1. ' By this order, I propose to dispose of Criminal Bail Applications Nos.1294/1997, 1630/1997 and 1667/1997, filed by Shahid Hayat Khan, Wajid Ali Durrani and Major (Retd.) Masood Sharif Khan, as these arise out of the common F.I.R. No,443 of 1996 registered at the Clifton Police Station, Karachi, on 9-11-1996.
2. ' According to the F.I.R., on 20-9-1996, Mir Murtaza Bhutto alongwith Ashiq Hussian Jatoi and other companions was returning to his residence at 70, Clifton at about 8-35 p.m. In a convoy comprising of four vehicles when at about 100 yards from the main gate of his residence, he was stopped by several police officers including applicant Wajid Durrani, who was then S.S.P., South Karachi, and applicant Shahid Hayat, who was then A.S.P., Saddar. It is alleged that there were about 80 to 100 police personnel duly armed with automatic weapons who had already taken position around the area and as soon as the convoy stopped on the signal of the police officers and Mir Murtaza Bhutto. Lowered the window glass of his vehicle, the police officers shouted 'fire', whereupon some of the companions of Mir Murtaza Bhutto ran towards him to provide him cover, but in the meanwhile the police had started firing and target shooting with the result that eight persons were killed and several others were injured. Applicant Masood Sharif Khan is not shown as being present at the place of incident, but his name finds mention in the F.I.R. As one of those who conspired to eliminate Mir Murtaza Bhutto in league with others. Earlier to this F.I.R., two other F.I.Rs, were also registered in respect of the same incident, the first in time was F.I.R. No,386 of 1996 lodged by Police Inspector Haq Nawaz Sial at the Clifton Police Station on 20-9-1996 at 10-00 p.m. In the night and the second was F.I.R. No,399 of 1996 also registered at the same Police Station on 24-9- 1996 at 12-59 a.m. At the instance of one Asghar Ali, a servant of Mir Murtaza Bhutto. It may be mentioned that complainant Asghar Ali who was accompanying Mir Murtaza Bhuttto in one of the vehicles was arrested by the police on 20-9-1996 from the place of incident and he was still in police custody when he lodged the second F.I.R. On 24-9-1996. As to the third F.I.R. (443 of 1996) that was registered as a result of direction of a learned Division Bench of this Court in Constitutional Petition No,D-1720 of 1996.
3. ' Applicant Shahid Hayat Khan was earlier granted interim pre-arrest bail by this Court but ultimately his application was rejected. All the applicants before moving the above bail applications in this Court, had applied for bail alongwith some other accused in the case before the Trial Court but their bail application was rejected by order dated 14-6-1997.
4. ' The first ground common in all the three cases is that of counter-version. It was contended that more than one F.I.Rs were registered in respect of the same incident and as the accused named in the first F.I.R. No,386 of 1996 had already been let-off on bail, the applicants too who are named in the last F.I.R. No,43 of 1996 are entitled to bail. In support of the contention several cases were referred. In the case of Shoaib Mahmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCM R 1845, it has been observed that:-- "16. In case of counter-version arising from the same incident, one given by complainant in F.I.R.
5. And the other given by the opposite-party case-law is almost settled that such cases are covered for grant of bail on the ground of further enquiry as contemplated under section 497(2), Cr.P.C. In such cases normally, bail is granted on the ground of further enquiry for the reason that the question is as to which version is correct is to be decided by the Trial Court which is supposed to record evidence and also appraise the same in order to come to a final conclusion in this regard. In cases of counter versions, normally plea of private defence is taken giving rise to a question as to which party is aggressor and which party is aggressed. In the case of Fazal Muhammad v. Ali Ahmed 1976 SCM R 391 in cross cases, the High Court granted bail to the accused on the ground that there was probability of counter version being true as some of the accused had received injuries including a grievous injury on the head of one accused. It was held by this Court that in such circumstances, the High Court was right in granting bail and no interference was warranted.
6. In the same context reference can be made to the case of Mst. Shafiqan v. Hashim Ali and others 1972 SCM R 682.
17. In this case contentions are raised on behalf of both the parties to the effect as to which version in the two F.I.Rs, is correct and which party is aggressor and which party is aggressed. Hence, the contentions relating to these questions can be gone into and decided by the Trial Court after elaborate evaluation of the evidence recorded by it. We after careful consideration of the orders passed by the High Court and the contentions raised before us on behalf of both the parties, are of the view that the reasoning given by the High Court for the grant of bail is not perverse or capricious warranting interference by this Court."
7. ' Similarly, in the case of Muhammad Hussain v. The State 1993 PCr.LJ 623 it was held that:-- "This is a settled principle of law that where the accused are also injured seriously and a cross- case is also registered against the complainant party then the case falls under subsection (2) of section 497, Cr.P.C. In a cross-case if bail is allowed to one party then the other party is also entitled to be released on bail to persue their defence, as it is yet to be determined that which party was at fault.'
8. There is no cavil to the proposition that in cases of counter-version he rule followed is that if one party is allowed bail the other too is entitled to b. But that rule would be applicable in cases of genuine counter-version, however, where more than one F.I.Rs, are registered by the police at the instance of police officers with deliberate mala fide intention to protect the police or to pre-empt any complaint by the real aggrieved party or where the police refuses to register the F.I.R. When approached by the wronged party, there seems no justification to apply this rule, for that would then be exploited by every wrongdoer. In the present case, admittedly Mir Murtaza Bhutto and his companions were fired upon by the police resulting in death to eight persons including Mir Murtaza Bhutto and Ashiq Hussian Jatoi and injuries to many others, from the side of the complainant in F.I.R. No,443 of 1996. As against this on the police side only two police personnel are said to have suffered minor injuries and of these the injury caused to Haq Nawaz Sial, complainant in F.I.R.
9. No,386 of 1996 was declared by the Medical Board as self-suffered. The injury sustained by applicant Shahid Hayat Khan, was on the rear of his thigh which was unlikely to have been caused by the complainant party who were in front of the applicant. Having regard to the over all circumstances of the case, the number of persons killed and injured on both the sides and other accompanying facts, in my view, this cannot be treated as one of such counter-version cases as would call for the application of the rule of consistency so as to grant bail to those accused in F.I.R.
10. No,443 of 1996 merely as the persons involved in the first F.I.R. Registered at the behest of the police officer had been allowed bail. It was argued that as was apparent from F.I.R. No,386 of 1996, lodged by Haq Nawaz Sial, the police resorted to firing only in self-defence after the persons accompanying Mir Murtaza Bhutto had opened indiscriminate firing on the police party with the intention to kill and for this reason too the applicants present at the scene of incident were entitled to the concession of bail. The plea has not impressed me. The manner and circumstances in which F.I.R. No,386 of 1996 was registered and the events that have taken place cast doubt on its correctness and much weight cannot be given to it at this stage.
11. ' It was next contended that F.I.R. No,443 of 1996 was lodged belatedly almost one month and twenty days after the incident and, therefore, cannot be given much credence. Even in this F.I.R., it was submitted, no overt act has been attributed to any of the applicants and only vague allegations of conspiracy have been made. It was claimed that applicant Shahid Hayat Khan who was then posted as A.S.P., Sadder had no concern with the area where the incident occurred but reached the place on the direction of the S.S.P. (South) shortly before the occurrence and was soon removed from there as he received fire-arm injury at the very start of the firing, as such, he had no occasion to take part in the operation. In the case of applicant Wajid Ali Durrani, the then S.S.P.
12. (South) it was submitted that he was not present at the actual site of the incident but was sitting in the police kiosk at the 'Do-Talwar' Roundabout. About Major (Retd.) Masood Sharif Khan, the then Director-General, Intelligence Bureau, the contention was that he was implicated in the case under a well thoughtout plan to involve senior and responsible officers and to put them under pressure.
13. This it was said, was obvious from the fact that before involving Masood Sharif in this case he was arrested on 5-11-1996 purportedly under Maintenance of Public Order but when his detention was challenged in the Lahore High Court he was involved in this case and arrested. It was argued that at the time of the incident he was at Islamabad and had no knowledge of the operation.
14. ' Thus, it was submitted that none of the applicants took part in the alleged operation and while applicant Shahid Hayat Khan remained present at the place of occurrence for a short while and Wajid Ali Durrani at some distance from the actual place of incident, Maj. (Retd.) Masood Sharif was not even present in Karachi at the time of incident. In these circumstances, and having regard to the fact that no overt act has been attributed to the applicants they cannot be deprived of the concession of bail. Reference was made to the cases of Muhammad Haroon and another v. The State 1994 SCM R 2161 and Muhammad Sadiq and another v. The State 1996 SCM R 1654. In those cases the applicants therein were present at the scene of occurrence and also raised 'Lalkara' but did not cause injury to any one, were granted bail.
15. ' As to the allegation of conspiracy it was urged that there was no material on record to involve the applicants in any conspiracy to eliminate Mr. Murtaza Bhutto and his companions. It was submitted that several witnesses were cited by the prosecution to establish the charge of conspiracy but those already examined have failed to give any details of the alleged conspiracy. Referring to the evidence of Asif Ali it was pointed out that he had said nothing about Masood Sharif being involved in any conspiracy. It was submitted that some persons in their statements under section 161, Cr.P.C.
16. Had involved the applicants in alleged conspiracy but those statements were unworthy of trust as these were recorded long after the registration of the F.I.R. Reference was also made to the inconsistencies in the F.I.R. And the deposition of complainant Noor Muhammad. It was said that the case of Dr. Muhammad Shoaib Suddle, D.I.G. Police, Karachi and others v. The State was similar to that of the applicants, particularly that of Masood Sharif, who too like Dr. Shoaib Suddle was not present at the place of occurrence. The relevant observation is as follows: "Suffice it to say, it being an admitted position that petitioner Shoaib Suddle is not shown in all the F.I.Rs, to be present at the scene of occurrence at any time before or after the incident, resulting in the death of Mir Murtaza Bhutto and his companions, and that there was no material as yet available with the prosecution showing his involvement in the alleged conspiracy by the political opponents of Mir Murtaza Bhutto in the Federal and Provincial Governments to eliminate him, and the fact that the petitioner's name is not included in the interim challan as an accused in the relevant columns, nor his name is included in column 2 thereof and yet the police is out to arrest him, we are of the view that the petitioner has made out a case for grant of pre-arrest bail within the rule laid down by this Court in the cases referred to above."
17. ' In respect of applicant Masood Sharif, bail was sought on medical ground too, as he was said to be suffering from heart ailment and was entitled to bail to enable him have proper treatment of his choice. For this aid was sought from the case of Malik Muhammad Yousufullah Khan v. The State and another PLD 1995 SC 58 where the following criteria for grant of bail on medical ground was approved:-- "The correct criteria for grant of bail to an accused in a non-bailable, on medical ground, in our view, would be that the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the premises of jail and that some specialised treatment is needed and his continued detention in Jail is likely to his capacity or is hazardous to his life."
18. ' Mr. M. Ilyas Khan, learned counsel appearing for the State has vehemently apposed the bail applications and submitted that all the applicants were deeply involved in the conspiracy to eliminate Mir Murtaza Bhutto, the then Chairman of Pakistan People's Party (SB). This was apparent from the material on record and the circumstances of the case. He submitted that on that night in accordance with a well thought out plan, the lights of the area had been switched off and a large number of police personnel duly armed had already taken position and when the convoy of vehicles carrying Mir Murtaza Bhutto and his companions reached the place it was stopped and then the police resorted to heavy firing and target shooting. He referred to the depositions of the witnesses and statements recorded under sections 161 and 164, Cr.P.C. In support of his allegation that senior Police Officers had taken steps to cover up the crime by attempting to tamper with the record and misdirect the trial, for instance, that soon after the incident the daily diary of the Clifton Police Station was ordered to be closed or that the police vehicle which had no bullet marks on the day of incident was found to bear such marks when re-examined after two days or that Asghar Ali complainant of F.I.R. No,399 of 1996 before lodging the report was taken to the then Chief Minister's house under police custody or that P.I. Haq Nawaz Sial, an important witness to the incident and the conspiracy, was murdered just a few days of the occurrence.
19. At the bail stage, however, it would not, at all, be appropriate to undertake any elaborate sifting of evidence, all the more when the trial is proceeding before the Trial Court. It may, however, be said that this is rather a peculiar case in the sense that amongst the accused are senior police officers and other influential people with the result that the complainant encountered difficulties in getting his F.I.R. Registered and it was only after the direction from this Court that it could be registered. It is also significant that Asghar Ali the complainant of the second F.I.R. Had lodged the report while he was in police custody. Having regard to all these circumstances, the allegation of tampering with the records or attempts to misdirect the course of the trial cannot altogether be overlooked.
20. ' Coming to the cases of the three applicants it is not denied that applicant Shahid Hayat Khan was present at the place of incident and apparently it was not a mere casual presence, for, according to the first F.I.R. (No,386 of 1996), lodged by P.I. Haq Nawaz Sial, the operation was conducted under the supervision of accused Shahid Hayat Khan and Rai Muhammad Tahir. As such, Shahid Hayat's active participation in the operation which ended up in eight deaths and injury to several others, cannot be minimised. It was said about him that though he was posted as A.S.P., Saddar, he was specially included in the operation due to his involvement in the conspiracy. Similarly, Wajid Ali Durrani's presence at the place of occurrence is undisputed, though, of course, it was alleged that he was sitting in the police kiosk, a little distance away from the site of actual shooting, but, one of the police personnel in his statement under section 161, Cr.P.C. Stated that he was issuing instructions from there. P.W. Asif Ali in his deposition has stated that Shaukaib Ahmed Qureshi shot Ashiq Hussain Jatoi on the orders of Wajid Ali Duryani.
21. ' As to Masood Sharif, there appears to be no evidence of his presence at the place of incident, but, to be involved in a conspiracy, it may not be necessary that one should be present at the place of incident also. It was stated that P.W. Ishaque Khan Khakwani and one Abdullah, a Deputy Secretary in the Intelligence Bureau have implicated him in the conspiracy. Much was said about there being no direct evidence of conspiracy and none of the witnesses had disclosed any specific information with regard to any conspiracy to kill Murtaza Bhutto and his companions. It may be difficult to have a direct evidence or specific statement of any witness about the date, time and place of conspiracy as criminal conspiracy has of necessity to be secret in order to succeed. Criminal conspiracy is to be deducted from attending facts and the surrounding circumstances of the case.
22. It was observed in the case of Syed Qaim Ali Shah v. The State 1992 PCr.LJ 9 as follows:-- "Conspiracy presupposes by its very nature it is secret and surreptitious 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 altogether to bring that end which their conduct obviously appeared to attain."
23. ' Similarly, in the case of Shivnarain v. State of Maharashtra AIR 1980 SC 439, the relevant portion.Reads as follows:-- "It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inference drawn from acts or illegal omission committed by the conspirators in pursuance of a common design.... ... ..."
24. ' Switching off of the street lights, deployment of such large number of police personnel, presence of so many senior police officers can hardly be considered as normal measures for effecting the arrest of a few persons, as has been alleged in the first F.I.R. With regard to the case of Dr. Shoaib Suddle, referred to by the applicant's counsel, it may be stated that in that case pre-arrest bail was granted under different circumstances on principle altogether different from that applicable to the present case and, therefore, that case is distinguishable. As to the prayer for grant of bail to applicant Masood Sharif on medical ground, suffice to say that neither any medical report was produced to justify the request nor any request was made to refer the applicant Masood Sharif for medical examination. As such, plea for bail on medical ground cannot be considered.
25. ' It may be mentioned that in the present case only one accused, namely, Dr. Shoaib Suddle is on bail, two other accused who had been granted interim pre-arrest bail jumped the bail and absconded resulting in the cancellation of their bail and one accused police officer absconded without applying for bail.
26. Having 'considered all the aspects of the case, I am of the view that no case for grant of bail to any of the applicants has been made out and, accordingly, all the said three bail applications are rejected.