May 19th, 2021 

By Ahmed Saeed


The Supreme Court has held that an accused cannot be implicated in a case merely on the basis of the confessional statement of a co-accused adding that even at the stage of bail some kind of independent material incriminating the suspect is required to corroborate the confessional statement.

“This court has, in several cases, held that the conviction of a co-accused cannot be recorded solely on the basis of confessional statement of one accused unless there is also some other independent evidence,” noted a three-member bench comprising Justice Syed Mansoor Ali Shah, Justice Qazi Muhammad Amin and Justice Amin-ud-Din Khan, which was hearing a criminal petition seeking post-arrest bail in an anti-corruption case.

Muhammad Sarfaraz Ansari (the petitioner), an ex-employee of Controller Military Accounts (CMA), was co-accused of financial embezzlement of almost 50 million through fake bills.

The bench observed that the petitioner was not nominated in the FIR and was implicated in the case by the co-accused Waqar Aslam, who was prima facie beneficiary of the alleged fraud.

“No doubt, as per Article 43 of the Qanun-e-Shahadat Order 1984 when more persons than one are being jointly tried for the same offence and a confession made by one of such persons admitting that the offence was committed by them jointly, is proved, the court may take into consideration the confessional statement of that co-accused as circumstantial evidence against the other co-accused(s)”, read the verdict authored by Justice Mansoor Ali Shah

However, the bench observed that tangible incriminating material must be available on record that corroborates the confessional statement of the co-accused, by connecting the petitioner with the commission of the alleged offences.

The court also noted that it was bench was fully cognizant of the well-settled principle that at the bail stage the court was not supposed to make deeper examination and appreciation of the evidence collected during investigation or to conduct anything in the nature of a preliminary trial to determine the accused’s guilt or innocence.

“However, for deciding the prayer of an accused for bail, the question whether or not there exist reasonable grounds for believing that he has committed the alleged offence cannot be decided in vacuum. The court, for answering the said question, has to look at the material available on record when the bail is applied for and be satisfied that there is, or is not, prima facie some tangible evidence which, if left unrebutted, may lead to the inference of the guilt of the accused,” the order read.

In the parting note, the bench observed that it is the practice of this Court not to intervene in bail matters ordinarily, leaving them to the discretion of the courts inquiring into the guilt of the accused persons.

“However, in cases where the discretion is found to have been exercised arbitrarily, perversely or contrary to the settled principles of law, this Court does not hesitate to interfere with that wrong exercise of discretion, in the interest of justice. In the present case, the trial court and the High Court have not exercised their discretion in accordance with the principles of law governing such discretion”, the order read

The court granted the bail to the petitioner noting that no material was available on the record to connect the accused with the commission of the alleged offences.