1. By this common order I intend to dispose of these two bail applications as they arise out of the same F.I.R.
2. ' Briefly the facts are that on 24-6-1994 the complainant registered F.I.R. With Kashmore Police Station under sections 302, 34, 114, P.P.C. And 13-D, Arms Ordinance to the effect that he along with his father Mian Illahi Bux Farooqui, a retired Superintendent of Police, were returning after Juma prayers along with P.Ws. Munir Ahmed and Zahid Ahmed and when they reached near Bhutta Street at about 2-45 p.m. Suddenly two persons armed with guns with open faces came there. One of the culprits is said to have instigated the other saying that he should fire at deceased Mian Illahi Bux Farooqui whereupon the other culprit fired straight at the deceased hitting him on his chest who fell down on the ground. Other culprit also fired from his gun at the deceased hitting him. Both the said culprits are then said to have rode away on their black motorcycle. The complainant saw Mian Illahi Bux lying dead and leaving the P.Ws. At the Wardat he came to the police station where the report was lodged. Consequently the police took up the investigation and arrested as many as 14 accused in the case and sent up the Chillan. A hail application was moved for four of the said accused for grant of bail before arrest which was rejected. In the meanwhile another bail application for the other 8 accused was also moved who were duly arrested. This bail application was also rejected and therefore, these two bail applications. No bail application was moved on behalf of the two accused namely, Muhammad Ali and Azim.
3. ' I have heard Mr. Abdul Hakeem Bijarani and Mr. Awan Rehmatullah Nadeem for the applicants and Mr. Abdul Ghani Shaikh, learned A.A.-G. Who is assisted by Mr. Muhammad Daud Baloch for the complainant. At the very outset counsel for the applicants have submitted that in the present case the names of these applicants do not transpire in the F.I.R. Nor any overt act is attributed to them.
4. The counsel have argued that according to F.I.R. It was only two persons who came there and both of them fired at the deceased, the result was that he succumbed to the injuries on the spot. In such circumstances the counsel for the applicants have stated that the case of the present applicants would at least be one of further inquiry and there cannot be said to be any evidence available which may directly link the applicants with the commission of the alleged offence.
5. ' As against this Mr. Shaikh, learned A.A.-G. And Mr. Daud Baloch, Advocate for the complainant have submitted that this is a case where section 114, P.P.C. Is attracted. They have placed reliance on the statements of the two accused Azim and Muhammad Ali recorded before police under section 161, Cr.P.C. Wherein they are alleged to have confessed to killing of the said Mian Illahi Bux but have further stated that it was a conspiracy hatched up amongst all the 14 accused about one month prior to the date of recording of statement. It is alleged that these two accused have further given extra-judicial confession before the Police Officers to the effect that such conspiracy was hatched wherein most of the present applicants had stated that they being the main persons of their party, would get themselves involved in different cases at different places so that they may not be made a target of suspicion while all of them desired killing away of said Illahi Bux Farooqui as being a retired Superintendent of the Police he was helping the enemies of the accused party.
6. Sikh statements of police officials were also recorded under section 164, Cr.P.C. Wherein opportunity of cross-examining the witnesses was given only to the accused Azim and Muhammad Ali. From this the learned A.A.-G. And the Advocate for the complainant have submitted that this is a clear case of criminal conspiracy and section 120-B of P.P.C. Would be applicable which was subsequently incorporated at the time of putting up the Chillan. A reference has been made to section 107, P.P.C. Wherein the abetment has been defined which is as under:-- "107 Abetment of a thing.--- A person abets the doing of a thing, who---First: Instigates any person to do that thing; or ' Secondly: Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or ' Thirdly: Intentionally aids, by any act or illegal omission, the doing of that thing; 'Explanation I.--- A person who, by willful miss presentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procures a thing to be done, is said to instigate the doing of that thing."
7. ' The learned counsel appearing on prosecution side have submitted that the present case will fall in the second category as mentioned above. The said second category deals with the case where a person engages with one or more other persons in any conspiracy for the doing of that thing if such act or illegal omission takes place in pursuance of such conspiracy. In the present case in view of the discussion that is to follow, it is yet to be determined as to whether such conspiracy had taken place and as to what was the active role played by the present applicants in such conspiracy.
8. ' The counsel for the applicants have argued that in the present case all the material that the prosecution has with them is the so-called extra-judicial confession of the two accused and that the said confession by itself cannot be an evidence against the present applicants nor a conviction can be based on such extra-judicial confession of co-accused. They have further submitted that this piece of evidence cannot even be admissible in evidence. The learned counsel for the applicants while referring to the statements of Police Officers and other witnesses recorded under section 164, Cr.P.C. Have submitted that in all these statements it is pointed out that both these accused had made confession which would amount to a joint extra-judicial confession. Learned counsel have placed reliance on the following cases:--
(i) The State v. Kamal Khan alias Maloo 1993 SCM R 1378,
(ii) Muhammad Amin v. Bashir Ahmed 1983 PCr.LJ 1574,
(iii) Mumtaz Ali Shaikh v. The State 1993 PCr.LJ 1919 and
(iv) Pir Mazharul Haq v. The State 1992 PCr.LJ 1910.
9. ' In the first case their Lordships in the Supreme Court while dealing with a criminal appeal have observed that extra-judicial confession allegedly made by accused being a joint confession could not be used against either of them. In the second case above (Muhammad Amin v. Bashir Ahmed) a learned Single Judge of Lahore High Court has held that joint confessional statement of accused is not admissible in evidence. In third case a Division Bench of this Court has held that Court can consider whether the judicial confession made by accused by itself is sufficient or not in a given case to deny the concession of bail to him. It may be observed that the principle laid down in this case is with regard to concession of bail to the person making the extra judicial confession and not to co-accused. The same Division Bench of this Court in the case cited at No,(iv) above has held that in case where no other evidence was available against the accused except the confession of co-accused on which evidence alone no conviction can be sustained. In the same case, in view of given facts it was held by the learned Division Bench that no grounds existed to believe that accused was guilty of offence for which he had been charged and therefore, he was admitted to bail.
10. In view of above discussion, I am of the considered opinion that in the present case there is no direct evidence to link the present applicants with the commission of the alleged offence or to prove their being a part of the said criminal conspiracy. Mr. Bloch relies on Article 40 of Qanoon-e- Shahadat in support of his contention that the said extra-judicial confession would be admissible in evidence. I am afraid even this proposition on plain reading of the contents of Article itself would show that by any stretch of imagination the same can be applied only in cases of person making the confession and not in cases of co-accused.
11. ' From the above discussion I am of the view that this is a case which calls for further inquiry at least in the case of present applicants. However, as regards the case of co-accused Azim and Muhammad Ali the inference would be otherwise. In these circumstances I allow these two bail applications and direct the applicants to be released on bail on their furnishing one surety in the sum of Rs,1,00,000 each and P.R. Bond each in the like amount to the satisfaction of the trial Court.