1. ' The applicant is facing trial under sections 302, 201/34, P.P.C. Before the learned Sessions Judge Karachi (East).
2. ' The brief facts giving rise to the present application are that deceased Fozia Bhutto a Lady Doctor was serving in Jinnah Hospital Karachi. She was on visiting terms with the present applicant Rahim Bux Jamali. On the night between 8th and 9th January 1990, Ishaq a driver of applicant Rahim Bux Jamali went to the hospital at 11 or 11-15 p.m. To bring Dr. Fozia where Lady Dr. Munawar Sultana, Dr: Saima and Dr. Talat were present. Dr. Fozia told the driver that he should come after about an hour as she had to attend a patient having serious condition. Later on driver Ishaq again went to the hospital and took Dr. Fozia Bhutto to the flat situated in Al-Habib Arcade which was occupied by the applicant. However, on 9-1-1990 at 9-35 p.m. One Hadi Bux appeared at P.S. Gadap and orally informed the police that he resides in village Hadi Bux of Kathoro area and is member of Ward No,4 of Kathoro Council. Today at about 14-13 he was passing in front of Hassan Ali Goth near Super High Way where he saw a dead body lying in the bushes. He has come to inform them.
3. ' On receipt of above information ASI Abdul Qayyoom lodged report on behalf of the State and started investigation. He reached the place where dead body was lying near Super High Way and conducted proceedings under section 174, Cr.P.C. Regarding dead body of an unknown lady aged about 21/22 years. He prepared memo of Wardat, inspection of dead body and sketch of Wardat.
4. She was referred to the medical officer and post-mortem was obtained. The statements of witnesses Hadi Bux Gabole, Muhammad Baloch and Muhammad Akbar were recorded. As a result of proceedings under section 174, Cr.P.C. Inspection of dead body and that of the place of recovery of the same, he found that deceased was aged about 21/22 years and was wearing deep blue trousers and white shirt on her person. She was murdered by some one on the preceding night at an unknown place by firing from cartridge below her umbilicus and thrown her dead body in bushes at the above place of recovery near Super High Way. Therefore a case under section 302, P.P.C. Was registered. During the investigation it transpired that the above dead body was of Lady Dr. Fozia Bhutto, who was taken away by Ishaq driver of applicant Rahim Bux Jamali on the night between 8th and 9th January, 1990. It is the case of the prosecution that the applicant after firing at Dr. Fozia Bhutto in his flat took the dead body in his car and threw it near Super High Way. On 1st February, 1990, Driver lshaq was arrested and his statement was recorded. Later on Driver Ishaq was produced before a Magistrate and his confession was recorded in which he implicated the present applicant.
5. ' The applicant filed an application for bail before arrest before this Court but the same was dismissed for non-prosecution. He then applied for bail before arrest before Lahore High Court and he was granted protective bail. Thereafter he moved the trial Court for pre-arrest bail but his application was dismissed on 13-3-1990 and he was remanded to judicial custody. After some time the custody of the applicant was handed over to the C.IA. Police at the request of the learned Special Public Prosecutor for interrogation and recovery. Later on an application for bail after arrest was moved before the learned trial Judge but the same was rejected vide order dated 19th May, 1990.
6. ' I have heard Mr. A.Q. Halepota learned counsel appearing for the applicant, Mr. Syed Sami Ahmed Special Public Prosecutor appearing for the State and have gone through the police papers.
7. ' It was contended by Mr. A.Q. Halepota learned counsel appearing for the applicant, that driver Ishaq was arrested on 1-2-1990 and was produced before a Magistrate for recording his statement on 6-2-1990 but it was not recorded as he was mercilessly beaten and had marks of violence on his person, and therefore, his confession was recorded on 10-2-1990. He has further contended that the confession clearly shows that it was recorded on oath and after recording the same on 10-2- 1990 he was again handed over to the same police and was remanded to Central Prison on 11-2- 1990 at 4-10 p.m. In this connection he has relied upon a certificate issued by Jail authorities. He has further contended that driver Ishaq was challaned before the Court on 142-1990 on which date he filed affidavit before the Court retracting from the confession and mentioning treatment meted out to him for obtaining confession. It was further contended that as far as the evidence of last seen was concerned, the applicant never went to Jinnah Hospital and even if Driver Ishaq had taken Dr. Fozia from the hospital this piece of evidence could not be used against the applicant. As far as the recovery of blood-stained carpet and a pillow on 8-2-1990 was concerned the flat in question belonged to one Ghulam Jilani and according to P.W. Akhtar Jamali he had given keys of the flat to Rahim Bux Jamali as well as Jamnadass, and therefore, the same was not in exclusive possession of the applicant. Moreover the recovery of carpet and pillow from the flat was not on the pointation of the applicant and therefore, the same could not be used as evidence against the applicant. That the applicant had applied for bail before arrest on 6-2-1990 but he could not appear in the Court on 11-2-1990 as the police was surrounding the Court and thus it was impossible for the applicant to appear in the Court. He was granted protective bail by Lahore High Court on 6th March, 1990, and thereafter, he applied to the trial Court for bail before arrest. It was further contended that the allegation about preparation of forged Nikahnama is not a circumstance which could be used against the applicant. There was no motive for the applicant to kill Dr. Fozia. It was further contended that as far as the statement of Driver Ishaq recorded by the police and the judicial confession recorded before the 1st Class Magistrate were concerned, the same were inadmissible in evidence and under no circumstances, they could be used against the applicant inasmuch as the two statements were recorded while he was co-accused in the case.
8. The judicial confession is self-exculpatory and was recorded after 9 days of his arrest and was obtained by torture and by pressure. Moreover, the same has been retracted at the earliest stage.
9. He has further contended that no empty Was recovered from the Wardat nor any fire-arm has been recovered from the applicant and therefore, it was a case of further inquiry. In support of his contention the learned counsel has relied upon 1985 SCM R 1946; 1984 M LD 1411; 1986 PCr.LJ 2003; 1989 PCr.LJ 1005 and 1988 SCM R 653.
10. ' Mr. Syed Sami Ahmed learned counsel appearing for the State has contended that deceased Fozia was buried on 15-1-1990, investigation was ordered on 25-1-1990 and the same commenced on 28th January 1990. Thereafter Javed Bhutto made applications against the applicant and he was examined on 28th January, 1990. P.W. Dr. Munawar Sultana was examined by police on 29th and she disclosed the name of Ishaq, and therefore, he was arrested on 1st February, 1990. He has further contended that Fozia was summoned by Rahim Bux Jamali and she was with him on that night. He has further contended that Driver Ishaq has been separately challaned under section 201, P.P.C., and he will be examined as a witness in the present case. He has further contended that statement of Dr. Munawar Sultana further shows that when she saw the photo of dead body of Fozia in newspaper, she rang up Mr. Jamali, who came and on seeing the photo observed that it was not the photo of Dr. Fozia Bhutto which clearly shows that he was with guilty conscience. It was further contended that the preparation of forged Nikahnama indicated that applicant wanted to create evidence that Fozia Bhutto was his wife and he had no reason to commit her murder. He has further contended that there was recovery of blood-stained carpet from the flat of the applicant and the blood grouping shows that the same matched with blood of the deceased. In support of his contention he has relied upon PLD 1968 SC 349; PLD 1962 SC 494 and PLD 1972 SC 295.
11. I have considered the contentions and have gone through the case papers as well as the decisions cited by the learned counsel appearing for the parties. As far as the evidence of Driver Ishaq in the shape of his statement before police and his judicial confession were concerned, the same are not admissible in evidence and cannot be used against the present applicant, as the above statements were recorded while he was arrested and was nominated as co-accused. According to Article 38 of Qanun-e-Shahadat no confession made to a police officer shall be proved as against the accused of any offence. In the present case the statement alleged to have been made by driver Ishaq to the police was in the nature of confession and could not be used in evidence. As far as judicial confession was concerned, it was made on oath and was recorded after 9 days of his arrest. Moreover, the confession is self-exculpatory and therefore, it could not be used as evidence against the co-accused. Mr. Syed Sami Ahmed learned counsel appearing for the State has contended that since driver Ishaq was not being tried with the applicant jointly and he will be examined as a witness in the present case, his two statements could be used as statements of a witness. I am afraid the contention is untenable inasmuch as the statement before the police was recorded while he was accused in the present case. As far as the statement before 1st Class Magistrate was concerned, it was also recorded as judicial confession and not as statement of a prosecution witness. It is an admitted position that no further statement of driver Ishaq has been recorded and therefore, two previous statements could not be regarded as statements of a witness and the same could not be taken into consideration.
12. ' Adverting to the second contention of Mr. A.Q. Halepota there is no doubt that the applicant had not gone to Jinnah Hospital to bring Dr. Fozia but it was driver Ishaq who had gone to bring her.
13. However, according to PWs. Dr. Munawar Sultana, Dr. Saima and Dr. Talat driver Ishaq had told deceased Fozia that she was called by applicant Rahim Bux Jamali and it will not be proper to comment on this piece of evidence as to whether it could be used as evidence against the applicant. However, according to PW Akhtar Ali Jamali Dr. Fozia remained with the applicant during the night intervening 8th and 9th January, 1990, and PW Akhtar Ali Jamali is said to be friend of the applicant. PW Akhtar Ali Jamali has further stated that he had given one set of keys of flat in question to the applicant, while the other remained with Mr. Jamnadass. A piece of carpet and a pillow recovered from the flat in question were found to be blood-stained and blood was of the same group as that of the deceased. No doubt the two articles were not pointed by the applicant but the fact remains that the same were recovered from the flat which is allegedly occupied by the present applicant.
14. ' As far as the question of preparing forged Nikahnama was concerned, it is to be seen at the trial as to what evidentiary value should be attached to the above piece of evidence. At present there are 3 witnesses who have stated that the applicant had got Nikahnama prepared. In addition to the above evidence there is evidence of Dr. Munawar Sultana that she saw photograph of deceased Fozia in newspaper, she rang up the present applicant who went and met her. She showed the above newspaper to him but the applicant disputed the identity of deceased Fozia.
15. Later on he asked Dr. Munawar Sultana not to disclose the above facts to any one.
16. ' Mr. Syed Sami Ahmed learned counsel appearing for the State has relied upon the following decisions:
(1) Khalid Saigol v. The State PLD 1962 SC 495, wherein while considering the question of bail in acquittal appeal it was observed that:-- "While deciding the question of grant of bail the exercise of a discretion vested by law in a Court must be upon sound judicial principles after taking into account the facts and circumstances of each case. The nature of the accusation and the heinousness of the crime alleged are, no doubt, very relevant circumstances to be taken into consideration, but by themselves they are not the only circumstances, as we have endeavoured to point out, even under sections 496 and 497 Cr.P.C."
(2) Abdul Rashid v. The State PLD 1972 SC 295. In this case their Lordships were pleased to refer this matter to the Full Court with the following observations:-- "Considering the present fluid and uncertain state of the law relating to bail in cases of offences punishable with deatI or transportation, and the lack of uniformity in the application of the law, resulting in confusion in the Courts, it appears desirable that the following questions be referred to the Full Court for its decision."
(3) In Ch. Abdul Malik v. The State PLD 1968 SC 349, it was observed by their Lordships of the Supreme Court that: "There is no doubt whatever about basic essentials governing grant of bail.
17. ' The first is that bail should never be withheld as a punishment. In cases of non-bailable offences coming before Courts, grant of bail is a relief resting primarily in the discretion of the Courts to be exercised with the due care and caution as a fundamental incident of exercise of judicial power, taking into account the facts and circumstances of each case orders on bail application should not be considered as routine orders involving as they do the liberties of the citizens, they must be carefully balanced and weighed in the scales of justice and the requirement of the relevant law, as contained in sections 496-498, Cr.P.C. There is however a further limitation on the Court's discretion in regard to cases of offences which are punishable with death or transportation for life, which is that the accused shall not be released on bail in such cases if there are reasonable grounds for believing that he has committed such an offence."
18. ' However, their lordships were pleased to dismiss the petition for leave to appeal and directed the applicant to approach the High Court for bail if so advised.
19. ' There is no cavil with the principle enunciated in the above decisions and the law is now more or less settled on the question of grant or refusal of bail.
20. ' Mr. A.Q. Halepota learned counsel has relied upon the following decisions:
(1) Ghulam Asghar v. The State 1985 SCM R 1946, wherein, while considering the question of grant of bail the confession made by the accused was taken into consideration and since in the confession the petitioner had taken plea of right of private defence, the petitioner was allowed bail while relying upon his confession.
(2) State v. Nayyar Mirza and 2 others 1989 PCr.LJ 1005, wherein it was observed by a Division Bench of this Court after taking into consideration number of cases that:-- "It is settled that the evidentiary value of a retracted confession against a co-accused is small and that the fullest corroboration of such a confession is necessary, even where the confession is true and voluntary."
(3) Abdul Razzaq Mania v. The State 1988 SCM R 653, wherein it was observed that:-- "While considering the question of grant of bail, the Court has to carefully scrutinise the material placed before it in order to find out the question of complicity of the petitioner. However, the Court should not comment as to whether the circumstances appearing in the evidence and before the Court against the petitioner would consitute sufficient proof of his guilt as that would amount to elaborate sifting of evidence and may prejudice either party at the trial. While considering the points raised by the learned counsel in his arguments, the Court was pleased to grant bail to applicant."
(4) Zafar Iqbal v. The State 1986 PCr.LJ 2003, wherein the name of the accused did not appear in the F.I.R. Nor there was any eye-witness in the case. Even there was no incriminating recovery nor any judicial confession was made by the accused and therefore, he was allowed bail.
21. As far as the decision in the case of Ghulam Asghar was concerned, there is no cavil with the proposition that the Court can take into consideration judicial confession even at the time of considering the question of grant of bail. Likewise, the Court can consider the value of judicial confession made by co-accused as held in the case of Nayyar Mirza. It is also a settled principle of law that the bail applications cannot be decided in vacuum and the evidence which is likely to be produced at the trial has to be considered without going into deeper appreciation of the same. As far as the case of Zafar Iqbal was concerned, there was no evidence worth the name against the applicant and therefore, he was granted bail.
22. In view of the above factual as well as legal position, since there is circumstantial evidence against the applicant it cannot be said at this stage that there are no reasonable grounds to believe that the applicant has not committed a non-bailable offence, and therefore, he is not entitled to bail at this stage. The application is accordingly rejected.
23. ' The observations made by me in the above order are tentative in nature, and the learned trial Judge shall hear and decide the above case uninfluenced by whatever has been observed.
24. ' The applicant can repeat his bail application before the learned trial Judge, after PW Javed Bhutto, Akhtar Jamali, Lady Dr. Munawar Sultana and Lady Dr. Saima are examined.
25. ' The application was dismissed by me, by a short order on 16-9-1990 and these are the reasons for the order. .