MANZOOR HUSSAIN WASSAN Versus STATE

ORDER

SYED ABDUR RAHMAN, J: ‑‑ These bail applications have been filed by applicant Manzoor Hussain Wassan, who is facing trial in, inter alia, consolidated Case No.299/1991 under sections 302, 307 and 120‑B read with section 34, P.P.C. etc.

2. The prosecution story is that M.Q.M. leader Altaf Hussain was to return from London on 22‑8‑1990, therefore, various camps were set up at Karachi to accord him a welcome. There was indiscriminate Klashnikov's firing on some of these reception camps from motor cars in which as many as 25 persons were killed and many more injured. A number of F.I.Rs. were lodged at concerned Police Stations which included, amongst others, the F.I.Rs. Crime Nos. 177, 342, 150, 240, 142 and 766/92 of those respective police stations (sic) No.177 of 1990 (Criminal Bail Application No.1144 of 1991.) which was lodged on 22‑8‑1990 at 11‑50 p.m. by Syed Salman at Brigade Police Station, it was alleged that at about 5‑45 a.m. on the same day P.S.F. workers Khalid Dalmia, Zahid Sharif, Danish and Saood fired from a car with Klashnikov and pelted a hand‑grenade at. M.Q.M. reception camp of Khudadad Colony. Immediately on next day Syed Salman gave further statement that correct name was Zahid Saeed and not Zahid Sharif). Nine persons were injured of whom two died. S.H.O. Brigade Police Station continued investigation. On 23‑8‑1990, seven eye‑witnesses, who were also injured, named P.S.F. workers Zahid Saeed and the above three culprits and gave same facts. In remaining five F.I.Rs. it was alleged that some unidentified persons came in a car and fired with Klashnikovs at the reception camps at various places killing and injuring several persons.

3. Investigations were carried in all the cases separately at as many as eight police stations by the various S.H.Os. On 24‑12‑1990 co‑accused Zahid Saeed was arrested on spy information, by Inspector Ather Rashid Butt of Saddar Police Station, from a car in Sindhi Muslim Housing Society in Crime No.342 of 1990. He was interrogated by the police. His' statement under section 161, Cr.P.C. which was recorded on 4‑1‑1991, mentions that a criminal conspiracy was hatched on 21‑8‑1990 at a meeting held in Bilawal House, wherein Asif Ali Zardari, Bashir Baloch, Ebrahim alias Bholoo, Munawar Hussain Suharwardi, Shahnawaz Juncjo, Ghulam Rabbani, Masroor Ahsan, Manzoor Wassan and Zahid Saced participated, and wherein it was decided that the reception camps set up by M.Q.M. should be attacked and indiscriminately fired at. On account of involvement of such important political leaders C.I.A. and military intelligence also participated in the investigation. On 26‑1‑1991 in consequence of further interrogation, statement under section 161, Cr.P.C. of accused Zahid Saeed was recorded in Crime No.706 of 1990 of Ferozabad Police Station, in which he named co‑accused Syed Qaim Shah and Salimuddin alias Salloo as additional participants in the criminal conspiracy of 21‑8‑1990. Hence on 27‑1‑1990 judicial confession of Zahid Saeed was recorded by Assistant Commissioner and section 30 Magistrate, Court NoXII (South), Karachi. On 28‑1‑1990, 161 statement of Salimuddin alias Salloo was recorded by the police and his judicial confession under section 164, Cr.P.C. was recorded by A.C.M. Court NoXIII (East), Karachi. Both these co‑accused besides implicating themselves in the said criminal conspiracy also implicated the applicant and other co‑accused. The applicant was challaned by the concerned S.H.Os. in all these cases.

4. We have heard Mr. Abdul Hafeez Lakho and Mr. Aftab Ahmed Akhund, A: G. Sindh, for the State. It was contended by Mr. Abdul Hafeez Lakho, learned counsel for the applicant that the applicant's name does not transpire in the F.I.Rs. The prosecution case against the applicant hinges upon the judicial confessions of co‑accused Zahid Saeed and Salimuddin alias Salloo, which have been retracted. According to him the said co‑accused were kept at C.I.A. Centre, maltreated and coerced to make the judicial confessions. He further contended that Article 16 of the Qanun‑e‑Shahadat has been struck down by the Federal Shariat Court in the case of Arif Nawaz Khan v. The State PLD 1991 FSC 53 and therefore, the judicial confessions of the co‑accused could not be considered as evidence against the applicant. He submitted that even if it is believed that the applicant was present in the said meeting even then since it is not alleged that he had agreed to any decision or had taken part in the discussion and no overt act is attributed to him, therefore, he could not be held liable for criminal conspiracy. He further submitted that the applicant has taken plea of alibi as he was at the relevant time, according to news items in the National Press, at Khairpur far away from Karachi. Thus, the judicial confessions are falsified in material particulars. The alibi plea of the applicant is supported by cuttings of the relevant newspapers and the Affidavits of the Press Reporters. Hence there are no reasonable grounds to believe that the applicant is guilty of a scheduled offence.

5. Mr. Aftab Ahmed Akhund, learned Advocate‑General, Sindh, appearing for the State, has vehemently opposed the grant of bail to the applicant and has contended that the applicant and the co‑accused had strong motive to create law and order situation as they were carrying on a fascist movement for the last about ten years and had `actually succeeded in capturing power in the country for about. 20 months and were again after the same by terrorist activities and unlawful means. In this regard he drew attention of the Court to the various allegations and charges levelled by the President of Pakistan against the Government of Benazir Bhutto and decision of the F.B. of this Court and the. Lahore High Court confirming and upholding the same. Besides, the above circumstances there was evidence that the above indiscriminate firing at the reception camps was done by workers of P.S.F. which is a subsidiary of P.P.P. who were identified on the spot and named in one of the F.I.Rs. Two workers of P.S.F. viz. Zahid Saeed and Salloo have given judicial confessions implicating the applicant, while other workers of P.S.F. viz. Buddi, Tipu and Rufi had given judicial confession corroborating the above. Hence the above judicial confessions are corroborated in material particulars and can be made a basis for conviction of the applicant. He has further contended that since the cases, have not yet proceeded, it will be premature to consider the defects of the judicial confessions made by the co- accused or the plea of alibi. At this stage it cannot be said that there are no reasonable grounds to believe that the applicant is not guilty of a scheduled offence. In support of his contention he has relied upon a recent decision of a Division Bench of this Court in the case of Asif Ali Zardari v. The State 1991 PCr.LJ 595 and the decision of Supreme Court in the case of Allied Bank Ltd. v. Khalid Farooq 1991 SCMR 599:

6. The bail application of Manzoor Hussain Wassan is pressed mainly on the ground of alibi. It was submitted that the applicant was not in Karachi at the time, on the day and at the place alleged in the charge i.e. 21‑8‑1990 between 3‑00 p.m. to 6‑00 p.m. at Bilawal House. He had left Karachi on 20‑8‑1990 for Khairpur by road. He attended a reception at Rasoolabad, a border town of District Khairpur, and then reached Khairpur in the evening where he had addressed a meeting at his residence at 5‑30 p.m. The said news was reported in the National Press in, inter alia, daily `Ibrat', `Hilal‑e‑Pakistan' and `Aawami Awaz' in the issue of 21‑8‑1990. Again on 21‑8‑1990 at 4‑30 p.m. he addressed a press conference at Khairpur, which continued upto 7‑00 p.m. It was attended by representatives of the press, including Abdul Aziz Rahu of Daily `Ibrat', Ghulam Qadir of daily `Awami Awaz' and Zubair Ahmed Pirzada of daily `Hilal‑e‑Pakistan'. The proceedings of this press conference were reported in the. national press in, inter alia, the abovementioned dailies on 22 8‑1990. The applicant has filed the affidavits of Abdul Aziz Rahu, Ghulam Qadir and Zubair Ahmed Pirzada, alongwith their identity cards, which were initially produced in an earlier. bail application filed by co‑accused Qaim Ali Shah. Alongwith these affidavits photostats of daily `Ibrat', dated 21‑8‑1990 and 23‑8‑1990, daily `Hilal‑e‑Pakistan' dated 21‑8‑1990 and 22‑8‑1990 and daily Aawami Aawaz dated 21‑8‑1990, 22‑8‑1990 and 24‑8‑1990, and the relevant news items have also been produced. The learned trial Judge (Special Judge, Suppression of Terrorist Activities, Karachi) declined to take into consideration this evidence on two grounds. The first ground was that this plea could have been raised, but had not been raised immediately after registration of the case and the arrest of the accused for which he has placed reliance on the case of Ameenullah reported in PLJ 1976 SC 283. The second ground is that the Court cannot take judicial notice of the affidavits of the newspapers' Reporters, because "whether (sic) the same arc obtained without undue influence, coercion or by own accord", and that the same have been filed after long delay and therefore, arc afterthought. The reasoning advanced by the learned trial Court does not appear to be sound. No doubt at this stage we are not to decide as to whether plea of alibi raised by the applicant is correct or not. The truth or falsehood of this pica is to be ultimately decided by the Trial d Court in the case, after evidence is recorded. The question in these proceedings simply is to see whether the Trial Court had refused to release the applicant on sound and well settled principles of law.

7. In this connection we would first like to refer to the famous case of Khalid Javed Gillan reported in PLD 1978 SC 256, where the High Court had refused bail to the applicant, who was facing a charge under sections 302, 120‑B, 468 and 471, P.P.C. and had refused to place reliance on the affidavit of Dr. M.A. Aziz, a famous Doctor to the effect that at the time of incident, the accused, who was a mental patient, was being treated in his Hospital as in‑door patient. He filed petition for Special Leave to Appeal before the Hon'ble Supreme Court. Thereupon bail was granted and it was observed as under:‑

"However, as a Court cannot, in bail applications, resort to an elaborate sifting of evidence, it has to go by its assessment of "the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case', therefore, whilst the prosecution may be able to prove that Muhammad Azeem was a man of unimpeachable character, for the purpose of the bail application, the hostile relationship between the parties is a circumstance not irrelevant to the Court's assessment of the material produced before it. Similarly, although the petitioner's plea of alibi is supported by the affidavit of a disinterested person, once again we must emphasize that it would be open to the prosecution to prove that the evidence of Dr. M.A. Aziz is not fit to be relied upon. But for the purpose of the bail application, we cannot ignore the fact that a medical practitioner of high repute, who does not have any ostensible connection with the petitioner, supports the petitioner's case. How then did the High Court refuse bail? The learned Judge has very properly refrained from giving a detailed order, but from the tenor of his order, it would appear that he assumed that prosecution evidence was sacrosanct for the purpose of a bail application. With respect this is not the correct view of the law, therefore, although this Court is always very reluctant to interfere in bail orders, a principle which we would reiterate, we are compelled to interfere in the instant case, because the impugned order is based on a misreading of section 497, Cr.P.C. Accordingly, after hearing both the learned counsel, we converted the petition into an appeal, allowed it and ordered the release of the appellant pending his trial by the Sessions Court."

8. The next ruling on which we would place reliance is in the case of Lt. Gen. (Rtd.) Fazl‑e‑Haq v. The State 1989 SCMR 2071. In this Lt: Gen. (Rtd.) Fazl‑e‑Haq, who was an Ex‑Governor and Chief Minister of N: W.F.P., was accused alongwith 14 others in a case under section 302/120‑B/34, P.P.C. He filed an application for bail which was dismissed by Peshawar High Court. Against the said order he filed petition for leave to appeal in the Hon'ble Supreme Court. There was a solitary statement of an approver connecting the accused with the crime. The Investigating Agency failed to notice and examine the plea of the accused challenging the veracity of statement of approver on a material point. The Supreme Court did not find the reasons advanced by the Investigating Agency, explaining the said failure as satisfactory. It was held that the stand taken by the Investigating Agency which was charged with the duty to find out the truth in the matter under investigation and not to commit itself to prematurely to any view of the fact for or against any person being not right, the case was that of further enquiry within the meaning of section 497 (2), Cr.P.C. and pending such enquiry the accused was entitled to bail. Consequently the Supreme Court released Lt.‑Gen. (Rtd.) Fazl‑e‑Haq on bail on certain conditions.

9. The leading case on the point is that of Khalid Saigol v. The State PLD 1962 SC 49. The judgment was written by Hamoordur Rahman, J. (as he then was). It will be useful to produce the following observations:‑

"It will be observed that even under section 497(1) in the case of an offence punishable with death or transportation for life the mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence. Subsection (1) of section 497 evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of the Court and, as such, the Court is not called upon at that stage to conduct anything in the nature of a preliminary .trial to consider the probability of the accused's guilt or innocence. 1t has, nevertheless, as a necessary part of its functions, namely, to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, to look at the material placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt before it can come to the conclusion that its discretion no longer exists."

This judgment was followed in the case of Muhammad Aslam v. The State reported in PLD 1967 SC 549 in which it was observed that no Judge can be prima facie satisfied with the material produced by the prosecution "if left unrebutted may lead to the inference of guilt" against the accused unless the Judge makes tentative assessment of the evidentiary value and the material produced by him. Similarly no Judge can be satisfied even prima facie with the evidence produced by the prosecution does not lead to the inference of guilt against the accused unless he makes a tentative assessment of the material produced before him. Case of Ameenullah (supra) relied upon by the trial Court is not a case of bail and is, therefore, distinguishable from this case.

10. We are, therefore, of the clear view that even at bail stage, the Court can tentatively examine the plea of alibi to find out as to whether the plea of alibi raised by the accused is such that the evidence produced by tire prosecution does not lead to the inference of guilt against the accused and the case was that of further inquiry within the meaning of section 497(2), Cr.P.C.'. and pending such inquiry, the accused is entitled to bail. On a tentative assessment of the evidence thus produced in support of his plea of alibi by the applicant we are of the view that it is such that the evidence produced by the prosecution when looked at in its light does not lead to the inference of guilt against the applicant, the case is that of a further inquiry within meaning o section 497(2), Cr.P.C. and that there are no reasonable grounds to believe that the applicant is guilty of a scheduled offence.

11. The decisions relied upon by Mr. Aftab Ahmed Akhund, learned Advocate‑General, in the cases of Asif Ali Zardari v. The State 1991 PCr.LJ 595 and Allied Bank Ltd. v. Khalid Farooq 1991 SCMR 599 also support our above‑stated view in that it was held in these cases that it is not possible to subscribe to the view that Offences in Respect of Banks (Special Courts) Ordinance, subsection (6) of section 5 which is similar to subsection (8) of section 5‑A of Suppression of Terrorist Activities Act constitute a complete Code for grant of bails to persons accused of scheduled offences and therefore, inter alia, the provisions of subsections (2) to (5) of section 497, Cr.P.C. would not stand excluded.

12. We, therefore, direct that applicant Manzoor Hussain Wassan be released on bail on furnishing surety and P.R. in the sum of Rs.1,00,0001 (Rupees one lac) in each of these cases to the satisfaction of the Nazir of this Court. Before parting with the R & P of the case we would like to make it quite clear that the assessment that we have made is of a tentative nature and should not prejudice the mind of the Trial Court in the least. The learned Special Judge will be at liberty to examine the plea of alibi and if he comes td the conclusion that the same is not true, he will be at liberty to cancel the bail granted to the applicant.

N.H.Q./M‑1630/K Bail allowed.