NASIR ASLAM ZAHID, CJ.- This order will dispose of the two bail applications of co-accused Mumtaz Ali Shaikh and Shahid Hussain. Mumtaz. Ali Shaikh is applicant in Cr. Bail Application No. 192/1993 and Shahid Hussain is applicant in Cr. BA. No.895/1992. They are facing trial before the Special Court (STA) Larkana in Special Case No. 112/1992 in Crime No. 60/1992 of Police Station 'B' Section, Larkana, under Section 3 and 4 of Explosives Act.
2. The case of the prosecution is that on 23.5.1992, at about 3.00 p.m, an explosion had taken place in Lahore Mohalla and at that time complainant A..S.I Zulfikar Ali was posted near the house where the explosion had taken place. On hearing the explosion, complainant ASI Zulfikar Ali rushed to the vardat where he came to know that the explosion had taken place in the house of one Khadim Hussain (father of the accused Shahid Hussain). He found that in the house two minor girls were injured and one Mst. Sufia had also received minor injuries. In the FIR lodged by complainant ASI Zulifkar Ali, it is alleged that Khadim Hussain and his son (I6 years old) had brought the explosive device and concealed the same in their house, on 23.5.1992, Khadim Hussain and Shahid Hussain were arrested. On 27.5.1992 accused Mumtaz Ali Shaikh was arrested. On 6.6.1992, confession of accused Shahid Hussain was recorded. Later on Khadim Hussain, father of Shahid Hussain, shown as the main culprit in the FIR, as the house belonged to Khadim Hussain and it is stated in the FIR that the explosive device had .Been brought by Khadim Hussain and Shahid Hussain and concealed in the house of Khadim Hussain, was let off by the police as apparently, according to the prosecution, there was no evidence against Khadim Hussain However, Shahid Hussain and Mumtaz Ali Shaikh were challenged before the Special Court and both of them have been in custody for nearly one year. Their bail applications have been rejected by the Special Court. Hence, these applications.
3. We have heard M/S. Abdul Mujib Pirzada and Habibullah Samo, advocates for the applicants, and Syed Sarfraz Ahmed, AAG, who has vehemently opposed the bail application filed by Shahid Hussain.
4. First we will take up the case of Mumtaz Ali Shaikh. Admittedly, there is no evidence against Mumtaz Ali Shaikh except that he is shown to have been involved in the confession of co-accused Shahid Hussain. It is now well settled principle of our Criminal jurisprudence that on the basis of the confession of a co-accused, without any other evidence, conviction of the accused cannot be legally sustained. Reliance on be placed on a decision of the Federal Shariat Court in the case of Arif Nawaz Khan & others Vs. State reported in PLD 1991 F.S.C 53, in which it has been held that confession of a co-accused person against an accused is not acceptable if there is no proof against the accused. Reference may also be made to the decision of Supreme Court in the case of Shabiul Hassan Vs. State reported in PLD 1991 SC 898, where it has been held that confession of a co-accused, even when admissible, was not evidence and could only be taken into consideration but could not form the basis of the conviction of a co-accused. This Court has also in several cases taken the aforesaid view. In these circumstances where the only evidence with the prosecution against Mumtaz Ali Shaikh is the confession of co-accused Shahid Hussain, case for grant of bail to Mumtaz Ali Shaikh is made out.
5. In so far as accused Shahid Hussain is concerned (applicant in Cr. B.A. No. 895/92), it was vehemently argued by S. Sarfraz Ahmed, AAG, that there is a judicial confession of Shahid Hussain which can only be considered after the evidence in respect of the said confession is recorded and, at this preliminary stage, bail should not be granted to him. Perhaps learned AAG is correct in his submission that mere delay of a few days simplictor in the recording of the judicial confession alone may not be sufficient to knock-out the confession at the bail stage, but there is no absolute rule that tentative assessm ent of legality or otherwise of a judicial confession cannot be considered at the time of hearing of the bail application of an accused, who is alleged to have made a judicial confession. In our view, in the present case, surrounding circumstances are such that it is unsafe even at the stage of bail to place unconditional reliance on the judicial confession of Shahid Hussain and reject his bail application. The Court can consider whether the judicial confession by itself is sufficient or not in a given case to deny the confession of bail to an accused.
6. In this case, there are several surrounding circumstances which have been taken into consideration while deciding the bail application filed by Shahid Hussain. Firstly, we find that, according to the FIR, the main accused was Khadim Hussain, the owner of the house in which the explosion is alleged to have taken place but Khadim Hussain, through arrested and interrogated was let off. His name does not appear as an accused in the challan. There appears to be no distinction between the case of the prosecution against Khadim Hussain and Shahid Hussain. Then apparently there is no basis for ASI Zulfikar Ali, who had heard the explosion, to mention in the FIR that khadim Hussain, owner of the house and his son, Shahid' Hussain had concealed the explosive device in the house of Khadim Hussain. In the police papers there is no indication as from where ASI Zulfikar Ali obtained this information for making such an allegation against Khadim Hussain and his son Shahid Hussain. Thirdly, though more than 11 months have passed since the incident, the police papers do not show that the material which was found in the house had been sent to the Ballistic Expert to determine its offensive nature. It may be added that apparently all the family members of Khadim Hussain, including Khadim Hussain, had been arrested and the judicial confession of Shahid Hussain was recorded after about two weeks of his arrest on 6.6.1992 and then others were released. Looking at the said circumstances, we are of the view that case for bail is made out in respect of Shahid Hussain also despite the prosecution having his judicial confession.
7. The two bail applications are accordingly granted and Mumtaz Ali Shaikh s/o Chandoo Khan Shaikh and Shahid Hussain s/o Khadim Hussain are ordered to be released on bail on their furnishing one surety each in the sum of Rs.25,000/- and also their personal bonds to the satisfaction of the Trial Court.