1. ORDER BHAJANDAS TEJWANI, J.---This bail application has been moved on behalf of the applicant Ehsanullah, who is facing trial before the Court of Sessions Judge Karachi South, under section 302/435 QDO, arising out from Crime No. 392 of 2007, registered with Police Station Boat Basin, Clifton Town, Karachi.
2. The brief facts of the case are that on 13-10-2007, the complainant Arsalan Shabbir lodged F.I.R. In respect of murder of his father Shabbir-u-Rehman's, stating therein that his father was residing with them in a house in Block-2, P.E.C.H.S., Karachi but when he did not return from his office, he attempted to contact with his father but no reply was received from the phone of his father.
3. Thereafter, he contacted the Tracker Company, who informed that the Car of his father is standing at Boat Basin Chowk. The complainant reached there but in the meantime he received telephonic call from one Munawwar Shaikh, the friend of the complainant's father, who disclosed that whereabouts of complainant's father are known to him, who took him to Jinnah Hospital, where they came to know that a murder had took place at Third Floor of Boat View Apartments at Boat Basin and the dead body is without head. Thereafter, the complainant approached the Edhi Ice Centre, Suhrab Goth, where he and his mother identified the dead body, which was handed over to the Complainant. Thereafter, he lodged the F.I.R. That unknown accused persons have caused murder of his father and so also have set on fire the said flat.
4. After lodging the F.I.R. The investigation continued. On 22-11-2007, 164, Cr.P.C. Statement of one Poonam Verma was recorded, who claimed to be eye witness of the incident, in which she implicated one Humayoon and another as main culprits of the incident, who cutoff the head of Shabbir-u-Rehman's in her presence and she had also identified the Humayoon at the Airport and it transpires that said Humayoon, who was arrested on 19-3-2010, when he came from Dubai but he was released in 31-3-2010 and was not challaned by the police and on 5-4-2010 the police arrested Poonam Verma and got recorded her confessional statement on 6-4-2010 before the learned Judicial Magistrate, in which she admitted to be accomplice with the present applicant, who committed the murder of the deceased and cutoff the head from the body but she thereafter separated the head and took it in her bag and left outside the flats and on the basis of such statement the present applicant was booked in the matter as an accused and the challan in the case was accordingly submitted by the police on 7-7-2010.
5. Messrs Mehmood Alam Rizvi and Muhammad Amin Lakhani, appearing for the applicant have contended that the name of the applicant does not transpire in the F.I.R. Nor any role has been assigned to him and that the applicant has been involved on the basis of second statement and confession of Mst. Poonam Verma, who in her statement has attempted to show that she was accomplice with the applicant in committing the murder of the deceased. The said confessional statement was recorded after a period of 2-1/2 years, in which she had given a totally different version and story, which she had given in her 164, Cr.P.C. Statement dated 22-11-2007, involving one Humayoon and others. The learned counsel referred the earlier statement of Mst. Ponam Verma, in which she stated that deceased Shabbir-urRehman's was his boss and he had invited her on a Flat for `Aftar Party', which he had arranged in the honour of his friends, who had come from Dubai.
6. When she reached at the Flat she saw that one Humayoon and two others along with stranger girls and liquor were available there. The said Humayoon also attempted to compel Poonam Verma for sexual intercourse on which Shabbir-u-Rehman's used harsh words against the said Humayoon and a fight started between them. The said Poonam attempted to separate them. Thereafter, the said Poonam attempted to leave the flat but Humayoon asked the other persons who had come from Dubai, not to allow her to leave the Flat.
7. The learned counsel further submitted that this is nothing but malice on the part of the police. They did not book said Humayoon and another but involved the applicant after 2-1/2 years by getting confessional statement of Mst. Poonam Verma and attempted to make her "Approver" in the matter and tender pardon to her. According to the learned counsel, the confession of Poonam Verma is exculpatory and not inculpatory and she had not disclosed her motive, intention and role in commission of murder, wherein the applicant is alleged to have cutoff the head of deceased and thereafter the same was separated by Poonam. This is an intelligent statement of confession in which no role of causing murder of the deceased was disclosed.
8. It was further urged by the learned counsel for the applicant that statement and confession of Poonam Verma cannot be termed as trustworthy as she has been changing the same. In her first statement recorded under section 164, Cr.P.C. She had took a different version of the incident in which the deceased Shabbir-ur-Rehman's is shown to be a person of ill-character, who was sitting with his friends along with stranger girls and were taking liquor (whisky) and the role of causing murder was alleged by her against Humayoon and another, while after about 2-1/2 years she had made a totally different statement and it is yet to be determined that which of the version or statement of Poonam Verma is correct.
9. The learned counsel also contended that it is a settled proposition of law that the confession and admission of co-accused cannot be used or made the basis of conviction against another accused and that there is no piece of evidence with the prosecution to connect the present applicant with the alleged offence, except exculpatory confession of Poonam, which is also inconsistent with her earlier statement recorded about 2-1/2 years back before the Magistrate. The learned counsel have relied on the case of Abdul Aziz v. The State (1987 M LD 1465) and the case of Chaudhry Muhammad Yaqoob v. The State 1992 SCM R 1983.
10. Mr. Hanif Kashif, learned counsel for the complainant has opposed the bail and has contended that the complainant will be prejudiced and trial will be over in case the applicant is allowed bail. He has contended that apart from the confession of Poonam Verma, which is inculpatory, the extra- judicial confession of applicant before P.W. Zamir and Dr. Hafeez are available on record and during the course of causing of murder of the deceased the hand of the applicant was injured. The learned counsel further contended that there is apprehension that the applicant, who is influential person, will temper the evidence of prosecution and lastly he has prayed for dismissal of the application as according to him, the murder of deceased was a brutal act on the part of the applicant.
11. Mr. Imtiaz Ali Jalbani, learned Assistant Prosecutor-General, appearing for the State, has argued that he will not support the case of prosecution on the point of extra judicial confession, which is not in terms of Article 40 of the Qanun-eShahadat Order but he has contended that the confession of Poonam Verma is inculpatory, therefore, same being independent piece of evidence and prima facie involves the applicant and in view of confessional statement of Poonam, the applicant is not entitled for concession of bail.
12. I have considered the argument of learned counsel for the parties, learned A.P.-G. And have consulted the available record.
13. It is an admitted position that in her first statement recorded on 22-11-2007 under section 164, C.P.C.
14. Poonam Verma disclosed herself as an eye witness of the incident and stated on Oath that the deceased, who was a person being not of good character, has called her in a company of stranger girls where liquor was being served and was being taken by the deceased and his friends along with the girls brought for the purpose of sexual lust and when one Humayoon attempted to compel Poonam for his sexual satisfaction, there were harsh words and fight between the deceased and said Humayoon, during such course said Humayoon along with another caused the murder of deceased and by cutting of his head from neck but the Investigating Agency did not involve the said Humayoon or anyone else and investigation was kept pending but after 2-1/2 years all of a sudden Poonam Verm was arrested and she was produced before the Magistrate where she admitted to be accomplice of the murder with the applicant, who had, according to Poonam Verma cut of the head of deceased and after such commission of murder by the applicant she separated the head of deceased and took it into her bag for leaving it at unknown place. In her confession she has also not disclosed any motive or intention as accomplice with applicant in causing the murder of deceased.
15. From the above position, it reveals that there is only evidence in shape of confession of the accomplice, which is inconsistent with her earlier stand and there is no corroboration of the said confession, recorded after a delay of about 2-1/2 years. The only confession of accomplice in the circumstances of this case, without any corroboration, will be not sufficient to record conviction in the matter. The extra- judicial confession is a week type of evidence and on the basis of such evidence there are hardly chances that same will help the case of prosecution.
16. It is settled proposition of law that the confession of accused admitted the guilt or commission of offence can only be used against that accused and not against the co-accused. Article 34 of Qanun-e-Shahadat is attracted in such cases, which envisages that an admission may be proved by or on behalf of a person making it and not against any other person. In this case, it is yet to be determined by the trial Court after recording evidence that the accomplice Poonam Verma, who has been changing her statements, version and making inconsistent statements, can be termed as trustworthy witness or conviction can be based on her sole statement. The contention that confession is inculpatory or exculpatory or its evidentiary value is to be determined at the trial stage and not at this bail stage.
17. In view of the above, the case of the applicant, which rests on the sole evidence of confessional statement of accomplice Poonam, needed probe/inquiry in view of the above factual and legal position and case-law at bar.
18. Accordingly, this bail plea is accepted. The applicant shall be released on his furnishing surety in the sum of Rs.500,000 (Rupees Five Hundred Thousand) and P.R. Bond in the like amount to the satisfaction of the trial Court.
19. The above observations are tentative in nature and should not influence the trial Court at the time of adjudication of the matter.