1. ' MUNIB AKHTAR, J.--This Criminal Revision Application arises in the following circumstances. On 15- 7-2009, F.I.R. No,28 of 2009 was registered at Police Station Tando Allahyar. Briefly stated, the complainant's grievance was that he was the munshi of one Muhammad Umer Bughio who was on inimical terms with one Allah Dino Khizri. According to the complainant, his elder brother Panjoo Mal was the kamdar of the aforesaid Muhammad Umer Bughio. The complainant stated that a few days prior to the date of incident, one Abdul Jabbar Leghari came to him and his brother and warned them of dire consequences if they continued working for Muhammad Umer Bughio. This was on account of some alleged quarrel between Mr. Bughio and Mr. Leghari. The complainant stated that on the night of 15-7-2009, he and his brother were sleeping in the otaq of Mr. Bughio when the complainant was awoken by cries and shouting. He saw his brother being attacked and beaten by three persons of whom one was the aforesaid Mr. Leghari. The complainant alleged that Mr. Leghari, who was armed with a pistol, fired at his brother, as did one of the other assailants and as a result of this firing, his brother was killed. The accused party however, made good their escape.
2. After registration of the F.I.R., the' matter was investigated by the police and one Khair Muhammad was arrested in connection with the crime on or about' 25-9-2009. Khair Muhammad appeared before the concerned Magistrate on 1-10-2009 and recorded a confessional statement under section 164, Cr.P.C. For present purposes it is sufficient to note that in his confessional statement Khair Muhammad implicated the present applicant as having asked him to murder Panjo Mal and for this purpose, promising him Rs,100,000. Khair Muhammad stated in his confessional statement that the applicant gave him Rs,30,000 and also apistol and six bullets and that he, Khair Muhammad along with another accused, one Ghulam Qadir Kalhoro murdered Panjo Mal on 15-7- 2009. Khair Muhammad stated that he had handed over the pistol given to him by the present applicant to Ghulam Qadir Kaihoro and that the fatal shot was fired by the latter using this pistol.
3. ' It appears that by reason of the aforesaid confessional statement, A the present applicant was also involved in the investigation. It may be noted that the applicant is in fact the brother of Muhammad Umer Bughio, the employer of the complainant and the deceased Panjo Mal. The matter was investigated by the police and they eventually came to the conclusion that the present applicant was not involved in the murder. Therefore, when the final challan was submitted, the present applicant was shown in Column No,2 of the challan.
4. ' The matter proceeded to trial in the court of the VIth Additional Sessions Judge, Hyderabad as Sessions Case No,879 of 2009, and I am informed that the trial is underway. On 25-5-2010 the learned trial Court framed the charge of murder against Khair Muhammad, Abdul Jabbar Leghari and Allah Dino Khizri. All three pleaded not guilty and thus it appears that Khair Muhammad has retracted, or resiled from, his confessional statement. On 13-7-2010, the examination-in-chief of the complainant and one other prosecution witness was recorded and the matter adjourned to 29-7- 2010 for their cross-examination. On that day, learned counsel appearing for one of the accused drew the attention of learned trial Court. To the fact that the applicant's name had been placed in Column No,2 of the challan but that no formal order had been made in regard to the applicant by the court. On this, the learned trial Court issued a notice to the applicant to show cause why his name should not be placed along with the other accused, and he also tried for the murder of Panjo Mal. After hearing learned counsel for the applicant and considering the record, the learned trial Court, by means of impugned order dated 8-10-2010, while relying on Article 16 of the Qanun- eShahadat Order, 1984, held as follows:-- "It is a murder case and number of witnesses has been cited in the challan sheet and obviously the trial will be lengthy and if after recording evidence some material come against the accused Abdul Rasheed the trial would be de novo and once again a lot of time consumed for trial. There is no legal requirement that at the first instance evidence should be recorded to ascertain as to whether prima facie case is made out against the accused Abdul Rasheed.
5. ' In the above circumstances and by taking the cognizance under sections 190 and 193, Cr.P.C. The accused namely Abdul Rasheed is joined to face the trial."
6. ' Being aggrieved by the aforesaid order, the applicant was constrained to file the present revision before this Court.
7. ' Learned counsel appearing for the applicant submitted that the impugned order was patently illegal. His case was that the alleged involvement of the present applicant in Panjo Mal's murder has been properly investigated and the police had concluded that he was not involved in the offence at all. He submitted that the applicant was admittedly Muhammad Umer Bughio's brother and both the complainant and the deceased were the latter's employees. Nothing whatsoever had been shown as would indicate that the applicant would have any cause or motive to murder Panjo Mal. As regards the confessional statement of Khair Muhammad, learned counsel submitted that the said statement stood retracted since Khair Muhammad had pleaded not guilty at the trial. In any case, the effect, of the statement and its retraction was limited only to Khair Muhammad and did not extend even to the other accused, let alone the present applicant. At most, the statement could be regarded as providing material to the police to investigate the applicant's role, if any, in the incident and that had already been done. He further submitted that Article 16 had no application in the facts and circumstances of the case. He also pointed out that the complainant had categorically stated that the applicant had nothing to do with his brother's murder. The complainant was present in court on the day of the hearing of this application, and confirmed that this was his position.
8. ' Learned A.P.-G defended the impugned order. He submitted that no illegality had been committed and the applicant ought to face trial in the matter. His case was that if the applicant was joined as co-accused and in the end, the offence against him was not proved, he would in any case stand exonerated. On the other hand, if he were not joined as an accused and during the course of the trial some evidence came on the record which showed his involvement, the trial would have to proceed afresh insofar as the present applicant was concerned which would not only result in unnecessary delay, but would also be unduly burdensome on the prosecution witnesses.
9. I have heard learned counsel for the parties and have perused the record with their assistance. The first point to note is that the applicant was placed in Column No,2 of the challan after what appears to be a proper investigation in the matter. Certainly, the complainant does not appear to have any grievance in this regard. It is therefore clear that insofar as the prosecution is concerned, it will not lead, or be able to lead, any evidence that would implicate the applicant. Insofar as Khair Muhammad is concerned, he is an accused in the trial. As noted above, the entire matter against the present applicant emanates from the confessional statement made by Khair Muhammad. Now there are two possibilities at the trial. One possibility is that Khair Muhammad simply does not come forward as a witness in his own defence. In this situation, there would (subject to what is further stated hereinbelow) be no evidence before the trial court as to any involvement of the applicant in the offence. The other possibility is that Khair Muhammad does come forward as a witness in his own defence and his confessional statement, insofar as the present applicant is concerned, may become relevant in this situation. However, it is to be noted that even in this situation, Khair Muhammad will only be appearing as a witness in his own defence and not as a prosecution witness against the applicant were the latter also to be on trial. Now Article 16 of the Qanun-e-Shahadat Order, 1984 ("QSO") provides as follows:- "16. Accomplice. An accomplice shall be competent witness against an accused person, except in the case of an offence punishable with Hadd and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."
10. ' Article 16 applies in a situation where the accomplice has turned approver, i,e,, he is appearing as a prosecution witness against one or More of the other accused. The law is well-established that in such a situation, the testimony of the accomplice is not accepted unless corroborated by other evidence. It may be noted that Article 16 is based on section 133 of the (repealed) Evidence Act, 1872 ("the 1872 Act"). In Federation of Pakistan v. Muhammad Shafi Muhammadi 1994 SCM R 932 the Supreme Court, after referring to its own earlier decisions, held as follows:-- "The above judgments are in line with the stream of judgments of the Superior Courts of Indo-Pak.
11. The rule \of prudence that the testimony of an approver or accomplice is to be corrobordted in material particulars by independent evidence has almost hardened into a rule of law with the passage of time and because of the invariable insistence of the Superior Courts to have corroboration. Though in theory section 133 of the late Act provided that the conviction of an accused person on the basis of uncorroborated evidence of an accomplice was not illegal, but in practice this was not acted upont There may be a few cases in which the above provision of the late Act might have been pressed into service but overwhelming judicial consensus has been that conviction on the basis of the sole testimony of an approver or accomplice is not safe." (emphasis supplied; para 10)
12. It will therefore be seen that even if it is assumed for the sake of argument that Khair Muhammad, while appearing as a witness in his own defence, could somehow be regarded as an accomplice- turned-approver on behalf of the prosecution against the applicant, his testimony under Article 16 would only be accepted if corroborated in material particulars by independent evidence. This however, would not be the case since, as noted above, the prosecution has already concluded that the applicant was not involved in the offence and hence would not lead, or be able to lead, any evidence in this regard. Quite obviously, any conviction of the applicant based solely on the evidence of the accomplice, being entirely unsafe, could not come about in such circumstances.
13. ' Reference must also be made to Article 43 of the QSO, which provides as follows:-
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.
14. ' Explanation: 'Offence' as used in this Article, includes the abetment of or attempt to commit the offence.
15. ' It is possible that at the trial currently underway. Even if Khair Muhammad does not come forward as witness in his own defence, his retracted confession may be tendered in evidence by the prosecution and stand proved in accordance with law. If so proved, then, in terms of clause (a) of Article 43, it would be proof against Khair Muhammad (the exact weight to be attached to a confession proved in such circumstances would of course depend on the totality of the evidence led at the trial. And nothing herein contained, is intended to comment on the same, nor should it be construed as such). As regards the applicant, if he were also on trial as a co-accused, it is clause
(b) that would (if at all) be applicable. The trial coat could (but would not be bound to) take the confession into consideration as circumstantial evidence against the applicant. Now Article 43 is based on section 30 of the 1872 Act. Maqbool Hussain v. The State PLD 1960 SC 382. The Supreme Court observed as follows in relation to section 30:-- "We next take up consideration of the question whether section 30 of the Evidence Act could not be called in aid of the prosecution in support of the appellant's conviction. Assuming that statements of a confessional nature were made by the co-accused of the appellant, to the Tehsildar, affecting themselves and the appellant, section 30 of the Evidence Act merely provides that the Court 'may take into consideration' such confessions as against the appellant, as well as against their makeRs, The language of the section is very guarded and lends no warrant to the inference that such a statement made by a co-accused could be treated as substantive evidence against the other person, sufficient to sustain his conviction. It is well-settled that there ought to be other evidence, whether direct or circumstantial, linking such a person with the crime, before a confession made by a co-accused could be adverted to, in adjudging the guilt of that person. The case-law on the subject would be found summarised at p. 207 in Monirs Law of Evidence, Vol. I (Fourth Edition). The persuasive efficacy of such confessional statements would be further weakened by the circumstance that their makers have themselves resiled from them. As has been mentioned above, all, that the prosecution could muster against the appellant, by way of evidence in this case, is confined to the statements of his co-accused to the Tehsildar. In this state of affairs it would be impossible to maintain the appellant's conviction for an attempt to bribe the Tehsildar." (emphasis supplied)
16. ' Reference may also be made to Joygin Bibi v. The State VLD 1960 SC 313, Abdul Alim v. The State 1971 PCr.LJ 1230, Rizwana Bibi and others v. The State and others 2003 YLR 263 and Muhammad Azam and others v. The State 2006 PCr.LJ 62. As already noted above, the prosecution would not, or not be able to, lead evidence against the applicant. Thus, even if Khair Muhammad's retracted confession is proved by the prosecution, any conviction of the applicant (if he were a co-accused) solely on the basis of, such confessional statement, would be entirely unsound.
17. Thus, on any view of the matter, it is difficult to understand, in the facts and circumstances as presently available, what could come out of the trial currently underway that could result in a conviction of the present applicant. The apprehension expressed by the learned trial Court in this regard therefore, appears at present to be unfounded and hence there does not seem to be any reason why, in the facts as presently available, the applicant should be joined as an accused in the trial. The inconvenience and hardship caused to the applicant by joining him as an accused in such circumstances must however, also be balanced against the interests of justice. Therefore, if at the conclusion of the prosecution evidence, the learned trial Court comes to the conclusion that there is independent corroborative evidence (i,e,, evidence other than the confessional statement of Khair Muhammad) forthcoming against the applicant, then it may, after giving an opportunity of hearing to the applicant, consider joining him as an accused in the case.
18. ' For the foregoing reasons, I am of the view that the impugned order cannot be sustained.
19. Accordingly, this revision application is allowed, the impugned order is set aside and, subject to what is stated in the last preceding paragraph, the applicant is restored to his former position in .Column No,2 of the challan. The main application and the listed MA stand disposed of as above.