' It was on 1-3-1989 when A.S.I. Rah Nawaz, during the patrol duty, on reasonable suspicion searched the person of Sarwar Khan alias Sarhadi, a co-accused of the petitioner, and recovered heroin weighing 54 grams. A case was formerly registered against him under section 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, vide F.I.R. No, 54 Police Station Mirpur.
2. During the investigation of the case, Sarwar Khan Sarhadi made a judicial confession which in while he inculpated himself, deposed that he purchased the same from the accused-petitioner.
Resultantly his arrest was also effected.
3. The accused-petitioner moved an application before the learned Magistrate 1st Class Abbottabad seeking bail but the application was rejected vide his order dated 17-4-1989. His attempt in this regard to approach by way of a bail application the learned Additional Sessions Judge, Abbottabad also proved abortive as per the impugned order, dated 2-5-1989. Hence the present application.
4. I have heard Mr. Muhammad Akmal Malik, Advocate learned counsel for the petitioner and also Mr. Muhammad Aslam Khan, Assistant Advocate-General for the State and perused the record with considerable degree of care.
5. Learned counsel for the petitioner contended that there is no evidence available on the record against the accused-petitioner save the confessional statement of principal accused Sarwar Sarhadi, that he was not arrested on the spot and that he has been arrested on mere suspicion.
Learned Assistant Advocate-General, on the other hand submitted that there is ample material available on the record to connect the accused with the commission of the offence the accused- petitioner is charged with in form of confessional statement of Sarwar Sarhadi tarnishing the accused-petitioner as well for selling the heroin recovered from him. He has also brought to my notice the fact that the accused-petitioner is also involved in such cases under section 3/4 Prohibition (Enforcement of Hadd) Order, 1979 and appears to be habitually indulging in the traffic of Narcotics.
6. I have given my serious consideration to the matter and I tend to agree with the learned counsel for the accused-petitioner that in the instant case the only evidence forthcoming against him is the confessinal statement of principal accused Sarwar Sarhadi. He relied on cases Shcra and 3 other v. The State PLD 1972 Lah. 563 and Abdul Qadus v. State PLD 1987 Sh.0 (AJ&K) 13.
7. It may however, be stated here that law of judicial confession qua a co- accused has undergone a substantial change by the enforcement of Qanun-eShahadat, 1984 in place of Evidence Act, 1872; as would be evident from section 30 of Evidence Act and Article 43 of Qanun-c-Shahadat which are reproduced here for sake of convenience:- ' Section 30.-- "When more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
' Article 43.-- "When more persons than one arc 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."
A bare reading of the aforecited corresponding provision of Evidence Act and Qanun-e-Shahadat respectively would indicate that while under the former statute, the confession made by one person affecting himself and some other persons tried jointly with him could simply be taken into consideration against such other person; under the latter statute, however, such confession may be taken into consideration as circumstantial evidence a ainst such other erson'. This insertion of the expression 'circumstantial evidence, in my considered opinion makes the law of confession relating to a co-accused rather more stringent and, if proved at the trial in accord with the principles of its admission in evidence as laid down by the superior Courts, such confession can lead to, and be made the basis of, conviction of the co-accused; subject of course to conditions, firstly, that there is brought on record some evidence corroborating the confessional statement and secondly that the evidence against the co-accused, if wholly circumstantial, is found to be incompatible with his innocence.
9. Viewed the matter in this perspective, I have no hesitation in holding that a piece of circumstantial evidence in the form of judicial confession of the principal accused, is available against the accused-petitioner, and reading section 497, Cr.P.C. With Article 43 of Qanun-e- Shandat, it cannot he said with an amount of certinty that for the purpose of bail, there exist no reasonable ground for believing that the accused-petitioner has not committed a non-bailable offence which he is charged with. Moreso, when the offence falls within the prohibitory clause of section 497, Cr.P.C.
10. Thus, while the first authority PLD 1972 Lah. 563 relied upon by the learned counsel for the petitioner, does not seem to be applicable to the factual and legal aspect of the case, the second authority PLD 1987 Sh.0 (A.I&K) 13, rather lends support to the view I have taken of the matter.
11. Reverting to the present petition, I have perused the impugned order of the learned Additional Sessions Judge and do not intend to express any opinion on the merit of the case particularly the evidentiary value of the judicial confession of the principal accused at the present stage, lest the cause of either party is prejudiced. The impugned order, however, is based on well-founded grounds and no exception can be taken to it nor do I see any reasonable ground to interfere with the discretion judiciously exercised by the learned Additional Sessions Judge.
12. In the result, I find no merit in this petition and dismiss it, accordingly.
13. I have been informed that the challan has since been submitted in the trial Court and I hopefully wish that it shall be concluded expeditiously within a reasonable time.