1. ' The main revision application has been filed on behalf of applicant/ accused which has been admitted for regular hearing on the grounds that another Criminal Revision No,16 of 1996 (Muhammad Hanif v. The State) has been admitted for regular hearing and that the facts and law involved in both these petitions are common. In.This Criminal Revision Application, the applicants/ accused have impugned the order, dated 28-1-1996 passed by 1st Additional Sessions Judge, Karachi West in Sessions Case No,549 of 1995, whereby it was ordered that the R&Ps of the Sessions Case alongwith the bail application be handed over to the S.H.O. Police Station Baldia Town, Karachi for submitting the same before concerned Special Court (Suppression of Terrorist Activities), Karachi. Now, the petitioners have filed this application under sections 497/498 and 561- A, Cr.P.C. Praying that they may be admitted to bail and may be released pending disposal of this revision application.
2. ' It is admitted fact that on 5-10-1995 all the eight (8) applicants/accused were arrested by the Baldia Town Police. On 17-10-1995 after 12 days of their arrest, two applicants namely Muhammad Shakil son of Ghulam Ahmed and Muhammad Hanif alias Bhai Bhai made confessional statements before A.C.M., Karachi East. In these confessional statements, they implicated the remaining six applicants/accused.
3. 'I have heard Mr. Mehmood A. Qureshi, Advocate for applicant and Ms. Nasreen Zafar, Advocate for the State. I have also perused police papers. It is contended by Mr. Mehmood A. Qureshi, that the applicants/ accused Nos.1 to 4 and 7 and 8 namely, Muhammad Waseem, Rashid Ibrahim, Sultan alias Faisal, Ishfaque Ahmed alias Raju, Muhammad Yousuf and Muhammad Arif alias Karachi were involved in the instant case on the so-called confessional statements made by applicants Nos.5 and 6, namely, Muhammad Shakeel and Muhammad Haneef alias Bhai Bhai. This factual position has not been disputed by Ms. Nasreen Zafar, who has extended her no objection to grant of bail to these six applicants/accused persons. However, she has vehemently opposed grant of bail to the two applicants/accused namely Muhammad Shakeel and Hanif alias Bhai Bhai on the ground that they have made confessional statements before the 1st Class Magistrate on 17th October, 1995.
4. ' Mr. Mehmood A. Qureshi has argued that the confessional statements of these two applicants/accused have no evidentiary value, firstly, on the ground that it was recorded twelve
(12) days after their arrest and, secondly, that these confessional statements were not recorded by the trial Court but by the First Class Magistrate. To support his contention, he has referred to the case of Jaomal alias Jairam v. The State 1997 .MLD 2470 and the case of Mumtaz Khan v. The State 1992 PCr.LJ 412. In the first reported case a learned Single Judge of this Court considered the facts of confessional statement at the bail stage and granted bail to applicant who was facing trial under section 304, P.P.C. This Court followed the case of Mumtaz Khan and granted bail on the ground, inter alia, that the confession was not recorded by the trial Court. In the case of Mumtaz Khan, a learned Single Judge of Peshawar High Court, Muhammad Bashir Jehangiri, J., (as his Lordship then was) granted bail to applicant who was facing trial for offences under section 10/11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and extended bail on the ground that the confessional statement recorded has no evidentiary value inasmuch as the same was not recorded by the trial Court. Reference was made to a decision of Federal Shariat Court in the case of Muhammad Naseer v. The State PLD 1988 FSC 58.
5. In the instant case, according to the memo. Of arrest, these two applicants/accused, namely Muhammad Shakeel and Hand alias Bhai Bhai were arrested on 5-10-1995 and their confessional statements were recorded twelve (12) days after such arrest. It is also an admitted position that their confessional statements were recorded by the First Class Magistrate when in the present case, which arises out of an offence under sections 302, 365 and 34, P.P.C. Probably, the Trial Court would be either Session Court or the Special Court (S.T.A.) but under no circumstances, the First Class Magistrate is the Trial Judge in the instant case.
6. ' As a result of the above discussion, I grant bail to all the applicants/accused, who shall be released forthwith, if not required in any other case upon furnishing solvent surety in the sum of Rs,1,00,000 (Rupees one hundred thousand) each with P.R. Bond in the like amount to the satisfaction of Nazir of this Court.
7. ' Before parting, I would like to observe that the prosecution shall be entitled to move for the cancellation of bail, in case if tangible evidence is placed before the trial Court.
8. ' These are the reasoning for the short order, dated 20-10-1996, through which this bail petition was accepted.