' IRSHAD HASAN KHAN, ACTG. C.J.--This Bench vide order dated 13-9-1999, while granting interim bail to Shahid Hayat Khan, in Mir Murtaza Bhutto's case, passed the following order:- "This petition under Article 185 (3) of the Constitution of Islamic Republic of Pakistan 1973, is directed against the judgment dated 30-8- 1999 passed by a learned Single Judge of the Sindh High Court, Karachi, in Criminal Miscellaneous Application No, 131 of 1999, whereby bail granted to Shahid Hayat Khan, petitioner herein in case F.I.R. No,443 of 1996, under section 302/324, P.P.C. Read with 148/149/120-A & B, Police Station Clifton, Karachi, was cancelled at the instance of Badrunnisa Jatoi, complainant/respondent No,2. Here in.
2 . This case has a chequered history. The tragic incident took place on 20-9-1996, wherein Mir Murtaza. Bhutto, Chairman, Pakistan People's Party (S.B), Ashiq Hussain Jatoi, President PPP (S.B)
Sindh and six others of their party, said to be their security guards, died and two other persons were injured and allegedly two members of the police party namely Haq Nawaz Sial, S.H.O., Clifton and Shahid Hayat Khan, A.S.P., Petitioner herein, received injuries. In this case, three F.I.Rs had been lodged. The first F.I.R. Bearing No, 443 of 1996, dated 20-9-1996, second F.I.R. Bearing No, 399 of 1996 dated 24-9-1996 and third F.I.R. Bearing No, 443 of 1999 dated 19-11-1996, all were lodged at the same police station i,e, Police Station, Clifton Karachi. It is not necessary to give the history of the case. Suffice it to say that the pear rest bail application of the petitioner was dismissed on merits, which order was maintained up to this Court on the ground that he was shown to be present at the place of occurrence, which resulted in the death of Mir Murtaza Bhutto. Refer Dr. Muhammad Shoaib Suddle, D.I.G. Police, Karachi v. The State (1997 SCMR 1234). His post-arrest bail application was also dismissed. Refer Shahid Hayat v. The State (PLD 1999 Karachi 162).
3. It is claimed that trial of the case commenced before the learned Sessions Judge, Karachi (South), where during the last more than two years and six months, the statements of only 16 out of 200 prosecution witnesses have so far been recorded. The petitioner had already remained behind the bars continuously for more than two years and the trial has not been concluded for no fault of his own. In consequence, the petitioner applied for bail on statutory ground under proviso (iii) to subsection (1) of section 497, Cr. P.0 alongwith co-accused. The learned Trial Court vide consolidated order dated 8-2-1999 allowed bail to the petitioner while bail to his co-accused Rai Muhammad Tahir and Major (Retd.) Masood Sharif Khan was refused.
4. Mst. Badrunnisa Jatoi widow of Ashiq Hussain Jatoi, respondent No,2 herein moved application for cancellation of bail to the petitioner before the Sindh High Court, Karachi, which was allowed on the ground that the petitioner was involved in terrorism, therefore, his case would fall under proviso
(iv) to section 497(1) Cr.P.C. While drawing the above inference, the learned Judge in Chambers took the following view:--- ' The question still remained to be determined whether there was any necessity of deployment of 80 to 100 armed police personnel long before the arrival of convoy consisting of four vehicles of Mir Murtaza Bhutto consisting of persons not named in the F.I.R. And getting the lights switched off of the area only for the sake of arrest of few persons when the convoey was about 100 paces away from 70 Clifton. Ex facie there is no reply from the respondents/applicants/side. The said suspected persons who were allegedly wanted in F.I.R. No,270 of 1996 of Police Station, Napier were not involved in heinous offences, therefore, if police respondents/applicants accused wanted to arrest and if tthey were in the convoy could have been arrested after the said convoy carrying the alleged 'suspects would have entered into 70 Clifton and thereby could have averted the precious loss of eight human lives. All these acts as said above done or planned prior and after the arrival of convoy of Mir Murtaza Bhutto and his companions made and stated as well as in F.I.R. No, 386 of 1996 filed/lodged by S.H.O. Clifton Haq Nawaz sial stating therein that they in their self-defence fired at the convoy which resulted into eight casualties and numerous inured would amount nothing but use of violence against the complainant party in utter disregard of law, therefore, the respondents/applicants/accused ex-facie could be said to be involved in the terrorism. Ex facie taking law into own hands and acting on the orders of superiors would not exonerate the persons implementing the illegal, unlawful orders of the superiors. Ex facie the said acts of terrorism allegedly committed by the respondents/applicants/accused cannot be justified only on the flimsy ground of self-defence as they were police personnel/officers who are said to be custodian of law.
At least the respondents/applicants/accused who were admittedly present at the scene of offence at the relevant time could ex-facie be said on tentative assessment of the material that they were involved in the terrorism by indiscriminate firing at the convoy killing eight persons and injuring many others after switching off the lights and deploying a large number of police personnel. It may be noted that when an act of car snatching in the city could fall within the mischief of proviso (iv) to section 497(1), Cr.P.C., then the facts and circumstances of instant case could also fall within the ambit of provision to section 497(1), Cr. P.C. Reference may be made to (i) Rizwan Hussain v. The State (1999 SCMR 131) and (ii) Muhammad Shafique v. The State (1998 PCr.LJ 1229)".
5. Khawaja Sultan Ahmed, learned Senior Advocate Supreme Court for the petitioner raised the following points:--
(1) "Whether the learned Judge in Chamber has not ignored the principles laid down by this Court for cancellation of bail granted by the trial Court, particularly on the ground of delay in the conclusion of the trial within the statutory period prescribed under proviso 3 of subsection (1) of section 497, Cr. P.C.
(2) Whether the principles for grant or refusal of bail are different from the principles of cancellation of bail.
(3) Whether bail allowed by a Court of competent jurisdiction on proper appreciation of the law can be cancelled on the ground that a different view could be taken regarding the conduct of the accused by going into deeper appreciation of evidence when the trial is in progress and more than 200 prosecution witnesses yet remain to be examined.
(4) Whether where hail is allowed to an accused after the expiry of the statutory period, the inordinate delay further likely to occur in the conclusion of the trial should or should not have been taken into consideration while deciding the question of cancellation of bail.
(5) Whether the police operation for the apprehension and arrest of desperate and dangerous criminals as well as enemy agents can be termed as an act of 'terrorism'.
(6) Whether the learned Judge in Chamber after having found that on going through the material on recorded prima facie one could not say that the respondents applicants accused were hardened, desperate or dangerous criminals or previously convicted offenders; was justified in holding that the person present at the scene of occurrence could ex facie be said on tentative assessm ent of the material, had committed act of terrorism.
(6-A) Let notice be issued to the respondents as well as the learned Advocate-General, Sindh, who shall appear in person and assist the Court on the above questions of great public importance.
Meanwhile, without expressing any opinion as to the merits of the case, the petitioner is granted interim rear rest bail subject to his furnishing fresh bail bonds in the sum of Rs,200,000 (Rupees two lacs only) with two sureties each in the same amount to the satisfaction of the learned Sessions Judge, Karachi (West). The main petition as well as the application for confirmation of interim bail shall be laid before a larger Bench for hearing at the principal seat at Islamabad during the month of October.
1999. The petitioner shall be present before this Court on every date of hearing failing which his bail shall be cancelled without notice.
2. Suo motu notice was taken by one of us (Mr. Justice Irshad Hasan Khan, Actg.) of the news reported in daily The News Lahore" issue of September 14, 1999, wherein at page 12 of the newspaper, a news item was published under the caption "Murtaza's murder was not terrorism, S.C." by Jalil-ur-Rehman. This news was wholly incorrect and misleading, inasmuch as, no occasion arose in the proceedings for interim bail to hold whether or not Murtaza's murder was an act of terrorism. On the contrary, merely notice was issued to the respondent and the learned Advocate- General, Sind, on the question raised by the learned counsel for the petitioner and in the meanwhile, without expressing any opinion as to the merits of the case, the petitioner was granted interim bail as is ex facie apparent from this Court's order reproduced above.
3. Mr Jalil-ur-Rehman, Senior Staff Reporter of the daily The News' Lahore has appeared before this Court in response to the notice issued to him. He has read the news item published in "The News" today as well as the bail order passed by this Court in the case of Shahid Hayat Khan v. The State (Criminal Petition No,179 of 1999). He frankly conceded that the caption of the news item was misleading inasmuch as no such order as reported by him was passed by this Court regarding Mir Murtaza Bhutto's murder case. He, however, expressed his since regrets and gave an assurance to the Court that he would be careful in future while Reporting Court's proceedings. He further respectfully submitted that he gave the news item under some misunderstanding, inasmuch as, he merely intended to refer to the contention of the petitioner's counsel and not the order of the Court.
He further under takes that in order to clarify ambiguity caused by the news item in question, the order dated 13-9-1999 shall be published in all editions of the daily "The News" on September 15, 1999. .