1. Through this single order I intend to dispose of bail application of Abdul Malik and cancellation application filed against Zever-ur-Rehman and Muhammad Rafique, as the petitioner in bail application and respondents in cancellation application are co-accused in one F.I.R.
2. 2.Briefly stated the facts of the case are, that Muhammad Rifat reported to the police on 22-9-1997 that he having learnt about the presence of a dead body in an abandoned house of Shah Zaman, went there and found that the dead body was totally decomposed and not capable of being identified. He summoned Mst. Rizwana accused who identified the dead body to be that of her husband. The deceased Ashiq Dad who is brother of the complainant Muhammad Rifat was an employee in Pakistan Army posted at Nowshehra, and had come to his village on leave.
3. ' In the report it was stated that neither the complainant nor the deceased has got any enmity with any one but the charge will be made against the unknown accused after they get satisfied.
4. 3.During investigation, Mst. Rizwana wife of Ashiq Dad was interrogated and it transpired that she with the help of petitioner Abdul Malik has committed the murder of her deceased husband. She was arrested in the case and on 24-9-1997 pointed out different places which were added in the site plan at her instance. She has also led the police party to the recovery of two empty shells of 12 bore and a 12 bore shotgun (D.B), which was giving the smell of fresh discharge. Later, on 27-9-1997 she made a judicial confession in which she has admitted the commission of the crime and has attributed the role of firing to petitioner Abdul Malik while the two respondents, namely Zever-ur- Rehman and Muhammad Rafique to have facilitated/helped her in throwing away the dead body in the abandoned house.
5. 4.Learned counsel for Abdul Malik petitioner argued that the petitioner is not charged in the F.I.R, that the charge against his client rests on confessional statement of Mst. Rizwana, wife of the deceased, which confession is neither true nor voluntary. It was further argued that under Article 43 of Qanun-eShahadae a confession of co-accused can be taken as circumstantial evidence against the other accused only, when the same stands proved against the maker. It was also argued that the occurrence took place somewhere on 17th of September, 1997 and the report was made on 22-9-1997 while the police/Investigating Agency has shown unnecessary haste in preparing the complete challan on 8-10-1997 whereafter the case has been sent up for trial to the Court of learned Sessions Judge on 25-10-1997, irrespective of the fact that the gun and the empties recovered at the alleged instance of Mst. Rizwana were sent to the Fire-Arms Expert and such report has not yet arrived still the chalan was filed. It was submitted that all this exercise was undertaken by the Prosecution Agency to create a situation where the Court generally does not entertain bail applications once challan is filed or case/trial commences. Learned counsel for the petitioner relied on PLD 1996 Lah. 295, 1995 PCr.LJ 1993 on the point that where confession of co- accused was only evidence bail was granted. In order to pre-empt the argument of the State/complainant's side that challan has since been filed and accused being summoned for trial this Court ordinarily does not entertain bail applications, reference was made to PLD 1989 SC. page 586 (587) (588) followed by 1997 PCr.LJ. page 847. An unreported judgment of this Court by Honourable Division Bench was also relied (Cr.M.No,225/97 titled Malik Muhammad Younas and another versus Umar Hayat and another). It was vehemently argued that the confession of co- accused being only evidence and there is no other circumstance to connect the petitioner with the commission of the offence he is entitled to bail.
6. 5.Learned counsel appearing for the complainant and the learned A.A.G. opposed the grant of bail and it was submitted that challan has been filed, the accused have Jeen summoned for trial so much so that on 20-12-1997, 15-1-1998 and 14-2-1998 both the accused, namely, the petitioner and Mst. Rizwana have been appearing before the trial Court but no progress could be made in the trial because of the non-availability of the case file which is lying in this Court in connection with the instant bail application. Learned counsel referred to 1996 MLD 2021, 1980 SCMR 203 and it was submitted that once challan has been put in and the trial has commenced then Superior Courts in order to avoid any prejudice being caused to the case of either party, applications for bail and cancellation are not entertained.
7. ' Referring to the evidentiary value of confession of the co-assused reference was made to 1990 SCMR page 315 and 1997 PCr.L.J. page 110 where besides confession of co-accused, the statement of accused recorded under section 161, Cr-P.C. was also considered and bail was refused.
8. 6.The learned counsel for the complainant and the State submitted that the facts of the unreported judgments referred to above are not attracted to this case as in the said case the accused were not attributed any overt act while in the present case it is the petitioner Abdul Malik who has been attributed the main role of effectively firing at the deceased. It was also argued that the confession of Mst. Rizwana finds corroboration by the fact that she has led the police to the recovery of crime weapon and empties which have wedded with each other as per report of the Fire Arm Expert. Referring to article 43 of 'Qanun-e-Shahadat' it was argued that the confession of Mst. Rizwana is not the only evidence but motive given therein has been supported by Muhammad Akbar father of deceased as well as Mst.Chanan Jan mother of the deceased. Ii was also argued that the aforesaid two witnesses have seen Abdul Malik in the company of Mst. Rizwana and that they have also furnished motive for the crime.
9. 7.After hearing the learned counsel for the parties and having perused the record it is undisputed that challan of the case was prepared on 8-10-1997 and case was sent up for trial on 25.10-1997 whereafter on number of occasions the accused have been appearing before the trial Judge. The dictum as laid down in PLD 1989 SC. page 586 is to the effect that there is no bar in allowing bail to an accused person whose case falls within the perview of section 497 subsection (2), i,e,, when the Court comes to the conclusion that there are no reasonable grounds to believe that accused- petitioner is guilty of an offence punishable with death, life imprisonment or 10 years, and that there are grounds for further inquiry then at any stage, whether investigation, inquiry or trial the accused-petitioner may be entitled to grant of bail as of right and the practice that ordinarily bail applications should not be entertained after the challan having been filed cannot be a hurdle in the way of the Court.
10. Applying the test as laid down by august Supreme Court the facts of each case are to be seen, if on merits a case is made out then there is no statutory bar as contained in section 497, Cr.P.C. to the grant of bail. In the instant case, the petitioner has been attributed the role of firing at the deceased in the confession of Mst. Rizwana. The recovery of crime weapon and empties and later their having matched as per report of the Fire-Arms Expert prima facie proves the truthfulness of the confession. Motive as furnished in the confession adds towards the culpability of the present petitioner.
11. 8.The dictum as laid down by a Division Bench of this Court in case of Malik Muhammad Younas v.
12. Umar Hayat is not applicable to the facts and circumstances of this case. Article 43 of 'Qanun-e- Shahadat' makes the confession of co-accused admissible and can be taken into consideration as circumstantial evidence provided the same is proved against the maker. No doubt that the stage of proof comes at the trial but bail applications are decided on the basis of record available, i,e,, F.I.R., statements of witnesses, the confession if any, or any other circumstantial evidence including the motive. While hearing the bail application the truthfulness or voluntariness of the confessor as in respect of his co-accused is not tested but the fact that an accused is charged in the confession by itself is material which can be looked into alongwith other surrounding circumstances.
13. 9.In view of what has been observed above, I am of the view in the given circumstances when there exists no reason or rhyme with Mst. Rizwana to have named Abdul Malik to be the person who has fired at the deceased, no case for grant of bail is made out. Therefore, the application is dismissed.
14. 10.Now taking up the case of respondents Zever-ur-Rehman and Muhammad Rafique they have not been attributed any overt act in the commission of the crime. Their names though appear in the confession but the role attributed to them is that of removal of the dead body on the second day of the occurrence, there is no evidence of preconcert and conspiracy between Mst. Rizwana, Abdul Malik and the two respondents as to the commission of offence of murder. They are said to have associated the main accused in the removal of dead body only. The question if they had any common intention is open to serious doubt keeping in view the motive as it was solely between the two main accused, namely, Mst. Rizwana and Abdul Malik as against the deceased.
15. The respondents have been allowed bail by the learned lower Court and the order does not appear to be arbitrary, unreasonable or fanciful. The learned A.A.-G. did not contest the cancellation application and conceded frankly that the order in respect of the two respondents does not require any interference. Cancellation Application bearing No,299 of 1997 is, therefore, dismissed.