1. ' NASIR ASLAM ZAHID, CJ.--- As is evident from our order passed yesterday, Mr. Abdul Mujeeb Pirzada had completed his submissions and Mr. Muhammad Ilyas Khan, Special Public Prosecutor, had also addressed the Court at length and completed his submissions. When the submissions were completed, it was already 5.00 p.m. And the matter was adjourned for today for any reply which Mr. Abdul Majeeb Prizada might consider necessary. It was also observed that if no arguments were to be addressed in reply by Mr. Abdul Majeeb Pirzada and he would state that he did not want to address the Court in reply, relying upon the submissions already made, there would be no difficulty in disposing of this bail application even if Mr. Muhammad Ilyas Khan is not present, but in case some reply was given and the occasion arose for any clarification, one of the officers from the office of the Advocate-General should be present.
2. ' Today Mr. Abdul Majeeb Pirzada, learned counsel for the applicant submits that he does not wish to address the Court in reply as he had already made his submissions in detail on 12-4-1994 and yesterday, i,e, 13-4-1994. This bail application moved by the applicant relates to a case which is pending before Special Court (Suppression of Terrorist Activities), presided over by Mr. Ali Ahmed Junejo, arising out of a complaint under sections 121-A and 122, P.P.C. (F.I.R. No,389 of 1981 of Police Station Ferozabad, District (East) Karachi).
3. ' The bail application moved before the trial Court, that is the Special Court No, II for Suppression of Terrorist Activities, Karachi, in Special Case No, 4 of 1988 has been rejected by order dated 29-1- 1994. The bail application has been rejected by the Special Court for the following reasons:-- "The name of the present accused is mentioned in the complaint. The present accused was declared as an absconder and proceedings under sections 87 and 88, Cr.P.C. Were taken and in his absence this Court recorded evidence of three witnesses. Complainant has produced (Exh.23) which is an interview with B.B.C. Correspondent Mark Tally. In this interview Mir Murtaza Bhutto admitted that he is the General Secretary of an Organization known as Al-Zulfiqar is an under- ground organization and it operates secretly. Its Commanders and members do not have total access to him. According to him they have conducted 54 operations. After the arrest of Mir Murtaza Bhutto the charge shall be framed and the evidence. From the evidence on record it appears from the documents that the present applicant being General Secretary of the organization. I am, therefore, not inclined to release the accused on bail till substantial evidence is recorded to show that the case of Mir Murtaza Bhutto requires further inquiry. I find no force in the bail application on behalf of Mir Murtaza Bhutto which is hereby rejected."
4. ' Mr. Abdul Mujeeb Pirzada, learned counsel for the applicant, in his submissions before the Court submitted that there was no evidence available with the prosecution on the basis of which conviction of the applicant was possible under law and he further stated that the absconsion, if any, of the applicant, in the circumstances of this case does not come in his way for the grant of concession of bail to the applicant. It was submitted by learned counsel that the only piece of evidence, on which the prosecution relies, is an alleged interview of the applicant with Mark Tally, a B.B.C. Correspondent. It was submitted that Mark Tally is not shown as a witness in the prosecution's list of witnesses. It was further submitted that, according to the prosecution the interview was monitored by one M.B. Ansari of Radio Pakistan. Admittedly, no tape of the interview is in possession of the prosecution and, Mr. Ilyas Khan, learned Special Public Prosecutor, in his submissions stated that there was nothing available in the prosecution papers to show that any such tape of the alleged interview was available but an unsigned transcript of the said interview reported to have been monitored by M.B. Ansari is available in the police papers. As observed, according to the learned counsel for the applicant, apart from this piece of evidence, which is neither available in the form of a tape nor the person who is alleged to have interviewed the applicant is going to appear as a witness for the prosecution and as such the said piece of evidence is not only hearsay but also cannot be considered as legal evidence on the basis of which the conviction of the applicant can be based, there is no other evidence available.
5. ' During the submissions made by Mr. Ilyas Khan, learned Special Public Prosecutor, we asked him to refer to the pieces of evidence, which are available with the prosecution, so that the same may be considered for purposes of deciding this bail application. Learned Special Public Prosecutor relied on the following pieces of evidence which are available with the prosecution against the applicant, Mir Murtaza Bhutto:--
(1) The transcript of the said interview of the applicant given to Mark Tally, a B.B.C. Correspondent and monitored by M.B. Ansari of Radio Pakistan;
(2) Judicial confession of co-accused Ghulam Mustafa dated 26-9-1981;
(3) Two statements under section 164, Cr.P.C., of P.W. Azhar Ali recorded on 1-3-1982 and of P.W.
6. Jawed Faheem Mirza recorded on 2-3-1982, in which, these two witnesses have stated that one Ilyas Siddiqui had inter alia informed him that the applicant is the General Secretary of the said organization; and
(4) Absconsion of the applicant.
7. ' Learned Special Public Prosecutor had vehemently argued that absconsion for a long period extending to over ten years is sufficient to deny the concession of bail to the applicant. Referring to the other pieces of evidence, Mr. Ilyas Khan, learned Special Public Prosecutor, very frankly and fairly, conceded that if the ground of absconsion of the applicant was not available to the prosecution, the other pieces of evidence were not sufficient to maintain the conviction of the applicant in the case for which he is facing trial before the Special Court. We agree with the learned Special Public Prosecutor that the three other pieces of evidence, taken separately or cumulatively, prima facie, will not be sufficient to maintain the conviction in the case against the applicant. It may be observed that the person who is alleged to have recorded the interview of the applicant is not a prosecution witness; tape of the interview is not available with the prosecution; only a transcript of the said interview is available with the prosecution which is also not signed by anyone. Prima facie, such transcript, in the circumstances, is not legal evidence in a criminal trial.
8. ' In so far as the confessional statement made on 26-94981 of Ghulam Mustafa is concerned, it may first be observed that the Federal Shariat Court in its decision reported in PLD 1991 FSC page 53, has held that, on the basis of the confession of a co-accused, without any further evidence, the conviction of the accused cannot be sustained. Even otherwise, prima fade, only vague allegations are made in the confessional statement. Prima facie this piece of evidence, as rightly pointed out by the Special Public Prosecutor, cannot sustain the conviction of the applicant under the law.
9. ' In so far as the statements of P.W. Azhar Ali and P.W. Jawed Faheem Mirza recorded in March, 1982 under section 164, Cr.P.C., we agree with the learned Special Public Prosecutor that these two statements also do not provide any evidence to sustain the conviction of the applicant.
10. ' It may be repeated here that learned Special Public Prosecutor had submitted that the aforesaid three pieces of evidence, taken separately or cumulatively, are not sufficient, under the law, to sustain the conviction of the applicant in the case registered against him. We agree with this submission made by the learned Special Public Prosecutor.
11. ' However, according to Mr.. Ilyas Khan, the learned Special Public Prosecutor, the three pieces of evidence referred to, by themselves, may not provide a basis for conviction of the applicant but, taken together with the fact of long period of absconsion lasting over a decade, do make out a case for the prosecution that the applicant is not entitled to the concession of the bail in this case.
12. The learned Special Public Prosecutor has referred to the following reported judgments of the Supreme Court in connection with the principles relating to grant of concession of bail to accused who had been absconding:--
(1) Allah Dad and 2 others v. The State PLD 1978 SC 1, in which it had been observed that abscondence though is not conclusive by itself to establish guilt and its probative value is dependent on facts and circumstances of each particular case, yet it was universally admitted as evidence of guilt of an accused.
(2) Rao Qadeer Khan v. The State PLD 1981 SC 93. In this case the conduct of the petitioner was commented upon and was observed that the petitioner in that case had been making repeated applications for anticipatory bail and was trying to gain advantage thereunder and then he absented himself for a long period of time and this was held to amount to abuse of the process of the Court and he was disentitled to the discretionary relief of bail. It was further held that the petitioner's case even on merits was not fit for grant of bail.
(3) Akhtar Ali v. Azhar Ali Shah and others - 1985 SCMR 1166. In this case, an application for cancellation of bail came up before the Supreme Court and it was noted that the accused in the case had remained an absconder for 22 months and even after the grant of bail was responsible for delaying the trial. It was observed that the fact that the accused had remained absconder for a long time being a relevant factor, the fact of absconsion should not have been taken lightly in enlarging the accused on bail and the bail was, in the circumstances of that case, ordered to be cancelled.
(4) Muhammad Sadiq v. Sadiq and others - PLD 1985 SC 182. It is observed in this case that unexplained noticeable abscondence of the accused disentitled him to concession of bail notwithstanding merits of the case but then it is observed that notwithstanding abscondence, the accused might be released on bail when the accused is a woman, a child or a sick and infirm person or when the accused otherwise becomes entitled to bail as of right under section 497(2), Cr.P.C.
(5) Ibrahim v. Hayat Gul and others - 1985 SCMR page 382. In this decision, the Supreme Court observed that long abscondence would not become irrelevant merely because the co-accused of the accused concerned have, during his abscondence, been acquitted on consideration of the evidence led by the prosecution and that the law earlier laid down in respect of persons who become fugitives from law does not leave anything in doubt in this behalf. However, it was added that it is correct that, in some rare cases, notwithstanding abscondence, the accused might be released on bail, for example, when the accused is a woman, a child or a sick infirm person or when he otherwise becomes entitled to bail as of right under section 497(2), Cr.P.C. And/or his so-called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence. It is also observed that the very factum of abscondence would ordinarily be led as additional evidence against the accused which item would be in addition to the evidence led during the trial of the co-accused and it cannot at all be urged that evidence of abscondence is not relevant in cases like the said case under consideration by the Supreme Court.
13. ' A decision of the learned Single Judge of this Court in the case of Anwar Khattak v. The State, reported in 1993 PCr.LJ 1976 was also relied upon by Mr. Ilyas Khan in which it was observed that the accused had admittedly remained a fugitive from law for a considerable period and the mere fact that a formal declaration was not issued by the trial Court under sections 87 or 88, Cr.P.C. Could not render the evidence regarding their absconsion unworthy of credit.
14. ' Mr. Abdul Mujeeb Pirzada, learned counsel for the applicant had submitted that some of the judgments relied upon by the Special Public Prosecutor were conviction cases and, even otherwise, there is no absolute principle that, on the basis of absconsion alone, the concession of bail to an accused is always to be denied, specially in a case where there is no other legal evidence available against the accused. Learned counsel submitted that in none of the cases relied upon by the Special Public Prosecutor it has been held that in a case where the accused is an absconder, he cannot be granted bail at any stage of the trial. Reliance is also placed by Mr. Abdul Mujeeb Pirzada in the case of Jam Sadiq Ali v. The State 1989 PCr.LJ 1910. In this case, Jam Sadiq Ali had applied for bail before arrest and, apart from observing that in bail before arrest applications, the High Court can touch upon the merits of the case, pre-arrest bail was granted and then confirmed by Mr. Justice Ajmal Mian, the then Chief Justice of this Court, despite the objection raised that Jam Sadiq Ali was an absconder since 1977 and had remained absent from the Court proceedings intentionally and had left Pakistan for good.
15. ' In our view a case for bail is made out by the applicant. As observed earlier, prima facie, there is no evidence available with the prosecution, even according to the learned Special Public Prosecutor, on the basis of which the conviction of the applicant can be sustained. In these circumstances the only question which requires consideration, in the facts and circumstances of this case, is that should the applicant be denied concession of bail on account of the allegation of absconsion from 1987 till 4-11-1983, when he surrendered to the police at Karachi Airport when he arrived here from abroad by air. The argument of the Special Public Prosecutor was not that absconsion alone by itself is sufficient to deny an accused the concession of bail but, according to him, the three pieces of evidence, to which he referred, and the fact of absconsion, cumulatively made out a case for the prosecution for denial of bail to the applicant.
16. ' In this case, according to Mr. Abdul Mujeeb Pirzada, learned counsel for the applicant, the applicant had left Pakistan in 1977 and he was abroad when the case was registered in 1987 in which he was shown as an accused. Accordingly, according to the learned counsel for the applicant, it is not a case where a person absconds or remains unavailable for trial after the case had been registered and he is required by the Court.
17. ' In this case, the case was registered in 1987; there are 72 prosecution witnesses and, admittedly, during the last seven years, only three witnesses have been examined and, after the arrest of the applicant in November, 1993, during the last six months, not a single witness has been examined by the Special Court. A reference to the Suppression of Terrorist Activities Act, 1975, which shows that the Act had been promulgated for the purpose of speedy trials of cases, inter alia, of terrorism.
18. Under this law, Special Courts have been constituted and one Special Court is trying the applicant and other co-accused. The case has remained in the Special Court, which is required to dispose of the case speedily, since 1987 and, as observed, out of 72 prosecution witnesses, in a long span of about seven years, only three witnesses have been examined and, since the arrest of the applicant, no progress at all has been made, inasmuch not a single witness had examined since November, 1993. There is also a provision in the Act of 1975 that proceedings will continue from day to day and even if a case is to be adjourned, the adjournment should only be for two days. Mr. Abdul Mujeeb Pirzada had made a grievance in several other petitions, in which the trial before Speedy Courts constituted under Act IX of 1992, presumably enacted under Article 212-B of the Constitution added by the XII Amendment of the Constitution for a period up to 27-7-1991, where the same Presiding Officer of the Special Court is also holding trial against the applicant and other accused in other cases, that the trial Court was not following the procedure prescribed for day-to-day hearing of a case and its disposal within 30 days and the stand of Mr. Ali Ahmed Junejo, Presiding Officer, Special Court in this case and also being the Judge of Speedy Court in those cases was that the Government had not provided the facilities for holding trial from day-to-day inasmuch as even a separate Court had not been provided and the Court premises were shared by him with another Judge, who is the Judge for Banking fraud cases and for a few days in the week he proceeds with the cases as Special Court and Speedy Court and on other days the Banking Judge in the same Court premises proceeds with the cases of bank frauds. He also had stated that even staff had not been provided to him and staff of the other Court was utilised for the purposes of the trial before the Special and Speedy Courts.
19. ' The contention of the Special Public Prosecutor that the three pieces of evidence, referred to by him and commented upon earlier in this order, together with the fact of absconsion are sufficient to deny the concession of bail to the applicant, cannot be accepted. If the other three pieces of evidence are, prima facie, not legal evidence against the applicant, the mere fact that there is any absconsion, which is denied by learned counsel for the applicant, cannot deny the concession of bail to the applicant. Apart from absconsion, there should be some other piece of legal evidence available with the prosecution to deny the concession of bail to an accused. And, in this case apparently it is not absconsion, as rightly pointed out by learned counsel for the applicant, as the applicant had left Pakistan in 1977 and, when the case was registered in 1987, he was already abroad for a period of about six years. Then the case has not proceeded at all since his arrest in November, 1993, for no fault of the applicant. The Special Courts have been created with the main object of disposal of cases at a very early date. It has also been noticed that, during the last seven years, only three witnesses have been examined, out of a total of 72 witnesses for the prosecution.
20. At this rate of progress, no statement can be made by the prosecution about the time which will be taken for the final decision of this case. Perhaps it might take several years more before the trial would come to its conclusion.
21. ' One other very relevant fact, which requires to be observed here, is that almost all the co-accused have been granted bail by the Special Court and, in several cases, bails have been granted by the Special Courts presided over by a Judge of this Court. In this very case, most of the accused have been granted bail and, in order dated 5-5-1987 of the Special Court then presided by a learned Single Judge of this Court, on behalf of the prosecution, the entire evidence (the three pieces of evidence relied upon in this case by the prosecution) was considered and it was observed that the evidence was not legal evidence and the accused was granted bail. The interview by Mark Tully, confessions of co-accused and the statements of the P.Ws. Under section 164, Cr. P.C. Had also been considered and not found to be sufficient to deprive the concession of bail to the co- accused. Apart from the question of absconsion, on the principle of consistency, that is where an accused had been granted bail, other co-accused similarly placed, should also be granted bail, requires that the concession of bail should also be extended to the present applicant.
22. We may finally observe that, in this case, the three pieces of evidence, relied upon by the prosecution are, according to the Special Public Prosecutor himself, not legal evidence to maintain the conviction of the applicant. It may be reiterated that, in the circumstances, the mere fact of absconsion, where the applicant has himself surrendered and other co-accused have been granted bail including other co-accused against whom the evidence is of similar nature, coupled with the fact that only three witnesses have been examined out of 72 prosecution witnesses in the last seven years and not a single witness has been examined since the surrender by the applicant in November, 1993, and the trial is not being speedily conducted by the Special Court, for reasons which may be beyond the control of Special Court, and there being no prospect of the trial being concluded within a reasonable period, we find no reason at all to deny the concession of bail.
23. ' In the circumstances Criminal Bail No, 316 of 1994 is granted and it is directed that applicant Mir Murtaza Bhutto be released on bail on his furnishing one surety in the sum of Rs,1,00,000 (Rupees one lac only) with personal bond in the like amount to the satisfaction of the Nazir of this Court.
24. ' He will be released in case he is not required in any other case..