SYED ABDUL REHMAN, J.- These two bail applications have been filed by applicant, Syed Qaim Ali Shah, who is facing consolidated trial in six special cases/numbered as 299/1991. His bail applications in the remaining four special cases bearing Nos.243/1991,167/1991,157/1991 and 246/1991 under sections 302, 307,120-B and 170-B read with section 34 PPC were granted by us earlier.
2. The prosecution story is that MQM leader Altaf Hussain, was to return from London on 22-8-1990 therefore, various camps were set up at Karachi to accord him a welcome. There was indiscriminate Kalashankov's firing on some of these reception camps from motor cars in which as many as 25 persons were killed and many more injured. A number of FTRs were lodged at concerned police stations which included, amongst others, the FIRs in present two cases. In FIR Cr.No.150/1990 which was lodged on 23-8-1990 at 4-00 a.m. By Mohammad Khalid at Pak Colony PS, it was alleged that at about 9-15 p.m. On the previous night four unidentified persons fired from a car with kalashankoves in Rexor Colony and killed 2 persons & injured seven. FIR of Crime No.240/1990 was lodged by SHO Ashfaq Ahmed at Temooria P.S on 23-8-1990 at 4-00 p.m. On behalf of the State, alleging that he had learnt that on 22-8-1990 between 5 & 6 p.m. Unknown persons opened fire with automatic weapons at MQM camps at Five Star Chowrangi & killed one person & injured few persons.
3. Investigations were carried in all the cases separately at as many as eight police stations by the various SHOs. On 24-12-1990, co-accused Zahid Saeed was arrested on spy information, by Inspector Rasheed Butt of Saddar P.S. From a car in Sindi Muslim Housing Society in Crime No.342/1990. He was interrogated by the police. His statement. Under section 161 Cr.P.C, which was recorded on 4.1.1991, mentions that a criminal conspiracy was hatched on 21-8-1990 at a meeting held in Bilawal House, wherein Asif Ali Zardari, Bashir Baloch, Ebrahim @ Bhotto, Munawar Hussain Seharwardi, Shahnawaz Junejo, Ghulam Rabbani, Masroor Ahsan, Manzoor, Wasan and Zahid Saeed participated, and wherein it was decided that the reception camps set up by MQM should be attacked and indiscrimanently fired at. On account of involvement of such important political leaders CIA and military intelligence also participated in the investigation. On 26- 1-1991 in consequence of further interrogation, statement U/s 161 Cr.P.C of accused Zahid Saeed was recorded in Crime No.706/1990 of Ferozabad Police Station, in which he named the applicant and co-accused Salimuddin @ Silloo as additional participants in the criminal conspiracy of 21-8-1990 Hence on 27-1-1990 judicial confession of Zahid Saeed was recorded by Assistant Commissioner and Section 30 Magistrate, Court No.XII (South), Karachi. On 28-1-1990 161 statement of Salimuddin @ Silloo was recorded by the police and his judicial confession u/s 164 Cr.P.C, was recorded by ACM, Court No.XIII (East), Karachi. Both these co-accused besides implicating themselves in the said criminal conspiracy also implicated the applicant Syed Qaim Ali Shah, amongst others. The applicant was challaned by the concerned SHOs, in all those cases on 27-1-1991.
4. On coming to know about his implication in the above cases the applicant obtained protective pre-arrest bail first from Rawalpindi, and then from Baluchistan High Court, Quetta' Thereafter he surrendered himself before the Special Judge (Suppression of Terrorist Activities) Karachi for bail before arrest, but his applications were rejected and he was remanded to custody. Thereafter, the applicant filed four bail applications before this Court, which were granted by us though on different grounds. Now the applicant has filed these bail applications in remaining two cases.
5. We have heard Mr. Abdul Mujib Pirzada, for the applicant, and Mr. Aftab Ahmed Akhund, A.G.
Sindh for the State. It was contended by Mr. Pirzada, learned counsel for the applicant that the applicant's name does not transpire in the FIRs. The prosecution case against the applicant hinges upon the judicial confessions of co-accused Zahid Saeed and Salimuddin @ Silloo, which have been retracted. According to him the said co-accused were kept in CIA Centre, maltreated and coerced to make the judicial confessions. He further contended that Article 16 of the Qanoon-e- Shahadat has been struck down by the Federal Shariat Court in the case of Arif Nawaz Khan v The State (PLD 1991 Federal Shariat Court 53) and therefore the judicial confessions of the co-accused could not be considered as evidence against the applicant. He submitted that even if it is believed that the applicant was present in the said meeting even then since it is not alleged that he had agreed to any decision or had taken part in the discussion and no overt act is attributed to him, therefore, he could not be held liable for criminal conspiracy. He further submitted that the applicant has taken plea of alibi as he was at the relevant time having meeting with Moulana Shah Ahmed Noorani. It is also contended that some of the alleged participants of the criminal conspiracy were, according to news items in the National Press, out of Karachi, on the relevant day.
Thus, the judicial confessions are falsified in material particulars.
6. Mr. Aftab Ahmed Akhund, learned Advocate General Sindh, appearing fo? The State has vehemently opposed the grant of bail to the applicant and has contended that the; applicant and the co-accused had strong motive to create law and order situation as they were carrying on a fascist movement for the last about ten years and had. Actually succeeded in capturing power in the country for about 20 months and were again after the same by terrorist activities and unlawful means. In this regard he drew attention of the Court to the various allegations and charges levelled by the President of Pakistan against the Government of Benazir Bhutto and decision of the F.B. Of this Court and the Lahore High Court confirming and upholding the same. Besides the above circumstances there was evidence that the above indiscriminate firing at the reception camps was done by workers of PSF which is subsidiary of PPP, who were identified on the spot amd named in one of the FIRs. Two workers of PSF viz. Zahid Saeed and Sillo o have given judicial confessions implicating the applicant, while other worker s of PSF viz. Baddi, Tipu and Rufi had given judicial confessions corroborating the above. Hence the above judicial confession are corroborated in material part oculars and can be made a basis for conviction of the applicant. He has further contended that since the cases, have not yet proceeded, it will be pre-mature to consider the defect of the judicial confessions made by the co-accused or the plea of ali bi. At this stage it cannot be said that there are no reasonable grounds to believe that the applicant is not guilty of a scheduled offence. In support of his contention he has relied upon a recent decision of a DB of this Court in the case of A sif Ali Zardari v. The State 1991 P.Cr.L J. 595.
7. These offences had taken place on 22-8-1990 at about 6-00 p.m. As many as 25 persons were killed and over a hundred persons were injured. The FTRs. Were lodged in four cases on the same day and in the remaining cases on the next day. In one of the FIRs. The first informant Syed Salman gave the names of culprits as Zahid, Sharif, Khalid Dalmia, Danis and Saood. Immediately on the next day Syed Salman gave further statement wherein he stated that the correct name of Zahid Sharif was Zahid Saeed, while the full name of Danish was Remzan Ali Danish. As many as seven eye witnesses, namely, Syed Suleman, Musarrat Ali, Kalim Ahmed, Ishrat Ali, Anwer Ali, Mohd. Wasim and Nifasat Ali, who have received injuries also claimed to have seen and identified the above persons firing at the reception camps. Their 161 Cr.P.C, statements were also recorded on 23-8- 1990. The police was in search of Zahid Saeed and the other culprits named in the FIR. SHO Athar Rasheed Butt of Saddar P.S. Succeeded in arresting Zahid Saeed on 24-12-1990, while he was going in a car infront of Mehran Clinic in Block 'A' of Sindhi Muslim Housing Society. Zahid Saeed, who Was a PSF worker, was being interrogated by the officers of Saddar Police Station till, for the first time, on 4.1.1991, he stated before the investigating officer that the offence was committed by him in pursuance of a criminal conspiracy hatched by some top leaders of PPP including Asif Ali Zardari, the husband of the Ex- Prime Minister of Pakistan Mrs. Benazir Bhutto. It. Was, therefore, decided to obtain the co-ordination of CIA and Army Intelligence in the investigation of the case. Thereafter, co-accused Zahid Saeed was further interrogated by the CIA and Army Intelligence agencies as well. On 16-1-1991, after interrogation, 161 Cr.P.C, statement of co-accused, Razi Haider Jafri alias Baddi, was recorded, who disclosed that Salimuddin alias Silloo was also involved in this case. On 26-1-1991 judicial confession of Razi Haider Jafri alias Baddi was recorded under section 164 Cr.P.C On 26-1-1991 after interrogation co-accused Salimuddin @ Silloo's 161 Cr.P.C, statement was recorded in Crime No.706/1990 of Ferozabad Police Station. He named the applicant. On the same day after further interrogation co- accused Zahid Saeed's 161 Cr.P.C statement was also recorded by the same investigating officer. He also named the applicant. On 27-1-1991 judicial confession of Zahid Saeed, and on 28-1-1991 judicial confession of Saleemuddin @ Silloo, were recorded, which are self-implicating and in which both of them have implicated the applicant. On 28.1.1991, judicial confession of Anis-ur- Rahman @ Tipu was recorded, who implicated him self as well as a number of co- accused. On the same day judicial confession of Ahmed Ilyas @ Rufi was recorded. Looking to all these pieces of evidence it is not difficult to conclude that there are reasonable grounds to believe that the applicant is guilty of scheduled offences. The allegation against the applicant is under section 120-B PPC. It is not proper at this stage to embark upon deep appreciation of the evidence in such a case. Necessary proof that is required to bring home a charge of criminal conspiracy, was discussed in the case of Amirudin v. The State (PLD 1967 Lah.1190), which was also referred with approval in the case of Asif Ali Zardari v. The State (Supra) and is reproduced as under:- "28. The learned Assistant Advocate Genera l whom I heard on this aspect of the case submitted that it is very seldom that there is direct evidence available with regard to conspiracy. It is a matter of inference from the sequence of circumstances and if an inference from those circumstances can legitimately be drawn that privity between the persons concerned existed to commit an offence to achieve an object by unlawful means, the offence of conspiracy will be said to have been proved. In this connection he referred to the case of Reg. Vs. Duffield and others Cox's Cr.L.C.
404, where the nature of the offence of conspiracy was described in the following words:- 'In these cases the essence of the offence is the combination to carry out an unlawful purpose and the unlawful combination and conspiracy is to be inferred from the conduct of the parties. If several persons take several steps, all tending towards one obvious purpose, it is for the jury to say whether those persons had not combined together to bring about that end which their conduct obviously appears adopted to effectuate,'
29. Reference was also made by the learned Assistant Advocate General to the following cases:- Punjab Sindh Ujagar Sindh v. Emperor AIR 1933 Lah. 977, Benoyendra Chandra Pandey v. Emperor AIR 1936 Cal. 73, Goloke Behan Takol and others v. Emperor AIR 1938 Cal.51 and Kashabdeo Bagat v.
Emperor AIR 1945 Cal.93.
In the Lahore case, referred to above, it was held that though the essence of the offence of criminal conspiracy is agreement between two or more persons to commit an offence or do any of the acts mentioned in section 120-B in the matters described therein, the finding of criminality in such cases is a matter of inference deduced from the acts of persons concerned, done in pursuance of an apparent criminal purpose in common between them. In the three Calcutta cases, referred to above, it is also laid down that the guilt in a charge of conspiracy is to be inferred from facts and circumstances proved before the Court.
Mian Aslam Riaz Hussain, also referred to Dur Muhammad and another v. Emperor AIR 1934 Sind 57, wherein it was held that the prosecution cannot be called upon to prove as to when a conspiracy started and when it ended because this must be in the exclusive knowledge of the conspirators themselves.
The principle that emerge out of the above authorities is that an agreement as referred to in section 120-B PPC is to be inferred from the facts and circumstances of each case.
The offence of conspiracy by its very nature is secretive and surreptitious, and if a rule of evidence, as canvassed by the learned counsel for the appellants, is laid down to the effect that an agreement as referred to in section 120-B PPC is to be positively proved, the proof of conspiracy would become impossible."
I, therefore, find that there is no force in the contention raised by the learned counsel for the appellants and hold that the appellants have been rightly convicted under section 120-B PPC notwithstanding the absence of positive proof of agreement."
The case of Asif Ali Zardari v. The State (supra) is almost identical to the present case. In that case also as is in the present case, the value of two confessional statements of the co-accused, was challenged by the applicant on similar grounds and it was contended that the same cannot be used against the applicant. Reference is also made to the well known case of Zulfiqar Ali Bhutto v.
The State (PLD 1979 SC 53). The following observations thereof are reproduced with approval:- "125. A perusal of the facts and observations appearing in these cases, does not fully support the learned Special Public Prosecutor, as there is in fact no departure from the basic definition as given by the Privy Council in the case of Pakala Narayan Swami already referred to namely, a confession must either admit in terms the offence, or at any rate substantially all any rate to adopt or follow any observations to the contrary appearing in these judgments, in view of the clear enunciation of the law by the Privy Council, which is fully in accord with the terms of section 30 of the Evidence Act.
The principle underlying the section is that the consequences, of self-implication in an offence afford some sort of guarantee for the truth of the statement; and When the maker of such statement also implicates another prisoner, it is very difficult, if not practically impossible, to require the Court to exclude that statement altogether from its mind when it comes to consider the case against the other accused. An admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. These considerations, however, do not apply when the question is whether statement, partly inculpatory and exculpatory should be used against maker thereof. In his case, even if the statement does not amount to a confession in the full sense of the term, it could still be used as an admission against him."
The case of Arif Nawaz Khan v. The State (PLD 1991 FSC 53) is distinguishable from the present case.
It only lays down rule that Hadd cannot be imposed on the basis of a confession of a co-accused.
It clarifies that Tazeer can be inflicted on the basis of the confession of a co-accused. Similarly in the unreported decision of Federal Shariat Court in Shariat Petitions No.17/1/1989, 3/1/1990 and 2- K/1991 no doubt it was held that the evidence of an accomplice to whom pardon was tendered was inadmissible also in offences punishable with Qisas, but it was provided that this was so only when there was no corroborative evidence. Hence there is no justification for relying on this report for discarding the confessional statements referred to by the prosecution, which were made by the co-accused implicating the applicant. Contention of the applicant's counsel that in order to establish criminal conspiracy against a person, mere association of such person with others, who were involved in the conspiracy is not enough, is not correct, particularly, when there is evidence to show that he had participated in the meeting dated 21-8-1990, which was held at Bilawal House.
Apart from that it is the settled law appearing from the cases cited above that criminal conspiracy is to be inferred from the facts and circumstances of the case. The conspiracy presupposes by its very nature that it is secret and surreptitious a and if a rule of evidence is laid down that it should be positively proved, then proof of conspiracy would become almost impossible. If several steps are taken by several persons, tending towards one obvious purpose, it can be presumed that those persons had combined together to bring that end which their conduct obviously appears to attain.
Hence I am of the clear view that it can be said with certainty that there appear reasonable grounds to believe that the applicant is guilty of a scheduled offence.
On going through the police papers of the remaining four crimes it was found that indiscriminate firing was done on the same day near about the same time at four other places on the MQM Camps and a number of persons were killed and injured. The eye-witnesses in two of those cases i.e. Crime No.303/1990 and 304/1990 Arambagh Police station, Karachi Claimed to have identified four accused namely, Rashid Rabbani, Ilyas Tanveer, Zahid Saeed and Ghulam Mohammad, driving the said car and firing at the camps. The investigating officer in these cases, however, expressed the opinion that the judicial confessions given by co-accused Zahid Saeed, Saleemuddin and others were false, as these were inconsistent with the statements of eye-witnesses in material particulars. In these two cases the applicant is not challaned. He is challaned in Crime No. 150/1990 of Pak. Colony Police Station and Crime No. 240/1990 of Taimuria Police Station on the basis of judicial confessions of the co-accused Zahid Saeed, Saleem @ Silloo, Razi Hyder, Bilal, Ahmer and Tipu. These two bail applications pertain to these crimes, which are being tried jointly with the first four cases referred to initially. Even after going through the Police papers of these four cases, it cannot be said that there are no reasonable grounds to believe that the applicant is not guilty of a scheduled offence.
Now I would advert to another aspect of this case. It will not be out of place to refer to the latest Judgment of Supreme Court in the case of Allied Bank Ltd. Vs. Khalid Faruq (1991 SCM R. 599) where it was held that relevant provisions of offences in respect of Banking (Special Courts) Ordinance, 1984, were almost the same as that of Suppression of Terrorist Activities (Special Courts) Act, 1975. It was, thereafter, held that the provisions of 1st proviso to sub-section (1) of section 497 of the Code would not be available to Special Court for the accused of a scheduled offence under the Ordinance. The position of the 3rd proviso to sub- sec.(l) of section 497 of the Code is somewhat nebulous. The possibility of its application through section 561-A of the Code cannot be totally excluded. It was further held that the provisions of sub-secs. (2) to (5) of section 497 of the Code would not stand excluded and it is not possible to subscribe to the view that sub- sec. (5) & (6) of the Ordinance constitute a complete code for grant of bails to person accused of scheduled offence. It is evident from para 19 of this report, which is at pages 620 & 621 that the question whether bail can be granted by this Court on the ground of illness by resort to Sec.561-A Cr.P.C., has been left open. Even in the case of Asif Ali Zardari vs. The State (supra) it was held that the High Court can grant bail to an under trial prisoner, on the ground of old age, sickness & infirmity.
Reliance in this behalf was placed by the Division Bench in, inter alia, one of us (Syed Abdur Rahman J's) decision in the case of DSP Larkana v. Mumtaz Ali Bhutto (1988 P.Cr.L.J. 195) in which it was held that section 5(6) of Suppression of Terrorist Activities Act does not place an absolute bar against allowing bail to persons charged with scheduled offences. Even in a case in which there are reasonable grounds to believe that accused is guilty of a scheduled offences, a Special Court can allow bail to him on the ground of old age, sickness and infirmity. The case was taken to inter- Court appeal and this order was upheld by the Division Bench. The same view was reiterated by the same D.B. Of this Court in 1989 P.Cr.L.J. 112 (Aftab Ahmed Shah v. The State). Even the Hon'ble Supreme Court has granted leave in Cr.P.LA.No.11-K/91 to consider whether High Court can grant bail in such a case on medical ground, as an authoritative pronouncement is necessary in view of the conflicting views on this point.
The findings of the Special Medical Board constituted by the Government of Sindh for the examination of applicant Syed Qaim Ali Shah read as under:- "The Special Medical Board constituted vide M.S. Letter No. C & R (CH) 90-91/111200/07 dated the 24th July, 1991, under the chairmanship of Dr. Mohammad Abbas Khan, Acting Medical Supdt. Civil Hospital, Karachi, met in the office of the Professor Medical Unit-I, Civil Hospital, Karachi, with the following Members of the board for the examination of the UTP Syed Qaim Ali Shah on 25-07-1991 at 12.30 p.m.
1. Professor M.A. Almani, Professor of Medicine, Medical Unit-I, DMC & CHK.
2. Professor Kishwar Nazli Mehmood, Professor of Surgery, Surgical Unit-Ill, DMC & CHK.
3. Professor Matin Ahmed Khan, Professor of Radiology, DMC & CHK.
The UPT Syed Qaim Ali Shah was examined at 12-30 p.m. By the above said Board under the Chairmanship of Dr. Mohammad Abbas Khan. The Board finds that UPT Syed Qaim Ali Shah has lost his weight about 10 lbs. His BP 130/90 m. Ni.g.
Pulse 90/ permanent and regular. He has Tender right mastoid with dis-charging right Ear.
He is tender in the right hypochondrium & opgastrich region & right ilic fossa.
In 'view of the above findings board feels that he may be immediately hospitalised for the urgent investigations and treatment.
Sd/-25-07-91 (Dr. Mohammad Abbas Khan)
Chairman.
Member.
Sd/- (Prof. MA. Almani)
Sd/- (Prof. Kishwar Nazli Mehmood) Member.
Sd/- (Prof. Matin Ahmed Khan) Member."
Accordingly the applicant was admitted in Medical Unit-V, Dow Medical College & Civil Hospital, Karachi. Report of the Medical examination reads as under:- "According to the ENT Surgeon, Mr. Shah is suffering from chronic suppurative otitis media right with perforation. He has deafness which is more of conductive type. He has some perceptive loss too.
He is also suffering from deviated nasal septem right and nasal' allergy. He has some decree of sinusitis and pharyingitis too. He has been put on medical treatment. If medical treatment will not improve his condition then surgery will be recommended.
The General Surgeon has reported as follows:
1. Oral cholecystogram of 15-8-1991 shows a solitary opaque gall bladder calculas (stone) with functioning gall bladder. The stone requires treatment as it is giving him symptoms. To cure him permanently and to avoid any complications due to chole-lithiasis in future, it should have surgical treatment....
As it is not giving any acute complication it can be treated conservatively at the moment to relieve his symptoms.
2. He also shows reflux oesophagitis in his Endoscopy report. He should be treated for that."
The applicant is still hospitalised. He has not been operated upon as yet.
We are, therefore, satisfied that applicant Syed Qaim Ali Shah is sick, old and infirm person and is, therefore, entitled to the grant of bail.
These are the detailed reasons for the short order dated 21-10-1991.
ALLAH DINO G. Memon, J.- We propose to decide the above two bail applications by this common order as the allegations against the present applicant Syed Qaim Ali Shah in both the cases are identical, and identical questions of fact and law are involved.
1. The brief facts giving rise to the present applications are that the applicant is facing trial under section 302/307/120-B in crime No. 142/1990 of PS. Aziz Bhatti, special case No. 243/1991, crime No. 177/1990 P.S. Brigade, being special case No. 167/1990, crime No.342/1990 P.S.Saddar, being special case No. 157/1990, crime No.706/1990, P.S. Ferozabad, being special case No. 246/1991, crime No. 150/1990 of P.S. Pak Colony, and crime No. 240/1990, of P.S. Taimuria, District Central, Karachi.
According to the prosecution, Mr. Altaf Hussain leader of Quemi Movement commonly known as M.Q.M. Was to arrive on 22-08-1990, from London and, therefore, the workers and leaders of the M.Q.M. Had set up various camps in the city of Karachi in order to receive Mr. Altaf-Hussain and to take procession. According to the allegations in the First Information Reports there was in- discriminate firing on 22-08-1991 on M.Q.M. Reception camps set up at different places in the evening, with the .Result that twenty five persons died and number of persons were injured at different places. The F.I.Rs were lodged at the above police stations. However, since the incidents took place, suddenly, and there was indiscriminate firing, no one was named in the F.I.Rs, except in F.I.R. No. 177/1990 in which Zahid Sharif Danish Khalid Dalmian and Saood were named as accused and the allegations were supported by witnesses. However, on the following day, the complainant made a further statement in which he has stated that the correct name of Zahid Sharif was Zahid Saeed, while the full name of Danish was Ramzan Ali Danish.
2. During the investigation, number of persons were arrested. Co- accused Zahid Saeed was arrested on 24-12-1990 in crime No. 142 of 1990 by police of Aziz Bhatti Police Station, while accused Salimuddin alias Saloo was arrested on 08/1/1991 in a docoity case as alleged by the police.
However, he was arrested in the present case lateron. That on 4/1/1991, accused Zahid Saeed was interrogated by police under section 161 Cr.P.C, in which he disclosed for the first time that a procession was taken by the M.Q.M. 2/3 days before the arrival of Mr. Altaf Hussain which went upto Bilawal House which had provoked Asif Ali Zardari. That on 21-08-1990 a meeting was held in Bilawal House in which Asif Ali Zardari, Bashir Baloch, Ibrahim alias Bholo, Munawar Hussain, Saharwardi Shah Nawaz Junejo, Ghulam Rabbani, gun man of Asif Ali Zardari, Masroor Ahsan, and Manzoor Wasan were present, wherein it was decided that since Mr. Altaf Hussain was to arrive from London on 22nd August, 1990, the reception camps set up by the M.Q.M. Should be attacked and different persons were assigned different task.It will be worthwhile to mention here, that after the co- accused Zahid Saeed was arrested his remand was obtained upto 07/01/1991, and the challan was prepared on 07/01/1991 and the saem was submitted before the Court on 08/1/1991 with a request that investigation was incomplete and it will take some time to complete the same and to submit the final challan. Further remand of accused Zahid Saeed was obtained from 8th January, to 21st January, 1991 as there was no progress in the investigation. That ultimately he was produced before the Assistant Commissioner and Section 30 Magistrate, Court No. XII, South, Karachi, where his judicial confession was recorded in which he implicated seven more persons including applicant Qaim Ali Shah. On 28/01/1991 co-accused Salimuddin alias Saloo was produced before the Additional City Magistrate Court No. XIII, Karachi, East, and his confession was recorded in which he' has stated that he and Qaim Ali Shah had also attended the Meeting held on 21.08.1990 at Bilawal House-It may be mentioned here that judicial confession of Razi Haider, Bilal, Ahmer alias Raufuddin, S. Rehman alias Tipu were also recorded but on one hand they neither claimed to have been present in the meeting held on 21-08-1990 nor they have implicated the present applicant. They have stated facts regarding incidents of 22-08-1990 and have not implicated the applicant in any way on 30/1/1991 co-accused Ghulam Rabbani and Masroor Ahsan were released by the police presumably under section 169 C. P.C and such information was sent to the Trial Court. When the applicant came to know about the above cases, he filed applications for bail before arrest before this Court but the same were dismissed. He applied before the learned trial Judge in four cases except the present two cases, but the same were rejected. However, he filed bail applications before this Court which were heard by us and the applicant was allowed bail by me on merits, while my learned brother Syed Abdur Rahman, J-was pleased to grant him bail on the medical ground.
3. As far as the allegations in the F.I.Rs. Of the present bail applications are concerned, F.I.R. No. 150/1990 was lodged by one Mohammad Khalid at P.S. Pak Colony, District West, Karachi, wherein he has stated that:- "I am residing at Rexer Colony, Nusrat Shaheed Road at about 3 furlong South East from P.S. Since my birth. I am working as plumber. On 22-08-1990 at 9-15 p.m. While I was standing at Nusrat Shaheed ChowK, Rexer Colony, alongwith other persons of the locality, Some of whom were standing and some were sitting, one toyota Corolla white car came from Old Golimar in which four persons were sitting. All the four persons were having Kalashnikovs in their hands except the driver, and they opened indiscriminate firing from both sides on inhabitants of Rexer Colony with the intention to kill them. I . Sustained fire arm injury on the back of my head. Other persons namely Mohammad Muzammil, Mohammad Ashraf, Abdul Jalil and two more persons who were not known to me were also injured as a result of firing by accused persons. Due to firing two persons namely Badar s/o Gulu and Ali Mohammad alias Mama son of Mehrab perhaps died due to injuries. The mohallah people have brought me and other injured to the hospital. I am sure that it was the same car from which there was firing at Rexer Colony in the last month of Holy Ramzan. I will be able to identify four accused persons sitting on the car if I see them again."
4. The above statement of the complainant was recorded by A.S.I. Fazal Hussain of P.S. Pak Colony, Karachi, and the same was sent through P.C. Mohammad Yousuf for registration of the case and further investigation W.H.C. Malik Mohammad Zaman incorporated the statement in 154 Cr.P.C.
Book, and thereafter, the investigation was started.
5. In crime No. 240 of 1990 of P.S. Taimuria District Central, Karachi, S.H.O. Ashfaq Ahmed Khan, lodged report under section 302, 307/34 PPC on behalf of State, which reads as under:- "I, Inspector Ashfaq Ahmed Khan posted at p.w. Taimuria was busy in investigation of crime No. 239/1990 under section 302, 307,34 PPC vide daily diary entry dated 23-9-90. And during the investigation of post mortem No.336 of 1990 of deceased Syed Adnan Haider son of Syed Izhar Haider was received from the S.H.O. Nazimabad Police Station. It was learnt that on 22-08-1990, between 17-00 hrs. And 18-00 hrs un-known persons opened firing with automatic weapons at the M.Q.M. Camps at Five Star Chorangi Block 'D' with the intention to commit murders, due to which Adnan Haider son of Izhar Haider and two other persons were injured. Adnan succumbed to his injury. The said camp was checked & visited number of times but no body was present. Since the act of the unknown accused falls under sections 302, 307/ 34 PPC, the case is registered."
6. It will be worth while to mention here that the above six cases including the present two cases were sent up before the learned Judge, Special Court (Terrorist Activities) Karachi, who was pleased to amulgamate all the six cases and the same are pending before the Court.
After the applicant was granted bail by this Court in the four cases mentioned above, applicant moved applications for bail in the present two cases of P.S. Pak Colony and P.S. Taimuria before the learned Judge, Special Court (Terrorist Activities) Karachi, but the same were rejected.
8. We have heard Mr. Abdul Mujeed Pirzada, learned counsel appearing for the applicant, Mr. Aftab Ahmed Akhund learned Advocate General, Sindh, for the State, and have gone through the case papers.
It was contended by Mr. Abdul Mujib Pirzada, learned counsel appearing for the applicant that the name of the applicant does not transpire in the FIRs as well as in 161 Cr.P.C, statements. That the prosecution case against the applicant hinges upon the judicial confession of co-accused Zahid Saeed and Salimuddin alias Salloo which have been contracted. It was further contended that two co- accused were kept at C.IA Centre, tortured and were forced to make judicial confessions, which is clear from the Constitutional petition filed by co-accused Zahid Saeed. He has further contended that Article 16 of the Qanoon-e-Shahadat has been struck off by the Hon'ble Federal Shariat Court and, therefore, the judicial confessions of the co-accused would not be considered as evidence against the applicant. In this connection he has relied upon Arif Nawaz Khan Versus The State (P.L.D.
1991 F.Sh.Court 53) That the statement of Zahid Saeed recorded on 04/01/1991 does not show that the applicant and co-accused Salloo were present in the Meeting and, therefore, the judicial confession alleged to have been made by him after a long time showing presence of applicant and co-accused Salloo was un-reliable. That even in the judicial confession there was no allegation that the applicant had taken part in the discussion and no overt act has been assigned against him and, therefore, he was not liable for Criminal conspiracy. That on the day of incident, the applicant had met with Moulana Shah Ahmed Noorani and Mr. Palejo. In support of the above plea he has relied upon cutting of the news papers.
Mr. Aftab Ahmed Akhund, learned Advocate General, Sindh, appearing for the State has vehemently opposed the grant of bail to the applicant and has contended that the applicant and the co-accused had strong motive to create law and order situation as they wanted that the government of the day should fail. That there was evidence that indiscriminate firing at the M.Q.M.
Reception camps was done by the workers of P.S.F. Who work under Pakistan Peoples Party and the names of some of the accused were mentioned in one of the F.I.Rs. That apart from the judicial confessions of Zahid Saeed and Salloo, Baddi, Tipu and Rufi had given judicial confessions corroborating the judicial confession of accused Zahid Saeed. That since the cases have not yet proceeded, it will not be appropriate to consider the effect of confessions made by the co-accused as well as the plea of Ali-bi. In support of his contention he has relied upon a decision of a Division Bench of this Court in the case of Asif Ali Zardari Vs. The State (1991 P.Cr.L.J. 595).
After hearing the learned counsel appearing for the parties, we allowed the above bail applications by a short order and these are the reasons for the same.
I have gone through the order passed by my learned brother S A. Rahman, J.- I am in respectful agreement with my learned brother as far as grant of bail on the medical ground is concerned.
However, in addition thereto. I am of the considered view that the applicant is also entitled to bail on merits, and with utmost respect I do not agree with my learned brother S A. Rahman, J.- That the applicant is not entitled to bail on merits.
9. It is an admitted position that the name of the applicant does not transpire in the F.I.Rs. Nor in the 161 Cr.P.C. Statements of any of the witnesses. There is no allegation that the applicant had himself fired at any of the M.Q.M. Camps, The statement of Zahid Saeed recorded by the police on 04/01/1991 clearly shows that there were eight persons available in the Meeting, and neither the applicant nor co-accused Salloo were present. This statement was recorded after ten days of arrest of accused Zahid Saeed. Even after the above statement, the remand of the accused was obtained on various occasions. Even in the challan submitted before the Court on 08/01/1991 name of accused Qaim Ali Shah did not transpire. However, it was only on 27/01/1991 when all of a sudden accused Zahid Saeed was produced before the Magistrate who recorded his judicial confession in which he implicated seven more persons including applicant Qaim Ali Shah and co-accused Salloo. On 28/01/1991 co-accused Salloo was produced before the Additional City Magistrate, Court No.XIII, Karachi, East, and his confession was recorded in which he has stated that, 'applicant Qaim Ali Shah had also attended the Meeting held on 21-08-1990.' It may be mentioned here that as far as judicial confessions of Razi Haider, Bilal, Ahmer alias Roofdin, Anwar Rahman alias Tipu which were recorded on 27-28-January, were concerned, on one hand they never claimed to have been present in the Meeting held on 21/08/1990, nor they have implicated the present applicant in any way. That co- accused Ghulam Rabbani and Masroor Ahsan whose names appeared in the confession as in the earlier statement of Zahid Saeed were released by the police on 30/01/1991 presumably under section 169 Cr.P.C. The police papers further revealed that upto 26th January, 1991, the name of applicant Qaim Ali Shah did not transpire during the investigation. My learned brother Syed Abdur Rehman,J.-has considered certain facts concerning the other four FTRs in para
(4) of his order since the applicant has been granted bail in those four tases which have not been challenged, we could not import facts of those four cases in the present two cases. We have only to see what is the evidence available against the applicant as far as the present two cases being Crime No. 150/1990 and 240/1990 are concerned. In both cases, the only evidence against the applicant is retracted judicial confession of co-accused Zahid Saeed and Salloo alias Salimuddin.
No doubt the above retracted judicial confessions are admissible but they can only be taken into consideration against the applicant under Article 43 (b) of the Qanoon- e-Shahadat which reads as under:- "Consideration of proved confession affecting person making it and others jointly under trial for the same offence, when more persons than one are being tried jointly for the same offence and a confession made by one of the persons is proved:
(a) such confession shall be proved against the person making; and
(b) the Court may take into consideration such confession as circumstantial evidence against such other person."
In the case of State Vs. Afsandyar Wali and 2 others (1982 S.C.M.R. 321), the above question came up for consideration before their lordships of the Supreme Court and it was observed that:- "On the plain language of this section, when several persons are being tried for the same offence and one of the accused makes a confession affecting himself and the other accused, 'the court may take into consideration such confession as against such other person as well as against the person who makes such confession! Clearly, therefore, the confession of co-accused is not evidence against another accused more-so, when it is retracted."
Although the retracted judicial confession if found true and voluntary can form basis for recording confession of the accused making it but it has been repeatedly held by our superior Courts that as a rule of prudence it must be corroborated in all materials particulars. In this connection reliance is placed on Mohammad Gul and others Vs. The State (1991 S.C.M.R. 942), wherein it was observed by his lordship Amal Mian, J.- of our Supreme Court that:- " A retracted confession is sufficient to make the basis for recording conviction but the Court as a rule of prudence seeks corroboration of the same on all material particulars."
ARIF NAWAZ KHAN VERSUS THE STATE (P.L.D. 1991 F.Sh.C. 53), relied upon by Mr. Abdul Mujib Pirzada, it was observed that:- " In Islamic Criminal Law, the confession of accused against the co- accused is not acceptable and if there is no other proof against him, he will be punished on the said confession."
It was contended by Mr. Aftab Ahmed Akhund, learned Advocate General Sindh, appearing for the State that since the case has not yet proceeded, there was allegation of conspiracy, the Court cannot consider the affect of judicial confession although retracted, at this stage, I am afraid, the contention is untenable. Merely because section 120B PPC has been applied in the case, it cannot take away the jurisdiction of the Court to consider the effect of the confession tentatively as the bail application cannot be decided in vacuum. In this connection it will be appropriate to refer to the case of GHULAM ASGHAR VERSUS THE STATE (1985 S.C.M.R 1946), wherein the effect of judicial confession was considered while considering the question of grant of bail. In the reported case, the evidence against the applicant GHULAM ASGHAR was of his judicial confession and production of blood stained lathi by him. In his judicial confession the applicant had taken plea of right of private defence, and their lordships of the Supreme Court while relying upon the case of NAJEEB RAZA REHMANI VERSUS THE STATE (P.L.D. 1978 S.C. 200) (which was a case decided on merits in appeal and the accused was acquitted on the plea of right of private defence) observed that:- " There is no doubt that the petitioner had killed the deceased but the question is whether the petitioner hit the deceased with the intention to kill him or whether he had hit the deceased in the exercise of his right of self defence and on that question the recovery does not throw any light and, therefore, the applicant was allowed bail."
In the case of MALIK MUKHTIAR AHMED AWAN VERSUS THE STATE (1991 S.C.M.R. 322), wherein accused Malik Mukhtar Awan the them Federal Minister was charged under section 302, 307 read with section 149 and 120-B and 148 PPC on the allegation that he was originator of the criminal conspiracy due to which the two deceased were attacked who later died. He was implicated by the complainant in the F.I.R, as well as by another witness in 161 Cr.P.C, statement. According to them, the accused had held a meeting in his house and had asked the P.S.F. Boys to do away with the deceased, and he would provide them fire arms. That he was assuming all responsibility for their protection and that the Government of Peoples Party would help and reward all those who were involved in the operation. Immediately thereafter, two kalashnikovs were distributed in two persons who were present in the meeting. The accused applied for protective prearrest bail before this Court which was allowed by Amal Mian, C J. Of this Court (as his lordship then was) and thereafter, he filed bail application before the High Court at Lahore. The High Court after considering the quality and nature of evidence collected by Investigating Agency granted bail to him. The State filed petition for Leave to Appeal before the Hon'ble Supreme Court, wherein their lordships were pleased to observe that:- " It is un-necessary to examine the contentions raised by the learned Advocate General at any length, for, in view of the finding of the High Court that there were no reasonable grounds for believing that the respondent has committed the offence of which he was being accused, they amount to nothing more than mere technicalities." and the petition for Leave was dismissed.
In the case of MANZOOR AND 4 OTHERS VERSUS THE STATE (P.L.D. 1972 S.C. 81), it was observed by their lordships of the Supreme Court that:- " It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation for life, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory preparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
Adverting to the contention of Mr. Aftab Ahmed Akhund, learned Advocate General, appearing for the State , that the effect of judicial confession could not be considered at his stage, and in this connection he has relied upon the case of ASIF ALI ZARDARI VERSUS THE STATE (1991 Pak. Cr.LJ.595), wherein the effect of section 30 of the Evidence Act was considered and it was observed by a Division Bench of this Court that:- " The principle underlying the section is that the consequences of self implication in an offence afford some sort of guarantee for the truth of the statement, and when the maker of such statement also implicate another prisoner, it is very difficult, if not practically impossible to require the Court to exclude that statement altogether from its mind when it comes to consider the case against the other accused. And admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself."
It was further observed that:- " It is not necessary to go into this controversy at this stage, as while considering the bail application, the Court will not either way appreciate the evidentiary value of piece of evidence which can only be left to be considered at the trial."
With utmost respect, the decision is distinguishable and does not apply to the fact of the present case, in as much as according to the allegations against Asif Ali Zardari, the complainant had attributed specific role to Asif Ali Zardari in his F.I.R, but the same was deliberately committed by the police Officer, who recorded the F.I.R, and distorted version of F.I.R, was recorded. Thereafter, complainant moved an application on 17/01/1990, his wife sent a letter through .FAX to the then Prime Minister of Pakistan on 22-11-1989, letter dated 6th December, 1989, sent to Mrs. Naheed Khan, Private Secretary to Mrs. Benazir Bhutto, copy of complaint dated 20th December, 1989, addressed to Interpole Scotland Yard London by the complainant, and letter dated 26th February, 1989.
Addressed to the President of Pakistan, specific role was assigned to Asif Ali Zardari and learned Advocate General vehemently relied on those documents before the Division Bench and, therefore, it was observed by the learned Judges, while relying upon the above letters that:- " Version about the incident given in all these letters is consistent and they all do mention the name of the applicant Asif Ali Zardari. The details of the evidence given in these letters are also substantially the same as disclosed by the complainant in his subsequent letter to the police dated 17-09-1990."
It was further observed that:- " The explanation offered by the prosecution for omission of the name of Asif Ali Zardari from the F.I.R, cannot at this stage of the case, be considered fatal to the case of prosecution. It will be difficult to hold at this stage that the allegations made in the complaint and other documents do not involve Asif Ali Zardari in the conspiracy to commit offence under section 365-A PPC."
It was further observed at page 61 that:- " We are, therefore, of the view that at this stage while we are only tentatively examining the material produced by the prosecution for decision of this application it cannot be said that there is no material to reasonable connect the accused with the offence alleged against him."
Thereafter, the contentions of Mr. Aitzaz Ahsan were considered with regard to the judicial confession and, therefore, it is clear that the learned Judges had already formed a view that there was material available to connect the accused with the alleged offence and, therefore, the facts of the above reported case are distinguishable and are not applicable to the facts of the present case.
It is also more or less settled law that one tainted piece of evidence itself requiring corroboration cannot corroborate similar tainted piece of evidence.
The applicant is a Senior Advocate of this Court. He has remained as Chief Minister of this Province, and a Federal Minister. Even now he is an elected Member of Sindh Assembly and is leader of Opposition in the Assembly.
In view of the above factual as well as legal position,-I am of the considered view that at present there are no reasonable grounds to believe that the applicant has committed a non-bailable offence but there are grounds for further inquiry with regard to his participation in the crime. I am, therefore, of the considered view that the applicant is entitled to bail on merits as well.
The observations made by me in the above order, are tentative in nature, and the learned Special Judge shall hear and decide the above case un-influenced by whatever has been observed above.
We had decided the above applications by a short order, and there are the reasons for the same.