1. SARDAR MUHAMMAD RAZA, J.---Pir Sabir Shah M.P.A. alongwith his companions Dr. Haroon, Abdul Ghaffar, Haji Ghulam Mustafa and driver Umar Hayat, on 30-8-1997 at 21.10 hours, was on his way back to Ghazi from village Pipliala after attending a marriage ceremony.. Double Cabin pick up BLM 1848 was being driven by Dr.Haroon. Pir Sabir Shah was seated in the front while two companions and the driver were occupying the rear seat. When the vehicle reached near the gate of Intermediate College at 21-10 hours, some assailants opened fire at them from automatic weapons. Umar Hayat got injured at right ankle while Pir Sabir Shah was injured at left thigh.
2. Vehicle was rushed to R.H.0 Ghazi.
3. 2.S.H.O. Ghazi, on receiving information, reached R.H.0 where at 2125 hours, Umar Hayat lodged report as aforesaid charging none for the attempt at their lives, for, they apparently had no enmity with anyone. Injury sustained by Pir Sabir Shah was the result of no fire-arm impact but was due to the glass splinters.
4. 3.One Aurangzeb was arrested on suspicion on 31-8-1997; another Azmat Shah on 12-9-1997; still another Tariq on 11-9-1997.
5. First two made a confession before Magistrate on 12-9-1997 and 17-9-1997 respectively while Tariq, having been tendered pardon with the consent of the victims, became an approver purpotingly under section 337, Cr.P.C. and gave his statement on 15-9-1997.
6. 4.Individual, as well as collective impression of the aforesaid three statements was that the deponents above, the approvers, another Malik Mohammad Younus and Malik Abdur Razaq along with Qamar Zaman absconder etc. hatched a conspiracy to scare Pir Sabir Shah M.P.A. and to teach him a lesson because he had totally ignored his faithful political allies and was instead patronising Dr. Haroon and further had shown lukewarm attitude over the transfer of a D.S.P. in which the accused were interested one way or the other.
7. 5.Besides Aurangzeb; Azmat Shah, Tariq, the two' others namely Malik Yunus and Malik Abdur Razaq were resultantly arrested, Tariq being in custody otherwise as approver. The remaining were refused bail by the learned Sessions Judge/Special Judge Haripur. Malik Yunus and Abdur Razaq seek bail through instant Petition 225 of 1997 while Azmat Ali Shah and Aurangzeb have filed separate one as 244 of 1997 which also shall be disposed of through this single order.
8. 6.We would first attend to the Approver Tariq's statement with reference to sections 337 and 338 of the Cr.P.C. The pardon was tendered and the statement was recorded by Mr. Azeemullah Mishwani, Civil Judgecum-Judicial Magistrate, Ghazi. The permission to tender pardon to the would-be- approver was given by the victims before the Police and not before the Magistrate. In the given undeniable circumstances, we are constrained to observe that the procedure adopted, has been so manifestly mala fide and patently illegal that an observation to that effect cannot be avoided even at bail stage.
9. 7.Through an amendment in the section concerned the tender of pardon to an accused has been made subject to a permission to that effect by the victims or the heirs of the deceased, as the case may be. Such permission obviously should be given before an Authority who is competent to tender pardon after due and meticulous application of mind. In the instant case, the permission was accorded by the victims before Police and no direct opportunity was afforded to the competent Authority to apply its own independent mind and to practically ascertain as to whether the permission was in fact given by the victims themselves. Serious laxity in this behalf renders the very permission invalid.
10. 8.Factor, even more important than the above, is that of the authority competent to tender pardon to and to record statement of the accused, after declaring him as an approver. The very nature of the act involved gives a crysteline indication that tender of pardon to and declaration as approver of an accused is an act of State. Such act is subject to scrutiny by a judicial forum subsequently at trial. It is in this back ground that, for the purpose in question, the legislature has omitted to authorise the trial Court and even the Court competent to take cognizance of the offence, like normally, the Magistrate of the First Class. The legislature instead, under section 337, Cr.P.C., has specified such authority in unambiguous terms, and to the exclusion of all others, to be the District Magistrate and Sub-Divisional Magistrate. Thus, any pardon tendered and the declaration as approver of an accused, by an authority other than the District Magistrate and the Sub-Divisional Magistrate is void ab initio. So, is the case in hand where the services of a Civil Judge cum-Judicial Magistrate were utilized? The tender of pardon, the declaration of Tariq as an approver and his subsequent statement, as such, are taken completely out of consideration. These are completely out of consideration. These are void and without jurisdiction.
11. 9.Coming to the accused Malik Yunus and Malik Abdur Razaq, no overt act of firing is attributed to them. Even the charge of conspiracy against them is brought about by the confessing co-accused Aurangzeb and Azmat Shah. Such confessions are not corroborated by any independent evidence, ocular or circumstantial. No doubt, an inculpatory confession is made admissible against a co- accused as well, under Article 43 of Qanoon-e- Shahadat but such result can be successfully achieved only when the confessions are proved, in the very terms of the Article; and the occasion of proof or otherwise would come only at trial. Till the conduct of trial, the aforesaid accused are entitled to be released on bail, being implicated by the co-accused alone.
12. 10.Next are Aurangzeb and Azmat Shah. Despite the fact that no one was even suspected in the F.I.R, it is still a mystery as to how the police reached Aurangzeb the same night. Though he has expressed himself to be innocent yet during the narration of facts, he has inculpated himself prima facie by performing the role of a carrier of the assailants to the spot in his vehicle knowing the fact that they have planned to criminally intimidate (in their view) the non-cooperating M.P.A. At this stage the evidence qua torture and undue influence is lacking, and thus, both shall have to face the consequences of their confession till the conduct of trial.
13. 11.Learned counsel for the complainant objected to the entertainment of bail application because, according to him, the challan has been put in Court. This is factually incorrect because the challan is though completed yet not put in Court. Rather, under the law, it was bound to be submitted within fifteen days. Thus, we contemplate no harm in entertaining the petitions.
14. 12.Learned counsel for the petitioner seriously assailed the site plan, the recovery of klashnikov at the instance of Tariq accused, the involved excesses exhibited by the Investigating Agencies and the fact that how could the accused by launching an armed attack in the dark of night and by concealing their identity could achieve the desired result of intimidating and scaring a victim without disclosing as to who has done it and why. All these questions require deep appreciation of facts of the case and hence we would avoid commenting thereon considering of course, that other material is sufficient for the disposecase bail petitions.
15. 13.It was to this consequence that application of Malik Younas and Malik Abdur Razaq was accepted and that of Aurangzeb and Azmat Shah was rejected through our short order dated 15-1- 1998. These are our detailed reasons for such order.