Pir MAZHAR UL HAO vs THE STATE---Opponent

1. NAZIM HUSSAIN SIDDIQUI, J.--- This is an order on bail applications Nos.346, 347, 348, 349 and 350 of 1992 which though arise from different F.I.Rs. But are being disposed of by this common order.

2. Bail to applicant was refused by learned Judge Special Court III, Suppression of Terrorists Activities, Karachi, as per order dated 2-5-1992.

3. These cases were registered at Police Station Gulshan-e-Iqbal, Ferozabad, Aziz Bhatti, and Baloch Colony, under section 365-A/34, P.P.C. It is alleged that applicant Pir Mazharul Haq, who is M.PA.

4. Sindh, is involved in these crimes and that at his behest the co-accused of these cases had kidnapped the persons mentioned in these F.I.Rs. With the object, besides realising ransom, to create law and order problem for the government and to de-stablise it.

5. At the outset, Syed Sarfraz Ahmad learned Additional Advocate---General submitted that the evidence available against the applicant, showing his involvement in these crimes, consists of his abscondence and confessional statements of four co-accused. He argued that, in view of this evidence, the applicant is not entitled to bail.'

6. As regards abscondence of applicant, it is noted that applicant voluntarily appeared before the trial Court on 21-4-1992 and had surrendered himself to the Court. Prior to it, he was granted protective bail by the High Court of Baluchistan on 1-4-1992. Before the expiry of proclamation issued under section 87, Cr.P.C. Admittedly, he surrendered himself before the Court. Learned trial Judge, in his order-dated 26-4-1992 has observed that absence of applicant was not intentional or deliberate. This order of learned trial Judge was not challenged. In view of this order the fear of abscondence is not available to the prosecution.

7. Second piece of evidence, available against the applicant, is the alleged confessions of four co- accused namely, Mumtaz, Sikandar Shah, Ghulam Rasool and Ghulam Shah. Under section 30 of the Evidence Act, 1872 confession of co-accused was to be taken into consideration against him and also against such other persons against whom said confession was made. After the promulgation of Qanun-e-Shahadat Order 1984, the legal position with regard to confession of co- accused has changed. As per Article 43 of Qanun-e---Shahadat Order 1984, a confession is a proof against person making it, and it has to be taken into consideration, as circumstantial evidence, against persons who are being tried jointly for the same offence.

8. Mr. A.Q. Halepota learned counsel for applicant cited Arif Nawaz Khan and 3 others v. The State PLD 1991 FSC 53 to contend that on the basis of confessional statements-of co-accused the applicant cannot be convicted. In this reported case, it has been held that, the confession of an accused against co-accused is not acceptable if there is no other proof against co-accused. Also, it has been held that confessional statement may be used against co-accused as circumstantial evidence, but this can only be done when there is other direct independent evidence against the co-accused.

9. The learned Additional Advocate-General conceded before us that the above authority is the recent law on this point, but submitted that this law was laid down in a final decision and for the purpose of bail it cannot be relied upon or made basis for grant or refusal of bail. It is a settled proposition of law that the Courts are to tentatively examine the evidence available against the f accused for the purpose of bail. At this stage, we are not examining the merits and demerits of these confessions, lest it may prejudice the case of any of the parties, but in view of admitted position that presently, except above mentioned two pieces of evidence, no other evidence is available against applicant, we hold that in the absence of any other evidence available with the prosecution at this stage, except the confessions of the co-accused on which evidence alone no conviction of the applicant can be sustained there are no grounds to believe at present that the applicant is guilty of the offences for which he has been charged. It may be added that one of the co-accused namely, Ghulam Shah, who had given confession has admittedly been released on bail by the trial Court.

10. Accordingly, bail is granted to applicant in the sum of Rs.50,000 and P.R. Bond of the like amount for each case to the satisfaction of the trial Court.

11. The prosecution will be at liberty to apply for cancellation of bail of the applicant before the trial Court In case other evidence against the applicant becomes available.

12. N.H.Q./M-1644/K