' This application for cancellation of bail granted to respondent on 4-3-1992 by IInd Additional Sessions Judge, Karachi (West) in Sessions Case No,3/91 under sections 302, 109 and 120-B, P.P.C.
(F.I.R. No,228/90, Police Station S.I.T.E., Karachi), is moved by State through Assistant Advocate- General, Sindh.
2. Facts of the case in brief, as disclosed in the F.I.R., are that on 22-8-1990, Dr. Jalil Qadir M.L.O. Of Abbasi Shaheed Hospital informed S.I.T.E. Police that dead bodies of 3 unidentified persons with fire-arm injuries were received through Edhi Ambulance. Such information was recorded in Daily Diary No,73. S.I.P. Muhammad Nawaz Malik proceeded to Hospital and later, the deceased were identified by one Muhammad Saleem to be Ashfaque, Muhammad Amer and Shaikh Abdul Habib.
The driver of ambulance informed that hc.Had brought the dead bodies from Satellite Avenue opposite Al-Bela Company, Karachi. A motor-cycle No,KAM-8741 was also lying at the Wardat, presumably owned by unknown culprits who fired at deceased and fled away.
3. Respondent was arrested on 17-12-1990 and co-accused Muhammad Hussain Khushki on 21-11- 1990. Bail was sought for respondent on the ground that except the confessional statement of co- accused, inculpating himself and respondent, there is no other evidence, and also that 5 P.Ws.
Examined so far, have not said a word against him. The A.P.P. Appearing before the trial Court conceded to the grant of bail, whereupon, the learned tiral Judge, held that the case of respondent was of further enquiry and granted him bail, which, the State now seeks to be cancelled.
4. Mr. S. Sarfraz Ahmed, the learned Additional A.-G. Has mainly contended that there is confession by co-accused Muhammad Hussain, implicating himself and the respondent and such confession can be used against respondent under Article 43 of Qanun-e-Shahadat. It is also contended that evidence of criminal conspiracy, in the nature of confession by co-accused is also available, which disentitled respondent to bail, even if his case was found to be of further enquiry. In support of his contentions, reliance is placed on (i) 1981 SCM R 1092, (ii) PLD 1972 SC 81, (iii) 1979 SCM R 92 and PLD 1978 Lah.
523.
' It is next contended that no circumstances existed justifying to hold that case of respondent was of further enquiry. For that, the leading cases referred by learned AA.-G. Are reported in 1985 SCMR 195, PLD 1985 Kar. 27, 1985 SCM R 382 and P LD 1991 SC 412.
' The learned Advocates for respondent contended that respondent who is elected member of Sindh Provincial Assembly is maliciously involved as he is with P.P.P. And subjected to harassment on account of political vendetta. Further, that there was no evidence worth the name either of criminal conspiracy or murder and during 16 months since his arrest, prosecution examined 5 witnesses, none of whom implicated respondent, and in these circumstances, trial Court rightly granted bail, holding that respondent's case was of further enquiry.
5. I have heard the learned Advocates at length and perused the police papers, so also the evidence recorded, and the case-law referred. There is no evidence against the respondent except that he is named as a collaborator by co-accused Muhammad Hussain in his confession. A D.B. Of this Court, while hearing Criminal Bail Applications Nos.449, 197 and 177 of 1991, granted bail to all those accused, who were named as collaborators by some of the co-accused in their judicial confessions. None of the 5 witnesses examined at trial so far, implicated respondent. In the Public Prosecutor v. William alias Victor AIR 1951 Mad. 1042 it was observed:-- "There are five cases where a person granted bail may have the bail cancelled and recommitted to jail:-- (1) where the person on bail, during the period of bail, commits the very same offence for which he is being tried or has been convicted, and thereby proves his utter unfitness to be on bail;
(2) if he hampers the investigation; (3) if he tampers with evidence; (4) if he runs away to a foreign country or goes underground or beyond the control of his sureties and (5) if he commits acts of violence, in revenge against the police and prosecution witnesses or those who have booked him or trying to book him.
' In Falak Sher and another v. The State 1979 SCMR 103, the Honourable Supreme Court observed, ''...A High Court would not be justified to interfere in discretionary orders of Courts below where the said Courts feel and from perusal of record specifically hold that case is such which needs further enquiry, and pass the relevant order on the ground and basis, unless the order impugned is perverse, arbitrary, fanciful or is not borne out from the record..."
' In Muhammad Afsar Khan v. Hukamdad and another 1989 P Cr. L J 1564, this Court observed that the order of the trial Court admitting accused to bail after taking into consideration evidence of the only eye-witness in the case was not found to be perverse, foolish or illegal and in the circumstances declined to cancel hail.
6. As to the confession by co-accused and its evidentiary value against respondent the Federal Shariat Court in the case of Arif Nawaz Khan and 3 others v. The State PLD 1991 FSC 53 held that in Islamic Law, the confession of an accused against co-accused is not acceptable and if there is no other proof against him, he will not be punished on the said confession. It was also held that a confession only implicates the accused, but not the co-accused.
7. The evidence so far recorded does not make out a case of criminal conspiracy. The trial Court rightly held the case of respondent to be of further enquiry, as except confession by a co-accused, there is no other evidence to connect respondent with the commission of offence. There appeared no reasonable ground for believing that respondent had been guilty of an offence punishable with death or imprisonment for life or for 10 years. The case-law referred by the learned Additional Advocate-General does not strengthen his contentions for cancellation of bail as most of the authorities referred by him have no bearing on the facts of the case in hand. The respondent had not misused the concession of bail, which is granted to him after 16 months of his arrest. The learned trial Court granted bail on assessment of entire material before it and the order is neither perverse nor arbitrary. It, therefore, needs no interference by this Court and consequently, the application is dismissed.