These four Criminal Miscellaneous Applications bearing Nos. 243 of 1991 (Hashim Khan v. The State), 736 of 1991 (Siraj v. The State) for bail and No.702 of 1990 (Abdullah Jan v. Sher Gul), 703 of 1990 (Abdullah Jan v. Jamilullah) for cancellation of bail, have arisen out of the same F.I.R. No.291 dated 5-8-1988 of Police Station Chamkani, these are, therefore, disposed of by this single judgment and order.
2. Facts of the case, to be briefly stated, are that on 5-8-1988 at 6-30 a.m. Abdullah Jan Chowkidar lodged a report of the firing at Syed Arif Hussain Alhussaini, a renowned Shia Scholar, by an unknown assailant inside Madrassa Mariful Islamia Peshawar. During investigation of the case Jamilullah Khan, Sher Gul and Ramzan were arrested, the former on 5-9-1988 and the latter two on 7-9-1988. Jamilullah and Sher Gul accused made confessional statements on 10-9-1988 while Ramzan confessed his guilt on 12-9-1988.. In his confessional statement Jamilullah accused admitted his having fired fatal shot at the deceased. Sher Gul admitted to be the driver of the car in which Jamilullah had been taken to the place of occurrence while Ramzan admitted to be the driver of Majid Raza Gillani, the absconding accused. In these detailed confessional statements of the three accused Hashim Khan and Lt: Gen. (Rtd.) Fazle Haq have not been charged for having any hand in the conspiracy resulting in the death of Allama Arif Hussain Alhussaini. However, alongwith others Ghalib Raza Gillani brother and Mst. Uzma Gillani sister of Majid Raza Gillani were also arrested but both of them were released on bail.
3. Siraj accused-petitioner who is mentioned in the confessional statements of the co-accused as partner m the conspiracy, was involved in several other cases and had been declared absconder was arrested on 2-6-1989 by the police when he voluntarily surrendered on the persuation of his brother Bashirullah Head Constable in the Police Department. On his arrest he was tendered pardon who accepted it and made his statement under section 164/337, Cr.P.C. Before a Magistrate on 7-6-1989. The detailed facts of the case need no reproduction at this stage but it is relevant to point out that for the first time Siraj allegedly got in touch with Hashim Khan and Fazle Haq on the first day of "Eid Qurban". The relevant part of his statement reads as follows:-- On coming to know of his having been involved in the case Hashim Khan moved an application for his pre-arrest bail in the Court of Sessions Judge, Peshawar. He was allowed interim bail but the same was not confirmed. Thereafter; he avoided his arrest and was declared as an absconder till he voluntarily surrendered on 19-2-1991. His applications for bail moved before the Illaqa Magistrate as well as Additional Sessions Judge, Peshawar were respectively rejected 'on .7-3-1991 and 28-3- 1991. He has, therefore, moved the present application.
4. Mr, M. Sardar Khan, assisted by Mr. Tariq Pervez, the learned counsel for Hashim Khan accused- petitioner in order to show that Lt.-Gen. (Rtd.) Fazle Haq and his brother-in-law Hashim Khan were mala fides involved in the case reiterated that with the change of Government in the Province and the Centre and with the posting of Abbas Khan, the then Inspector-General of Police efforts were made to falsely involve them in the murder case. Firstly Bashirullah brother of Siraj accused, who was employed as Head Constable in the Police Department and posted at Police Station Nasir Bagh at the relevant time was suspended. He was then interviewed by the D.I.-G. And other officials of the Investigation Team whereafter he produced Siraj before the Investigation Agency where his statement was recorded under Section 164/337, Cr.P.C. Involving Hashim Khan in the murder. The statement of Bashirullah was also recorded for the first time on 11-6-1989 to lend support to the statement of Siraj. In his statement Bashirullah admitted that he had been suspended on 11-9-1988, that he had meeting with D.I.-G. Peshawar twice and then with Zaidi S.P. Of the Crime Branch. The learned counsel in attributing mala fides further pointed out that when application for pre-arrest bail of Fazle Haq came for hearing in motion before the then Chief Justice of this Court Mr. Muhammad Asif Jan, then Deputy Attorney-General, Lahore was specially deputed to contest the application in motion and for that purpose he was sent to Peshawar in a specially chartered flight by the Central Government though Advocate-General of the Province and Deputy Attorney- General at Peshawar were readily available. When an objection was raised to his appearance the Provincial Government managed to engage him as a private counsel at a subsequent hearing. In the light of the above the learned counsel contended that the statement of Siraj with regard to his meeting with Hashim Khan and Fazle Haq was of paramount importance, which weighed with the Courts at different stages while dealing with their bail applications. The petitioner's pleas that the statement of the approver regarding his meeting with the petitioner was totally false, as he was out of Pakistan on the relevant date, was ignored by the Courts. However, when re-agitated the reason given in those orders was disapproved by their Lordships of the Supreme Court in Lt.-Gen. (Rtd.)
Fazle Haq v. The State 1989 SCMR 2071. The learned counsel pointed out that when the petitioner surrendered to the police and the criticism of their Lordships on the conduct of the Investigation Agency refusing to investigate the truth or falsity of the plea of the accused, the relevant material was collected and placed on file. Statements of those whose names figured in the material so collected were recorded which totally belied the material part of the approver's statement connecting the petitioner with the commission of the offence. According to the learned counsel apart from the above the statement of an approver cannot be viewed without natural re-action and distrust and incredulity. Relying on Dr. Muhammad Bashir v. The State PLD 1971 SC 447.
S. Regarding the abscondence of the petitioner it was contended by the learned counsel for the petitioner that the order announced by the learned Sessions Judge was misunderstood by all those who were present in Court as if his bail has been confirmed, therefore, he left the Court premises m spite of heavy contingent of police posted outside the Court. Subsequently when he was informed that his bail has not been confirmed all his efforts to approach the High Court for seeking his bail failed. Apprehended danger to his life he avoided his arrest. He being a sitting member of the Senate, however, applied for leave, which was granted. The learned counsel as such contended that though the petitioner was declared absconder in the case yet in the absence of there being no reliable evidence connecting him with the commission of the offence refusal to grant bail to him is unwarranted under the law. It was lastly contended that petitioner has been attributed the same role as attributed to Lt.-Gen. (Rtd.) Fazle Haq the co---accused and he having been released on bail by their Lordships of the Supreme Court of Pakistan on the principle of propriety and consistency the petitioner also is entitled to the grant of bail. Reliance is placed on Khadim Hussain v. The State 1983 SCMR 124 and Muhammad Fazal alias Body v. The State 1979 SCMR 9.
6. Mr. Khalid Ranjha assisted by Mr. Jehanzaib Rahim, the learned counsel appearing for the complainant in resisting the application vehemently argued that the accused-petitioner having been charged by the approver in his statement and such statement duly corroborated by Bashirullah and Badrai in their statements under section 164, Cr.P.C. Coupled with abscondence for noticeable period disentitles the petitioner to the grant, of bail. It was further argued that the fact whether Hashim Khan had a meeting with Siraj on the first day of `Eid Ourban' or that he had been out of the country for performing Haj on such day is a matter to be gone into at the trial and not at bail stage. According to the learned counsel abscondence of the accused by itself is sufficient ground for refusing the concession of bail to him. While distinguishing the case of the petitioner from that of Fazle Haq it was argued that the petitioner was a master mind in the conspiracy, therefore, his case cannot be termed at par for attracting the principle of consistency. In support of his contention the learned counsel relied on Ibrahim v. Hayat Gul and others 1985 SCMR 382, Mst.
Zari Zadgai v. Fida Muhammad and others PLD 1989 Pesh. 10, Muhammad Aslam v. The State 1989 P Cr. L J 2026, Asmatullah Khan v. Bazi Khan PLD 1988 SC 621.
Mr. Amjad Zia, learned counsel appearing for the State, adopted the arguments addressed by the learned counsel for the complainant.
7. After hearing the learned counsel for the parties and perusal of the record, admittedly the material evidence appearing against the petitioner connecting him with the conspiracy is the statement of Siraj relevant part whereof has been reproduced above. Hashim Khan from the very beginning while moving his application for pre-arrest bail in the Court of Sessions Judge, Peshawar had alleged that the statement of the approver is totally false as on the first day of "Eid Qurban" he was in Saudi Arabia performing Haj alongwith several other notables. However, his such plea was not looked into at that time on the ground that no evidence in support of the plea was available.
Lt.-Gen. (Rtd.) Fazle Haq who had been involved in the conspiracy on the basis of the aforementioned meeting with the approver also wanted to substantiate the plea but the Investigation Agency flatly refused to look into it. When grievance was raised before their Lordships of the Supreme Court of Pakistan that in spite of written request the Investigation Agency was not willing to enquire into their plea and that the Courts below have also failed to look into this aspect of the case, their Lordships of the Supreme Court commenting on the conduct of the Investigation Agency observed as follows:- "There has been prima facie a failure on the part of the Investigation Agency to notice and examine the plea taken by the petitioner for challenging the veracity of the statement of the approver on a material point. The reasons advanced for explaining this failure are not very satisfactory. The Investigation Agency, and even the Illaqa Magistrate, considers that the documents referred to and relied upon by the petitioner have to be produced by the holder thereof, implying the absconder Hashim Khan, and not the petitioner. From the reply given by the learned Deputy Attorney-General also, it appears that the Investigation Agency is not prepared to examine the documents and the plea taken up by the petitioner of the alleged contradiction in the statement of the approver till the accused Senator Hashim Khan appears, produces documents and takes up such a plea. Such should not have been the stand of the Investigation Agency which is charged with the duty to find out the truth of the matter under investigation' and not to commit `prematurely to any view of the fact for or against any person' (Rules 25.2 of the Police Rules). We are, therefore, clearly of the view that this is a case for further inquiry in the meaning of section 497(2) of the Criminal Procedure Code and pending such inquiry, petitioner is entitled to bail."
When petitioner herein surrendered to the police the observation of their Lordships, reproduced above, was brought to the notice of the Investigation Agency whereafter documentary evidence was collected which consists of an application for grant of Haj Visas/Ticket etc. To 15 persons mentioned therein including were, daughter and sons of Fazle Haq, Mr. Fateh Muhammad Khan, Minister for Education, N.-W.F.P., Mr. Ihsanullah Khan, Minister fur Health N.-W.F.P., Said Ali Shah, Ha shim Khan accused-petitioner and several others. There is also available on file "Pakistan International Air Lines Passengers List" of PK-731 dated 22-7-1988 wherein apart from the accused- petitioner Ihsanullah Khan, Fateh Muhammad Khan and others mentioned above had travelled for performing Haj. There is another document "Haj Passengers Manifest Pakistan International Air Lines" in which the names of the aforementioned persons arc entered. A certificate issued by Kamel S. Zayati, General Manager to the effect that 15 persons including Hashim Khan stayed in their hotel at Jeddah on 22-7-1988 and 3-8-1958 has been placed on file. The Investigating Officer also recorded the statements of Adnan Khan, Said All Shah, Mst. Razia Begum, Mail Jabin and Ihsanullah Khan who supported the petitioner's plea and admitted having travelled alongwith Hashim Khan for performing Haj during the relevant period. Such being the case; at present there is sufficient reliable evidence on the file at this stage which belies the approver's statement on material aspect of the case. In Awal Gul v. Zewar Khan and others PLD 1985 SC 402, it has been held that a fugitive from law and Court loses some of normal rights granted by the procedural as also substantive law and that unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding merits of the case but the same was held not to be an absolute rule in the State v.
Malik Mukhtar Ahmad Awan 1991 SCMR 322, on which reliance has been placed by the learned counsel for the petitioner. Its facts are identical with the facts of the present case as given in paras.
3 to 5 of the judgment which need to be reproduced in extensive for elucidating the point:- "In his complaint, Javed Noman, apart from giving details of the occurrence, also alleged that on 26-7-1989 the respondent called a meeting of the People's Students Federation at his house in Multan when he too was present by invitation. During the meeting the respondent observed that Islami Jamiat-i-Tulba had not yet liquidated despite the policy of his party, that he had prepared a hit list, that it was absolutely necessary to do away with Walayat Randhawa and Behram Khan; that he would provide fire-arms, that he was assuming all responsibility for their protection; and, that the Government of the Peoples Party would help and reward all those who were involved in the operation. He then appointed one Habib Ullah Shakir as man incharge of the `liquidation operation'.
Immediately thereafter Habib Ullah Shakir distributed Klashnikovs to two persons present in the meeting.
The respondent is a Minister in the Federal Government. After the registration of the case on the complaint of Javed Noman, attempts were made to arrest him. He evaded these attempts by keeping himself away from the Province of the Punjab. In the first week of December, 1989 he surrendered himself before the Sindh High Court at Karachi which allowed him interim protective bail for a fortnight so that he could approach the Sessions Judge at Multan or any other competent Court to seek relief. Accordingly, the respondent approached the Lahore High Court in the matter The learned Chief Justice of the Lahore High Court admitted him to pre-arrest bail.
The case of the respondent before the High Court was that he was innocent and was not involved in any manner in the occurrence. He had been implicated in the case entirely on grounds of political considerations."
Their Lordships of the Supreme Court on facts of the above case, when petition for leave to appeal for cancellation of pre-arrest bail granted to the accused mainly on the plea of abscondence was prayed observed that it is not absolute rule that a fugitive should under no circumstances be enlarged though abscondence does constitute a relevant factor when examining question of bail.
8. As already discussed the material part of the approver's statement, involving the accused- petitioner in the conspiracy having been found belied by reliable documentary and oral evidence collected by the investigation Agency, at this stage, 1 have come to the conclusion that there are no reasonable grounds for believing that the petitioner has committed the offence for which he is charged. Furthermore, on the principle of consistency, his case being identical with that of Fazle Haq, this application is allowed. The petitioner shall be released on bail on the following terms and conditions:-- (a)He shall furnish five sureties, each in the sum of Rupees Twenty lac and to execute personal bond in the like amount to the satisfaction of Sessions Judge/Additional Sessions Judge, Peshawar.
(b)He shall not leave Pakistan till the results of the trial of the case, and shall surrender his passport/travel documents with the District Magistrate, Peshawar.
(c)He shall associate with the investigation as and when called upon to do so, and every time before leaving the limits of Peshawar and Charsadda Districts, intimate in writing, his address and dates so as to be available in case of need for the purpose of investigation in the case.
(d)In case of violation of any of the conditions in paragraph (b) or (c) above, or if some material evidence connecting petitioner with the crime is collected by or made available to the prosecution at any stage hereafter, it will be open to the prosecution to apply to the trial Court for cancellation of the bail granted by this order. On such an application being made, learned trial Judge shall pass orders in accordance with law.
9. As far as Criminal Miscellaneous No.736 of 1990 (Siraj v. The State) is concerned, the learned counsel for the petitioner (Mian Muhibullah Kaka Khel) relying on Sajawal Sarwar v. The State 1988 P Cr. L J 1558, argued that the petitioner is in judicial custody since 2-6-1989 and considering the manner in which the progress is being made in the case there is no hope of the conclusion of the trial in the near future hence the petitioner is entitled to the grant of bail under the inherent power of this Court under section 561-A, Cr.P.C. Reference is also made to 1971 P Cr. L J 1150, 1973 P Cr. L J 304 and 1987 P Cr. L J 596.
The learned counsel for the complainant (Mr. Khalid Ranjha assisted by Mr. Jehanzaib Rahim) as well as the learned counsel appearing for the State in resisting the application argued that in view of the absolute bar contained under section 337(3), Cr.P.C. It cannot be said that the petitioner's detention amounts to abuse of the process of the Court of law. It was argued that the petitioner is an important witness in the case being in preventive detention to protect his life his release on bail at this stage when the challan has been put in Court against the accused, is unwarranted.
10. After hearing the learned counsel for the parties and going through the judgments cited at the Bar, when complete challan has been put in Court against the accused, it cannot be said that the trial of the accused is not in sight. It is also not the case of the petitioner that the prosecution was using delaying tactics as was the case in the precedent case. This application, therefore, has got no merits and is dismissed as such.
11. Now I take up Criminal Miscellaneous Nos. 702 of 1990 (Abdullah Jan v. Sher Gul) and 703 of 1990 (Abdullah Jan v. Jamilullah) for consideration. Bail was allowed to Sher Gul and Jamilullah accused-respondents by the Additional Sessions Judge, Peshawar relevant part of which reads as follows:-- "I have perused the file. One fact is very clear that the accused are behind the bar for the last two years and there is no progress in the case so far. The case has not been sent up to the Court nor have I information that even the challan has been sent up by the Investigating Agency to the concerned Magistrate. This fact is also clear that this delay cannot be attributed either to the accused or to anyone else working for the accused. There is left proposition of the right of accused to be released on bail. There is no denial of the fact that in their confessional statements they have admitted to have done this murder for someone else and have also admitted to receive booty. But the main question before me is whether _this only confessional statement is sufficient to deprive the petitioners from their right to be released on bail on the ground of delay. For that the burden lies on the prosecution to prove that the accused-petitioners are hardened and dangerous criminals and the prosecution failed to produce any proof in respect of their involvement in any other case. When the prosecution or the private counsel for the complainant failed to prove any documentary proof in respect of the petitioners' involvement in any other case, mere their confessional statements which got retracted cannot deprive them from their right to be released on bail."
After the above finding bail was granted to the accused under the relevant law.
12. The learned counsel for the petitioner challenging the order of the learned Additional Sessions Judge reiterated his contention that the accused---respondents are hardened criminals which contention has been duly considered by the learned Judge. There is also no force in the contention of the learned counsel for the petitioner that the learned Additional Sessions Judge should not have announced the order as they had moved an application for transfer of the case from his Court for the reason that they did argue the case with any objection/observation. Subsection (8) of section 526, Cr.P.C., on which reliance has been placed by the learned counsel for the petitioner is not applicable to the present case as it pertains to enquiry under Chapter VIII and trial and not to a, miscellaneous application for bail. The learned Additional Sessions Judge having exercised his discretion in conformity with the provision of law governing the matter requires no interference.
Both the applications are, therefore, without any merit and are dismissed.