1. ' Present applicant along with three other co-accused are facing trial in the Court of Additional Sessions Judge, Mahar in crime No,28 of 1999 of Mehar Police Station arising out of offences under sections 302, 324, 451 and 34 of the Pakistan Penal Code. The other three accused have been granted bail by this Court vide order, dated 14-10-1999 in Criminal Bail Application No,177 of 1999 (Imtiaz Ali and 2 others v. The State).
2. ' In addition to the grounds of consistency, the present accused is also claiming bail on the ground that there is no other material to connect this accused except statements of co-accused. It may be pointed out that in the F.I.R., the allegation of commission of offence was raised against two persons only while in the instant case four persons have been arrested. I have noted the facts of the F.I.R., in earlier bail application in the following words:- ....As per allegation of the F.I.R., dated 19-2-1999 which was lodged at 0900 hours with Mehar Police Station District Dadu, the complainant Muhammad Sadiq who alongwith four other persons was going from the Bus Stop to their residence at Gulshan Madina Colony they heard the noises of 'thief, thief'. It is further alleged that they saw two persons, one armed with gun and the other armed with revolver coming from that place; that the person armed with revolver fired at the complainant party which hit Ghulam Mohayauddin on the right side of his chest who fell down and died instantly. The other accused armed with gun, fired which did not hit any person. It is alleged in the F.I.R., that these acts of the said two persons were with the intention to kill the complainant party. In the above circumstances the aforesaid F.I.R., was lodged under sections 302, 324, 451, 452 and 34, P.P.C"
3. ' I have heard Mr. Azizullah Buriros Advocate for applicant and Mr. Ali Azher Tunio Assistant Adovcate-General for the State. The three previous accused were granted bail on the consideration, inter alia, that the identification test was conducted after the delay of eleven days after their arrest and that in the F.I.R., only two persons have been alleged to have committed the said offence while police have shown in the challan three persons under arrest and one person (present applicant) as absconder. In the previous bail application another learned counsel appearing for the State has conceded for grant of bail but in the instant case -Mr. Ali Azhar Tunio Assistant Advocate-General has vehemently opposed the grant of bail to the present accused.
4. It is not denied by the State counsel that the present accused was implicated in the offence on the simple statements of the three co-accused recorded under section 161, Cr.P.C., otherwise there is no material to connect him with the alleged offence. It is to be noted that the co-accused at the time of their arrest stated to the police that the present applicant was also with them in the commission of the alleged offence. They were not examined under section 164, Cr.P.C. Despite this learned counsel opposed the bail application by making reference to Article 16 of Qanun-e- Shahadat Order, 1984. Mr. Tunio, A.A.-G. Has placed reliance on the case Munawar Hussain alias Bobi v. The State (NLR 1993 SD 328). In support of his plea that the evidence of caucused/accomplice is a weak piece of evidence and entitled the accused for grant of bail, Mr. Azizullah Buriro has referred the following cases:---
(1) Mumtaz Ali Shar and another v. The State (1993 PCr.LJ 1919),
(2) Noor Hassan v. The State (1994 PCr.LJ 661),
(3) Mir Murtaza Bhutto v. The State (1995 PCr.LJ 1416) and
(4) Shabir-ul-Hssan v. The State (PLD 1991 SC 898).
5. ' The provisions of section 16 of Qanun-e-Shahadat, 1984 in reference to Holy Qur'an and Islamic injunctions came up for consideration before a Full Bench of Federal Shariat Court in Hyder Hussain and others v. Government of Pakistan and others (PLD 1991 FSC 139). In that case the statement of an approver against his accomplice vis-a-vis sections 337 and 338 of Cr.P.C., was considered in light of the Islamic Jurisprudence, whereafter it was held, inter alia, as follows:-- "92. To sum up, the provisions of Article 16 of the Qanun-e-Shahadat Order, 1984, are declared as repugnant to the Injunctions of Islam to the extent that an accomplice is not a competent witness in offences punishable with Qisas, and a conviction based on uncorroborated testimony of an accomplice even in the matter of Ta'zir will be illegal..."
6. (Emphasis added).
7. ' The above view was followed by a Division Bench of this Court in Asif Ali Zardari and another v. The State (1992 PCr.LJ 171). In that case Justice Saeeduzzaman Siddiqui (now Chief Justice of Pakistan) while speaking for the Division Bench held, inter alia, that "evidence of an accomplice though is admissible in cases relating to offences liable to Ta'zir but conviction in such cases cannot be based solely on the uncorroborated testimony of such accomplice." Reference was also made to the case Federation of Pakistan and others v. Gul Hassan Khan (PLD 1989 Supreme Court 633). In the case referred by Mr. Tunio, A.A.-G. Munawar Hussain alias Bobi v. The State (1993 SCM R 785), the Shariat Appellate Bench of the Supreme Court held, inter alia, as follows:--- "10. There cannot be any cavil with the submission that it is now well-settled proposition of law that the Court as a rule of prudence, seeks corroboration on material particulars by independent corroborative piece of evidence in case the main witness is an approver or an accomplice, though in terms of Article 16 of the Order which corresponds to section 133 of the late Act, even conviction can be found on the evidence of an accomplice without any corroboration if the Court is satisfied with the truthfulness of this evidence...."
8. ' The view of Federal Shariat Court in the case of Hyder Hussain (supra) was approved by the Shariat Appellate Bench of the Supreme Court of Pakistan in the case Federation of Pakistan v.
9. Muhammad Shafi Muhammadi, Advocate and 3 others (1994 SCM R 932) where Ajmal Mian, J. (as his lordship then was) while speaking for the majority view, made the following observations:--- ...17. We may also observe that Article 16 and illustration (b) of Article 129 of the Order are apparently in conflict. In such a case the Court is required to place such construction, which may harmonize the above two provisions. Though by virtue of the above Article 16 it is permissible that the Court may convict an accused person on the basis of uncorroborated evidence of an accomplice, but the Court as a rule of prudence and because of above illustration (b) to Article 129 of the Order insists upon for having the testimony of an accomplice corroborated in material particulars, and, thereby harmonize the above two provisions.
18. The upshot of the above discussion is that we are inclined to hold that the evidence of an accomplice is not admissible at all in case of an offence punishable with Hadd and Qisas. However, in case of an offence, which entails punishment of Ta'zir, his testimony is admissible and furnish the basis for conviction provided it is corroborated in material particulars. However, in exceptional cases for the reasons to be recorded by the Court, his testimony may be acted upon as sufficient for warranting recording of conviction...."
10. ' The evidence of accomplice and the hesitancy on the part of Courts to base a conviction solely on the statement of an accomplice is as old as the rule of evidence itself. This was noted by Sir Johan Beaumont in the case of Bhuboni Sahu v. The King (AIR 1949 Privy Council 257) in the following words:--- ...(4) The law in India relating to the evidence of accomplices stands, thus: Even before the passing of the Indian Evidence Act, 1872, it had been held by a Full Bench of the High Court of Calcutta in R. v. Elahee Bukhsh, 5 W.R. Cr.80: (Beng. L.R. Sup. Vol.459), that the law relating to accomplice evidence was the same in India as in England. Then came the Indian Evidence Act which by section 133 enacts that:--- ' An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.'
11. ' Illustration (B) to section 114, Evidence Act, however, provides that: ' The Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars.'
12. ' Reading these two statements, together the Courts in India have held that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The law in India, therefore, is substantially the same on the subject as the law in England, though the rule of prudence may be said to be based upon the interpretation placed by the Courts on the phrase 'corroborated in material particulars' in illustration to section 114 "
13. ' Thus, Article 16 of the Qanun-eShahadat, 1984, to some extent corresponds to the provision of section 133 of the repealed Evidence Act, 1872. The only exception made in Article 16 was in respect to the offence punishable with Hadd where the evidence of an accomplice was declared not admissible. Section 133 of the Repealed Act, on several occasions was also considered by our superior Courts. In the case of Abdul Khaliq v. The State (1970 SCM R 307 at 311) a Full Bench of the Honourable Supreme Court reiterated the rule laid down in the case of Ghulam Qadir v. The State (PLD 1959 Supreme Court 377) and held that the evidence of the accomplice must be corroborated in respect of material particulars implicating the accused. For further reference see Muhammad Karim and 3 others v. The State (1988 PCr.LJ 1543). In order to sum up this discussion, I would like to quote former Chief Justice of Pakistan Muhammad Munir, J., (as his lordship then was) who, while speaking for the Full Bench observed as follows:--- ' The real danger in acting upon the uncorroborated evidence of an accomplice is the possibility that in the desire to screen his real partner in the crime, he may substitute for him a completely innocent man who may not know at all why he has been so substituted, and it is for this reason that Courts have never convicted a person simply on the ground that he is unable to explain why the accomplice implicates him. Per se, the circumstances is valueless but coupled with other corroborative evidence, it may turn the scale in favour of the prosecution....
14. (See Abdul Qadir v. The State PLD 1956 SC 407).
15. ' A division bench of this Court in Mumtaz Ali Shaikh (supra) granted bail to accused involved in offences under section 3/4 of the Explosive Substance Act, 1908 on the ground, inter alia, that the judicial confession of the accused was recorded after two weeks. Bail was granted by a single Judge of this Court in Noor Hassan (supra) to an accused of offence under section 302, P.P.C., on the ground, inter alia, that the confession made by the co-accused was self-exculpatory which was retracted subsequently. The relevant case for bail purpose is of Mir Murtaza Bhutto (supra) where bail was granted to a person accused of hijacking a P.I.A. Aeroplane to Kabul. Bail was granted by a Division Bench of this Court on the grounds which are reproduced as follows:--- ' "....In so far as the confessional statement made on 26-9-1981 of Ghulam Mustafa is concerned, it may first be observed that the Federal Shariat Court in its decision reported in PLD 1991 FSC page 53, has held that, on the basis of the confession of a co-accused, without any further evidence, the conviction of the accused cannot be sustained. Even otherwise, prima facie this piece of evidence, as rightly pointed out by the Special Public Prosecutor cannot sustain the conviction of the applicant under the law...."
16. Keeping in view the above discussion, it could be safely held that for the bail purpose, a statement of accomplice involving co-accused is not material of that strength which may disentitle the privilege of bail to an accused against whom the only material is the allegation leveled by his accomplice which requires corroboration in material particular. Even at the bail stage there must be some more convincing material including strong circumstantial evidence corroborating the statement of an accomplice for the purpose of denying bail to an accused. In the instant case such corroborative material which may implicate the present accused is absent in the prosecution case and, therefore, applicant is entitled for the grant of bail. Moreover, this Court has allowed bail to the three co-accused. The case of present accused for bail is on better footing than the other accused already admitted to bail. He is also entitled for bail on the ground of consistency i,e,, maintaining equality of treatment amongst several accused placed in similar and identical circumstances. Reliance is placed on the cases Muhammad Fazal alias Bodi v. The State (1979 SCM R 9), Abdul Salam v. The State (1980 SCM R 142) and Walayat and another v. The State (1984 SCM R 530).
17. As a result of the above discussion, the applicant was admitted to bail upon furnishing one solvent surety of Rs,200,000 (Rupees two Lacs) with R.P. Bond in the like amount to the satisfaction of Trial Court through a short order, dated 25-10-1999. Above are the reasoning's for the short order.