1. The present applicant has been involved in a case registered with Police Station 'B' Section, Sukkur as Crime No. 126/92 under sections 302 and 363, P. P. C.
2. The facts of the case are that on 30-8-1992 one minor boy of about 5 years of age, namely Satesh Kumar is said to have been missing from in front of his house and that his dead body was recovered from a Shakh by Kandhra Police on 31-8-1992 and the dead body was sent for post- mortem examination which was performed at 2-30 p.m. On the same day. Thereafter on 12-10-1992 the present F.I.R was registered by one Hotumal the uncle of the deceased boy. According to the F.I.R. The complainant party had suspected the present applicant in connection with the murder of the deceased Satesh Kumar and had been looking for evidence. It is alleged that on the same day the complainant party had approached the accused in his house alongwith Seth Mangharam, the M.P.A and told him that he had committed the murder of the minor boy on which the present applicant is said to have given extra-judicial confession before the said witnesses admitting that he had kidnapped the deceased and he and co---accused Chatroomal had taken the boy on motor-cycle of Kakoomal and taken the minor boy to Patni Shakh where he threw the boy in the Shakh with the intention to cause his death. However, before throwing the boy in the Shakh, they had removed his green shirt. According to the F.I.R the present applicant is the cousin of the complainant and used to work on their shop but was removed from service on account of the allegation of theft against him and that he had been threatening to take revenge. Such F.I.R. Was registered. On the next day the applicant was arrested and sent to City Magistrate for recording his judicial confession. In the judicial confession the applicant is said to have admitted all the above facts as mentioned in the F.I.R. And has further stated that after removing the shirt of the deceased, he had handed over the same to his father Gurmukhdas. The police after usual investigation put up the challan. Bail applications were moved on behalf of co-accused Chatroomal and the present applicant. Chatroomal was granted bail but the present applicant was declined the prayer. Hence this bail application.
3. I have heard Mr. Daud Baloch for the applicant, Mr. Zawar Hussain Jafferi, A.A.-G. And Mr.Habibullah Shaikh for State and complainant.
4. The learned counsel for the applicant has argued that the F.I.R is belated by about 1-1/2 months and that there is no direct evidence connecting the present applicant with the commission of the alleged offence except for the judicial confession which, according to the learned counsel, has no evidentiary value in law. As against this Mr. Zawar Hussain Jafferi and Mr. Habibullah Shaikh have argued that the judicial confession given by the applicant is a voluntary one recorded on the same day when the was arrested. They have further submitted that the green shirt has been recovered from the applicant at his own showing. They have also relied on the post-mortem report and submitted that the same supports the contention of the prosecution.
5. I have given anxious consideration to the submissions of the learned counsel. As regards the judicial confession it may be observed that the F.I.R. Is registered under section 302, P.P.C which is an offence exclusively triable by the Sessions Court whereas the judicial confession is recorded by the City Magistrate, Sukkur who is only a First Class Magistrate, not competent to try the case. The provisions of section 304, P.P.C (as amended by Qisas and Diyat, Ordinance) read as under:--- "304. Proof of Oatl-i-Amd liable to Qisas etc.--(1) Proof of Qatl-i---Amd liable to qisas shall be in any of the following forms, namely:---
(a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of the' Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984),
(2) The provisions of subsection (1) shall, mutatis mutandis, apply to a hurt liable to Qisas. "
6. The above provision very clearly shows that in case of Qatl-i-Amd the confession which is to be used as evidence against the accused is the one which is made before a Court competent to try the offence. In these circumstances the contention of Mr. Daud Baloch that the judicial confession as recorded in the present case would not have any evidentiary value has a force. Mr. Habibullah Shaikh has submitted that the provisions of section 164, Cr.P.C. Have not been amended and so also section 364, Cr.P.C. And, therefore, the confession recorded by the Magistrate has the evidentiary value. I am afraid I cannot subscribe to this contention as the amendment brought through Qisas and Dyat Ordinance is a special law which shall prevail over the general law. It may be that the confession recorded by the Magistrate in the present case be used as evidence for the purpose of confrontation or corroboration at the trial subject to proof cross-examination and admissibility in law. Reliance may be placed on the case of Mumtaz Khan v. State (1992 PCr.LJ 412).
7. The second point is the recovery of green shirt of the deceased. Case of the prosecution is that according to confession, judicial and extra judicial, the applicant had removed the green shirt which was worn by the deceased before throwing him in the Shakh. It is beyond comprehension as to why the accused would remove shirt of the deceased before throwing him in the water when he for all purposes, had intended to cause his death. However, there is inconsistency in this respect also as according to prosecution case the shirt was recovered from the applicant who had led the police to Oil Mill of Chatroomal where he produced the said shirt which was buried in old ' Bardana' and dirt in a` room. As against this the judicial confession shows that he had handed over the shirt to his father Gurmukhdas.
8. The third piece of evidence relied on by the prosecution against the applicant is the post-mortem report which shows that the death was caused on account of drowning. The counsel for the applicant has argued that it can be that the deceased had tried to take a bath or for some other