' On 5-8-1988 at 5-00 a.m. In Madrassa Maarifat-ul-Islamia, Peshawar at a distance of 4/5 kilometres from Police Station Chamkani. Allama Syed Arif Hussain Al-Hussaini was shot to death.
Abdullah Jan lodged the report in P.S.Chamkani at 6,30 a.m. The same day, wherein none was charged for the offence. A case under sections 302/34 and 120-B, P.P.C. Was registered. The deceased was a prominent Shia leader whose death created a lot of turmoil and sensation. On persistent demand through Press and Public meetings the investigating agency succeeded in pinpointing Captain Majid Raza Gilani allegedly instrumental in the murder of Maulana Arif Al- Hussaini. Captain Majid Raza Gilani despite earnest efforts could not be arrested who had allegedly absconded. However, Ghalib Raze Gilani, Mst. Uzma Gilani, Sher Gul, Ramzan and Jamilullah were apprehended. The first two-named were released on bail while the last three made judicial confessions. Jamilullah was arrested on 5-9-1988. He made a confessional statement on 10-9- 1988. Sher Gul was arrested on 7-9-1988. His confession was recorded on 10-9-1988. Ramzan was arrested on 7-9-1988, who made a judicial confession on 12-9-1988. Out of the three, Ramzan was working as Driver with Captain Majid Raza Gilani. Common feature of all these confessions is that Siraj, the approver, has been given a prominent role in enacting the delict at the behest of Captain Majid Raza Gilani. Siraj was absconding who himself surrendered on 2-6-1989. He was given pardon and his statement as an approver was recorded on 7-6-1989. In this statement the petitioner Lt.-Gen. (Retd.) Fazle Haq and his brother-in-law Senator Ha shim Khan have been named who had persuaded the approver to murder Maulana Arif Hussain Al-Hussaini. It was Senator Hashim Khan who introduced Captain Majid Raza Gilani to the approver Siraj. Captain Majid Raza Gilani promised to pay rupees ten lac on the elimination of the deceased.
2. Senator Hashim Khan moved the Court of Sessions Judge, Peshawar for his pre-arrest bail. He was allowed adinterim bail on 7-6-1989 which was not confirmed on 24-6-1989. Instead of surrendering to the Court, Senator Hashim Khan hoodwinked the police in escaping his arrest and has now been declared an absconder.
3. The petitioner herein approached the Lahore High Court for transitory bail, which was granted by a learned Judge of that Court on 5-7-1989 with the direction that the petitioner may approach the Court concerned in N.-W.F.P. For bail till 18th of July, 1989. The petitioner accordingly moved this Court for his pre-arrest bail on 10-7-1989 and on 11-7-1989 I granted him adinterim pre-arrest bail.
4. Today, on 22-7-1.989 learned counsel appearing for the parties were heard at length. The foremost consideration for grant of pre-arrest bail is the male fides of the intending arrest being for ulterior motives such as humiliation and harassment of the petitioner, prosecution motivated by ulterior motive so as to cause irreparable injury to reputation and to tarnish the political image and status of the petitioner. To establish the mala fides of the prosecution, the learned counsel for the petitioner submitted that the petitioner as Care-Taker Chief Minister had removed Muhammad Abbas Khan, Inspector-General of Police of this Province from the post. He remained as O.S.D. For some time and later posted as Inspector-General of Police, Sind and that on induction of the Pakistan Peoples Party Government, he was immediately brought back and posted as Inspector- General of Police, N.-W.F.P. In his Press Conference reported in daily 'Mashriq' dated 12-6-1989, Muhammad Abbas Khan stated that though General Fazle Haq maltreated him, he had no intention to retaliate. In no manner even if the report is accepted to be the true version of the Press Conference it can be gathered that Inspector-General of Police has roped in the petitioner to wreak his personal vendetta. The two acts, one by the petitioner in transferring the Inspector- General of Police and the other false implication in a murder case, are incommensurate, the last one not expected from a senior police officer of this Province.
5. The second leg of the argument that the Provincial Government of the Pakistan Peoples Party is not enjoying comfortable majority and is, therefore, interested in eliminating the petitioner from the scene as it fears of its collapse any moment, also holds no water as the petitioner is not a member of the Provincial Assembly. The desired object by the opposition can be achieved by supporting their elected leader, which the petitioner is not.
6. A large number of judgments of the superior Courts were cited for and against the grant of pre- arrest bail. I refrain to refer to these as strictly speaking- there are no precedents in the criminal matter and each case is to be determined with reference to facts of such case. In all the three confessions referred to here-before the deponents have alongwith them implicated Siraj and Captain Majid Raza Gilani to be part of the conspiracy to murder the deceased. Jamilullah in his confession has owned the firing of fatal shot at the deceased. Siraj, the approver, in his statement in an unambiguous manner mentioned Senator Hashim Khan intimately known to him to be the person who introduced him to Captain Majid Raza Gilani. Later he was called by Hashim Khan to his house, where he met the petitioner Fazle Haq who told him that he (Fazle Haq) was a disciple of.
General Ziaul-Haq whereas Captain Majid Raza Gilani is his disciple "Chanre". What the Captain wanted was to be carried out. He (Fazle Haq) would take care of the police and the public. It is in the statement of the approver that whole affair was settled for rupees ten lacs. Rupees fifty thousand were paid earlier to him, to purchase a car. Captain Majid Raza Gilani afterwards paid rupees one lac each to the approver, Sher Gul, Faqir Gul and Badray absconders. Out of this money the approver paid rupees twenty-five thousand to Jamilullah. After the occurrence the approver ran away to Kabul. His family members approached him to return to Pakistan. He also learnt that Hashim Khan and Fazle Haq wanted to murder him. He, therefore, himself surrendered to the police on 2-6-1989. The learned counsel for the petitioner submitted that according to the approver on the first day of Eid-ul-Azha he met Hashim Khan and Fazle Hay, but Hashim Khan was not in the country and had gone to Hajj. In the judicial as well as the police files there is nothing to show that Hashim Khan was out of coi try. The learned counsel for the petitioner wanted me to examine the passport of Hashim Khan. It is not for this Court to examine and verify the entries of the passport at this stage. Hashim Khan accused was allowed adinterim bail before arrest by the learned Sessions Judge. During that period of seventeen days (from 7-6-1989 to 24-6-1989) he did not approach the investigating agency to raise the plea of alibi nor produced any evidence in support of it. He instead has chosen to become a fugitive from law.
7. An unusual objection was raised by Mr. S.M. Zafar, counsel for the petitioner when Sheikh Shaukat Ali, counsel representing the complainant, wanted to address the Court. It was submitted that after hearing the Public Prosecutor he be not allowed the right of audience. Reference was made to section 493, Cr.P.C. The section only refers to inter se arrangement between the .Public Prosecutor and the private counsel. It nowhere lays down that he is debarred from pleading the case of the complainant, moreso if the Court so permits. I verbally allowed him to argue the matter. This Court had always been liberal in allowing counsel engaged by the parties to address the Court as the object is to find the truth and do justice between the parties. When Mr. S.M. Zafar got up to reply to the arguments by the Public Prosecutor and the private counsel, I reminded him that Criminal Procedure Code which governs the proceedings ID does not provide for the right of reply as is the case which Civil' Procedure Code. However, he too was afforded full opportunity to reply to the arguments of the other side.
8. Keeping in view the statement of the approver Siraj, the three confessional statements of Jamilullah, Sher Gul and Ramzan and the abscondence of Senator Hashim Khan, Captain Majid Raza Gilani, Badray and Faqir Gul, as the matter stands, it cannot be said at this stage that there are no grounds for believing that the petitioner is guilty of an offence punishable with death or imprisonment for life. As such, the application for pre-arrest bail is rejected. The, order dated 11-7- 1989 allowing adinterim pre-arrest bail to the petitioner is recalled and not confirmed.