The three petitioners along with two others, namely, Manzoor and Nusrat have been accused of the commission of offences under section 302 read with section 149, and section 120 of the Pakistan Penal Code, for the murder of one Amir Kamiana which took place on the night between 10 and 11 of August 1972 at 2 a.m. Amir Kamiana died of a firearm injury and no one was named in the first information report as an accused person. Khuda Bakhsh and Haqnawaz petitioners were admittedly in judicial lock--up on the day this incident took place. Mr. Gal Muhammad Khan, the learned counsel for the complainant, tells me that they were arrested in another case on 12th of August and were released on 17th of August, 1972. On 20 of March 1973, the two aforesaid petitioners are said to have made confessional statements to one Muhammad Nawaz in the presence of two other persons, namely, Allah Ditta and Karam that they had conspired with their co-accused to cause the death of one Babu Sargana who had murdered Muhammad, the brother of Khuda Bakhsh petitioner and father of Haq Nawaz petitioner. But, by mistake their co-accused namely, Sher, Nusrat and Manzoor had murdered Amir Kamiana against whom they had no malice.
The petitioner also made a similar confessional statement.
2. The petitioners were arrested on 26th of March 1973. The gun recovered from Sher petitioner on 31st of March, 1973 and the two empties recovered from the spot were sent to the ballistics expert for his opinion. The opinion of the ballistics expert has not been received so far.
3. One of the reasons which persuaded me to issue notice in this case was that the challan had not yet been filed in Court. The learned State Counsel submits that according to his instructions the challan has not been filed so far. It is submitted by the learned counsel for the petitioners that the petitioners had no reason to go to Muhammad Nawaz, Allah Ditta and Karam to make ath th confessional statement, particularly Karam, against whom Khuda Bakhsh petitioner had appeared as a prosecution witness in a case registered against Karam, his brother and three others, under sections 148, 452/149, P. P. C.
4. The petitioners Khuda Bakhsh and Haq Nawaz were admittedly is jail at the time of the occurrence. The only evidence against all the three petitioners is on the basis of the confessional statement said to have been made by them about seven months after the occurrence before three persons one of whom is admittedly hostile to Khuda Bakhsh. No corroborative evidence is available against Sher petitioner. The challan ha not yet been filed. The law requires that an accused person is not to be unduly detained and deprived of an opportunity to prove his innocence before a Court. The petitioners were arrested as far back as 26th of March 1973, and in spite of the lapse of more than seven months after their arrest, there is no indication as to when the challan is going to be filed in Court.