' This is an application for bail before arrest as the applicant apprehends his arrest in connection with Crime No,24/77 registered under section 302, P.P.C. Read with section 120-B by the Deputy Director F.I.A., Hyderabad, inter alia against the applicant, upon a complaint made by Muhammad Yaqoob Sanjarani on 1-8-1977 to the Martial Law Administrator Zone 'C', which was accompanied by a copy of the complainant's first application dated 11-10-1973 which was addressed by him to the then Inspector-General of Police Sind.
2. The prosecution case was that the applicant, who was then the Provincial Minister and the other co-accused comprising of Deputy Commissioner Sanghar, Superintendent of Police, Sanghar, S.H.O. Sanghar Police Station and the other police personnel were party to the criminal conspiracy to commit murder of (i) Mehrab Khan Sanjarani, (2) Umed Ali Sanjrani, (3) Jan Muhammad Sanjarani, (4) Ali Shershah, (5) Hamzo Bhanejio and (6) Dadan alias Allah Dad Wadho as they were suspecting that one Ali Bux Junejo belonging to the Pakistan People's Party, a friend of the present applicant was murdered by the deceased on 5-10-1973 and because of that the above said six persons were killed at the night of 6-7 October, 1973 at Karan Mori in order to take revenge of the murder of Ali Bux Junejo. The above deceased had come to Sanghar on 6-10-1973 to attend two cases under the Goonda Act then pending before the Deputy Commissioner from where they were taken in custody at the direction of S.H.O. Muhammad Yaqoob by a police party headed by Shah Muhammad to the police lock-up from where in the evening they were taken to the backside quarters of the police station and were given beating. After that they were brought back to the lock-up and from there at mid-night they were taken to Karan Mori and were killed by the police personnel at the behest of the other officials including the applicant.
3. The case was tried by the Court of Sessions Judge Sukkur as ex-officio Additional Sessions Judge at Hyderabad under section 302/120-B, 364/104, 302/34, 302/109, 211/218/197, P.P.C. The above case proceeded against 13 accused though in the challan in addition to the aforesaid 13 E.Ccused, Sohba Khan, All Nawaz, Muhammad Yousuf Police Constable, the present applicant and Lal Muhammad Khan Police Constable were also cited as accused. Present applicant and Lal Muhammad Police Constable were declared as absconders, whereas Sohba Khan, Ali Nawaz and Yousuf were reported to have died and, therefore, they were not tried and so also the present applicant and the other absconding accused Lal Muhammad. The above co-accused Imdadullah Unar, the Deputy Commissioner Sanghar at the relevant time and Ghulam Shabir Kalyar and Superintendent of Police at the relevant time faced the trial but before the judgment could be given, they absconded. However, the judgment was pronounced on 15-11-1981 against them as well.
The learned trial Court convicted accused Yaqoob the S.H.O., Shah Muhammad, A .S.I., Abdul Ghaffar head constable, Aslam police constable, Noor Muhammad and Muhammad Muneer under section 302/34 and sentenced them to death and Ghulam Shabbir Kalyar S.P., Imdadullah Unar Deputy Commissioner and Qasim the driver of the van in which the deceased were taken were convicted under section 302/109, P.P.C. And also under section 265(H)(2), Cr.P. C. And were sentenced to death subject to confirmation by the High Court. Some of the above accused were also convicted and sentenced under some of the above other provisions of the P.P.C. Which need not be repeated. The matter had come up before this Court for confirmation of the above death sentence and also because 7 of the accused filed appeal namely, Abdul. Ghaffar, Shah Muhammad, Muhammad Aslam son of Muhammad Ismail, Noor Muhammad, Muhammad Munir, Ghulam Qasim and Chaudhary Muhammad Yaqoob. The above appeal. Was heard by a Division Bench of this Court headed by the then Chief Justice, which by judgment dated 21-3-1984 declined to confirm the death sentence of lmdadullah Unar, the Deputy Commissioner, Sanghar at the relevant time and Ghulam Shabbir Kalyar, the S.P. Sanghar at the relevant time on the ground that the evidence was not sufficient and they also acquitted them though they had not filed any appeal. However, the appeal of the accused Chaudhary Muhammad Yaqoob, Adbul Ghaffar, Muhammad Aslam, Noor Muhammad and Muhammad Munir was dismissed and their sentences of death were confirmed. Conviction of Muhammad Yaqoob under section 201, P.P.C. Was set aside.
The appeal filed by Ghulam Qasim and Muhammd Munir was accepted and the death sentences awarded to them were set aside and they were acquitted. The appeal of Shah Muhammad was held to have abated as he died during the pendency of the appeal. It was also observed that it shall be open to the prosecution to place Imdadullah Unar on trial for any offence arising out of the acts of alleged fabrication of record and falsification of evidence.
4. The above application had come up before me for hearing on 3-5-1989 when I ordered notice to the Advocate-General and to the complainant for 11-5-1989 and in the meantime admitted the applicant to interim bail. When the above case had come up for hearing on 11-5-1989 the complainant was not served and subsequently it transpired that factually notice was not issued because of intervening Eid holidays. I had adjourned the above case for 28-5-1989 with the direction that the notice should be issued afresh to the complainant. On the above date complainant appeared in person and filed objections to the grant of bail, which read as follows: "OBJECTIONS TO THE GRANT OF BAIL
(1) That the applicant was absconder since 1977 and remained absent from Court proceeding intentionally and had left Pakistan for good.
(2) That the applicant is involved in Crime No,24 of 1977 under section 302, P.P.C. And there is ample evidence to contact him with crime.
(3) That the application merits no consideration hence be dismissed."
5. I enquired from the complainant, whether he wanted to take adjournment to engage an advocate but his reply was that the advocates were not available because of the coming vacation and that he would confine himself to the above objections. Thereafter, I heard the arguments of Mr. A.Q.Halepota, learned counsel for the applicant and the learned Advocate-General Mr. Abdul Hafeez Lakho for about 21 hours in order to examine, whether I should confirm the interim bail or should I recall it. After that I reserved the case for orders for 7-6-1989.
6. Mr. A.Q. Halepota in support of the above application has urged as follows:
(i) That the earliest version of the incident given by the complainant is contained in his application dated 11-10-1973 addressed to the Inspector-General of Police Sind, which has been treated by the learned trial Court as the F.I.R. Does not contain the name of the present applicant and that his name has been included on account of political enmity after the expiry of nearly four years after the applicant left Pakistan and the Martial Law was imposed.
(ii) That no overt act as to the killing of the deceased is attributed to the applicant but the allegation against him was that he conspired alongwith other co-accused to kill the deceased in order to take revenge of the murder of his friend Ali Bux Junejo committed on 5-10-1973 and that this motive has been disbelieved by the trial Court as well as by the High Court and, therefore, there is nothing on record to link the present applicant with the commission of the offence.
(iii) That the case of the present applicant is on better footing than the case of the two co-accused Shah Nawaz and Muhammad Hassan Junejo, inasmuch as the allegation against the applicant was that he was sitting in a jeep alongwitt co-accused imdadullah Unar and Ghulam Shabbir Kalyar at Karan Mori at the time of killing whereas the case against the aforesaid Shah Nawaz and Muhammad Hassan Junejo was that they have also accompanied the police party in a jeep and after the killing by the police party they took out arms and ammunitions and after firing them in the air planted the above arms near the dead bodies of the deceased, but they were acquitted by the trial Court and the acquittal appeals filed by the State were withdrawn by the State.
(iv) That even if the case of the applicant is treated at par with the case of co-accused Imdadullah Unar and Ghulam Shabbir Kalyar, the two have been acquitted by the High Court, though leave has been granted by the Hon'ble Supreme Court, and, therefore, at this stage it cannot be ruled out that the applicant was falsely implicated.
' Mr. Abdul Hafeez Lakho learned Advocate-General has supported the submissions of the learned counsel for the applicant.
7. Though it is not usual to issue a notice to a complainant in an application for bail before arrest but I had ordered the issuance of the same as I wanted to have the version of the complainant party as they might have the feeling that the case was not properly put up before the Court. The complainant though has opposed the bail but has not met with the points urged by the learned counsel for the applicant.
8. Mr. A.Q. Halepota in support of his above submissions has referred to the following cases:
(i) Muhammad Amin and another v. The State (1987 SCM R 1522), in which the petitioner was charged with the other co-accused under sections 302/307/148 and 149, P.P.C. He was declined bail before arrest by the Lahore High Court. The Hon'ble Supreme Court converted the petition for leave against the above judgment into an appeal and admitted the petitioner to bail on the ground that no specific role was attributed to the petitioner in the F.I.R. And his case was at par with the other co-accused who were already granted pre arrest bail by the Sessions Judge.
(ii) Jamaluddin v. The State (1985 SCM R 1949). In the above case the petitioner was charged under section 302/34, P.P.C. He was admitted to bail before arrest by the Sessions Judge on the basis of no objection given by the counsel for the State but a learned Single Judge of this Court cancelled the bail. The petition for leave was converted into an appeal by the Hon'ble Supreme Court and the petitioner was admitted to bail on the ground that in the F.I.R. It was stated that the petitioner was empty handed and that other co-accused except the main culprit who was absconding were admitted to bail. It was also pointed out that there were serious allegations of mala fides made before the trial Court as there was admitted enmity between the parties. With reference to the case of Murad Khan v. Fazl-e-Subhan and another reported in PLD 1983 SC 82, it was observed that in the above case the Supreme Court reiterated the principle that arrest for ulterior motives such as humiliation arid unjustified harassm ent was a valid ground for grant of pre-arrest bail. It was also observed that similar view was laid down in Ziaul Islam's case PLD 1984 SC 192.
(iii) Raza Muhammad Siyal v. The State 1988 SCM R 1223, in which the petitioner who was at the relevant time the Ward Rationing Officer Incharge P.R. Centre, Food Department Hyderabad, was charged under section 409/420/34, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 alongwith other co-accused for misappropriation or conversion to his own use about 39,800 bags of wheat valued at about Rs,87 lacs. A learned Single Judge of the High Court declined the bail. The petition for leave to appeal against the judgment of the learned Sinn-le Judge was converted into an appeal and the petitioner was admitted to pre-arrest bail on the ground that the petitioner had averred that he was falsely implicated due to departmental enmity and conspiracy and that no burden was cast on accused at bail stage in such proceedings to prove the above allegations. It was further observed that burden would not be on accused at any stage to prove his innocence.
(iv) Fazal Haq Khan and 4 others v. The State 1972 PCr.LJ 1257. In the above case a learned Single Judge of the Lahore High Court in a murder case admitted the applicant to bail on the ground that no particular injury was attributed to him and that only allegation against him being of his having been seen on the spot at the time of occurrence.
(v) Pervaiz alias Billoo and another v. The State and another reported in 1979 PCr.LJ 451. In the above case two petitioners were facing trial along with other co-accused under sections 302/34, 148/149, P.P.C. They were admitted to bail by a learned Single Judge of the Lahore High Court on the ground that no overt act was ascribed to one of the petitioners while some part was attributed to other which was not supported by post-mortem report. The cases cited by Mr. Halepota indicate that even in case of bail before arrest the Hon'ble Supreme Court and the High Court have admitted the accused to pre-arrest bail even on the grounds which are relevant for disposal of an application for bail after arrest.
9. At this juncture, it will not be out of context to refer to a recent judgment of the Hon'ble Supreme Court on the question of pre-arrest bail, namely, the case of Meeran Bux v. State, reported in PLD 1989 Supreme Court 347, in which the appellant was co-accused with the other members of his family for murdering Badshah Dino and making murderous assault on Jam Khan. The learned Sessions Judge had granted bail before arrest to the appellant but a learned Single Judge of the High Court in exercise of Suo Motu Revisional jurisdiction set side the above order of the Sessions Judge on the basis of the judgment of the Hon'ble Supreme Court in the case of Murad Khan v.
Fazl-e-Subhan PLD 1983 SC 82. The leave was granted to consider the following question: "that the learned Judge in the High Court has failed to appreciate that the petitioner had indeed stated in the application for pre-arrest bail itself, that his arrest was for ulterior motive so as to humiliate him as the complainant party had won over the police and the case was falsely fabricated against him".
' After referring to the facts of the case, including the factum that the complainant involved all the male members of the accused family and that the appellant was a businessman set aside the order of the High Court and restored the order of the Sessions Judge, and inter alia, observed as follows: "Apart from this we find that the Sessions Judge granted the pre-arrest bail to the appellant after considering the merits of the case inasmuch as he inter alia observed that the injury alleged to have been caused by the appellant to the leg of the deceased by gun-shot was according to the post-mortem note, neither fatal nor was caused on the vital part of the body and was declared to be simple and that it was a case of further inquiry so far as the appellant is concerned. The High Court did not at all, consider the case on merits though this Court in the case of Jalamuddin v.
State 1985 SCM R 1949 has observed at page 1952 of the report as follows: -- "It has been laid down by this Court that the grant or refusal of bail in criminal cases primarily depends upon the facts of each case and no hard and fast rules can be laid down in this regard. In Murad Khan's case to which reference was made by the learned Judge, this Court reiterated the principle that arrest for ulterior motives such as humiliation and junjustified harassment was a valid consideration for grant of pre-arrest bail. Similar rule was laid down in Zia-ul-Hasan's case. In our opinion, therefore. The order of the learned Sessions Judge, did not in any respect, disregard the well-recognized principle-- for grant of pre-arrest bail to the petitioner. Without upsetting the finding, reached by the learned Sessions Judge that the petitioner had been involved for ulterior motives of harassing due to enmity existing between the parties, the learned Judge in the High Court was not justified to invoke his suo motu powers for the purpose of cancelling the order of bail."
10. From the above cited case, it seems that the Hon'ble Supreme Court's view is that even in a case of pre-arrest bail the High Court should touch upon the merits of the case. In the instant case as pointed out that there are two judgments, namely, of the trial Court and the other of the High Court, which cannot be overlooked at this stage and if we take out the motive as was alleged and if we take into consideration the fact that the applicant's name was not mentioned in the first complaint which was made on 1-8-1977 and was included first time after the expiry of nearly four years the applicant is entitled to the bail before arrest.
11. I am inclined to confirm the interim bail, inter alia, for the following reasons:
(i) That the earliest version of the incident is contained in the complainant's application dated 11- 10-1973 addressed to the Inspector-General of Police Sind, Karachi that was made after four days from the date of incident in which it was stated that the murders had been committed by M/s. Imdadullah Unar Deputy Commissioner, Sanghar, Ghulam Shabbir Kalyar, Superintendent of Police, Sanghar, Yaqoob SIP, Sanghar, Shah Muhammad SIP, Sanghar and other about 15 constables whose names were not known to the complainant, on account of political reason, but the name of the applicant was not mentioned, which was first time included by the complainant in his application dated 1-8-1977 addressed to the Martial Law Administrator Zone 'C' Karachi after the imposition of Martial Law and after the applicant had already left the country.
(ii) That the trial Court as well as the High Court have held that the prosecution has failed to prove criminal conspiracy between all the co-accused.
(iii) That the High Court on the question of motive of murdering the above six deceased recorded the following finding: "In an earlier part of this judgment, we have dealt with the question of motive. The prosecution has set out a case that Jam Sadiq Ali was interested in taking revenge in respect of the murder of Ali Bux Junejo and therefore, he had got these six persons murdered. It is also alleged that Shah Nawaz Junejo was related to Ali Bux Junejo, and thereby the prosecution wishes to implicate him.
There can be no manner of doubt that the six deceased persons had nothing to do with the murder of Ali Bux Junejo, and this factor renders the story of such motive absolutely improbable. On the other hand, there is evidence of a number of witnesses (discussed earlier) that, on account of beating, that had been given to the six deceased persons at the Police Station on the evening of 6- 10-1973, two out of the deceased persons, viz. Umed Ali and Mehrab not only fell unconscious, but suffered such injuries that persons, who saw them, thought that they were almost dead. In these circumstances, we have discarded the motive to be one for revenge on account of the death of Ali Bux Junejo and we have believed that these six persons were done to death, so as to conceal the disastrous result of the beating of these persons at the Police Station in the evening. Now, the question arises, whether such beating was given at the behest, or, instigation of Imdadullah Unar, or, Ghulam Shabbir, though not mentioning the case of Jam Sadiq Ali, the absconder. The only evidence is that of the approver, who has barely stated that S.H.O. Yaqoob had told him that these accused persons wanted to know about the murder of Ali Bux Junejo. This is a very relevant statement of the approver, and, in that context, there is no corroboration whatsoever, although corroboration is available in regard to actual beating. Moreover, if the six persons were done to death in order to destroy the evidence regarding beating, it is difficult to understand why lmdadullah liner and Ghulam Shabbir should be a party to it. We, therefore, take the view that the evidence regarding motive does not, at all, connect these accused persons with the crime."
According to the above finding of the High Court the motive of killing was not to take revenge of the murder of the applicant's friend All Bux Junejo but to conceal the disastrous result of the beating of the deceased at the police station in the evening of the day of incident. If the above finding is to be kept in view, at this stage, it cannot be said that the applicant was involved vicariously for the killing of the deceased as it is nobody's case that he had factually participated in the act of killing.
(iv) That the investigation has already been completed and there is no likelihood of the evidence being tampered with at this stage.
12. In the instant case the applicant has alleged mala fides and also has averred that if he would be arrested he would be humiliated and harassed. As observed hereinabove, that there is no overt act attributed to the applicant as to the actual act of killing, the materials against him comprise of retracted confessions of the co-accused Muhammad Yaqoob, Abdul Ghaffar, Ghulam Qasim, Muhammad Munir, Muhammad Aslam son of Ismail, Noor Muhammad, the statement of approver Aslam son of Ahmad and the statements of some other witnesses who were not eye-witnesses but were examined to provide corroboration and to prove certain documents. I have purposely refrained from touching upon the merits of the above materials, as the same may have to be discussed by the learned trial Court as the case against the applicant has not been concluded and, secondly, in the instant case for the purpose of bail before arrest the reference inter alia to the above two complaints made by the complainant and the two judgments referred to hereinabove is sufficient.
13. I would, therefore, confirm the bail but would order in exercise of suo motu power contained under section 526(3) Cr.P.( . That Sessions Case No,252/1981 (Crime No,24/77) which was tried by the learned Sessions Judge, Sukkur as ex-officio Additional Sessions Judge at Hyderabad, for the purpose of concluding the trial against the applicant shall stand transferred to the Court of learned District and Sessions Judge at Hyderabad, who would proceed with the matter in accordance with law for concluding the trial.
' The applicant after putting in appearance before the above Court shall execute a fresh bail bond in terms of the interim bail order dated 3-5-1989.
' The Registrar of this Court will take steps to ensure that the R & P of the above Sessions Case is transferred to the above transferee Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.