1985 P Cr (PLP)

4. Ghano, Lal Khan and Lutuf Ali gave judicial confessions before Mukhtiarkar & F.C.M. Ubauro. Police examined Babar, Lakho, Allahbux, Mocharo and also got their 164, Cr.P.C., statements recorded. They all have stated that they heard gun reports and went towards the house of Khamiso and found accused running away with weapons. Mst. Sukhan W/o Khamiso in 164, Cr.P.C. statement stated that Ghano, Lal Khan and Lutuf Ali came at her house where Ghano and Lal Khan fired at Muhammad Sultan and killed him. Police also recovered gun from Ghano and Lal Khan.

5. Each accused in their confession have implicated himself as well as co‑accused. Accused /respondent Lal Khan is son of co‑accused Lutuf Ali whereas Ghano is sister's son of Lutuf Ali.

6. The respondents were granted bail by the Additional Sessions Judge and concluding para of the order is as under:‑ Briefly, the names of accused Ghano and Lal Khan do not transpire in the F.I. R, nor there is specific allegation of any overt act against them. Their presence at the Vardat is not mentioned. Regarding accused Lutuf Ali, all the P.Ws. whose statements under section 164, Cr.P.C. have been recorded, have clearly stated that accused Lutuf Ali was empty‑handed and no allegation and overt act has been attributed to him. According to Police investigation, accused Lutuf Ali had no gun in his hands; hence no recovery of any incriminating article, has been made from him. The learned A.P.P. has argued that he has gone through the judicial confession made by accused Ghano, Lal Khan and Lutuf Ali and the same have not been recorded in accordance with the provisions as prescribed by law. Names of Ghano and Lal Khan do not transpire in the F. I. R. nor further statement of the complainant has been recorded by the investigating officer regarding their presence at the time of incident nor the statements of P.Ws. Muhammad Usman and Munir have been recorded under section 164, Cr.P.C. The learned A.P.P. has accordingly conceded to the grant of bail to the above‑named accused persons. I have perused all the Police papers, the judicial confessions and 164, Cr.P.C. statement. It has further appeared to me that according to the F.I.R. the dead body of Muhammad Sultan was taken by the complainant to his house but according to the Police papers it has been recovered by Police from the house of accused Khamiso Khan on the following day of incident. The judicial confessions do not bear certificate of the Magistrate, if the same are true and voluntarily made nor reasons thereof mentioned as prescribed by law. For all the above‑mentioned reasons and the law cited in the aforegoing paras. I find that there are sufficient grounds for further inquiry into the guilt of the above‑named three accused /applicants as envisaged by section 497(2), Cr.P.C. and therefore I admit them to bail in the sum of Rs.30,000 each and P.R. bond in the like amount."

7. It is a case of prosecution that names of respondents Ghano and Lal Khan do not appear in F.I.R. but during investigation it transpire that they were the real culprits. Police examined more than four witnesses who heard gunshot reports and saw the accused going away after committing murder of Muhammad Sultan in the house of Khamiso and Mst. Sakhan wife of Khamiso implicated the accused. The crime weapons such as guns were recovered from Gahno and Lal Khan. All the accused gave judicial confessions wherein it is also mentioned that after consulting) Lutuf Ali they committed murder.

8. Assistant Public Prosecutor as well as Additional Sessions Judge have wrongly and prematurely held that confessions were not recorded in accordance with the provisions of law. It has also wrongly been mentioned in the order that confessions do not bear certificates.

9. I have perused the papers and confessions with the assistance of Mr. A. A. Muhammad Ali, Assistant Advocate‑General and Mr. Raja Qureshi, learned counsel for the respondents and found that in the confession a certificate as required under section 164(3), Cr.P.C. has been appended. It appears that Additional Sessions Judge has not care to read the record.

10. The Additional Sessions Judge has held that this is a case of further inquiry. On this point, I refer a case "The State v. Bago" reported in 1984 P Cr. L J 721, where the word "Further enquiry" has been discussed by Chief Justice. Mr. Justice Abdul Hayee Kureshi and his observations at page 723(c) are reproduced as under:‑ "I would however, state that normally "Further enquiry" would mean the collection of some additional material or evidence, so that the case may be termed to be one requiring further enquiry, if the present evidence is deficient or inclusive. In the instant case both Dittal and Shahan have implicated the respondent." From the tentative assessment of the evidence I am of the view that respondents did not deserve to the released on bail. Consequently the bail granted to them is hereby cancelled and they will be arrested forthwith and remanded to custody.

11. The order of the grant of the bail will prejudice the case of prosecution therefore it is suggested that this case be tried by the Sessions Judge or any other Additional Sessions Judge other than Mr. Saleemuddin.

12. The observations made in the order are of tentative nature and should not be taken into consideration while deciding the case. M. Y. H. Bail cancelled.