P L D 2002 Karachi 317 (PLP)

The applicants moved an application for bail which was dismissed on 28‑8‑2001 on the ground that the applicants had voluntarily confessed their guilt before the police and produced the weapons of the crime The learned Sessions Judge added that the applicants being son and brother of the deceased had committed Qatl‑i‑Amd as the former had been declared Kari. He also justified the rejection of the application for the reason that the two country‑made pistols which had been used in the crime had been recovered from the applicants and according to the post‑mortem report the deceased had died as a result of injuries caused by bullet shot from these pistols, After receipt of ballistic report, the applicants filed another application under section 497, Cr.P.C. for bail which was rejected by the IIlrd Additional Sessions Judge, Sukkur by order dated 15‑1‑2002, The learned Additional Sessions Judge in his order clearly stated that according to the report of the Ballistic Expert, the empties sent to him were not fired from the .16 bore country‑made pistol while the .12 bore pistol was not in a working condition which indicated that the applicants were not the persons who had caused the death of Mst. Roshan; however, he rejected the application on the ground that the applicants had voluntarily appeared before the Police Station, confessed that they had committed the murder of Mst. Roshan and that the Sessions Judge had already dismissed their earlier bail application by order dated 28‑8‑2001. Mr. Habibullah Shaikh, learned counsel for the applicant submitted that the police had not examined any witness so far; that the report of the Ballistic Expert was in favour of the applicants and vehemently urged that the alleged confession before the police officers is not admissible under the provisions of Qanun‑e‑Shahadat. Articles 38 and 39 of Qanun‑e‑Shahadat Order, 1984, read as follows:

38. Confession to police officer not to be proved.‑‑No confession. made to a police officer shall be proved as against a person accused of any offence.

39. Confession by accused while in custody of police not to be proved against him. Subject to Article 40, no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. The wordings of Article 38 of Qanun‑e‑Shahadat clearly state that any statement confessing to the guilt of a crime made before a police officer cannot be used as evidence against a person making such statement. Article 39 .further states that any confession made by any person while he is in the custody of a police officer shall not be admitted as evidence Onless the same has been made in the immediate presence of a Magistrate‑ It is an admitted position that the confession made by the applicants before the police officers at the Police Station cannot be used against them under Article 39 because the alleged admission of murder was not made in the immediate presence of a Magistrate. It is an established law that any confession made by any person before any person can be used against him except the one which has been made before a police officer and even that has to be done in the immediate presence of a Magistrate. In the present case, the alleged confession cannot be termed as an Extra judicial Confession which can be used against the applicant as the same was allegedly made before a police officer without the immediate presence of a Magistrate. When confronted with this position, Mr. Muhammad Iqbal Memon learned State Counsel conceded that the ground taken by the learned Additional Sessions Judge rejecting the bail is not supported by law. It may be added that even the Ballistic Expert has given an opinion that the injury which caused the death of Mst. Roshan was not caused by pellets from ..16 bore country‑made pistol and that the .12 bore pistol was not in working condition at all. Further the police has also not examined so far any witness who were alleged to have been present at the time of incident to connect the applicants with the death of Mst. Roshan. In the circumstances it is clearly a case which requires further enquiry. Consequently, . the applicants are admitted to bail upon their furnishing solvent surety in the sum of Rs.Two Lakhs each with a P.R. bond in the like amount to the satisfaction of the trial N.H.Q./M.A.K./R-64/K Bail allowed.