1996 P Cr (PLP)

"107 Abetment of a thin

A person abets the doing of a thing, who

First: Instigates any person to do that thing; or Secondly: Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an. act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly: Intentionally aids, by any act or illegal omission, the doing of that thing; Explanation I.

A person who, by wilful mispresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procures a thing to be done, is said to instigate the doing of that thing." The learned counsel appearing on prosecution side have submitted that the present case will fall in the second category as mentioned above. The said second category deals with the case where a person engages with one or more other persons in any conspiracy for the doing of that thing if such act or illegal omission takes place in pursuance of such conspiracy. In the present case in view of the discussion that is to follow, it i's yet to be determined as to whether such conspiracy had taken place and as to what was the active role played by the present applicants in such conspiracy. The counsel for the applicants have argued that in the present case all the material that the prosecution has with them is the so-called extra-judicial confession of the two accused and that the said confession by itself cannot be an evidence against the present applicants nor a conviction can be based on such extra-judicial confession of co-accused. They have further submitted that this piece of evidence cannot even be admissible in evidence. The learned counsel for the applicants while referring to the statements of Police Officers and other witnesses recorded under section 164, Cr.P.C. have submitted that in all these statements it is pointed out that both these accused had made confession which would amount to a joint extra-judicial confession. Learned counsel have placed reliance on the following cases:-- (i) The State v. Kamal Khan alias Maloo 1993 SCMR 1378, (ii) Muhammad Amin v. Bashir Ahmed 1983 PCr.LJ 1574, (iii) Mumtaz Ali Shaikh v. The State 1993 PCr.LJ 1919 and (iv) Pir Mazharul Haq v. The State 1992 PCr.LJ 1910. In the first case their Lordships in the Supreme Court while dealing with a criminal appeal have observed that extra-judicial confession allegedly made by accused being a joint confession could not be used against either of them. In the second case above (Muhammad Amin v. Bashir Ahmed) a learned Single Judge of Lahore High Court has held that joint confessional statement of accused is not admissible in evidence. In third case a Division Bench of this Court has held that Court can consider whether the judicial confession made by accused by itself is sufficient or not in a given case to deny the concession of bail to him. It may be observed that the principle laid down in this case is with regard to concession of bail to the person making the extra judicial confession and not to co-accused. The same Division Bench of this Court in the case cited at No.(iv) above has held that in case where no other evidence was available against the accused except the confession of co-accused on which evidence alone no conviction can be sustained. In the same case, in view of given facts it was held by the learned Division Bench that no grounds existed to believe that accused was guilty of offence for which he had been charged and therefore, he was admitted to bail. In view of above discussion, I am of the considered opinion that in the present case there is no direct evidence to link the present applicants with the commission of the alleged offence or to prove their being a part of the said criminal conspiracy. Mr. Baloch relies on Article 40 of Qanoon-e-Shahadat in support of his contention that the said extra judicial confession would be admissible in evidence. I am afraid even this proposition on plain reading of the contents of Article itself would show that by any stretch of imagination the same can be applied only in cases of person making the confession and not in cases of co-accused. From the above discussion I am of the view that this is a case which calls for further inquiry at least in the case of present applicants. However, as regards the case of co-accused Azim and Muhammad Ali the inference would be B otherwise. In these circumstances I allow these two bail applications and direct the applicants to be released on bail on their furnishing one surety in the sum of Rs.1,00,000 each and P.R. bond each in the like amount to the satisfaction of the trial Court. H.B.T./M-32/K Bail granted.