' INAYAT ELAIII KHAN, J.-- This order is to dispose of Criminal Miscellaneous Nos. 763/1988 and 825 of 1988 as both the applications relate to F.I.R. No, 291 of P.S. Chamkani in respect of the murder of Allama Arif Hussain Al-Hussaini, a well-known religious scholar. The occurrence had taken place on 5th of August, 1988 at 5-00 a.m. In `Madrasa Muarifat-ul-Islamia' situate on G.T. Road, Peshawar.
The report was lodged by Abdullah Jan Chowkidar in Police Station Chamkani at 6-30 a.m. Wherein no one was charged for the offence. During the investigation several persons were apprehended by the Investigating Agency including Sher Gul, Ghalib Raza Gilani and his sister Mst. Uzma Gilani.
Some of the accused, namely, Jamilullah, Muhammad Ramzan and Sher Gul made confessions.
From the perusal of the confessional statements it appears that they are of the inculpatory nature.
Jamilullah and Sher Gul did not give any role to Ghalib Raza Gilani and Mst. Uzma Gilani. Even their names were not mentioned. However, Muhammad Ramzan co-accused stated only this much against Ghalib Raza Gilani that when he took lunch in the company of Majid Raza Gilani (absconding accused) in his house at Islamabad, Ghalib Raza Gilani was also present. Excepting this part of his confessional statement there is nothing to connect Ghalib Raza Gilani or for that matter Mst. Uzma Gilani with the offence in question. The learned counsel for the State, however, referred to the diary recovered from the possession of Jamilullah co-accused wherein telephone number of Ghalib Raza Gilani as well as his car number (9700-Jhang) were mentioned. The contention of the learned counsel for the State that the aforesaid car stood registered in the name of Ghalib Raza Gilani is opposed by the learned counsel for the accused by saying that the registration stood in the name of Abbas Raza, a nephew of Ghalib Raza Gilani. The learned counsel for the State then referred to the police statement of Abbas Raza wherein he stated that the car was sold by him in favour of Ghalib Raza Gilani. In these circumstances, it would be premature to say that in fact the car belonged to Ghalib Raza Gilani at the relevant time and this question would be resolved by the trial Court after some evidence is recorded in the case. Further, the mere entry of telephone number of Ghalib Raza Gilani in the person diary of Jamilullah co-accused or the mention therein of car number (9700-Jhang) would not ipso facto lead to the inference that Ghalib Raza Gilani had also participated in the criminal conspiracy to murder the deceased. Nothing else is pointed out by the learned counsel for the State to connect Ghalib Raza Gilani or his sister Mst.
Uzma Gilani with the offence. The learned counsel for the State also did not press for bail cancellation of Mst. Uzma Gilani. In this view of the record it cannot be said at this stage that Ghalib Raza Gilani and his sister Mst. Uzma Gilani had also conspired with the co-accused to commit the murder in question. Thus, it can be said that for the present there are no reasonable grounds for believing that the accused-respondents had committed the offence with which they have been charged although there are sufficient grounds for further inquiry into their guilt. The bail order in their favour, therefore, would not call for interference.
2. In so far as the bail application for Sher Gul petitioner is concerned, apart from his own confessional statement, he had been given active role in the offence by co-accused Jamilullah and Muhammad Ramzan in their confessional statements wherein they stated that Sher Gul was driving motor-car No, 9050- PRM which had been used in the commission of the offence. Under Article 43 of Qanun-e-Shahadat, when more persons than one are being tried jointly for the same offence and the confession made by one of such persons is proved, such confession is proof against the person making it and the Court can take into consideration such confession as a circumstantial evidence against such other person. However, the question respecting the evidentiary value of the confessional statements of co-accused Sher Gul, Jamilullah and Muhammad Ramzan would be determined at the trial in the light of the evidence to be adduced in the case and no opinion need be expressed at this stage. In these circumstances, reasonable grounds exist for believing that Sher Gul accused-petitioner had committed the offence with which he has been charged. For the aforesaid reasons, he had been rightly refused bail by the learned Additional Sessions Judge, Peshawar.
3. Both the applications, therefore, stand dismissed.