1. ' MUHAMMAD AFZAL SOOMRO, J.---By this common order I intend to dispose of these two applications, one being Cr. B. A. No.240 of 2005 seeking pre arrest bail on behalf of applicant Ali Baad Khan and second being Cr. B.A. No.252 of 2005 seeking bail after arrest on behalf of applicant Missal Khan, respectively, in a case bearing F.I.R. No.79 of 2003, registered under section 302/34, P.P.C.
2. ' Facts leading to the filing of both these applications are that on 28-4-2003 at about 0340 hours F.I.R. No.79 of 2003 was lodged at Al-Falah Police Station on the report of complainant Gul Wali Khan stating therein that on the fateful day he along with his paternal uncle Muhammad Azam Khan Masood was going in his car along with other relatives namely Azizullah Khan and were coming from the Valima of Abdul Rehman, (son of Muhammad Azam Khan) to their house towards Millat Town and when at about 12-45 a.m. They reached near Malik block works, Al-Falah Society, that three persons riding on a motor cycle directed to stop the car and immediately started firing on Azam Khan Masood and ran towards Al-Falah Society. Azam Khan Masood received injuries and, thereafter died. It has, further, been disclosed that complainant, Azizullah and Chaudhary Ausaf could identify the culprits.
3. ' Investigation was carried out during the course of which it revealed that a yellow/black taxi bearing No. JM-9754 was also seen in which accused Khalid Mehmood was sitting. Later on the witnesses further disclosed that Ali Baad Khan and Missal Khan were also seen in the said taxi, whereas motor cycle bearing No.PR-169 was suspected to be driven by co-accused Khalid Mehmood and being accompanied by Muhammad Ali, Chaudhary Younus and Taufiq alias Babar.
4. Accordingly, section 109, P.P.C. Was also included while challan was submitted though F.I.R. Was lodged for offence under section 302/34, P.P.C.
5. ' Applicant, Ali Baad Khan, in Cr. B.A. No.240 of 2005, was arrested on 21-5-2003 but he was granted bail by the learned Sessions Judge Karachi East vide order dated 1-9-2003.
6. ' Thereafter formal charge in the case was framed and the matter was put off for evidence.
7. However, meanwhile, an application for cancellation of bail was moved on behalf of one Aurangzeb, a prosecution witness, which was ultimately heard and disposed of by the order dated 7-3-2005 whereby bail granted to him by learned Sessions Judge Karachi East was cancelled by IInd Additional Sessions Judge Karachi East. Applicant, Ali Baad Khan, through Cr. B.A. No.240 of 2005, therefore, approached this Court for his pre-arrest bail and on 10-3-2005 he was granted interim pre-arrest bail and notice was issued to learned Advocate General Sindh now the matter has come up for confirmation or otherwise.
8. ' Application for bail moved by applicant, Missal Khan, in Cr. B.A. No.252 of 2005, for the first time was rejected by the learned trial Court on 20-3-2004. He then filed Cr. B.A. No.297 of 2004 which was withdrawn on 29-7-2004. Again bail application filed by the applicant before the trial Court was dismissed by order dated 7-3-2005. He has, therefore, approached this Court for grant of bail.
9. ' I have heard Messrs Raza Hashmi and Hassan Sabir, learned counsel for the applicants, Mr. Sardaruddin Qureshi, learned counsel for the State, and Mr. Sarfraz Khan Tanoli, learned counsel for the complainant.
10. ' Mr. Raza Hashmi has made following submissions on behalf of applicant, Ali Baad Khan, in Cr. B.A.
11. No.240 of 2005:--
(1) That, admittedly, names of the applicants do not find place in the F.I.R. Which was lodged against culprits not knows either to complainant nor any of the witnesses named in the F.I.R.
(2) That according to contents of F.I.R. The culprits were three in numbers who came on motor cycle and resorted to firing.
(3) That the alleged incident took place in night time i.e. 0045 hours. Though place of incident shown is road near Malik Block Works situated in Al-Falah Society but no presence of any other passer-by person is shown or even alleged in the F.I.R.
(4) That admittedly there is no allegation that applicants were amongst the culprits who were riding on motor cycle and resorted to firing.
(5) That applicants have, merely, been made accused for alleged offence under section 109, P.P.C., which provision has been declared repugnant to the Injunction of Islam.
(6) That contents of F.I.R. Reveal that there is admitted background of enmity. It does not appeal to reason that the witnesses accompanying the deceased were not able to see the applicants if at all they were with the culprits.
(7) That the police collected evidence to show that on fateful day applicants, Ali Baad Khan and Missal Khan were sitting in taxi No.JM 9754. There is no allegation at all that even a single shot was fired by the person sitting in the taxi. In any case, story in the said respect was fabricated by the prosecution.
(8) That pursuant to the seizure of Motor Cycle No.RP 169 four persons were made responsible namely Khalid Mehmood, Muhammad Ali, Chaudhry Younas and Taufiq Omar.
(9) That on 28-4-2003 detailed further statement of complainant was recorded, inasmuch as it is an admitted position that in the said statement too the names of the applicants were nowhere transpired. Rather complainant in such further statement proceeded to involve other three accused persons.
(10) That during investigation police/ prosecution introduced two witnesses namely Bahadur Shah and Mudasil Khan, on the basis of whose statements effort has been made to somehow involve the applicants. It is pertinent to point out that these two witnesses have not said that they have seen the killer i.e. Accused Toufiq, Younus and Muhammad Ali going-away along with the applicants in the taxi.
(11) That, apart from above, no specific role has been assigned/attributed to the applicants.
(12) That only evidence fabricated against the applicants is that co-accused Khalid Mehmood in his statement before the police has named the present applicants, which piece of evidence is inadmissible in view of provision contained in Articles 38 and 39 of Qanun-e-Shahadat Order 1984.
(13) That neither there is any identification parade nor any recovery has been effected.
(14) That applicant, Ali Baad Khan, was granted bail by the trial Court, hence rule of consistency attracts the case of Missal Khan entitling him to be enlarged on bail.
(15) That case of a Conspirator or Abettor, having not present at the spot, stands at a lower footing than of the accused instigating his companion to commit the crime being himself present on the spot.
(16) Applicant, Missal Khan, in Cr. B.A. No.252 of 2005, is in custody since the date of his arrest i.e. 26- 2-2004.
(17) That the order dated 7-3-2005, passed by learned IInd Additional Sessions Judge Karachi East, dismissing bail application of applicant, Missal Khan, is based on erroneous conclusion which resulted in serious miscarriage of justice, inasmuch as the learned trial Court has failed to appreciate the law and facts involved into this case.
(18) That in the circumstances as well as in the interest of justice it will be appropriate if the interim bail granted to applicant Ali Baad Knan. In Cr.B.A. No.240 of 2005 is confirmed whereas applicant Missal Khan, in Cr. B.A. No.252 of 2005 is enlarged on bail, as their alleged involvement calls for further enquiry as envisaged under section 497(2), Cr.P.C. And there are no reasonable grounds to believe that applicants have committed the alleged offence.
12. ' He has relied upon the cases of Muhammad Fazal alias Bodi v. The State 1979 SCMR 9; Abdus Sattar and others v. The State 1982 SCMR 909; Syed Amanullah Shah v. The State and another PLD 1996 SC 241; Abdul Salam Irfan v. The State 2000 PCr.LJ 842; Jan Muhammad and 8 others v. The State 2000 PCr.LJ 1123; Muhammad Tufail alias Mushtaq Ahmad and 2 others v. The State 2000 PCr.LJ 1125; Abdul Aziz v. The State 2001 PCr.LJ 239 and Nazar Hussain Shah and another v. The State 2002 PCr.LJ 29, in support of his contentions.
13. ' On the other hand, learned counsel for the complainant has contended that the trial Court has not only rightly cancelled bail of applicant, Ali Baad Khan in Cr.B.A. No.240 of 2005, but it has even rightly dismissed the application seeking bail on behalf of applicant Missal Khan, applicant in Cr.B.A. No.252 of 2005. It has, further, been contended by the learned counsel that applicant Ali Baad Khan was granted bail by the learned Sessions Judge Karachi East by order dated 1-9-2003 but just after his release on bail he lodged F.I.R. Bearing Crime No.188 of 2003 under sections 148/149/324, P.P.C. At Police Station, Quaidabad against complainant Gul Wali and the witnesses Younus Khan, Jehangir, Orangzeb, Aziz, Badar Shah, Azizullah and Asal Khan. However, during the investigation the said case found to be false and proceedings against the said applicant under sections 211/182, P.P.C. Were initiated. It has, also been contended that the act of the applicant, stated, above, tantamount to tamper with the prosecution case by harassing the prosecution witnesses Abdul Rehman, Mudasil Khan and Aurangzeb who filed their affidavits to the effect that after failure of the applicant in his attempt to get them falsely implicated in criminal case, has been extending threats of dire consequences to them and they feel their lives in danger at the hands of the applicants. It has, further, been contended by the learned counsel that on the date of hearing i.e. 4-5-2005 before the trial Court applicant was not present and an application for condonation of absence, supported by medical certificate advising three days' bed rest through his first cousin Muhammad Hussain was received. It has, further, been contended that though three days' bed rest was completed on 6-3-2005 but the applicant Ali Baad Khan was absent on 7-3- 2005 when the order cancelling his bail was passed. It has, also, been contended that for grant of pre-arrest bail mala fide on the part of prosecution, if not proved, should at least be alleged but in the present no mala fide has been alleged on the part of the Court. He has relied, upon the cases of Khan Afsar v. Manzoor Baig and others NLR 1981 Criminal 199; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82; The State through Advocate General , N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173; Allah Ditta and others v. The State 1990 SCMR 307; Mst. Reshma Jan v. Abdul Rehman 1991 SCMR 1849; Naseebullah v. The State 1991 SCMR 2450; Shoaib Khan v. The State 1996 PCr.LJ 810; Capt. Dr. Munir Ahmed Khan v. The State 1997 PCr.LJ 348; Syed Ghulam Abbas Shah v. The State 1999 YLR 2680; Rana Muhammad Safdar v. Gulzar Ali alias Papoo and another 1999 PCr.LJ 1; Muhammad Farooq v. Muhammad Afzal and another 2000 PCr.LJ 1680; Ali Hassan v. The State 2001 SCMR 1047; Muhammad Riaz v. The State 2002 SCMR 184; Rana Zulfiqar Ali v. The State PLD 2003 Lah. 403 and Muhammad Khan v. Muhammad Ijaz and another 2004 PCr.LJ 1166 in support of his contentions.
14. ' Learned counsel for the State adopted arguments, advanced by the learned counsel for the complainant.
15. ' I have considered the arguments of the learned counsel appearing on behalf of respective parties, perused the record and gone through the case law, cited as above.
16. ' Taking into consideration plea of pre-arrest bail, moved on behalf of applicant, Ali Baad Khan, in Cr.B.A. No.240 of 2005, consequence of cancellation of his bail by the trial Court vide order dated 7- 3-2005, passed on an application filed 497(5), Cr.P.C., by one Aurangzeb who is prosecution witness in the case, as well as plea of bail after arrest moved by applicant Missal Khan, it would be appropriate to firstly take up their case on merit.
17. The record reveals that names of the applicants do not find place in the F.I.R. Which was lodged against culprits not known either to complainant nor any of the witnesses named in the F.I.R.
18. Furthermore, contents of F.I.R. Indicate that the culprits were three in numbers who came on motor cycle and resorted to firing in night time i.e. 0045 hours Q11 a road situated at a place known as near Malik Block Works situated in Al-Falah Society but none of any passers-by is shown or even alleged in the F.I.R. Admitted background of enmity is reflected from the contents of the F.I.R., itself. It does not appeal to reason that the witnesses accompanying the deceased were not able to see the applicants if at all they were with the culprits. Perusal of record further reveals that the Police collected evidence to show that on the fateful day applicants, Ali Baad Khan and Missal Khan were sitting in taxi No.JM 9754 but nothing has been alleged to get them involved in shooting of even a single fire by the persons sitting in the taxi.
19. I am afraid that even the detailed further statement of complainant, recorded on 28-4-2003, does not find placing of names of the applicants. Rather complainant in such further statement proceeded to involve other three accused persons. During investigation police introduced two witnesses namely Bahadur Shah and Mudasil Khan, on the basis of whose statements the applicants have been tried to be involved in this case but it is pertinent to note that both the above said two witnesses have not said that they themselves have seen the killers i.e. Accused Toufiq, Younus and Muhammad Ali going-away along with the applicants in the taxi. Apart from above, no specific role has been alleged to have been played by the applicants. The only piece of evidence, brought on record by the prosecution, against the applicants is that co-accused Khalid Mehmood in his statement before the police has named the present applicants, which piece of evidence is inadmissible in view of provision contained in Articles 38 and 39 of Qanun-e-Shahadat Order, 1984.
20. Neither there is any identification parade nor any recovery has been effected. Iii view of the principle, constantly laid down by this Court as well as by the Honourable Supreme Court that Conspirator or Abettor, having not been present at the spot, stands at a lower footing than that of the accused instigating his companion to commit the crime being himself present on the spot together with the fact that applicant, Ali Baad Khan, was granted bail by the trial Court, rule of consistency attracts to the case of Missal Khan entitling him to be enlarged on bail. Moreover, through the applicants have been made accused for alleged offence under section 109, P.P.C.
21. Provisions of which have been declared repugnant to the Injunctions of Islam. Reference can be made to the case of Federation of Pakistan and another v. Gul Hassan Khan PLD 1989 SC 633.
22. ' So far as the merits of the order dated 7-3-2005, passed by the learned IInd Additional Sessions Judge, Karachi East, cancelling bail granted to applicant, Ali Baad Khan, by the learned Sessions Judge Karachi East upon an application filed under section 497(5), Cr.P.C., by the prosecution witness, are concerned, it may be observed here that neither the learned counsel appearing for the complainant or the State has been able to cite any proof of extending threats by the applicant to the said prosecution witness namely Orangzaib in the shape of documentary mode nor the learned Judge has based her finding to that effect on any authenticated proof except mere filing of affidavits by proseCution witnesses Abdul Rehman, Mudasil Khan as well as said Orangzaib. If these witnesses were being extended threats on the part of applicant, Ali Baad Khan, they should have reported the matter either to the police station or high ranking of police apprising such a situation which act, if done, could have supported their allegation of being harassed on the part of applicant, Ali Baad Khan. So far as the absence of applicant, Ali Baad Khan, is concerned, it would be appropriate to reproduce extract of relevant dates i.e. 24-2-2005, 2-3-2005, 5-3-2005 and 7-3- 2005, taken from the diary sheet, produced by the learned counsel for the applicants:-- "24-2-2005 Case called. All accused are produced by J/A. D.D.A. And D/Counsel are present.
23. Complainant and his Advocate are present, P.W., Bahadur Shah is present and bound down.
24. Process returned as per report. Accused Missal Khan filed an application for not pressed of B.A. Of accused Missal Khan dated 25-8-2004 Advocate for accused not pressed on B.A. Order passed on it. B.A. Dismissed as not pressed. Advocate for accused filed an application for adjournment order passed on it. Adj. Granted. Filed B.A. Of accused Missal Khan under section 497, Cr.P.C., with Vakalatnama Mr. Rahim Khan Bungash Advocate. Order passed on it. Notice of D.D.A. Case is adjournment to 12-3-2005 for P. W. /property. Hearing B. A . Of accused Missal Khan and cancellation of B.A. Of accused Ali Baad Khan on 2-3-2005. Sd/ IInd A.D.J., East 2-3-2005 Case called. Accused Ali Baad Khan is present on bail. Advocate for accused Ali Baad Khan is present and filed an application. Mr. M. Ilyas statement order passed on it. Advocate for accused Missal Khan is present D.D.A. And complainant counsel are present and heard argument on B.A. For accused Missal Khan and cancellation of accused Ali Baad Khan. Case is adjourned to order B.A.
25. On 5-3-2005 for order, meanwhile argument of accused Ali Baad Khan.
26. ' Sd/ IInd A.D.J., East.
27. ' 5-3-2005 Case called. Accused Ali Baad Khan called absent. Advocate for accused Ali Baad Khan called absent. Advocate for complainant and D.D.A. Are present. Cousin of accused Ali Baad Khan filed an application for condonation. Order passed on it. Condoned. Case is adjourned to 7-3-2005 for hearing of cancellation of bail of accused Ali Baad Khan and order accused Missal Khan.
28. ' Sd/IInd A.D.J., East.
29. ' 7-3-2005 Case called. Accused Ali Baad Khan called absent. Tr. Counsel of accused Ali Baad Khan is present. Complainant and his Advocate are present D.D.A. Is present. Advocate, for accused Missal Khan called absent. Bail application of accused Missal Khan is hereby rejected. Cancellation of accused Ali Baad announced in open Court. I allow the instant application and bail granted to accused Ali Baad Khan vide order dated 1-9-2003 is hereby recalled. Since he is called absent without any intimation, therefore, he could not be taken into custody. Issue N.B.W. Against accused Ali Baad Khan and be sent to S.H.O. AlFalah Karachi, to arrest accused Ali Baad Khan and produce him before this Court for remanding him to judicial custody. Main case already fixed on 12-3-2005 for P.Ws./property. Issue N.B.W. Against the accused Ali Baad Khan.
30. ' Sd/- IInd A.D.J., East.
31. ' Perusal of above relevant diaries reveals that on 24th February, 2005 when the case was fixed for trial applicant Ali Baad Khan was present when the trial of the case was put off to 12-3-2005.
32. However, an application for bail was moved by applicant Missal Khan and the hearing of said application as well as application, filed by said Aurangzaib was put off to 2nd March, 2005 at 8-30 a.m. On the said date i.e. 2-3-2005 applicant Ali Baad Khan is shown to be present when both the applications were heard and order was reserved for 5-3-2005 when an application on his behalf for condonation of absence, duly supported by medical certificate, taking plea that he being ill had been advised absolute bed rest for three days by Dr. Nasarullah Khan Khattak of Noor Medical Centre, Moeenabad, Landhi Karachi, was moved which was granted by the learned trial Judge condoning his absence and the matter was adjourned to 7-3-2005, obviously for announcement of order on both the above applications. On 7-3-2005 applicant Ali Baad Khan was found absent though his counsel was present. Learned trial Judge announced orders on both the applications but it is very regretted to note here that she, while cancelling his bail, apart from the ground of extending threats on the part of the applicant to the prosecution witnesses, also took the ground of his absence although the presence of the applicant on the said date was not mandatory because of the fact that the main case was not fixed for trial wherein witnesses are to be examined in presence of the accused. She even observed in her order that:-- "This is for the first time that a Doctor has advised a patient bed rest from a particular time, otherwise virtually three days bed rest completed on 6-3-2005 but today accused Ali Baad Khan is again called absent, without any intimation."
33. ' I am afraid that how she came to know that a doctor may not advise his patient for bed rest for a limited period of three days as treatment of every disease depends upon the condition of health of the patient. It can also be observed here that three day's rest completed on the day previous to the date fixed for announcement of order on the applications, it might be possible that applicant could not have survived within those three days and in that eventuality he could have been condoned even for the date fixed trial of the case. This whole exercise appears to be mala fide on the part of the trial Court just to cancel the bail, granted on the merit.
34. Resultantly, for what has been discussed above, interim bail granted to applicant, Ali Baad Khan, in Cr. Bail Application No.240 of 2005, is hereby confirmed on the same terms and conditions whereby applicant, Missal Khan, in Cr.B.A. No.252 of 2005, is admitted to bail provided he furnishes surety in the sum of Rs.2,00,000 (rupees two lacs) and P.R. Bond in the like amount to the satisfaction of the trial Court.
35. Cr. B.As. Nos.240 and 252 of 2005 stand disposed of in the above terms.