' AGA ALI HYDER, ACTG. C. J.-The appellants, who have filed separate appeals, were convicted by a learned Judge of this Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975, for an offence under section 435 read with section 149, P. P. C. Appellants Muhammad Azam and Abdul Nadim being minors, the learned Judge made a Report to the Provincial Government for orders in regard to the sentence, while the other appellants were sentenced to undergo R. I. For five years each. There is, however, nothing to show as to what eventually was the sentence awarded by the Governor to Muhammad Azam and Abdul Nadim. Appeals Nos. 37/1977, 38/1977. 46/1977, 47/1977, 48/1977 and 22/1977 will be disposed of by this common judgment.
2. On the 28th of December 1975, there was to be an election for one of the Karachi Seats of the Provincial Assembly. Mr. Allan was the candidate with a ticket of the Pakistan People's Party. There were some other candidates also for the Seat, but the contest was between the nominee of the Pakistan People's Party, and the appellant, Syed Sayeed Hassan, who had been unseated earlier. It appears that a lot of heat had been generated.
' The prosecution story is that, on the 25th of December 1975, at about 3-45 p.m., a bus, belonging to the Sind Road Transport Corporation and bearing No, KCE-89 of route No, 1-D stopped after the Tinhatti Bridge on Jehangir Road. As soon as the bus had stopped, it was surrounded by a crowd, raising slogan of "Syed Sayeed Hassan Zindabad" and "Shere-e-Karachi Zindabad". The appellant, Syed Sayeed Hassan, who was there, had incited the crowd to put the bus on fire. A member of the crowd, who had a petrol can, had sprinkled some petrol on the bus, and set it on fire, after the passangers had been ordered to get down. In no time, flames shot up, and the bus came to be badly burnt. A police truck happened to be in the vicinity at that time. S. H.
0. Ashiq Hassain, sitting there, got down with a squad of about seventy constables. He ordered the constables to apprehend the miscreants. Syed Sayeed Hassan ran in the direction of a street and eluded their grip. However, the other nine appellants came to be apprehended at the spot. S. H.
0. Ashiq Hassain had rang up the Fire Brigade Station, but, before any one of them could arrive at the scene, the chassis and the tyres had been consumed by fire. The S. H.
0. Took the nine appellants to the police station, and himself lodged the First Information Report.
Thereafter, he returned to the "vardat", and prepared the `Mashirnama' thereof, and secured the empty tin of petrol from inside the bus. Later; he made enqiries from Muhammad Ali, the driver of the bus. Najeeb Mirza, the conductor, Sikandar Mirza and Nadeem. As some injuries had been sustained by Muhammad Ali, he was referred to the hospital. It is alleged that Syed Sayeed Hassan came to be apprehended on 26th of December 1973, at about 9-30 p.m., while he was standing on the road near about the Martin Quarters, Imambara. After due investigation, the case came to be challaned before the Special Court on 16-2-1976.
3. The appellant, Syed Sayeed Hassan, denied the allegations made against him, and inter alia had the following to say:- On that night I had returned to my house after addressing a meeting in Patel Para along with my workers. Usually after addressing the meetings my workers used to assemble at my house where we used to chalk out a programme for the next day. I had reached in my house alongwith some workers in my car and my workers were following me. The workers who were following me were detained at a distance of 200 paces from my house by some Goondas brought by Katpar and Haji Qasim Patel. The Police party was also with them. My workers were given a beating by them on the road. At that time a Police party attacked my house and as I was coming out they caught hold of me and they started beating me. Among this party Sub-Inspector Ashiq Hussain Baloch, Irtaza Hussain and Mahmood Sarwar three S. H. Os. And Mr. Naqvi D. S. P. Of that area were there. D. S. P.
Wanted to compel me to withdraw from the election and except S. H.
0. Soldier Bazar P. S. Mahmud Sarwar, who was merely standing, they told me that they had instructions from Mr. Zulfikar Ali Bhutto and Mr. Ghulam Mustafa Jatoi so as to compel me and that they were in Karachi for that purpose. On my refusal they entered the house by force and manhandled ladies and children and they also broke doors, windows and other household goods.
As I continued to refuse, they forcibly dragged me with themselves and took me to Jamshed Quarters P. S. From that time I have continuously been in custody. The news about my arrest and also of the beating of my workers appeared in the newspapers in the morning of 25th December 1975, and I produce a copy of the Daily `Jang' of that date as Exh. 26-A. This copy shows the date of 26th of December 1975, because the Urdu papers carry at the date one day advance, but the actual news is of 24th December as given by the Staff Reporter. The news about this incident has appeared at three places in this copy which I have marked in 'red'. On the 25th of December in the morning phonorgrams were sent by my wife to various authorities including the Chief Minister and Chief Election Commissioner complaining about the incident and also about my arrest. I produce six telegrams sent on 25-12-1975 morning and subsequently on 27-12-1975 and are marked as Exhs.
26/B-1 to 26/B-6. When I successfully resisted the attempt to use of force and coercion on the part of the Police Officers to compel me to withdraw till 25-12-1975 they informed me that they were instructed to take me to Baluchistan and even to kill me and further to declare that I was killed in an encounter there. Then I was actually removed in the evening of ,25th December 1975, from Jamshed Quarters P. S. And a show of taking me to Baluchistan was made but on the way Ashiq Hussain S. H.
0. Detained me at Manghopir Road P. S. And kept me for that night and the following day there. In the night between 26th and 27th December 1975, Ashiq Hussain S. H. 0 alongwith other police staff came to Manghopir Road P. S. And removed me in a truck saying that I was to he removed to Baluchistan, but when I was taken out from the truck I found that I had been brought to the Central Jail at Karachi. The route adopted was not the normal route but from outside the city. From this point of time onwards I was kept in Jail custody. I was kept in a solitary confinement in the sense that no person was allowed to come within the radhius of 40 paces from the room in which I was confined. I was denied facilities to which I was entitled. These measures were adopted only to compel me to arrive at some settlement but I was resisting. I do not know the other co-accused in this case, as they had neither been my workers nor associates At any time. I saw them for the first time in Court........................
' He examined as many as twelve witnesses in his defence, namely, M. Mahmud Ahmed Madani, News Editor, Jang', Mr. Nawaz A. Jajja, Advocate, who also was contesting the election, Mr. Mujeeb- ur-Rehman, Assistant Public Relations Officer in the Office of the Provincial Election Commissioner, Musarrat Ali Khan, Head Clerk in the Complaint Branch of the Control Telegraph Office, Muhammad Banaras, Syed Muqaddar Hussain, Inspector, Telephone Revenue Accounts Office, Anwar Shah, Shafi Muhammad Kalhoro, Muhammad Rafiq Malik, Rashid Khalil, Begum Syed Sayeed Hassan, and Muhammad Ashraf, Inspector, Police. The other appellant also denied the allegations made against them. D. W. Mohammad Ali Arain was examined by the appellants, Islamuddin and Moinuddin. Dr. D. S. Zafar and Shamsuddin were examined on behalf of Azam and D. W. Muzaffar Ahmed was examined by Mohammed Laiq in their defence.
4. The prosecution examined as many as eleven witnesses. The eye-witness account has, however, been furnished by Muhammad Ali, Mujeeb Mirza, Naseem Baloch, Sikandar Mirza and S. H.
0. Ashiq Hussain, who was also the complainant. Ghulam Nabi was the Mashir of the arrest in regard to Syed Sayeed Hassan. The others were formal witnesses in regard to damage caused to the bus in question, the ownership of the bus and from fire Brigade Station.
5. The fact, that Muhammad Ali was the driver, and Mujeeb Mirza, the Conductor of the bus in question, has not been challenged at all. They are natural witnesses. There are some discrepancies in their statements inter se. But, being not of a serious nature, can be brushed aside. However, they have clearly stated that the appellant, Syed Sayeed Hassan, was not there. Nor have they ascribed any roles to any of the other nine appellants either in regard to the drubbing received by the two of them, or to the setting of the bus on fire. They have further stated that a big crowd had assembled at the time of the incident, and all that they could remember was that, once the Police party had arrived, nine people had been arrested by them from among the crowd. They do not attribute any slogan mongering to any of these nine appellants. So far as nine appellants apprehended are concerned, that also remains the version of the other three witnesses, namely, Naseem Baloch, Sikandar Mirza and S. H.
0. Ashiq Hussain. Ashiq Hussain had reached the spot, once the flames had leapt up, and all that he has got to say is, that he had ordered the Police party to apprehend the mischief mongers. On his own showing, these people had been secured by the Police Constables accompanying him, and not one of them has been examined. The presence of a big crowd, in a situation like this, in a busy thoroughfare of the town is not difficult to imagine, and, in the m. Elle and the pandemonium that must have ensued, as the matters stand, it cannot be said as to whether these nine appellants had the misfortune of just assembling there, or, had anything more to do. There can be no manner of doubt that the case against these nine appellants, as perpetrators of the crime, or being members of an unlawful assembly is far from established.
6. Naseem Baloch, Sikandar Mirza and Ashiq Hussain are the three witnesses, who had expressly mentioned the presence of Syed Sayeed Hassan at the time of the incident. Naseem Baloch had stated that it was he who had instigated the crowd to set the bus on fire, as it was a Government property. That, however, was not his version before the Police, as duly brought on the record.
Sikandar Mirza was the Vice-President of the Pakistan People's Party of Ward No, 13, Karachi, which was within the constituency for which the election was to take place a few days later. He has admitted that there was a directive issued by Mr. Katpar, the President of the Party for Sind Region that all the workers of the Party were to actively work for the Party candidate. However, he has chosen to make the bland statement that he had evinced no interest whatsoever. That is a little too 'naive' Naseem Baloch also could not be disinterested witness. He has admitted that Karim Bukhsh was a distant uncle of his, while one Rashid was his cousin. He was shown some photographs, which show them sitting in the company of Mr. Katpar, and also before the microphone addressing meetings. The family had also trucks, and it was contended that they could not be on the wrong side of the Police authorities. Be that as it may, the fact remains that, though Sikandar Mirza professes to have been an occupant of the bus and Naseem Baloch remained at the `wardat' for quite long, their names are not to be found in the First Information Report lodged by S. H.
0. Ashiq Hussain himself. Seemingly they are speak easy witnesses, unworthy of any belief. S. H.
0. Ashiq Hussain, though he professes to have reached the `wardat' in time, and he had seen Syed Sayeed Hassan running away to a side street, yet gave up the apology of chase only on the ground that he was in his long boots. He does not say that he had directed any of his constables either to continue the chase. All that he does is that after he had retraced the few steps he had taken in the chase of Sayeed Hassan, he went to a petrol pump, from where he rang up the Fire Brigade authorities. As against this, there is the evidence of Mr. Jajja, who was a rival candidate in the election, to the effect that Syed Sayeed Hassan was not there at all at the time of the incident.
There is also the evidence of Begum Syed Sayeed Hassan to the effect that the Police party had raided their house on the night between the 24th and 25th and apprehended Syed Sayeed Hassan after ransacking the entire house, and not without considerable damage to the household effects.
There is also evident that the news of the apprehension of Syed Sayeed Hassan, after this raid, had appeared in some local newspapers and the editor of the daily 'jang' had been produced in defence to prove the same. It also appears that Begum Syed Sayeed Hassan had sent a number of telegrams to the Chief Election Commissioner and the Provincial Election Commissioner. There are defence witnesses, who have proved the despatch of the phonograms and the telegrams to these authorities. Mr. Mujeeb-ur-Rohman, Assistant Public Relations Officer, has also stated that, on the receipt of letters from Syed Sayeed Hassan, that he was bein harassed by the authorities, he had forwarded the letter to the Division Commissioner, Karachi, on the 25th of December, 1975. In the face o all this, it cannot be said, for certain, whether Syed Sayeed Hassan was a all a free man to be present at time of tue incident. Being a candidate in the election, it looks improbable in the extreme, that he would have collected and instigated a crowd to set on fire a public transport in broad daylight. That would hardly have advanced his cause. Any way, as the matters stand, the prosecution version, that he was there and eluded the grip of the S. H.
0. which has been mentioned only by the S. H.
0. Himself, and no other witnes or, that he came to be apprehended the night thereafter, as though awaitin for the arrival of the Police at a conspicuous place, seems to be a tissue o brazen-faced lies. It was very proper, under the circumstances, that th Government did not choose to support the judgment.
7. As a result, I would set aside the conviction and sentence awarded to the appellants, and allow the appeals. Mohammad Azam and Abdul Nadim were on bail, and their bail bonds stand cancelled. I am informed that even the other appellants had been released by the Government earlier. The issue of release warrants, is therefore, not called for.