R. His father Malik Akbar Ali was forced by the local police and the C.
I. A. To produce his son Muhammad Anwar before the police. On making inquiries, he was informed by one Barkat Dindar that on the 21st of October 1964, Muhammad Anwar (deceased) had visited the house of Ch. Abdul Haq, from where Allah Ditta (accused) had taken him away with him. Malik Akbar Ali complainant contacted Allah Ditta who stated that he and Muhammad Anwar had gone to one Malik Muhammad Hussain in district Sheikhupura and from there they bad gone to Ch. Muhammad Iqbal in village Faizpur. Accordingly Malik Akbar Ali went to village Faizpur and made inquiries from Ch. Muhammad Iqbal but the latter denied having met Muhammad Anwar or Allah Ditta. Malik Akbar Ali thereupon started suspecting" that his son might have been done away with, because he was in love with one Mst. Sakina Bibi daughter of Karam Din who was a relative of Allah Ditta accused.
3. A panchayat was called, in which Allah Ditta admitted that on the night of 21st of October 1961, he took Muhammad Anwar from the baithak of Ch. Abdul Haq to This tube-well in Mauza Bhekewal and killed him with the help of Mannan accused and Akbar Ali petitioner and disposed of the dead body and that he had taken possession of the revolver belonging to Muhammad Anwar deceased.
On the statement of Malik Akbar Ali (the- father of the deceased), an F. I. R. Was recorded about the incident on the 13th of November 1964.
4. During the investigation a revolver and the wrist watch belonging to Muhammad Anwar deceased were recovered at the pointing out of Allah Ditta and Mannan accused respectively. No recovery was made from Akbar Ali petitioner. Thereafter the Commissioner, Lahore Division referred the case to a Tribunal under the West Pakistan Criminal Law (Amendment) Act. A writ was filed by the accused which was accepted and the case was brought back in the ordinary Court and is pending in the Committing Court since January 1970.
5. In this case there is no eye-witness of the occurrence and the learned counsel for the petitioner urged that there is no evidence against the petitioner and the only thing that the, prosecution can possibly urged against the petitioner is the extra-judicial confession of Allah Ditta co-accused before the panchayat, that he had done away with Muhammad Anwar deceased with the help of Mannan and Akbar Ali (petitioner). The extra judicial confession of a co-accused, if not retracted, can of course be taken into consideration against the petitioner but conviction cannot be based solely on such a confession unless there is any other evidence on the record against the accused.
The learned counsel, therefore, submits that the proceedings before the Committing Magistrate are not likely to result in the committal of the petitioner and the proceedings should, therefore, be quashed.
6. I have heard the learned counsel for the petitioner as well as the State counsel at some length.
The learned State counsel conceded that according to the F. I. R. And the report: under section 173, Cr. P. C., there are no eye-witnesses of the actual occurrence and that the only material available against the petitioner, on which the prosecution intends to rely, is the extra-judicial confession of Allah Ditta co-accused, which he; made before the panchayat, and further that the only witness, namely, Muhammad Hussain produced before the Committing Magistrate with regard to the alleged extra judicial confession made by Allah Ditta accused has stated that Allah Ditta accused did not mention the name of Akbar Ali petitioner as having helped him in the murder.
7. Such a confession i. e., confession of the co-accused, in which he inculpates himself as well as the petitioner, is not `evidence' in itself but is a matter or circumstance that can be taken into consideration against the accused if there is some other piece of evidence against the petitioner, but conviction of the accused cannot be based on such a confession alone. This view finds support from Joygun Bibi v. The State (PLD 1960SC313), where it has been held that- "If there were no other evidence against a co-accused except the confession of an accused being jointly tried with him, then, the confession by itself being merely a matter to be taken into consideration, and not having the quality of evidence against the co-accused it could rightly be held in law that the conviction of the latter could not be sustained on the confession alone. The grounds for this conclusion would undoubtedly gain weight if the confession were also retracted."
As already observed, there no `evidence' is available against the petitioner in the present case. It is also not sure if Allah Ditta co-accused will stick to his alleged extra judicial confession. Most probably he will retract, in which case no material, at all, shall be available against the petitioner.
'Learned counsel for the State has also admitted that the revolver and the wrist watch belonging to the accused were recovered at the instance of Allah Ditta and Mannan co-accused and that nothing has been recovered from or at the instance of Akbar Ali petitioner.
8. In view of the fact that no' material whatsoever is likely to come on the accused against the petitioner the commitment proceedings would only be an exercise in futility, as they cannot possibly result in the committal of the petitioner. To allow the proceedings to continue in such a case would constitute unnecessary harassment to the petitioner, shall defeat the ends of justice and amount to an abuse of process of Court. Consequently the commitment proceedings pending in the Court of Mr. Javid Dastgir Mirza M. I. C., Lahore, as far as they relate to Akbar Ali petitioner are quashed in the interest of justice.