MAMARAS vs THE STATE and others

' KHALIL-UR-REHMAN RAMDAY, J.---In an occurrence which had taken place on 21-9-2006 at about 8-00 a.m. In the area of Police Station Kot Najibullah of Haripur, a Suzuki Pick-up carrying some passengers was ambushed by the then unknown assailants who had come in a motor car and as a result of the indiscriminate firing made by whom, nine person had lost their lives while five others had received serious injuries. Pursuant to the investigation, it transpired that two real brothers, namely, Ahmed Nawaz and Akhtar Nawaz were facing trial on a murder charge; that they had asked their third brother, namely, Haq Nawaz, who was an absconding accused of that very case, to eliminate the witnesses of the said murder case who were to come to the court for giving evidence on 21-9-2006. The said Haq Nawaz collected some of his friends and relatives and launched the above mentioned attack on the said Suzuki Pick-up which, however, turned out to be a case of mistaken identity as the passengers of this vehicle, including the above mentioned poor victims of the said assault, had nothing to do with the said murder case. Mamaras petitioner is one of the accused person of the said crime.

2. Sardar Khurram Laitf Khan Khosa, the learned Advocate Supreme Court for the said accused- petitioner canvassed bail for him only on the ground:--

(a) that Mamaras petitioner was not amongst those accused persons who had made the fatal indiscriminate firing but was burdened with liability only on account of section 109 of the Pakistan Penal Code; and

(b) that the only material available against him was the judicial confessions made by some of his co-accused persons which had been recorded under section 164 of the Cr.P.C.

3. We have considered the matter at some length and do not find it possible for us to take, an offence punishable under section 109, P.P.C., as lightly as the learned Advocate Supreme Court expects us to take. The said is a rather serious affair as the person abetting the commission of an offence is liable to the same punishment which is prescribed for person committing the same i,e, a sentence of death in the present case. Needless to add that in such-like cases, the law permits grant of bail only on satisfaction of the conditions laid down in subsection (2) of section 497 of the Cr.P.C. i,e, if there were reasonable grounds for believing that the person seeking bail was not guilty of the offence alleged against him and instead there were grounds warranting further inquiry into his guilt.

4. Even if it be presumed, for the benefit of Mamaras petitioner, that the above noticed judicial confessions were the only evidence available against him, he would still not qualify for his release on bail as according to the provisions of Art.143 of the Qanun-e-Shahadat Order of 1984, a judicial confession made by a co-accused person was a perfectly valid piece of evidence which could be taken into consideration and which could be used as circumstantial evidence against a co- accused of such a confessing accused. Needles to say that circumstantial evidence, even by itself, has never ever been considered not to be a valid basis for founding a conviction thereon. It was of course open to the petitioner to show that the said judicial confessions did not deserve any reliance but not even an attempt was made to indicate any reason why they said co-accused persons would have falsely and maliciously implicated Mamaras petitioner in such a heinous crime by specifically nominating him as one of the abettors of the same.

5. Thus, nothing exists on record which could permit us to hold that the case of the petitioner was one of further inquiry. Nor is it possible for us to declare that every person accused of the commission of an offence punishable under section 109, P.P.C. Was entitled to the grant of bail irrespective of the merits of the case; without demanding satisfaction of the conditions prescribed by section 497(2) of the Cr.P.C. And only because the allegations against him was one of abetting the commission of an offence.

6. Consequently, this petition is dismissed. Leave refused.