This is an application for admitting Mir and Ahmad alias Ahmi to bail in a case under section 302/34, P. P. C. By order 'dated the 31st August-1970, the petitioners have been committed to stand their trial in the Court of Session.
2. The grounds for bail are:--
(a) There are no eye-witnesses and the petitioners have been challaned due to suspicion.
(b) It is alleged that the extra judicial confession was made to months after the occurrence whereas the petitioners were arrested by the police only one month after the occurrence. Besides, a joint extra judicial' confession by the petitioners along with one Amir could riot be received as evidence.
(c) The petitioners having been enlarged on bail by the Sessions Judge, the committing Magistrate was not competent to cancel their bail while committing them to the Court of Session.
3. Kamir (P. W. 1) in his statement dated the 30th July 1970, clarified that he had informed the Thanedar that he had seen the accused persons assaulting the deceased. Dalmir P (P.W. 7), on cross-examination, stated that he had seen both the accused persons, running away from the spot of occurrence and that he had identified them beyond possibility of a mistake. He added that Ahrrni accused had fired can the deceased. Raqir (P. W. 10) stated that he had identified both the accused persons from a distance of 15 karams and that he had seen Ahmi firing from his gun at Farid deceased. Learned counsel for the petitioners subjected these statements to adverse criticism for obvious reasons, it is not desirable to examine "these statements exhaustively which shall be done in the Court of Session. Suffice it to say, that ocular evidence is available on the record.
4. Dalmir (P. W. 7) stated that to months after the occurrence Mir and Ahmi accused and Amir father of Mir accused came to the house of Sadiq, a cousin of Dalmir, and there begged for pardon, offered Rs. 10,000 and a female in marriage. Baqir (P. W. 10) stated that in the house of Sadiq, Ahmi, Mir and Amir, in the presence of Dalmir and Kamir, confessed their guilt and begged for pardon.
Sadiq (P. W. 11) made a similar statement. Learned counsel for the petitioners contended that according to Dalmir this so-called extra judicial confession took place "to months after the occurrence". He pointed out that the occurrence took place on the 4th November 1969 and that the petitioners were arrested on the 6th December 1969. According to him, the allegation that they made the confession to months after the occurrence was false. Baqir P. W. In his statement dated the 21st May 1970, did not specify the point of the at which this confession was made. Sadiq in his statement dated the 3rd June 1970, explained that this confession was made about 6 months before the date of statement, that is to say, about the 3rd December 1969.
Amir is father of Mir accused but is not an accused person. May be he accompanied his son Mir, as an elderly person and asked for pardon. In any case, any confession by Amir is without consequences.
It is noticeable that these witnesses did not specify the confession which the to accused persons individually made. It had been held in the cases reported in Ali v. Crown (PLD 1950 B J 26) and 7 P a 1916 that a confession alleged to have been made by to or more persons jointly, is no evidence.
5. It has been held in the case reported as Nur Muhammad v. State (PLD 1964 Lah. 464), that where an accused in a non-bailable offence has been released on bail by the Sessions Judge, during the commitment proceedings, the Magistrate, while committing the accused the Court of Session, is not competent to order re-arrest of the accus--ed. It is remarkable that in that very case, since the High Court came to the conclusion that a prima facie case had been made out, the High Court cancelled the bail and ordered formal arrest of the accused.
In the instant case, the Inquiry Magistrate concluded that a prima facie case under section 302/34, P: P. C. Had been 'made out against the petitioners and, therefore, he committed them to the Court of Session. Ordinarily since the petitioners had been enlarged on bail by the Sessions Judge, the Inquiry Magistrate should not have cancelled the bail. It had been held above that there is ocular evidence to connect the petitioners with the murder of Farid deceased, and there are no reasonable grounds to believe that the petitioners did not commit any offence punishable with death or transportation for -life within the meaning of section 497, Cr. P. C. They are not entitled to remain on bail. Accordingly I direct that the petitioners who are already in custody, be formally arrested.
6. It is remarkable that the petitioners'- have not come up .To question the commitment and have only asked for bail. As held in the case reported as Muhammad Shafiq v. Muhammad Hanif (1970 SCMR 143), they are not entitled to bail: The petition for bail is, therefore, dismissed.