' RAHMAT HUSSAIN JAFFERI, J.--- On 14-7-2004 at 4-30 p.m. The complainant Inspector Muhammad Tariq on behalf of State lodged the F.I.R. At P.S. Gulshan-e-Iqbal. The F.I.R. Is illegible therefore, the advocate for the applicants has filed English translation being its true copy. The same reads as under:-- "At this time one copy of statement under section 154, Cr.P.C. Prepared by Inspector Muhammad Tariq of P.S. Boat Basin with the hand of H/C 268 received at P.S. The copy of which as under:-- ' From P.S. Boat Basin Karachi, dated 14-7-2004 at 1545 hours, Respected Sir, Duty Officer, P.S. Gulshan-e-Iqbal Karachi, Statement under section 154, Cr.P.C. Sub-inspector Muhammad Tariq of P.S. Boat Basin posted as investigation Incharge, during investigation in case crime No,165 of 2004, under sections 302/324/504, 420B, 34/5 Explosive Act ATA P.S. Boat Basan Karachi, the arrested accused persons during investigation disclosed that they belong to the Jindala the Terrorist Group, who are involved in many crimes of Terrorist Activities. Dr. Akmal Wahid s/o Hafiz Wahidullah, resident of Flat B-I, Frida Square, Gulshan-e-Iqbal, Block-7, Karachi, Dr. Arshd Wahid sio Hafiz Wahidullah, resident of C-21, Boat Basin Rafi, Malir City, Karachi. There are others helpers of this Group, and they provide different help and facilities to them from which to provide them financial aid, terrorist training to their workers, to send the terrorist Shahzad Ahmed Bajwa and Muhammad Qasim the terrorist of Jindullah Group through Kasif the P.A. Of Dr. Akmal Wahid at Vana for taking training of Terrorist Activities through the brother of Naik Muhammad namely Ubaidullah, from where they had taken training from one Abu Hamza of Azbak for using, opening and joining of Kalshnikov, CMG, and other Modern Ammunition, to make and blast bombs, and they provided shelter to Abu Masaab Gul Hassan and Hasamul Sani the terrorist of Al-Qaida, to provide and got shelter for the person belonging to the group of Al-Qaida and Jindullah, if any worker of Jindullah group during any terrorist offence became injured, it is include to give and provide treatment, on dated 19-3-2004 the same group of terrorist attacked on the mobile of Rangers standing under bridge, out of them two persons were killed and several injured, the case of which is registered at P.S. Ferozabad, vide F.I.R. No,179 of 2004 under sections 302/324/34, P.P.C., 7 ATA, in this case on terrorist Muhammad Bajwa became injured, for his treatment the terrorist Attaur Rehman called on his Mobile Phone No,0333-0002544 to Dr Akmal Wahid on his Mobile Phone No,0300-0207522, at that time Dr Akmal Wahid was in the building of Shan Hospital Gulshane-Iqbal near Nipa Chorangi now its present name is (Bisam Taqi Hospital) in connection for the arrangement of convention of Pakistan Islami Medical Association (PIMA) Dr.Akmal Wahid told to bring the injured person in Shan Hospital, in the Shah Hospital where he took treatment illegally from Dr. Saqib, Dr. Rehana and Dresser/X-ray Technician Sayed Ali Murtaza Qaderi on dated 10-6-2004 near the bridge of Clifton the terrorist of same group attacked on the convoy of Core Commander Karachi, in which, several persons were killed and injured, in this incident the absconder terrorist Muhammad Qasim became injured too, whose treatment was conducted surreptitiously by Dr. Arshad Wahid at the house of terrorist Attaur-Rehman situated at Model Colony, both the Doctors keep the news in secret the incidents and becoming the accused injured and no report was given to the competent authority, on this the acts of both the accused persons Dr. Akmal Wahid, Dr. Arshad Wahid sons of Hafiz Wahidullah comes under sections 21-J-21-C, 11-IV, 11-V, 11-L, 11-H(3) of Anti-Terrorist Act and 212, 201, 216, P.P.C. Because Basim Taqi Hospital Shan Hospital comes under limits of P.S. Gulshan-eIqbal, therefore, this statement for registration of case, with the hand H/C 268 Muhammad Nazir is being sent. After registration of case investigation should be conducted. Signature in English, Inspector Muhammad Tariq. S.I. P.S. Boat Basan, Karachi. 147-2004."
2. On 9-9-2004, a charge under sections 201, 212, 216/34, P.P.C. Read with sections 11-N, 21-C and 21- J of the Anti-Terrorism Act, 1997 was framed against the applicants to which they pleaded not guilty. In support of the case the prosecution examined 4 witnesses namely Dr. Rehana RMO Shan/Bismillah Taqi Hospital, P.W. Nurse Aid Abdul Razak of Shan Hospital NIPA Chowrangi, Gulshane-Iqbal Karachi, Dr, Saqib Hussain Ansari of Shan/Bismilah Taqi Institute, Karachi and X-ray Technical Sayed All Murtaza Qadri of the same hospital. Thereafter the applicants moved an application for grant of bail but the trial Court dismissed the same, hence the present application.
3. We have heard the advocate for the applicants, A.G. And perused the record and the law involved in the case very, carefully, Mr. M. Ilyas Khan learned advocate for the applicants has stated that the complainant is not eye-witness but he lodged the F.I.R. On the statement of the applicants during their custody, therefore, the said facts are inadmissible in evidence under Article 38 of Qanun-e-Shahadat Order: that there is no evidence connecting the applicants with the offences mentioned in the charge, as none of the P.Ws., examined in the Court, deposed that the injured Shahzad Ahmed Bajwa was referred to them by any of the applicants; that the allegation against the applicant Dr. Arshad Waheed is that of pointing the house of one Atta-ur-Rahman who was involved in Crime No,165 of 2004 but no recovery or discovery was made from the said place, therefore, the said evidence is not sufficient to connect the applicant Dr. Arshad Waheed with the crime. He has further stated that the applicants were arrested in an other crime on 2-7-2004; that they were released under section 169, Cr.P.C. On 14-7-2004 but re-arrested in the present crime on 14-7-2004 and then implicated in this case; that on 18-6-2004 the father of the applicants had lodged the F.I.R. No, 132 of 2004 at Police Station Jackson, Karachi under sections 365-A, 34, P.P.C.
For the abduction of both the applicants for ransom purpose; that the applicants were first arrested in another crime; that they were released in that crime as the police could not find any evidence against them, but the police wanted to keep their custody with mala fide intention, therefore, they were arrested in this case.
4. On the other hand Mr. Anwar Mansoor Khan, learned Advocate-General Sindh has argued on the general aspect of the case with regard to various incidents of terrorism taking place in the country, particularly in Karachi, and argued that the terrorists should not be helped by any person and if anybody is found helping the terrorists then stringent steps should be taken by the Courts to curb the menace of terrorism. As regards the present case, the learned A.-G. Has stated that the injured Shahzad Ahmed Bajwa is a terrorist as he was involved in crime No,179 of 2004 of Police Station Ferozabad which had occurred on 19-3-2004 at 3-40 p.m. That on the same date the applicant Dr. Akmal Waheed helped the said terririrst by providing medical aid in the hospital; that from the evidence of the four witnesses, mentioned above, the involvement of the applicants has been established; that the applicants had connections with terrorists Shahzad Ahmed Bajwa as his car, which he took from one Mati-ur-Rehman owner of a rent a car company was recovered from the possession of the applicants at the time of their arrest while they were travelling in the said car; that the prosecution has collected the evidence of mobile phones of the applicant Dr. Akmal Waheed and another terrorist Atta-ur-Rehman and the record shows that just after the incident of F.I.R. No,179 of 2004 of Police Station Ferozabad they talked on their mobile phones; that the involvement of the applicant is further proved from the record of hospital where the terrorist Shahzad Ahmed Bajwa was provided help and in the record his name was shown as Abdullah instead of his real name; that the said injured Shahzad Ahmed Bajwa was identified by the witnesses to be the person to whom they provided treatment. He has further stated that the facts mentioned in the F.I.R. And the other material collected by the police connect the applicants with the commission of this crime. As regards the case of applicant Arshad Waheed the learned A.-G.
Has stated that he had led the police to the house of another terrorist Atta-ur-Rehman, but frankly conceded that nothing was secured or discovered from the said house.
5. We have given the consideration to the arguments, gone through the material available on the record and find that the prosecution has relied upon the following pieces-of evidence:-
(i) Contents of F.I.R.
' Recovery of car in which the applicants were travelling at the time of their arrest.
' Mobile phones of applicant Dr. Akmal Waheed and Atta-urRehman involved in Crime No,165 of 2004 of Police Station Boat Basin.
(iv) Oral evidence of four above mentioned witnesses of Bismillah Hospital and the hospital record.
6. As regards the contents mentioned in the F.I.R, specific question was asked from the learned A.- G. As to whether the complainant Inspector Muhammad Tariq was eye-witness of the facts mentioned in the F.I.R., to which, he replied in negative. He was further inquired about the source of information on which the complainant narrated the facts in the F.I.R., to which, he replied that the applicants during their police custody disclosed the said facts to the complainant. The contents of theF.I.R. Apparently incriminate the applicants, therefore, by virtue of Art. 38 of Qanun-e-Shahadat Order the same are inadmissible in evidence. Faced with the above situation, the learned A.-G.
Could not controvert the legal position.
7. As regards the recovery of the car-allegedly hired by injured Zahid Ahmed Bajwa, the said evidence is collected in the F.I.R. No,179 of 2004 of Police Station Ferozabad. The said evidence has not been made evidence in the present case as no statement of any P.W. Has been recorded to the above effect. It is settled principle of laws that evidence of one case cannot be read in another case. However, the trial is in progress and it is yet to be seen whether or not the said piece of evidence is produced before the trial Court in this case by adopting any legal mode. Therefore, at this stage no comments can be made on the said piece of evidence.
8. As regards the mobile phones, it is an admitted position that the mobile phones are owned by the applicant Dr. Akmal and one accused Atta-ur-Rahman, allegedly involved in crime No,165 of 2004, of Police Station Boat Basin. There is no allegation in the case that the applicants provided any help to Atta-ur-Rahman. The said record pertains to the investigation of the said case. The investigation officer has not recorded the statement under section C 161, Cr.P.C. Of any official/person in this case to make the said record as part of this case. It is yet to be determined by the prosecution whether or not to bring that piece of evidence in this case by adopting alegal course. Apparently through that record the involvement of the applicant in this case, at this stage cannot be established being not the part of evidence of this case. However, it requires deeper appreciation of evidence which is the function of the trial Court, therefore, at this stage we cannot give any finding with regard to the said piece of evidence as it is yet to be brought on the record before the trial Court in accordance with law.
9. Now we are left with the evidence of four witnesses examined by the prosecution before the trial Court. The evidence of P.Ws. Dr. Rehana, Abdul Razak and Sayed Ali Murtaza Qadri is to the effect that P.W. Dr. Saqib referred the injured Shahzad Ahmed Bajwa, who had superficial injury on his head' to Dr. Rehana. She sent the injured to P.W. Abdul Razak for dressing who did his job and then injured was referred for X-ray. The P.W. Sayed Ali Murtaza Qadri took the X-ray films of the injured.
Thus through the evidence of these three witnesses apparently there is no evidence against the present applicants. As regards fourth witness Dr. Saqib, he deposed that he was present in the hospital when applicant Dr. Akmal met him and told him that the patient to whom he was going to attend was known to him, therefore, he should take care of him. Thereafter the doctor went to the emergency ward where the patient was being attended by Dr. Rehana. She informed him that the patient had no serious injuries as he had fallen from a motorcycle and that she was attending her properly.
10. This is the entire evidence led by the prosecution on the above charge. However, the prosecution declared the witness Dr. Saqib as a hostile witness. Such request was made to the Court that was allowed. The Special Prosecutor conducted the cross-examination. Thus the witness Saqib was a hostile witness. The entire case hinges upon the evidence of P.W. Dr. Saqib but his evidence is yet to be scrutinized on the principle of assessment of evidence of a hostile witness.
11. The Hon'ble Privy Council in the case of Muhammad v. Emperor AIR 1946 PC 47 has observed that when the Court considers that the witness has been won over his evidence in the Court must be entirely ignored. The Hon'ble Supreme Court of Pakistan in the case of Habib Rehman v. Mustafa PLD 1989 SC 20 has observed that a hostile witness who resiled from his earlier statement, no importance is to be attached to the evidence of such witness. But at the same time the Hon'ble Supreme Court of Pakistan in another case State v. Abdul Ghafar 1996 SCM R 678 has observed that the testimony of a hostile witness cannot be altogether left out of consideration, and has to be considered like the evidence of any other witness, but with a caution for the simple reason that he had spoken in different tones and when a witness speaks in different voice, it would be for the Court to decide in what voice he speaks the truth. In such cases the evidence has to be tested by corroboration from independent sources, and conformity with the remaining evidence. In another case of Zahid Khan v. Gulsher 1972 SCM R 597 it has been observed by the Hon'ble Supreme Court of Pakistan that the Court should take the entire evidence of a hostile witness into consideration and see whether any part of his evidence is worthy of belief in the light of other evidence.
12. The rule laid down in the above mentioned authorities is to be examined by the trial Court while assessing the entire devidence with the evidence of P.W. Dr. Saqib and then can form the required opinion. At the bail stage, only tentative assessment of evidence is required to be made. No deeper appreciation of evidence can be undertaken at this stage, therefore, we refrain from commenting upon the evidence of this witness at this stage as it is the function of the trial Court to do the needful. Further any observation made of this Court might prejudice the parties. The hospital record simply shows that the injured Bajwa got his name recorded as Abdullah.
13. As regards the case of applicant Dr. Arshad Waheed the prosecution collected the evidence of pointing the house of one Atta-ur-Rehman allegedly involved in another crime. No recovery or discovery was made from the said house with regard to the present crime, therefore, apparently the provisions of Art. 40 of Qanun-eShahadat Order appear to be not attracted.
14. However, all the above points can be thrashed out by the trial Court ,at the time of the trial. From the facts and circumstances of the case we are of the considered view that the applicants are entitled to the concession of bail.
15. As regards the allegation of tampering with the evidence. The statement of P.W. Dr. Saqib shows that he had admitted that the brother of the applicants had approached him for favourable statement but he further added that he was not influenced by any one. From the above statement it appears that P.W. Dr. Saqib was not influenced by the approach of the brother of the applicents.
However, this statement is made by a hostile witness. As per rule laid down by the Privy Council and Supreme Court of Pakistan, in the cases of Muhammad and Habib-ur-Rehman, the evidence of Dr. Saqib is to be entirely ignored. Whereas from the other above-mentioned remaining authorities of the Hon'ble Supreme Court of Pakistan, the evidence is to be scrutinized with all the evidence and corroborated by other piece of evidence. Thus the evidence of P.W. Dr. Saqib is yet to be scrutinized with all the evidence, which is yet to brought on the record. This requires deeper appreciation of evidence, that cannot be undertaken at this stage. Therefore, we refrain from making any observation on the above point at this stage, particularly in the absence of entire evidence. Further, any observation made by this Court, at this premature stage, might prejudice any party. As such no finding is given at this stage.
16. Above are the reasons of our short order, dated 2-12-2004 by which we had allowed the application in the following manner-- "On perusal of record and tentative assessment of evidence and for reasons to be recorded separately, the application is allowed and the applicants are granted Bail. They may be released on furnishing surety in the sum of Rs,5,00,000 (Rupees Five Lacs) each and executing P.R. Bond in the like amount to the satisfaction of trial Court. They should, however, deposit their Passports with the trial Court and for the purpose of delivery/return of passports, the trial Court will be at liberty to pass any orders in accordance with law." d