Rafique Ahmed and Imtiaz Ahmed who are facing trial under section 302/34, P.P.C. And 13-D Arms Ordinance, have filed this bail application under sections 497 and 498, Cr.P.C. After a similar application filed by them before the IIIrd Additional Sessions Judge, Sukkur was rejected by order dated 15-1-2002. The brief facts of the case as reflected from the F.I.R. Are that on 10-6-2001 at about 20-30 hours two persons came to the Police Station, Site Area, District Sukkur along with two country-made pistols in their hands, disclosed their names as Rafique Ahmed and Imtiaz Ahmed and stated that they had killed Mst. Roshan Khatoon sister of Imtiaz Ahmed as she had been declared Kari with one Abdul Sattar and was consequently divorced by her husband Gul Hassan and driven out of the house. Giving the details of the incident they stated that they had come to know that Mst. Roshan Khatoon had gone to village Nasirabad, Taluka Sukkur to attend the marriage party of Javed Bhayo. Both the applicants decided to kill Mst. Roshan Khatoon as she was Kari, took their unlicensed pistols and cartridges and came to the village to fulfil their objective. When they reached a public street they saw Mst. Roshan alight from a Datsun and going towards some house.
The applicants took out their pistols, pointed towards the ladies and told them to move away from Mst. Roshan as they wanted to kill her because she had been declared Kari. Thereafter Rafique fired two shots and Imtiaz fired one shot at Mst. Roshan who fell down and died. After completing their design, they came to the Police Station and surrendered themselves to the police. The police conducted formal enquiries and submitted the challan against the applicants before the Sessions Judge, Sukkur.
The applicants moved an application for bail which was dismissed on 28-8-2001 on the ground that the applicants had voluntarily confessed their guilt before the police and produced the weapons of the crime. The learned Sessions Judge added that the applicants being son and brother of the deceased had committed Qatl-i-Amd as the former had been declared Kari. He also justified the rejection of the application for the reason that the two country-made pistols which had been used in the crime had been recovered from the applicants and according to the post- mortem report the deceased had died as a result of injuries caused by bullet shot from these pistols. After receipt of ballistic report, the applicants filed another application under section 497, Cr.P.C.
For bail which was rejected by the IIIrd Additional Sessions Judge, Sukkur by order dated 15-1-2002. The learned Additional Sessions Judge in his order clearly stated that according to the report of the Ballistic Expert, the empties sent to him were not fired from the .16 bore country-made pistol while the .12 bore pistol was not in a working condition which indicated that the applicants were not the persons who had caused the death of Mst. Roshan; however, he rejected the application on the ground that the applicants had voluntarily appeared before the Police Station, confessed that they had committed the murder of Mst. Roshan and that the Sessions Judge had already dismissed their earlier bail application by order dated 28-8-2001. Mr. Habibullah Shaikh, learned counsel for the applicant submitted, that the police had not examined any witness so far; that the report of the Ballistic Expert was in favour of the applicants and vehemently urged that the alleged confession before the police officers is not admissible under the provisions of Qanun-e-Shahadat. Articles 38 and 39 of Qanun-e-Shahadat Order, 1984, read as follows:
38. Confession to police officer not to be proved.--No confession..Made to a police officer shall be proved as against a person accused of any offence.
39. Confession by accused while in custody of police not to be proved against him. Subject to Article 40, no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved, as against such person- The wordings of Article 38 of Qanun-e-Shahadat clearly state that any statement confessing to the guilt of a crime made before a police officer cannot be used as evidence against a person making such statement. Article 39 further states that any confession made by any person while he is in the custody of a police officer shall not be admitted as evidence unless the same has been made in the immediate presence of a Magistrate. It is an admitted position that the confession made by the applicants before the police Iofficers at the Police Station cannot be used against them under Article 39 because the alleged admission of murder was not made in the immediate presence of a Magistrate. It is an established law that any confession made by any person before any person can be used against him except the one which has been made before a police officer and even that has to be done in the immediate presence of a Magistrate. In the present case, the alleged confession cannot be termed as an Extra-judicial Confession which can be used against the applicant as the same was allegedly made before a police officer without the immediate presence of a Magistrate.
When confronted with this position, Mr. Muhammad Iqbal Memon learned State Counsel conceded that the ground taken by the learned Additional Sessions Judge rejecting the bail is not supported by law. It may be added that even the Ballistic Expert has given an opinion that the injury which caused the death of Mst. Roshan was not caused by pellets from .16 bore country-made pistol and that the .12 bore pistol was not in working condition at all. Further the police have also not examined so far any witness who were alleged to have been present at the time of incident to connect the applicants with the death of Mst. Roshan. In the circumstances it is clearly a case which requires further enquiry. Consequently, . The applicants are admitted to bail upon their furnishing solvent surety in the sum of Rs,Two Lakhs each with a P.R. Bond in the like amount to the satisfaction of the trial Court.