1. ' Applicant//accused Altaf Hussain is involved in crime No,.85 of 1996, for the offence under section 302/34 Qisas and Diyat Ordinance, registered at P S. Malir, Karachi. His bail application has been dismissed by the learned Sessions Judge Malir, on 28-5-1998.
2. ' Briefly stated the facts of the case as unfolded in the F.I.R. Which was lodged by complainant Azad Sultan Muhammad Fateh Sher, resident of P.A.F. Cottage Malir Cantt. Karachi on 29-8-1996/are that the applicant is the cousin of the complainant but due to death of one Anwar by electric shock, there had been differences between the complainant and the accused side. Notwithstanding this aspect the complainant did not know if his son deceased Muhammad Khan and the present applicant//accused used to see each other. It is further alleged that on 26-8-1996, deceased Muhammad Khan informed the complainant that one Nasir, resident of the same locality had called him (deceased) at 7 hours, at Tanki No,4, to arrange a job for him, at the Airport. Thereafter, the complainant contacted the contractor with whom said Nasir was employed, and came to know that he was on leave. Qn 29-8-1996, the complainant went to the house of Nasir and did not find him there. Subsequently at 2;45 p.m. Police called the complainant and informed him that dead body of his son was lying in the lounge of House No,R-81, C III, Gulshan-e-Mehran and was bleeding from head and neck. The complainant identified the dead body of his son Muhammad Khan, and then, as stated above, lodged report against the present applicant and Nasir Masih, for the murder of his son.
3. ' I have heard learned counsel for applicant, the learned Acting Advocate-General Sindh, and perused the record.
4. ' Learned counsel for the applicant/accused vehemently urged that the alleged incident was not witnessed by any one and the only piece of evidence available against the applicant/accused is the confessional stetements recorded by the Judicial Magistrate and \not by the trial Court, or even the Court having jurisdiction. Therefore, under the Hudood Laws and Qisas and Diyat Ordinance, as such the said statement is not admissible. He further submitted that while recording the judicial confession, the learned Judicial Magistrate did not comply with the requirement of law.
5. In support of his submission he relied upon Order of a learned Single Bench of this Court reported as Muhammad Waseem and 7 others v. State (1998 PCr.LJ 435(Karachi) as well as the case law cited therein.
6. The learned Acting Advocate-General, submitted that the case law cited by the learned counsel for the applicant is distinguishable and is not attracted to the facts and circumstances of this case. He further submitted that punishment provided for Qatl-e-Amd under section 302(b) is death, imprisonment for life as Tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available. He also submitted that the instant case calls for punishment as Ta'zir, therefore, the confession recorded by the learned Judicial Magistrate can be looked into, particularly when only a tentative assessment of the evidence is made.
7. ' On careful exathination of the record, I find no force in the submission of the learned counsel for the applicant and I regret I could not persuade myself to agree with the view taken by my learned brother Rasheed A. Rizvi, J. In Muhammad Waseem and seven others (supra). In the judgment reported as, Gul Muneer and others v, State, 1990 PCr.LJ 1878 a learned Division Bench of the Federal Shariat Court, has laid down that if a confessional statement is not recorded by the Court of competent jurisdiction, it could be used as evidence in a case other than that of Hadd, not only against the person making it, but also against co-accused at the joint trial. It was further held as follows: it was contended that confession in respect of Ordinance No, VII of 1979 can only be effective if it is recorded by a Court of competent jurisdiction which is a Court competent to try and that the offence of Zina can only be tried by a Court of Session and if a confession is recorded by a Court other than Court of Sessions the same cannot be made basis of conviction of the accused.
8. Reference was made to Full Bench judgment of this Court published in PLD 1988 FSC 58. However, after going through the judgment we have found that this Court has held that a confession recorded by a Court other than the one competent to try the case is not a confession not within the meaning of section 8(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which pertains to the mode of proof of Zina or Zinabil-Jabr liable to Hadd that an accused has to make a confession of the commission of the offence before a Court of competent jurisdiction i.e, the trial Court. Herein the judicial confessions were recorded during the course of investigation under section 164, Cr.P.C. And were certified under section 364, Cr.P.C. And since the same were retracted at the trial and the appellants were not prepared to make confessions before the trial Court within the meaning of section 8(1) of the Ordinance as such there could not he imposed punishment of Hadd on the appellants for the offence of Zina, but, nonetheless, their retracted judicial confessions voluntarily made during the course of investigation can be used as a proof against the person making it and can be taken into consideration as circumstantial evidence against co-accused at a joint trial for the same offence. Reference is made to Article 43 of the Qanun-e-Shahadat, 1984 in support of the view point enunciated above."
9. ' The legal position was summed up by the Hon'ble Federal Shariat Court in State v. Gulab Hussain, PLD 1994 FSC 17(23) as under: " the confession which can be made use of for the purpose of Hadd is not the same which is required in the case of Ta'zir inasmu ch as in the first case the confession must be recorded by a Court of competent jurisdiction i.e, a Court of session but in the second it is not necessary that it should be recorded by such Court only. In other words, in the case of Tazir confession made before a Magistrate can also be taken into account. Similarly whereas a confession when retracted becomes redundant in the case of Hadd, it continues to be a piece of evidence in the case of Ta'zir, although in the case of Ta'zir it is for the trial Court to rely upon or discard the retracted confession in the light of the circumstances of the particular case before it."
10. Keeping in view the facts and circumstances of this case and respectfully following the law laid down by the Hon'ble Federal Shariat Court in my opinion which based on tentative assessment of the evidence available with the prosecution, no case for grant of bail is made out. Therefore, this application having no merits is dismissed.