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Criminal Miscellaneous No. 2812 of 1982, decided ot1 13th November, 1982.

-- S. 164-Joint confession admissibility of-Joint extra-judicial con fession of accused, held not admissible.-[Confession].

-- S. 497-Penal Code (XLV of 1860), S. 302/460-Bail, grant of-Petitioners allegedly while committing theft in house murdering deceased as well-No direct evidence of murder and prosecution relying on joint extra-judicial confession allegedly made by petitioners, wajtakkar evidence coupled with recoveries of stolen articles-Evidence relating to recoveries, held, even if accepted, per se not sufficient to connect petitioners with offences under S. 302/460, P. P. C.-Petitioners allowed bail, in circumstances.

Ch. Muhammad Hussain Chacher for Petitioners.

M. Saleem Shah for the State.

Muhammad Amin and Bashir Ahmad petitioners who are involved in a case under sections 302/460 and 411, P. P. C. have moved this peti tion for bail. The case was registered on 16th February, 1981 on the report of Muhammad Amin complainant wherein he alleged that on the preced ing 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 pro secution rests on Wajtakar evidence furnished by Karam 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 peti tioner 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 inadmissible 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 recovered 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 anti Arshad P. Ws. in their statements under section 161, Cr. P. C. have attributed a joint confessional statement to the petitioners. Such a state ment 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 15th and 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 con tention of the learned counsel for the petitioners that if Qaim Din and Muhammad Hussain had seen Bashir Ahmad petitioner and his alleged companions coming out of the house of the deceased on the night between 15th and 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 fell 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,

Bail granted,

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