MARRIAM ANTHONY NOROHANA Versus State

ORDER

1. Mrs. YASMIN ABASEY, J.--- Main contention of learned counsel for applicants is that both of these applicants have been falsely implicated in the matter as a counterblast to the steps taken by them against the illegal detention of co-accused Abdullah in the matter. By referring a report of 7-10-2005 it is argued that on 2-10-2005, Abdullah, who is father and husband of applicants respectively, was taken from his house by one Police Officer, and when he did to turn up, applicant Ms. Marriam reported the matter at Police Station Shalimar, Islamabad and finally approached to Lahore High Court by filing Writ Petition No.3105 of 2005. During pendency of that writ petition they were called on mobile phone to appear at Police Station F.I.A. Passport Cell, Karachi and on their appearance they were illegally detained, though neither their name was appearing in F.I.R. nor any role was assigned against them in it. This fact finds confirmation from order, dated 23-11-2005 passed in Writ Petition No.3105 of 2005 placed on record by applicant.

2. The reasons of implication of the applicant as appearing in challan dated 29-11-2005 of this case is that applicant No.2 could not produce any lawful document of her stay in Pakistan and that applicant No. 1 abetted his father Abdullah in tampering Pakistan Visa. But it has rightly been pointed out by learned counsel for applicant that section 109, Cr.P.C. has already been declared repugnant to the Injunctions of Islam, in a case of Federation of Pakistan and others v. Gul Hassan Khan PLD 1989 SC 633. Beside that arrest of applicant just on the basis of statement of co-accused made before police without any corroborative evidence is held to be an insufficient evidence against co-accused 2001 MLD 566. In 1999 SCMR 2203, it is further observed that:--

3. "-----The Bayyinah or evidence is a proof whose implications may extend to others while the confession is a proof whose implications are limited to the one who makes its. Under this principle the confessional statement of a person can only inculpate himself and no other person can be inculpated merely because some other person has made any admission. This principle is based on the well-known incident reported by almost all the compilers of the Ahadith in which the Holy Prophet (p.b.u.h.) punished a person with Hadd on the confession of the commission of Zina. But in spite of the fact that he had mentioned a particular woman by name with whom he had admitted to have committed Zina, the Holy Prophet (p.b.u.h.) did not convict the woman on the basis of this confession by the co-accused. He appointed a judicial officer to investigate and to independently find out whether the woman had committed Zina or not. The Holy Prophet (p.b.u.h.) directed the judicial officer to punish the woman only on her own free and independent admission. On the basis of this Hadith and several other Ahadith, Muslim Jurists have developed the principle that the implications of the confession of a person are confined to himself and cannot be extended to somebody else. It also means that the confession made by a person may be accepted to the extent to which it affects himself and may be rejected to the extent to which it implicates somebody else."

4. So far as sections 468 and 471, P.P.C. both are non-cognizable offence, but police had arrested them without obtaining any warrant or permission from the area Magistrate, which again is a violation of rules and regulation.

5. According to learned counsel for applicant the main allegation of prosecution against co-accused Abdullah is that he is involved in illegal business of preparing fake and forged visa of different countries and as all these documents have been taken in custody by police, therefore, even if prosecution has been able to assign any role against these applicants then also the entire case of prosecution of F.I.R. No.215 of 2005 is based on documents which are hereby in possession of police, therefore, question of tampering goes out of question. Reference has been made on 1996 SCMR 1132:'--

6. "----S. 497---Penal Code (XLV of 1860), Ss.406/420/468/471/409-Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Case against accused entirely depended upon documentary evidence which was in possession of' the prosecution and there was no possibility of tampering with the same---Petition for leave to appeal was converted into an appeal and the accused was admitted to bail in circumstances."

7. Learned standing counsel Mr. S. Mehmood Alam Rizvi has opposed to the grant of bail, but not in a convincing way and no sufficient reason has been brought on record is against to these applicants.

8. In view of foregoing reasons being a case of further inquiry applicants are allowed to be enlarged on bail subject to the furnishing of surety in the sum of Rs.2,00,000 each with P.R. bond in the like amount to the satisfaction of the Nazir of trial Court.

9. H.B.T./M-106/K Bail granted.