' This bail application banks a tragically past history of a case in which one of the most gentle and respectable member of the Bar namely Barrister Muhammad Najeebullah Khan was murdered on account of his courageous struggle against encroachers and land-grabbers. The deceased had stepped forward to shake the conscience of stone-hearted bureaucracy of the area by filing a C.P.
No,D-2145 of 1992 before this Court to take action against the law-breakers. The Chief Justice, Mr. Nasir Aslam Zahid (as he then was) did his best to expose all these persons who claim to be custodians of law but in practice, are the slaves of corrupt police-officials. The result of that petition still demands, even today to spit on the working of those, without any exception, who had sponsored the criminals to protect their personal gains because the land-grabbers are still in possession of the Government land illegally in spite of the death of a respectable barrister. After his death the murderers threatened Mrs. Hajra Begum, the wife of the deceased, and her two minor school-going daughters to meet dire consequences. Hence it was ordered by this Court on 23-2- 1993 for posting a police guard at their house. However, the conduct of the bureaucracy, as was expected, remained unchanged till today.
2. The instant application moved was on behalf of the two applicants/accused on several grounds but before passing any final order in this case it would be necessary to narrate tragically descriptions of the case as embodied in F.I.R. No,6/1993 registered at Police Station Baluch Colony, Karachi (South) on 17-1-1993 at about 16-30 hours which had been recorded by A.S.I. Muhammad Razzak. The said A.S.I. Had reached Agha Khan Hospital on the said date and Muhammad Najeebullah Khan, who was still alive but seriously injured, stated before him as under:-- "I was present at my house. I opened the main gate of my house after hearing the call-bell. A young boy, who told his name Bakhtiar, threatened me by saying your have got houses demolished in our lane and (you are) also getting orders to get other houses demolished'. I turned him out of the gate. He went away after threatening me. I went to Police Station Bluch Colony in my car which was being driven by my driver Peer Jan and submitted an application there. After leaving the police-post I was coming to my house in the same car being driven by my driver. Suddenly the same boy came out from a taxi with a dagger in his hand he got my car stopped with the help of that taxi near F.I.A. Office. He attacked me, while I was in the car, with intention to kill me. It injured my abdomen on the left side which started bleeding. In the meantime one pedestrian body namely Gullu (whose actual name is Bakhtawar) caught hold of my collar and started beating me with fist blows. Several persons gathered there on my commotions. My driver brought me to Agha Khan Hospital for my treatment. Both the accused (means Bakhtawar and Bakhtiar who are brothers) managed to make their escape good in the taxi. My driver brought me to Agha Khan Hospital for treatment. This incident was witnessed by my driver Peer Jan son of Fateh Khan and several other persons.
' Charge-sheet dated 22-3-1993 submitted in this case reflects that the police had failed to trace out Bakhtawar till he got his pre-arrest bail from the ' District and Sessions Judge on 4-2-1993. He was arrested by the police on 14-2-1993 only when his bail was cancelled by the Court. The dagger was recovered on his potation. Hence a separate case under section 13-D, Arms Ordinance was also registered against him. Both the accused were challaned under section 324/34, Qisas and Diyat Ordinance. Barrister Muhammad Najeebullah expired on 14-11-1993 on account of those injuries. Thus, amended charge-sheet under section 302, Qisas and Diyat Ordinance was submitted before the trial Court.
3. It is evident from the abovementioned facts that:--
(i) F.I.R. Was lodged on 17-1-1993.
(ii) Main accused Bakhtawar could be arrested on 14-2-1993 i,e, after about one month only when his bail was cancelled by the Court but the police had failed to trace him out although he had been coming to and going out of the Court during his struggle for getting pre-arrest bail. It shows incompetency of the concerned police officials of the said police station.
(iii) Late Barrister Muhammad Najeebullah Khan expired on 14-11-1993 i,e, about one month after the arrest of main accused. During this period neither the accused was brought before injured complainant for identification in presence of any Magistrate or in presence of any doctor nor he was produced before any Magistrate to get his statement recorded under section 164, Cr.P.C. In spite of this bitter reality that the police had blamed against the accused that he had not cooperated with the police in the investigation after getting him bailed out. These facts need no comments because every sensible person can easily realize the conduct of police officials and their so-called interest in this case with reference to the gravity of defective investigation.
(iv) The learned trial Court also failed to examine the injured during that period of (9) months which started from 14-2-1992, the day when accused Bakhtawar was arrested and ended on 14-11- 1992 when the victim expired.
(v) When first application for bail was moved before the learned VIII Additional Sessions Judge, Karachi (S), the complainant Muhammad Najeebullah Khan sent his statement from Agha Khan Hospital on 11-3-1993 to the learned trial Judge wherein he stated that the police was spoiling his case by making the accused to escape through police officials of the said police station. He gave all the details about the case and other informations to the Honourable Chief Justice of Sindh High Court. He also complained in his statement that the police was avoiding to get his driver examined under section 164, Cr.P.C. Even the vehicle used in the crime was not impounded. He explained the nature of his injuries and operations done by the doctors in the hospitals.
' The statement speaks itself that duration of his life was decreasing day by day. But the steps taken by the learned trial Judge in the light of circumstances as explained in his letter need no comments particularly when the learned trial Judge failed too to record his evidence before his death. However, the application for bail was rejected on 24-5-1993 by the said Court. In these circumstances if the prosecution fails to establish its case against the culprits then soul of late Barrister Muhammad Najeebullah Khan would cry by asking from every custodian of law:-- {{URDU TEXT}}
(vi) After rejection of the bail application', one of the learned Advocates appeared in this Court for bail by moving Criminal Bail Application No,542 of 1993 but the most sorrowful and noticeable aspect of the said application is that the learned Advocate gave incorrect and twisted facts in the said application. Later on he withdraw himself from .The case for the reasons best known to him.
However, the said application was rejected on 28-7-1993.
(vii) Another application bearing Criminal Bail No, 529 of 1994 was moved on 2-6-1994 after failure to get bail from the trial Court in the second round on 8-5-1994. Before any final order could be passed by this Court. The learned counsel for the applicants withdrew the said application hence the same was dismissed as withdraw.
4. It is now the third round in which present bail application was moved to seek bail. This time the learned Advocate for the State as well as for the deceased have contested the bail application more seriously but position of the case at present has changed which can be summarized as under:--
(1) Statement of the only eye-witness namely Peer Jan, who was driving the car of Late Muhammad Najeebullah Khan as his driver at relevant time has been recorded and he has not supported the prosecution case by resoling from his previous statement. Main portion of his statement to that effect reads as under:-- "Accused present in the Court are not known to me. Since my eyesight is also weak and at the time of incident I was terrorized, I could not say with certainty that the accused present in Court are same or other persons."
' However, he admitted in cross-examination that relative of accused had met with him 4 or 5 times inside the Court and outside the Court.
(2) Applicants/accused are in custody since their arrest i,e, one from January, 1993 and the other from February, 1993. The case against the applicants could not come to end till 30-3-1995, when this order was dictated.
(3) Nothing has been brought on record to show whether death of the deceased took place on account of those injuries alleged to have been caused by one of the applicants or due to improper medical treatment because the deceased remained in the hospital for about 10 months for his treatment i,e, from 17-1-1993, the date of incident till he expired on. 14-11-1993. This period of 10 months cannot be ignored regarding his proper or improper treatment. Nothing can be said about this aspect unless evidence of doctors is recorded in this case.
5. If justice had been slave of emotions I would have refused bail by taking into consideration the burning feelings of the Bar observed by this Court on the murder of their respectable and gentle colleague. I have no doubt in my mind that if the only eye-witness in this case had not resoled from his statement, the position of the case could be different. But, after the statement of Peer Jan and failure of the learned counsel for the State to expose the falsehood of the said witness has permitted this matter to slip into the cradle of further enquiry attracted by subsection (2) of section 497, Cr.P.C. It is noticeable that learned prosecutor, even, did not declare this witness hostile which shows the caliber and the so-called interest of the prosecution.
6. These were the reasons which left this Court with no other alternative but to grant bail to both the accused by a short order, dated 30-3-1995. The applicants were ordered to be released on bail on furnishing solvent surety in the sum of Rs,3,00,000 (three lacs) each to the satisfaction of the Nazir of this Court with P.R. Bonds in the like amount in accordance to the spirit of a judgment reported as Nizamuddin and others v. The State PLD 1994 Kar.
517.
Miscellaneous Application No,502 of 1995
7. On 12-4-1995, the learned counsel for the applicants moved this application under section 561, Cr.P.C. And stated therein that the applicants could not be released for want of solvent surety in the sum of Rs,6 lac (Rs, 3 lacs for each accused) as ordered by this Court. It was stated in the application that father of the applicants was only a security guard in National Bank of Pakistan and he was not in a position to arrange such surety. The learned counsel, therefore, prayed for reduction of amount of surety to one lac each. After hearing the learned Advocate for the applicant and Mr. Azizur Rehman for the State this Court passed the following amended order;-- "Service certificate signed by one Mr. Hassan Sher Khan, Manager Administration shows that Gul Baz Khan, who is the father of present applicants, is a confirmed and permanent employee of National Bank of Pakistan. The said Gul Baz Khan has obtained House Building loan after mortgaging his property in favor of the Bank on 24-1-1991."
' This certificate shows that Mr. Gul Baz Khan is still working in the Bank and, therefore, I would like to modify the order passed on 30-3-1995 as under:--
(a) The applicants/accused would submit solvent surety in the sum of Rs,50,000 each by submitting security in the form of property (movable or immovable).
(b) The surety would furnish his personal bond in the sum of Rs,2-1/2 lacs for each accused. He will also swear an affidavit before the Nazir of this Court that he would not transfer, sell or gift his immovable property till the disposal of this case, which has already been mortgaged in the Bank, or dispose of the same in any manner whatsoever. The office will also send the copy of this order to the concerned Branch of National Bank of Pakistan as an information so that the bank should be very conscious and the documents of property be not released to the present surety till the disposal of this case.
' This amended order was passed in the light of observations made in a reference reported in PLD 1995 Kar.
436. .
8. Before parting with the above order finally I consider it necessary to point out that on account of several lacunae left in the relevant Hudood Law and Qisas and Diyat Ordinance, as radiated in a case reported as Jamaluddin and make these laws perfect in accordance to the real picture of Islam as well as to another v. The State 1995 M LD 1779, the time requires immediate legislation to take action against all these corrupt bureaucrats and police officials who are found responsible, intentionally and deliberately, to save the criminals. If no such law is introduced to punish such persons then every murdered soul would ask and cry. {{URDU TEXT}} ' means "On whose hands am I to find traces of my blood. The entire city has taken to wearing gloves of deceit."
' The concerned and the responsible personalities may not answer this question in this world but they must not forget to prepare themselves to answer it on the Last Day. With reference to such situations as disused above, I have elaborated the nature of the murders in the cases reported as Jamaluddin and another v. The State 1995 M LD 1779 and Nizamuddin v. The State PLD 1994 Kar. 517, which leave no room for anyone to doubt but to believe that effective legislation is required to meet all such situations because such murders can never be dealt with the help of promulgated law of Qisas and Diyat Ordinance. In my view such cases are covered by the definition of Harrabah as given in section 15 of Offences Against Property (E.O.H.) Ordinance, 1979, but unfortunately the said-definition is not helpftil in such murder cases because the learned Pakistani Islamic Scholars have limited that definition to the offences of robbery and dacoity provided the offences are attracted by section 17 of the said Ordinance.