Hafiz Maulvi MUHAMMAD FAZAL HAQUE Versus THE STATE

ORDER

Hafiz Fazal-e-Haq and Hafiz Habib Ahmad, alongwith one Master Inayat, were found to have involvement in a case under section 302/324/34, P.P.C. registered at 1 p.m. on 5-4-1994, at Police Station Mozang, Lahore, at the instance of M.A. Joseph Francis, of Hall Road, Lahore. Manzoor Masih was, murdered, while Rehmat Masih, Salamai Masih and John Joseph received fire arm injuries allegedly at the hands of the aforesaid accused persons, at about 12-30 p.m., at the wagon stop, near A.-G. Office, towards western end of the Turner Road. Mr. Faiz-ul-Hasan, Additional Sessions Judge, Lahore, by an order passed on 10-7-1994, admitted Master Inayat accused to bail and dismissed the bail petition in so far as the other two accused persons, namely Fazal-e-Haq and Hafiz Habib Ahmad, were concerned. They have approached this Court for the same relief.

2. Background of this occurrence, as stated in the F.I.R., was that Manzoor Masih, Salamat Masih and Rehmat Masih had earlier in the day appeared in the Court of the learned' Sessions Judge, Lahore, where they were facing trial in a case under sections 295-A and C, P.P.C., having been registered against them at Police Station Kot Ladha, District Gujranwala, vide F.I.R. No.56, dated 11-5-1993, complainant in that case being Hafiz Fazal-e-Haq, Imam/Khateeb of the mosque of village Ratta Dhotran, having seen Manzoor Masih etc. writing on walls of the toilets of the mosque obnoxious and obscene words, respecting the Holy Prophet (peace be upon him). Small pieces of paper or chits carrying outrageous writings about the Holy Prophet had also been found lying at the place of ablution, the object being to insult and defile the Holy Prophet and provoke religious sentiments of the Muslims. Maulvi Fazal-e- Haq and Master Inayat etc. were stated to have earlier held out threats to Manzoor Masih etc. in the premises of the Sessions Court, where their supporters in large numbers used to be present. Actually, on 13-2-1994, a murderous assault had even been launched on Manzoor Masih etc. who luckily escaped unhurt, but the Court had to make special arrangements for their protection, on the request of Salamat Masih etc. It may be mentioned that keeping in view highly sensational nature of the case, it was transferred from Sessions Court, Gujranwala to the Sessions Court, Lahore for trial, and 5-4-1994 was a date of hearing in that case On being free from there, Manzoor Masih etc. had come to the office of their counsel, situate at the Turner Road, Lahore, and from there they had come to the wagon stop, opposite the A.-G. Office, for going to their houses. There the three assailants had suddenly appeared on the scene, riding of motor-cycle, and opened firing at them killing Manzoor Masih and injuring the others.

3. The learned Additional Sessions Judge. Lahore had expressed doubt about the presence of Master Inayat on the occasion, observing that none of the witnesses had named him as an accused, although they all belonged to one and the same village Ratta Dhotran. The P. Ws. had merely given the description of the third person (robust body, wheatish complexion and black beard), which description was not true of Master Inayat. No identification parade had been held for ascertaining identity of the third man. Prosecution case, in the opinion of the learned Additional Sessions Judge, to the extent of Master Inayat, was not free from doubt. Here it may be pointed out that both the witnesses, in their statements under section 161, Cr.P.C., did mention the name of Habib Ahmad. The complainant in the F.I.R. had specifically named only one person as the assailant, the same being Maulvi Fazal-e-Haq, resident of Mauza Ratta Dhotran, District Gujranwala. This name had been told to him by Rehmat Masih. It is to be noted that Habib Ullah also belongs to the same place, and in his statement dated 9-4-1994, Rehmat Masih had mentioned the name of Habib Ullah as resident of Phokarpur, Police Station Kot Ladha, District Gujranwala. If he could identify Fazal-e-Haq, at the time of occurrence, he could also recognise Habib Ullah. According to the complainant, however, Rehmat Masih had made him aware of the identity of Fazal-e-Haq alone, and he had, therefore, mentioned his name, while lodging the F.I.R. Benefit given by the lower Court to Master Inayat was, as such also accruable to Habib Ahmad, especially as score of people had sworn and submitted affidavits to the effect that Habib Ahmad was available in the Village throughout the day. It appears that none of the assailants was previously known to Joseph Francis, complainant, and what he stated in the F.I.R. was based on the information communicated to him by Rehmat Masih as regards identity of the assailants, although he claims to have been present at the wagon stop, with Manzoor Masih etc. and to have seen the incident with his own eyes.

4. Learned counsel appearing for the applicants-accused has laid much emphasis on the improbability of the incident as reported in the F.I.R. Rehmat Masih had received a serious fire-arm injury in his belly, whereas Salamat Masih had been hit on a non-vital part, being his right arm. Salamat Masih hailed from the same Village, Ratta Dhotran, to which Fazal-e-Haq also belonged. He must be in his senses and was in a better position to give to the complainant description of the assailants and their names; but he did not make the complainant aware of all that. Rehmat Masih, on receiving bullet injury must have bowed down and sat on the ground and could not have raised his head and glanced around, with a view to ascertain as to who had made the murderous assault. When he was taken to Ganga Ram Hospital, immediately after the occurrence, the doctor gavc an opinion that he was not capable to make a statement. He was declared fit in that regard subsequently on 9-4-1994. It is then not understandable as to how had he made himself communicable to the complainant, at the time of the incident, or immediately thereafter, when he must have been in state of terrible shock.

5. It appears that Fazal-e-Haq's name was specifically mentioned in the F.I.R. as an accused, as he happened to be complainant in the previous case under sections 295-A and 295-C (F.I.R. No.56 of 1993, Police Station Kot Ladha, District Gujranwala). As per police record all the alleged eve-witnesses, namely Rehmat Masih, Salamat Masih and John Joseph had medically been stated to be incapable of making statements on 5-4-1994. Rehmat Masih was declared fit on 9-4-1994 and Salamat Masih on 8-4-1994. John Joseph was thrice referred to the doctor on 5th, 8th and 10th of April, 1994, but was found to be unfit to give a statement, and it was advised that he should come after 13-4-1994. It seems that this was being done schematically, so that these persons could be called upon to make their statements about the incident in a well-considered manner, after due deliberations and consultations. In that event, their testimony must be taken to have been bereft of normal credibility and sanctity.

6. Maulvi Habib had been giving company to Fazal-e-Haq to the Sessions Court, Lahore, in the proceedings of trial of the case under section 295-A and C, P.P.C. There are two possibilities. The complainant and the other witnesses might have fallen prey to a genuine suspicion about involvement of Fazal-e-Haq and Habib Ahmad in the present occurrence, and they had named them, without having actually identified them as assailants. It is also possible that they had implicated them falsely in a calculated and mala fide manner, so that on involvement in the murder case, they could not possibly pursue the previous case, by reason of their unending incarceration, followed by their conviction in trial. Learned counsel representing Fazal-e-Haq and Habib Ahmad has also hinted at the third possibility. Bishops of Lahore had held a protest meeting and march, and the entire Christian community of the country and indeed the entire Christian world had reacted violently against this incident, in which a Christian had lost his life. Followers of Jesus Christ wanted to make it known to the Muslim world that they were not going to overlook even a routine incident of this kind and would not forgive Muslims for loss of alone Christian life, and they had, therefore, planned to inculpate those who had been prosecuting tile previous case, with three Christians as accused. Here I do not feel like seeing eye to eye with the view-point of the learned counsel. Had Christian world valued life of a fellow-being that much, they would not have in a monstrously callous and heartless manner and their eyes towards the horrible spectacle of massacre of millions of Muslims throughout the world, since even Muslims after all are human beings, not lifeless creatures. "Civilised world" seems to have actually become unduly sensitive about law of blasphemy and made a determination that its enforcement must not be permitted in Pakistan, a country of "Fundamentalists" in the Western estimation.

7. Learned counsel' for the accused are of the view that human rights activists, atheists and communists had pursued the matter in right earnest, enemy agents of Pakistan, particularly mighty Indo-Israil lobby, through their secret agencies as RAW and MOSAD, had planned, in a diabolical manner, the whole scheme of things, with an avowed object of making Pakistan another Beirut, wage of psychological warfare and stir up sectarian hatred amongst Muslims and Christians, creating an acute law and order problem for the Government and land the common citizens of the State in a horrible sense of insecurity.

8. In this regard the learned counsel has referred to a statement made by Pakistan's Foreign Minister, Sardar Asaf Ahmad Ali, flashed in Press throughout the world. Another important news published in Press media has pertinently been brought to the notice of the Court. Mr. Mushtaq Ahmad Sukhera, S.S.P., Sargodha had made a statement that a band of terrorists had made confession about having done away with Shia scholars, as also Manzoor Masih. They were the same persons, who had set free, from police custody, Riaz Basra, assassin of Sadiq Gunji, Iranian Consul, at Lahore, some time back. They had remained associated with such squads of extremists, as Sepah-e-Sahaba and Harkat-ul-Ansaar, and they had been imparted training in terrorism in Afghanistan. The news was published in Daily Khabrain, Lahore, dated 20-5-1994. Submission is that the S.S.P., being a bureaucrat, a Police Officer, and not a politician, was not expected to have made a statement in the manner of a diplomat. Such statement must be accorded the importance and solemnity it deserves. Three members of that terrorist organisation were claimed to have been arrested. They were Muhammad Rahil, Shoaib Ahmad and Jamal Abdul Nasir. It would then lend an element of absolute doubt to the narration of facts, as incorporated in the F.I.R. of the present case. The Court has been made aware of the fact that the investigation in the case had been conducted by D.S.Ps. Iftikhar Pirzada, Mr. Humayun and Maulvi Akhtar, as also by Inspector Multan Khan, and for good length of period the Investigating Officers had been of the unanimous opinion that these persons were innocent. It is urged that it was only under an insurmountable international pressure that the investigating agency was made by the Government of Pakistan to give an opinion about culpability of at least Fazal Haq and Habib Ahmad in the case. Submission is that this could certainly not be regarded as an independent and honest opinion, and the accused ought not to be made scapegoats and be allowed to be substituted for the real culprits, for political considerations and diplomatic reasons. At least a Court of law should take into account legal and humane factors and not be swayed by considerations other than legal.

9. The venue of occurrence is one of busiest and most crowded spots. Scores of lawyers have their offices at the Turner Road, where large many , people have also their abodes. Lawyers, their clerks, as also litigants follow this road, in going to and coming from the Courts. High Court building and multi storyed A.-G. Office building are situated on one side of the road. There are also street-vendors and Rehri-Walas. Vehicular traffic is so heavy that it indeed becomes difficult for the pedestrians to use this road. It is doubtful if three persons riding one motor-cycle could drive it with any appriciable speed. It is also doubtful if three persons at all could make use of one bike, there being ban on two riders even. I am really at a loss to understand how could ample space be available for a motor-cyclist, with two more persons sitting on the rear, acting in the alleged manner and for accomplishment of the mission stated to have been carried out by the accused. Still the fact remains that Manzoor Masih was killed and his companions were seriously wounded at the stated place, the western corner of the Turner Road, which also is an equally busy spot. What is in doubt 8 is if the incident had taken place according to the F. I. R. narrative. It appears that the murderous assault was made by some body, a single person or a couple of motor-cyclists, highly trained in the job, executed in the manner of a real commando action, so that the assailants could not be intercepted and none of them could be apprehended, so swiftly they escaped. Poor Maulvis could not possibly accomplish the job in that fashion. It appeared to be one of such acts performed in hit-and-run style, as had been adopted in assassinating the Iranian Consul, Mr. Sadiq Gunji. Actual mode of this occurrence, in all certainty, warrants a deeper and more extensive enquiry.

10. It may be pointed out that although three persons have been named as accused, one of them, being the driver of the motor-cycle, individual role of the other two has not been specified, nor have the fire-arms been specifically described. Crime weapons could also not be recovered, nor were crime empties probably picked up by the police from the spot for subsequent scrutiny by the Ballistic Expert. These factors, amongst others, serve to show that there exist reasonable grounds to believe that those named in the F.I.R. as accused might not be the actual assailants and it may be a cooked-up case. It may be reiterated that the statement made by as important a man as the Foreign Minister and interviews of lawyers on the C.N.N. also lend support to the aforesaid belief, and the same would be relevant as resjeste. Master Inayat's name found mention in the F.I.R., although indirectly in the context of the tragic event. P.Ws., however, did not implicate him in their statements made in the course of the investigation. It is urged that on the principle of "falsus in uno falsus in omnibus", the testimony of the witnesses about involvement of Maulvi Fazal-e -Haq must be considered with - caution and must not be accepted without real scrutiny. Habib Ahmad's name found mention as an accused at a subsequent stage and not initially at the time of registration of the case. I am, as such not in the least in doubt about the fact that involvement of the IE applicants-accused in this case is not at all free from doubt. It is so well-known that even at the bail stage benefit of doubt, if any, ought to be conceded to the accused.

11. Maulvi Fazal-e-Haq had also pleaded alibi and produced driver of a wagon in which he had travelled from Lahore to Gujranwala, and was journeying at the relevant time. Even otherwise he appears to have entitlement to the concession of bail, by reason of his old age and illness under proviso (i) of (section 497(1), Cr.P.C.

12. Learned State Counsel, relying on Jaffer Ali etc. v. State 1985 P Cr. L J 1159 and State v. Muhammad Qasim etc. 1991 P Cr. L J 1856 has urged that unless the ailment is of that grave character that it is dangerous to life, it will not be proper to lend ears to the plea of the accused that he has a statutory right to enjoyment of liberty by reason of ill-health. Learned counsel appearing for Fazal-e-Haq accused had, however, referred to Ghulam Muhammad v. State N L R 1983 Crl. 372 (SC), in stating that an accused who was reportedly suffering from T.B. and had not been admitted to bail by the Sessions Court and the High Court had been granted bail by the Supreme Court, without adverting to the gravity of the disease. It was pronounced in Niwazish Ullah's case 1988 P Cr. L J 2275 that it is not necessary that ailment should be of such a serious nature as may endanger life of a person; anything satisfying the mind of the Court that the disease he is suffering from requires constant care, investigation and treatment, besides special diet, not ordinarily available in jail, would be enough and the Court will be well within its powers to enlarge the undertrial on bail, In the cited case, an elderly person of 70/75 years of age, who was suffering from diabetes and some heart-disorder was found entitled to bail. Fazal-e-Haq, in the instant case, it may be pointed out, has been suffering from tuberculosis, ever since 1963. He has remained hospitalised in Gulab Devi Hospital, Lahore, and is presently undergoing specialised treatment in the Services Hospital, Lahore, on having been referred to by the Jail Authorities. He was born on 10-10-1930, and thus is of advanced age. The Medical Superintendent, Services Hospital, Lahore in his recent report, dated 18-8-1994, has said that Fazal Haq is suffering from three ailments (i) hypertension, (ii) pulmonary tuberculosis and (iii) chronic obstructive pulmonary disease. It appears that his continued detention would be patently prejudicial to his health and life. He will certainly get his due, if found guilty in trial. No incriminating recoveries have been made so far and are proposed to be made from any one of the accused, and they are no longer required for the purpose, the investigation having already been concluded. Even though thus both the petitioners face a capital charge, in my considered opinion, they do not f seem to be disentitled to the privilege of bail. I would accept the petition and order enlargement of the accused, on each one of them furnishing a bail bond in the sum of Rs. 50,000, with one surety each in the like amount, to the satisfaction of the D.R. (Judi.) of this Court or the. Assistant Commissioner, (City), Lahore or the Duty Magistrate.

N.H.Q./M-1807/L Bail allowed.