' The petitioner seeks bail in case F.I.R. No,75, dated 11-5-1999 of Police Station Paharpur under section 460/302/34, P.P.C.
2. In this case, the complainant Ghulam Rasool has stated in the F.I.R. That on the preceding night he alongwith his daughters, namely, Mst. Kaneezan Bibi, Mst. Zaib-un-Nisa and Mst. Rukhsana Bibi, were asleep in their house. At about 2-45 a.m. Due to the barking of the dog he woke-up and saw Muhammad son of Ranjhu, (who has also filed an Application bearing No, 250 of 1999 for his release on bail, but his learned counsel has fairly conceded that because of the existence of a prima facie case, he would not press that application and has withdrawn the same) and Ghulam Hussain, his brother-in-law and brother respectively, and a third person who could not be identified. He proceeded to take out his gun and in the meanwhile Muhammad, accused, made a fire. The complainant also fired at the accused which went amiss and due to the fire of accused Muhammad, his daughter named Mst. Kaneez Bibi was hit and died. The occurrence was said to be witnessed by his daughters.
3. The learned counsel for the petitioner contended that the petitioner is not only not charged in the F.I.R., but the third person was unidentified. However, on the arrest of Ghulam Hussain, he made a confessional statement on 15-5-1999, wherein the petitioner has been named by him. The learned counsel, however, contended that besides the confessional statement of the accomplice, there is no other evidence against the petitioner and in the confessional statement too, no active role has been attributed to the petitioner, as the act of firing has been attributed to accused Muhammad.
He maintained that the legal status of the confessional statement is such that it can he only used as a corroborative piece of evidence, whereas in the instant case, no other evidence is forthcoming which should receive corroboration from the confessional statement. In this regard, he relied on PLD 1991 Federal Shariat Court page 53, and contended that in the said judgment, the august Federal Shariat Court has on the basis of Islamic Jurisprudence, laid down a principle that in Islamic Criminal Law, the confession of the accused against the co-accused is not acceptable if there is no other proof against the co-accused and such confession may be considered as "Qarinah", i,e, circumstantial piece of evidence. Since there is no other evidence in this case against the petitioner, therefore, the mere confessional statement cannot be taken as a ground for believing that the petitioner is linked with the offence charged with. He also pleaded the factum of absence of any overt act on the part of the accused/petitioner and, as such he contended that the case of the accused/petitioner falls within the scope of further enquiry.
4. On the other hand, the learned counsel appearing on behalf of the complainant and State contended that notwithstanding the fact that the petitioner is not charged in the F.I.R., but he has been specifically named by accused Ghulam Hussain in his confessional statement. Moreover, supplementary statement of the complainant was recorded by the police on 11-5-1999, wherein he has stated that now he was satisfied that the unidentified person was Ghulsher. Thus, according to them, this is a sufficient material to constitute a prima facie case against the petitioner.
5. The learned counsel for the petitioner, in reply, has relied on the judgment of the Honourable Supreme Court of Pakistan reported in 1996 SCM R 511, wherein it was observed as follows:-- "The learned counsel read the supplementary statement of the complainant recorded in the case, but this statement did not disclose as to how the complainant came to know the name of the appellant when in fact she was neither known to the appellant, nor she disclosed his name in the F.I.R. Lodged in the case. We are, therefore, of the view that at this stage, it cannot be said that the accused is reasonably believed to have committed the offence which fell within the prohibitory clause of section 497, Cr.P.C."
' He further referred to 1995 SCM R 1350 wherein at Citation 'B' by referring to the statement/further statement of first informant, it is stated that the same if recorded during investigation by the police would neither be equated with the F.I.R., nor read as part thereof.
6. I have heard the rival arguments of both the sides and gone through the record with great care and attention. In the criminal administration of justice while deciding application for grant of bail, it must be kept in mind that the accused person is begging a relief ambit the circumstances totally engineered and steered by the opposite party, i,e, the prosecution, as the entire material is gathered against him in an ex parte manner and he is not then riding a chance to rebut the hostile material. Thus, the so-collected data be assessed by the Court tentatively in a very guarded manner with a mind to calculate the swings of affirmatives and negatives residing in the material so collected. And if such assessm ent generates any kind of doubt, its benefit must be given to the accused, as the pre-trial detention is a deprivation of liberty which is suffered by the accused person with zipped lips and on the conclusion of trial if he gets a verdict of innocence, such accused person can never be compensated for deprivation of his liberty, which is a priceless right of a person.
7. Rule of prudence dictates that an accomplice who accepts the commission of an offence is a person of nature who has no obduracy to resist the evil propensities which reduces him to a level that his lonely statement cannot be considered as a ground for forming a belief that the co- accused who is implicated by him is reasonably connected with the commission of offence. Thus, the case of such accused person would certainly come within the scope of further inquiry which gives entitlement to bail.
8. In the instant case, it is obvious that the only material available against the petitioner is the confessional statement of Ghulam Hussain, in which too no act of firing has been attributed to him and cannot be taken as a ground to believe that the accused is reasonably connected with the commission of the offence charged with. While deriving wisdom from the above referred judgments of the Honourable Supreme Court of Pakistan and the Federal Shariat Court, I am clear in my mind that the case of the accused/petitioner falls within the scope of further enquiry.
9. Resultantly, this application is accepted and the petitioner is admitted to bail in the sum of rupees two lacs with two sureties each in the like amount to the satisfaction of Ilaqa/Duty Magistrate.