1983 P Cr (PLP)

Sardar v. The State 1970 P Cr. L J 773 rel. Hasan Ahmad Khan Kanwar for Petitioners. Nazar Hussain for the Complainant. Abid Nawaz for the State. A case under sections 302/149 and 148, P. P. C. was registered on the 3rd of October, 1967, against the five accused/petitioners, for the murder of Razzaq and Abdul Malik. The case was referred by the Commissioner, Multan Division, to the Tribunal under the West Pakistan. Criminal Law (Amendment) Act, vide his order dated the 16th of March, 1968. Evidence was, recorded by the Tribunal, and a finding of 'guilty' was given by it. The District Magistrate, however, remanded the case back to the same Tribunal for re‑trial, vide his order dated the 27th of June, 1968. This time the tribunal gave a finding of "not guilty". But the District Magistrate convicted all the petitioners vide his order dated the 28th of October, 1969. Aggrieved by this order the accused/petitioners filed a writ petition which was accepted by the High Court. It was found that the order of reference by the Commissioner was bad in law as 'prior hearing had not been given to the accused/petitioners, as required by section 25 of the West Pakistan Criminal (Amendment) Act. The order of reference having been quashed the case reverted to the normal jurisdiction. The accused/petitioners had already applied for bail to the Sessions Judge, Sahiwal in 1967 when the case was in the ordinary Court. Their application was, however, refused by the Additional Sessions Judge, Sahiwal, vide his order dated the 7th of November, 1967. The petitioners have again applied for bail. The grounds urged by the learned counsel for the petitioners are that in the F. I. R. which was lodged after a delay of 32 hours, only a suspicion has been alleged against the petitioners, that there is no direct evidence against the petitioners, that there is no eye‑witness in the case and that the witnesses mentioned in the F. I. R. had not been produced. As the evidence had been recorded before the Tribunal, the learned counsel for the State and the complainant sought time to study the case to see whether there was any evidence against the petitioners.

2. Learned counsel for the complainant submits that he has not been able to obtain the record. Learned counsel for the State has not been able to controvert the abovementioned contentions. But he has pointed out that Muhammad Sarwar (P. W. 1) has deposed that he had seen them sitting near the place of occurrence earlier, when he happened to pass that way. This however has ‑lo significance. Mere presence of the petitioners at the place of occurrence much before the incident, doe not by itself militate against them.

3. It has also been pointed out by the learned State counsel that the accused had made an extra‑judicial confession before Qasim Din (P.W. 13). On going through the evidence of this witness I find, that all the five1 petitioners are said to have made a `joint confession before him. Such) a confession can have no value in the evidence. (Reliance is placed on Sardar v. The State (1970 P Cr. L J 773). Again, this witness admitted that he had been A appearing in Courts as a prosecution witness and also used to join police investigations. He appears to be a stock‑witness and it seems that he has been introduced in view of the weakness of the prosecution case.

4. In view of the abovementioned facts I find that there is o reasonable ground to believe that the petitioners are guilty of an offence punishable with death or transportation for life. This is therefore, a fit case for the grant of bail to the petitioners. The petitioners are enlarged on bail in the sum of Rs. 10,000 (Rupees ten thousand only) each with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Sahiwal. M.Y.H. Bail granted.