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Criminal Miscellaneous 2812-B of 1982, decided on 13th November, 1982

----Ss. 8 & 24-Criminal Procedure Code (V. of 1898), S. 161-Joint confessional statement-Not admissible.

----Ss. 497- & 498-Penal Code (XLV of 1860), S. 302/460-Bail Evidence of recoveries even if accepted per se not sufficient to connect accused with offences under S. 302/460 Penal Code-Case for enlargement of accused made out-Bail granted.

Ch. Muhammad Hussain for Petitioner.

M. Saleem Shad for the State.

Date of hearing: 13th November, 1982.

Muhammad Amin and Bashir Ahmad petitioners who are involved in a case under sections 302, 460 and 411, P. P. C. have moved this petition for bail. The case was registered on 16th February, 1981 on the report of Muhammad Amin complainant wherein he alleged that on the preceding evening when he was present in Chak No. 15/S.P., Natha son of Fazal Din informed him that his mother Mst. Zainab Bibi had died. He expressed suspicion that some unknown persons had killed his mother when she was all alone in the house in order to commit theft. Subsequently he gave list of missing articles, ornaments and cash to the police.

According to post-mortem report fracture of 3rd, 4th and 5th ribs resulted in haemorrhage from left lung and caused shock which was sufficient to cause death in the ordinary course of nature.

2. There is no direct evidence of the murder and the case of the prosecution rests on Wajtakkar evidence furnished by Qaim Din and Muhammad Hussain P. Ws. extra-judicial confession allegedly made by the petitioners before Abdul Rehman and Arshad on 10th August., 1981 recovery of Bugda, clothes, utensils and some ornaments from Bashir petitioner on 30th August, 1981 in the presence of Afzal and Arshad and recovery of toy-pistol, clothes, utensils, cash and some ornaments from Muhammad Amin petitioner on 4th September, 1981 in the presence of Bashir Ahmad and Amir P. Ws.

3. The learned counsel for the petitioners contends that the extra-judicial confession allegedly made by the petitioners being a joint statement, is inad missible and the remaining evidence, even if accepted, would at best bring the case within the purview of section 411, P. P. C. The learned State counsel submits that the complainant gave the list of the missing articles to the police soon after the registration of the case on the same day and the same were re covered at the instance of the petitioners and this fact coupled with other evidence is sufficient, to connect the petitioners with the offences with which they have been charged.

4. I have gone through the relevant material, Abdul Rehman and Arshad P. Ws, in their statements under section 161, Cr. P. C. have attributed a joint confessional statement to the petitioners. Such a statement is not admissible. Qaim Din and Muhammad Hussain P. Ws. made statements under section 161, Cr. P. C. on 18th February, 1981 alleging that on the night between 15/16th February. 1981 they had seen Bashir Ahmad petitioner and two unknown persons coming out of the house of the deceased with some articles. There is substance in the contention of the learned counsel for the petitioners that if Qaim Din and 3 Muhammad Hussain had seen Bashir Ahmad petitioner and his alleged companions coming out of the house of the deceased on the night between 15/16th February, 1981, they must have appeared before the police on the following morning as the murder of Mst. Zainab Bibi had, by then, become known to every one. The evidence relating to recoveries even if accepted is per se not sufficient to connect the petitioners with the offences under' sections 302 and 460, P. P. C. In the circumstances, I feel inclined to the view that a case for the enlargement of the petitioners is made out. Consequently, I admit them to bail in the sum of Rs. 25,000 each with two sureties each in the like amount to the satisfaction of Assistant Commissioner, Okara.

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