IFTIKHAR AHMAD CHEEMA, J.- Petitioner is charged under section 337 (V)/302/109 of the Pakistan Penal Code vide FIR No. 98, dated 2.5.1997 registered at P.S. Naushehra Jadid.
2. As per the contents of the FIR, Muhammad Saleem/petitioner, who is confirmed rogue, cultivated illicit relations with Mst. Khadija, his co-accused, who is a harlot, and they conspired together to eliminate Abdul Wahid deceased, the husband of Mst, Khadija. The petitioner supplied a packet of poison through her niece to his co-accused Mst. Khadija. She added the said poison in a rice dish.
The deceased took it and died in consequence of said poison. During the investigation, it transpired that Mst. Khadija, the wife of Abdul Wahid, had made an extrajudicial confession before Muhammad Hashim, Rehmatullah and Noor Muhammad, PW. That she had murdered her husband by administering poison at the behest of her co-accus"d Muhammad Saleem, petitioner, with whom she was carrying on for a pretty long time and that the petitioner had supplied the packet of poison which she mixed in the rice dish. The deceased took it and died in consequence of the same.
3. Learned counsel for the petitioner has vehemently contended that the confession of Mst. Khadija, co-accused of the petitioner, is relevant and admissible against the petitioner under Article 43 of the Qanun-e-Shahadat Order, 1984, but that cannot be made the sole basis of conviction of the petitioner unless it is corroborated by some independent source which is not forthcoming in this case. Since there is no direct evidence available in this case and the whole prosecution case rests bn circumstantial evidence, i.e., extra-judicial confession, motive, supply of poison by the petitioner to the principal accused (Mst. Khadija) and her administering it to her husband, the evidence collected by the police against the petitioner should be incompatible with his innocence and should be such which cannot be explained on any other hypothesis than that of his guilt. That type of evidence is not available in this case. Mst. Zubaida, the niece of the petitioner, to whom the petitioner allegedly handed over the packet of poison for its handing over to the principal accused, Mst. Khadija, has categorically denied that she received any quantity of poison from the petitioner and also its handing over to Mst. Khadija. I was told by the learned counsel for the complainant that the petitioner had also made extra-judicial confession before a few respectables of the village but there is nothing on the record which would tend to support this contention and the Investigating Officer has frankly conceded that no such extra-judicial confession allegedly made by Muhammad Saleem, petitioner, is available on the file and in the absence of any other connecting evidence which may tend to show that the petitioner joined hands with the principal accused, Mst. Khadija, for the murder of Abdul Wahid, deceased, the solitary extra-judicial confession of the co-accused (Mst. Khadija) is hardly sufficient to warrant the petitioner's conviction under section 302 PPC. However, this observation of mine is tentative in nature and shall not prejudice the trial Court during the trial of this case. It is also significant to note that principal accused (Khadija) has already retracted from her confession. The petitioner is in the judicia! Lock- up for the last one year without trial which is also an abuse of process of law.
4. In view of the above discussion, I admit the petitioner to bail in the sum of Rs 1,00,000/- (one lac) with two sureties, in the like amount to the satisfaction of trial Court i.e. (Sessions Judge, Bahawalpur).