SYED QAIM ALI SHAH Versus THE STATE

1. ALLAHDINO MEMON, J. --- We propose to decide the above four bail applications by this common order as the allegations against the present applicant Syed Qaim Ali Shah, in all the four cases are: identical and the identical question of facts and law are involved and even the learned counsel appearing for the parties have argued the above bail applications jointly.

2. The applicant is facing trial under sections 302, NO and 120-B/34, P.P.C. in Crime No. 142/1990, Police Station Aziz Bhatti, Special Case N3. 243/1991, Crime No.177/1990, Police; Station, Sadar Brigade being Special Case No.167/1991, Crime No. 342/1990, Police Station Special Case No.157/1991 and Crime No. 706/1990, Police Station Ferozabad, Special Case No.246 of 1991.

3. The brief facts of the prosecution case are that Mr. Altaf Hussain, leader of Muhajir Qumi Movement commonly known as M. Q.M. was to arrive on 22-8-1990, from London and, therefore, the workers and leaders of the M.Q.M. had set up various camps in the City of Karachi, in order to receive Mr. Altaf Hussain and to take procession. According to the allegations in the First Information Reports there was; indiscriminate firing on M.Q.M. Reception Camps set up at different places on 22-8-1991, in the evening with the result that 25 persons died and number of persons were injured at different places.

4. The F.I.Rs. were lodged at different police stations which included the above four F.I.Rs. However, since the incidents took place suddenly and there was indiscriminate firing from the cars, no one was named in the F.I.Rs., except F.I.R. No.177/1990 in which Zahid Sharif (not Zahid Saeed), Khalid Dalmia, Danish and Saud have been named as accused, and allegation is supported by 7 P.Ws.

5. During the investigation, number of persons were arrested and interrogated. Co-accused Zahid Saeed was arrested on 24-12-1990 in Crime No.142 of 1990, Police. Station Aziz Bhatti, while accused Salimuddin alias Saloo is said to have been arrested on 8-1-1991 in a dacoity case. That on 4-1-1991 accused Zahid Saeed is said to have been interrogated by the police and his statement under section 161, Cr.P.C. was recorded in which he disclosed for the first time that the procession was taken by M.Q.M. 2/3 days before the arrival of Mr. Altaf Hussain, leader of M.Q.M. which went up to Bilawal House which had woked Asif Ali Zardari. That on 21-8-1990, a meeting was held in the Bilawal House regrading reception of Mr. Altaf Hussain, in which the following persons were present: (1) Asif Ali Zardari, (2) Bashir Baloch, (3) :Ibrahim alias Bholoo, (4) Munawar Hussain Soharwardi, (5) Shah Nawaz Junejo, (6) Ghulam Rabbani, Gunman of Asif Ali Zardari, (7) Masroor Ahsan, (8) Manzoor Wasan and (9) Zahid Saeed, wherein it was decided that since Mr. Altaf Hussain was to arrive from London on 22nd August, 1990, the reception camps set up by the M.Q.M. should be attacked and different persons were assigned different task. Munawar Soharwardi was asked, to assign the duties to the workers and certain other persons were asked to supply arms to the workers. It will be appropriate to mention here that after arrest of Zahid Saeed, his remand was obtained up to 7-1-1991 and challan was prepared on 7-1-1991, and the same was submitted before the Court on 8-1-1991., with a request that investigation was incomplete and it will take some time to complete the same and to submit the final challan. Further remand of accused Zahid Saeed was obtained from 8th January, to 21st January, 1991 as there was no progress in the investigation and ultimately lte was produced before Assistant Commissioner and Section 30 Magistrate, Court No.XII, South, Karachi, where his judicial confession was recorded in which he implicated seven more person including the applicant Syed Qaim Ali Shah. On 28-1-1991 co-accused Salimuddin alias Saloo was produced before the Additional City Magistrate, Court NO.XIII, Karachi, East, and his confession was also recorded in which he has stated that applicant Oaim Ali Shah had also attended the meeting held on 21-8-1990 at Bilawal House. It appears that the statement of accused Salimuddin alias Saloo was also recorded under section 161, Cr.P.C. on 28-1-1991, but there is nothing on record to show as to whether it was recorded first or his judicial confession was recorded first. It may be mentioned here that judicial confessions of Razi Haider, Bilal Ahmed alias Roofdin, Anisur Rehman alias Tipu were also recorded but on one hand they neither claim to have been present in the meeting held on 21-8-1990 nor they have implicated the; present applicant. They have stated facts regarding incident of 22-8-1990 and have nest implicated the applicant in any manner. Even they have not spoken a word about the meeting alleged to have been held on 21-8-1990. On 30-1-1991 co-accused

6. Ghulam Rabbani and Masroor Ahsan were released by the police presumably under section 169, Cr.P.C. and such intimation was sent to the trial Court. It appears that while the applicant was at Islamabad, he came to know about his implication in the above cases and, therefore, he obtained protective pre-arrest bail first from Rawalpindi, and thereafter, from High Court of Balochistan. That ultimately, he surrendered before the learned Judge, Special Court, Suppression of Terrorist Activities, Karachi and applied for bail before arrest but his applications were rejected and he was remanded to custody.

7. Thereafter, the applicant filed the present applications before this Court and he was directed by us to move the trial Court first, and the present applications were kept pending vide order, dated 7-5-1991. The applicant applied for bail after arrest before the learned Judge, Special Court but his applications were rejected vide order, dated 21-5-1991.

8. We have heard Mr. Abdul Mujeeb Pirzada, learned counsel appearing for the applicant, Mr. Aftab Ahmed Akhund, learned Advocate-General, Sindh, appearing for the State and have gone through the documents produced alongwith the bail applications as well as the police papers.

9. It was contended by Mr. Abdul Mujeeb Pirzada, learned counsel appearing for the applicant that the name of the applicant does not transpire in the F.I.Rs. nor he was shown as accused in the challan prepared on 7-1-1991 and submitted before the Court on 8-1-1991. That the only evidence available against the applicant was judicial confessions of co-accused Zahid Saeed and Salimuddin alias Saloo, which have been retracted. That the said judicial confessions were recorded after long delay and the two accused were kept at C.I.A. Centre, maltreated and coerced to make judicial confessions. That apart from the above retracted judicial confessions there is no evidence to implicate the present applicant in the above incidents and, therefore, it was a case of further inquiry.

10. In support of his contentions, the learned counsel has relied upon:--

11. 1976 PCr.LJ177,1975SCMR219,1991SCMR10andPLD 1991 FSC 53.

12. He has further contended that Article 16 of the Oanun-e-Shahadat has been struck down by their Lordships of the Federal Shariat Court, and therefore, the judicial confessions of Zahid Saeed and Salimuddin, could not be considered as evidence against the applicant. In this connection he has relied upon P L D 1991 FSC 53.

13. 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 a strong motive to create law and order situation in the city as on one hand, due to slogans raised by M.Q.M. workers 2/3 days before the incident, Asif Ali Zardari was annoyed/provoked and on the other hand the accused wanted to create law and order situation in the city so that the present Government should fail. He has further contended that in spite of the fact that confessions made by the two accused do not show that the applicant had spoken anything about the action to be taken against M.Q.M. but since he was charged under section 120-B, P.P.C. as well, he was equally responsible by virtue of Article 23 of Qanun-e-Shahadat and no overt act was necessary. He has further contended that since the case has not yet proceeded it will be premature to consider the effect of judicial confessions made by co-accused and the applicant can repeat his bail application after some evidence is recorded. In support of his contentions, the learned Advocate-General has relied upon:--

14. 1991 P Cr. L J 595.

15. We have considered the contentions of the learned counsel and have gone through the documents produced alongwith the bail applications and police papers.

16. It is an admitted position that the name of the present applicant does not transpire in the F.I.Rs. Co-accused Zaahid Saeed was arrested in Crime No.142 of 1990 Police Station Aziz Bhatti on 24-12-1990 and his remand was obtained in police custody up to 7-1-1991. It is also an admitted position that on 4-1-1991 the statement of co-accused Zahid Saeed was recorded under section 161, Cr.P.C. in which he disclosed the fact regarding holding of meeting on 21-8-1X.30 in which Bashir Baloch, Ibrahim alias Bholoo, Munawar Soharwardi, Shah Nawaz Junejo, Ghulam Rabbani, gunman of Asif Ali Zardari, Masroor Ahsan, Manzoor Wasan, Asif Ali Zardari and Zahid Saeed himself are alleged to have been present and a decision was taken to attack the camps set up by M.Q.M. for the reception of their leader Mr. Altaf Hussain. On 7-1-1991 challan was prepared and the same was submitted before the Court on 8-1-1991 in which the name of applicant Qaim Ali Shah did not appear. The police papers further revealed that up to 26th January, 1991, the name of Syed Qaim Ali Shah did not transpire during the investigation. However, on 27th January, 1991, co-accused Zahid Saeed was produced before a Magistrate and his confession was got recorded in which apart from the persons who are alleged to have been present in the meeting held on 21st August, 1990 seven more names were added including the name of applicant Syed Qaim Ali Shah. That co-accused Salimuddin alias Saloo is alleged to have been arrested on 8-1-1991 in a dacoity case and he was produced before the Magistrate on 28-1-1991 where his confession was recorded in which he has implicated Syed Qaim Ali Shah that he was present in the meeting held on 21-8-1990. It will be worthwhile to mention here that up to 28th January, 1991, Salimuddin is not shown as arrested nor he was named by co-accused Zahid Saeed in his 161, Cr.P.C. statement recorded on 4-1-1991. Even after submitting challan before the Court on 8-1-1991 remand of accused Zahid Saeed was obtained up to 21st January, 1991, from 21st January to 26 th January, 1991 and from 26th January to 8th' February, 1991. It is also an admitted position that two co-accused namely Zahid Saeed and Salimuddin alias Saloo have retracted from their judicial confessions and have made such applications to the trial Court. Even Constitution petition was filed by co?accused Zahid Saeed being Constitution Petition No.D-284 of 1991 in which serious allegations were made against the investigating agency. It is also an admitted position that apart from the above two judicial confessions which were recorded after long delay there is no other evidence available against the present applicant at present. It was also contended by Mr. Abdul Mujeeb Pirzada, learned counsel appearing for the applicant that on 21-8-1991 applicant Syed Qaim Ali Shah had met Mr. Rasool Bux Palejo and Moulana Shah Ahmed Noorani in the evening and he could not be present at Bilawal House between 5-00 and 6-00 p.m. In support of his contention, he has relied upon the newspaper cuttings from newspaper (Arran) dated 22-8-1990 produced as Annexures `J' and `K' showing that Syed (aim Ali Shah had met Mr. Rasool Bux Palejo and Moulana Shah Ahmad Noorani on 21-8-1990 and has also relied upon the affidavits filed by Mr. Aftab Shuhban Mirani and Syed Khurshid Ahmed Shah sitting M.N.As.

17. In view of the stand, taken by Mr. Aftab Ahmed Akhund, learned Advocate-General, Sindh, appearing for the State, that the cases have not yet proceeded and, therefore, it will not be appropriate to consider the question of grant of bail at this stage, and therefore, it will be appropriate to consider the legal position with regard to the contention raised by Mr. Aftab Ahmed Akhund.

18. In the case of Khalid Saigol v. The State P L D 1962 SC 497; wherein an application for bail was moved in acquittal appeal and their Lordships while considering the various provisions regarding grant of bail were pleased to observe that:--

19. "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 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. It 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 materials 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."

2. In the case of Nadra v. Jamiat Khan and another P L D 1968 SC 310 wherein the accused was granted bail by trial Judge in a case under sections 302, 148 and 149, P.P.C., the complainant applied for cancellation of bail before the High Court but the High Court declined to interfere with the order granting bail to the accused. The complainant then moved the Honourable Supreme Court and it was contended that since the accused was charged with an offence punishable with death he should not have been released, the contention was repelled and it was observed that:--

20. "It would be incorrect to say that a person who is accused of an offence punishable with death or transportation for life cannot be admitted to bail except on the ground of age, sex or infirmity as section 497, Cr.P.C. envisages that bail shall be refused if there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or transportation for life."

21. It was further observed that:--

22. "When a bail application is moved at an initial stage, the Court has too see whether reasonable grounds appear that accused has been guilt of relevant offence, belief depends on facts of each case, and the Court has to consider the accusation contained in police report, evidence which the prosecution proposes to produce at the trial, and the plea of defence, if any, raised during the investigation or any other special circumstances. Scope of order of commitment under section 210 differs from conditions provided under section 497, Cr.P.C. viz. existence of reasonable grounds for believing that accused has been guilty of offence punishable with death or transportation for life." and the petition was dismissed.

3. In the case of Chaudhry Abdul Malik v. The State P I. D 1968 SC 349 wherein the accused was refused bail by the trial Court as well as by the High Court, it was observed by their Lordships of the Supreme Court that the basic essentials governing the grant or refusal of bail are:--

23. "That the bail should never be withheld as punishment. In cases of non-bailable offence coming before the Courts, grant of bail is a relief resting primarily in the discretion of the Court to be exercised with due care and caution and fundamental incident of exercise of judicial power taking into account, the facts and circumstances of each case. ? Orders on bail application should not be considered as routine orders involving as they do the liberties of the citizens, they must be carefully balanced and weighed in the scales of justice and the requirement of a further limitation on the Court's discretion in regard to cases of offences which are punishable with death or transportation for life which is that the accused shall not be released on bail in such cases if there are reasonable grounds for believing that he has committed such an offence. ?Reasonable grounds? is an expression which connotes that the grounds be such as would appeal to a reasonable man for connecting the accused with the crime with which he is charged. `Grounds' being a word of higher import than `suspicion' as suspicion, however, strong cannot take place of reasonable grounds and the prosecution has to show the reasonableness of the grounds by displaying its cards to the Court as it may possess ob is expecting to possess as demonstrating evidence available in the case both direct and circumstantial."

24. 4.Amir v. The State P L D 1972 SC 277 wherein the applicant had sought bail in the High Court on the plea of self-defence but the same was refused on ground that the question of right of private defence could not be considered at bail stage. The applicant filed petition for leave to appeal before the Honourable Supreme Court, and their Lordship; were pleased to observe that:-?

25. ?The plea of right of private defence could be considered while considering the question of grant of bail, and the benefit of doubt, if any, must go to the accused even at hail stage."

26. However, the applicant was advised to repeat his bail application before the High Court, and he was allowed bail by the High Court and the same is reported in 1973 P Cr. L J 205.

5. Khalid Javed Gillan v. The State P L D 1978 SC 256 wherein the High Court had refused bail to the applicant on the plea of alibi in case under sections 302, 120-13, 468 and 471, P.P.C. The accused/petitioner filed petition for special leave to appeal before the Honourable Supreme Court, and it was observed by their Lordships that:--

27. "As bail has to be allowed or rejected on the basis of materials consisting of accusation made in the report, the nature and credentials of the evidence which the prosecution proposes to lead in the case, and all other relevant circumstances surrounding the occurrence as held in the case of Manzoor and 4 others v. The State P L D 1972 SC 81, the Court has to make a tentative assessment of its evidentiary value in order to decide the bail application, more so, as the section 497, CI.P.C. does not in terms contain any restriction on the Court's power to assess evidentiary value of the material produced before it. However, while deciding a bail application the superior Court must refrain, directly or indirectly, from giving any conclusive findings on the question of guilt or innocence of the accused."

28. It was further observed that:--

29. "No Judge can be satisfied even prima facie that the evidence produced by the prosecution does not lead to the inference of the guilt against the accused unless he makes tentative assessment of the material placed before him."

30. And after taking into consideration the plea of alibi and other circumstances, their Lordships were pleased to grant bail to the applicant.

6. Aftab Ahmad Shah v. The State 1989 P Cr. L J 112, decided by a Division Bench of this Court consisting of Ajmal Mian, J. (as he then was) and one of us, namely, Allahdino Memon, J. while considering the effect of unamended section 5(6) of the Act, which was identical to section 5-A(8) of the Suppression of Terrorist Activities Act observed as follows:--

31. "A perusal of the above-quoted subsection (6) of section 5 indicates that prohibition to grant bail is not absolute but conditional and dependent on the question whether there appear reasonable grounds for believing that an applicant has been guilty of a scheduled offence. In other words, if the Special Court or the High Court takes the tentative view that there do not appear reasonable grounds for believing that an applicant has been guilty of a scheduled offence, bail can be granted. The above position was candidly conceded by Messrs AA. Mohammadally and Syed Safdar Ahmed learned Additional Advocate-General and Assistant Advocate-General respectively."

7. The State v. Malik Mukhtiar Ahmed Awan 1991 S C M R 322, wherein accused Malik Mukhtiar Ahmed Awan, the then Federal Minister was charged under sections 302, 307 read with sections 149, 120-B and 148, P.P.C. on the allegation that he was originator of the criminal conspiracy due to which the two deceased were attacked who later died. He was implicated by the complainant in the F.I.R. as well as by another witness in his 161, Cr.P.C. statement. According to them, the accused had held a meeting in his house and had asked the P.S.F. boys to do away with the two deceased and he would provide them fire-arms. That he was assuming all responsibility for their protection, and that the Government of Peoples Party would help and reward all those who were involved in the operation. Immediately thereafter, two kalashnikovs were distributed in two persons who were present in the meeting. The accused applied for protective pre-arrest bail before this Court which was allowed by Ajmal Mian, CJ. (as his Lordship then was) and thereafter, he filed a bail application before the High Court at Lahore. The High Court after considering the quality of evidence collected by investigating agency granted bail to him. The State filed petition for leave to appeal before the Honourable Supreme Court, wherein their Lordships were pleased to observe that:--

32. "It is unnecessary to examine the contentions raised by the learned Advocate-General at any length, for, in view of the finding of the High Court that there were no reasonable grounds for believing that the respondent has committed the offences of which he was being accused, they amount to nothing more than mere technicalities. It may, however, be observed that it is not an absolute rule that a fugitive should under no circumstances be enlarged on bail although, it may be added, abscondence does constitute a relevant factor when examining the question of bail. It is a matter essentially of property and not of law that a person accused of an offence should in the first instance move the Court of Session for pre-arrest bail before approaching the High Court."

33. And the leave was refused

8. Asif Ali Zardari v. The State 1991 P Cr. L J 595 relied upon by the learned Advocate-General Sindh wherein the applicant was charged under sections 365-A/395 and 120-B, P.P.C. and bail was sought on the ground that the name of the applicant did not transpire in the F.I.R. and two judicial confessions of the co-accused were retracted and, therefore, the same cannot be used against the accused. The Division Bench consisting of Saeeduzzaman Siddiqui, C.J. and Imam Ali G. Kazi, J., of this Court were pleased to observe while considering of decisions including the case of Aftab Ahmed Shah and others v. The State that:---

34. "From the above review of case-law, it is quite clear that the Courts in Pakistan have consistently taken the view that the High Court's power to grant bail under section 497, Cr.P.C. before conviction of an accused person by the Special Court (Suppression of Terrorist Activities) or Special Court (Offences against Banks) have not been taken away either under the Act or under offence in respect of Banks Special Courts Ordinance, 1984. We are in respectful agreement with the above view and see no reason to take any contrary view in the present case. It was accordingly held that the High Court's power under section 497, Cr.P.C. to grant bail to a person accused of an scheduled offence and facing trial before a Special Court has not been taken away completely and can be exercised in appropriate cases in terms of section 497, Cr.P.C. subject to the restriction contained in section 5-A(8) of the Act. Bail applications were held to be maintainable."

35. It may be mentioned here that the learned Advocate-General has relied upon certain observations made by the Division Bench in the above case, which will be considered later on.

36. From the above case-law, the principle which emerge is as under:--

37. "That bail cannot be refused merely because the accused is charged with an offence punishable with death or imprisonment for life, when the bail is sought at an initial stage, the Court has to take into consideration the allegations made against the accused in the F.I.R., the evidence which the prosecution proposes to produce before the Court and the defence plea, if any, raised by the accused. The bail orders cannot be passed in vacuume and the Court has to assess the evidence tentatively without going into deeper appreciation of the same."

38. Adverting to the judicial confessions made by Zahid Saeed and Salimuddin alias Saloo it is clear from the record that the same were made by accused after their long detention in custody. Accused Zahid Saeed did not implicate Syed Qaim Ali Shah and co-accused Salimuddin alias Saloo in his confession made before the police on 4-1-1991 and the confessions have been retracted. As far as the delay in recording the confessions was concerned, the long delay has always been considered as fatal to the acceptance of judicial confession. In this connection reliance is placed on Tooh v. The State 1975 p Cr. L J 440 and Khan Muhammad and another v. The State 1981 SC1(R597.

39. In the case of Tooh v. The State 1975 P Cr. L J 440, it was observed by a Division Bench of this Court that:--

40. "Since the confession was recorded on the third day of arrest of the appellant, there are number of authorities to the effect that the delay over twenty-four hours would clearly be fatal, to the acceptance of a judicial confession. In view of the circumstances it must be ruled out of consideration."

41. In the case of Khan Muhammad and another v. The State 1981 S C M R 597 it was observed by their Lordships of the Supreme Court that:--

42. "The confessions of the appellants were recorded after a delay of about a month which is highly suspicious and leads us to conclude that they were extracted in a unfair manner. If the appellants were ready and willing to confess then there was no reason to keep them in police custody for such along time and ought it be said that it reflects on the bona fides of the investigation."

43. In the case of Muhammad Yaqoob v. The State P L D 1969 Lah. 548 wherein the statement made by co-accused before police which was in the nature of confession was taken into consideration and it was observed that:--

44. "We would like to make it clear that under section 25 of the Evidence Act, the confession is not to be received or treated as evidence against the person making it, if it criminates him but if the accused himself wishes to rely on his statement which exculpates him, he cannot be deprived of the right to make use of such a statement. We are also of the opinion that this section does not prevent a co-accused to make use of confession-of other person if it exculpates him."

45. It will be appropriate to refer to provisions of section 30 of the Evidence Act since repealed, and Article 43(B) of the Qanun-e-Shahadat which relate to the consideration of use of confession of co-accused. Section 30 of Evidence Act reads as under:--

46. "When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well against the person who makes such confession."

47. Article 43 of Oanun-e-Shahadat: -

48. "Consideration of proved confession affecting_nerson making it and others jointly under trial for same offence. When more persons than one are being tried jointly, for the same offence and a confession made by one of such persons is proved---

(a) ??????? such confession shall be proved against the person making; and

(b) ??????? the Court may take into consideration such confession as circumstantial evidence against such other person."

49. In the case of State v. Asfandarwali and 2 others 1982 S C M R 321, the above question came up before their Lordships of the Supreme Court and it was observed that:--

50. "On the plain language of this section, when several persons are being tried for the same offence and one of the accused makes a confession affecting himself and the other accused, `the Court may take into consideration such confession as against such other person as well as against the person who makes such confession'. Clearly, therefore, the confession of a co-accused is not evidence against another accused, the more so, when it is retracted."

51. Although the retracted judicial confession if found true and voluntary can form basis for recording conviction but it has been repeatedly held by our superior Courts that as a rule of prudence it must be corroborated in all materials particulars. In this connection reliance is placed on Muhammad Gul and others v. The State 1991 S C M R 942 wherein it has been observed by their Lordships of the Supreme Court that:--

52. "A retracted confession is sufficient to make the basis of recording conviction but the Court as a rule of prudence seeks corroboration of the same on all material particulars."

53. Arif Nawaz Khan v. The State P L D 1991 FSC 53 relied upon by Mr. Abdul Mujeeb Pirzada, it was observed by their Lordships of the Federal Shariat Court that:--

54. "In Islamic criminal law, the confession of accused against the co?accused is not acceptable and if there is no other proof against him he will not be punished on the said confession."

55. Adverting to the contention of Mr. Aftab Ahmed Akhund, learned Advocate-General appearing for the State that the effect of judicial confession would not be considered at this stage and in this connection he has relied upon the case of Asif Ali Zardari v. The State mentioned supra specially paragraph 125 at page 615, wherein the effect of section 30 of the Evidence Act was considered and it was observed by a Division Bench of this Court that:--

56. "The principle underlying the section is that the consequences of self?implication in an offence afford some sort of guarantee for the truth of the statement, and when the maker of such statement also implicates another prisoner, it is very difficult, if not practically impossible to require the Court to exclude that statement altogether from its mind when it comes to consider the case against the other accused. And admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself."

57. It was further observed that:--

58. It is not necessary to go into this controversy at this stage, as while considering the bail application, the Court will not either way appreciate the evidentiary value of piece of evidence which can only be left to be considered at the trial."

59. With utmost respect the decision is distinguishable and does not apply to the facts of the present case inasmuch as according to the allegations against Asif Ali Zardari, the complainant had attributed specific role to Asif Ali Zardari in his F.I.R. but the same was deliberately omitted by the police officer who recorded the F.I.R. and distorted version of F.I.R. was recorded. Thereafter, complainant moved an. application on 17-1-1990, his wife sent a letter through Fax to the then Prime Minister of Pakistan on 22-11-1989. Later dated 6th December, 1989, sent to Miss Naheed Khan, Private Secretary to Ms. Benazir Bhutto, copy of complaint, dated 20th December, 1989 addressed to Interpole Scotland Yard London by complainant and letter, dated 26th February, 1989, addressed to the President of Pakistan specific role was assigned to Asif Ali Zardari and learned Advocate-General vehemently relied on those documents before the Division Bench and, therefore, it was observed by the learned Judge, while relying upon the above letters that:--

60. "Version about the incident given in all these letters is consistent and they all do mention the name of the applicant Asif Ali Zardari. The details of the evidence given in these letters are also substantial the same as disclosed by the complainant in his subsequent letter to the police dated 17-9-1990."

61. It was further observed that:--

62. "The explanation offered by the prosecution for omission of the name of Asif Ali Zardari from the F.I.R. cannot at this stage of the case, be considered fatal to the case of prosecution. It will be difficult to hold at this stage that the allegations made in the complaint and other documents do not involve Asif Ali Zardari in the conspiracy to commit offence under section 365-A, P.P.C."

63. It was further observed at page 614 that:--

64. "We are, therefore, of the view that at this stage while we are only tentatively examining the material produced by the prosecution for decision of this application it cannot be said that there is no material to reasonably connect the accused with the offence alleged against him."

65. Thereafter, the contentions of Mr. Aitzaz Ahsan were considered with regard to the judicial confession and, therefore, it is clear that the learned Judges had already formed a view that there was material available to connect the accused with the alleged offence and, therefore, the facts of the above reported case are distinguishable and are not applicable to the facts of the present case.

66. It will be appropriate to refer to the case of Ghulam Asghar v. The State 1985 S C M R 1946 wherein the effect of judicial confession was considered while considering the question of grant of bail. In the above case, the evidence against the applicant Ghulam Asghar consisted of his judicial confession and production of blood-stained Lathi by him. In his judicial confession the accused had taken a plea of right of private defence and their Lordships of the Supreme Court while relying upon the case of Najib Raza Rehmani v. The State P L D 1978 SC 200 (which was a case decided on merits in appeal and the accused was acquitted on the plea of right of private defence) observed that:--

67. "There is no doubt that the petitioner had killed the deceased but the question is whether the petitioner hit the deceased with the intention to kill him or whether he had hit him the deceased in the exercise of his right of self-defence and on that question the recovery does not throw any light and, therefore, the applicant was allowed bail."

68. In the present case, the learned Judge while considering the plea of alibi has observed that:--

69. "Messrs Aftab Shuhban Mirani and Syed Khurshid Ahmad Shah belonged to the same party to which applicant Syed Qaim Ali Shah belongs and, therefore, they were interested witnesses."

70. However, there was no material available before the learned trial Judge, at this stage to dub the above witnesses as interested witnesses, merely, because they belonged to the same political party. Mr. Aftab Shuhban Mirani is sitting M.NA. and has remained as Chief Minister of Sindh so also Syed Khurshid Ahmed Shah has remained Minister in the Sindh Province and is sitting M.NA. Their version is supported to some extent by the newspaper's cuttings of daily `Arran', dated 22nd August, 1990, and the fact that the co?accused Zahid Saeed did not state in his statement of 4th January, 1991 that Syed Qaim Ali Shah was present in the meeting on 21-8-1990 and, therefore, the plea cannot be lightly brushed aside.

71. In Ch. Muhammad Shafi v. Ch. Muhammad Anwar Samma and another 1975 S C M R 219 relied upon by Mr. Abdul Mujeeb Pirzada, the accused was granted bail by the High Court on the plea of alibi which was supported by 24 members of Provincial Assembly. The complainant filed petition for Special Leave to Appeal and their Lordships were pleased to observe that:--

72. "It will be seen that alibi in this case comes from a large number of Members of the Provincial Assembly and accordingly it would require serious consideration at the proper time. In view of the affidavits-filed on behalf of the respondents, the case of petitioner would appear to us to fall within the ambit of subsection (2) of section 497 of the Code of Criminal Procedure, namely, the case of further inquiry." and the petition was dismissed.

73. The applicant himself has remained as Chief Minister of Sindh and a Federal Minister. Even now he is elected Member of Provincial Assembly and is leader of opposition in the Sindh Assembly.

74. The applicant has been in custody since 7th March, 1991 and it appears from the order of the learned Judge Special Court, that by now he has framed charge only in one case. The learned Judge has also observed that in his Court the cases are being decided expeditiously. Be that as it may, the bail cannot be refused on that ground, if otherwise a case was made out for bail. In this connection it will be appropriate to refer to the observations made by their Lordships in the case of Manzoor and 4 others v. The State P L D 1972 SC 81 that:--

75. "It is important to remember that bail is not to be withheld as a punishment. There if no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."

76. From the above factual as well as legal position we are of the considered view that at present there are no reasonable grounds to believe that the applicant has committed a non-bailable offence but his case requires further inquiry, with regard to participation in the alleged offence. The bail I applications are, therefore, allowed and we, therefore, direct that applicant Syed Qaim Ali Shah be released on bail in the above four cases on furnishing surety in the sum of Rs.1 lac (Rupees one lac) in each case and P.R. Bond in the like amount to the satisfaction of Nazir of this Court.

77. The observations made by us in the above order are tentative in nature and the learned Judge Special Court shall hear and decide the case uninfluenced by whatever has been observed by us in the above order.

78. S. ABDUR REHMAN, J. --- These four bail after-arrest applications have been filed by applicant Syed Qaim Ali Shah, who is facing trial in, inter alia, four special cases bearing Nos.243 of 1991, 167 of 1991, 157 of 1991 and 246 of 1991 under sections 302, 307, 120-B and 170-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 kalashnikov's firing on some of these reception camps from motorcars 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. in present four cases. In F.I.R. Criminal No. 177 of 1.990 (Special Petition Case No.167 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 Shairf, Danish and Saood fired from a car with Kalashnikov 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.

79. 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 three F.I.Rs. it was alleged that some unidentified persons came in a car and fired with Kalashanikovs at the reception camps.

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, metitions 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 Junejo, Ghulam Rabbani, Masroor Ahsan, Manzoor Wasan and Zahid Saeed participated, and wherein it was decided that the reception camps set up by M.Q.M. should be attacked and indiscriminately brad 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 farther 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 the applicant and co-accused Salimuddin alias Sallow 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 NO.XII (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 NO.XIII (East), Karachi. Both these co-accused besides implicating themselves in the said criminal conspiracy also implicated the applicant, Syed 0aim Ali Shah, amongst others. The applicant was challaned by the concerned S.H.Os. in all these cases on 27-1-1991.

4. On coming to know about his implication in the above cases the applicant obtained protective pre-arrest bail first from Rawalpindi, and then from Balochistan High Court. Quetta. 'hbereafter, he surrendered himself before the Special Judge (Suppression of Terrorist Activities) Karachi for bail before arrest, but his applications were rejected and he was remanded to custody. Thereafter, the applicant filed the present bail applications before this Court. An objection was raised as to the maintainability of the present bail applications on the ground that the applicant after his arrest should have, in all propriety, again moved the trial Court, in the first instance, so that his applications could have been considered by the trial Court on merits and in a different perspective and should have thereafter come to this Court. Consequently on 7-5-1991, with the consent of the learned counsel for the parties it was ordered that the applicant shall apply for bail after arrest to the trial Court, which applications shall be disposed of by the trial Court within two weeks while these applications were adjourned to 21-5-1991. The learned Judge, Special Court heard such applications made by the applicant, and rejected the same. On 28-5-1991, when these applications were again taker; ash by this Court the learned Advocate-General pointed out that the applicant on the rejection of his bail after-arrest applications should have filed fresh bail applications before this Court giving grounds of attack on the fresh order or at least should have filed memo. of such grounds, so that, he would have been afforded fair opportunity of meeting such grounds. Mr. Abdul Mujeeb Pirzada, appearing for the applicant did not choose to file fresh bail applications or a statement of further grounds of attack on the order passed on 21-5-1991 on his after-arrest bail applications.

5. We have heard Mr. Abdul Mujeeb Pirzada and Mr. Aftab Ahmed Akhund, A: G. Sindh, for the State. It was contendedby Mr. Pirzada, 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 P L D 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 having meeting with Moulana Shah Ahmed Noorani. It is also contended that some of the alleged participants of the criminal conspiracy were, according to news items in the National Press, out of Karachi on the relevant day. Thus, the judicial confessions are falsified in material particulars.

6. 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 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 D.B. of this Court in the case of Asif Ali Zardari v. The State 1991 P Cr. L J 595.

80. The arguments on these bail applications were concluded on 30-5-1991 and the orders were reserved.

81. On 4-6-1991 my learned brother Mr. Justice Allahdino Memon sent his order to me signed by him only. On going through this order and after studying the police papers of the four crimes which were with me, I came to the conclusion that in order to make up my mind one way or the other I must go through the police papers of the other four connected cases and therefore, I passed an order directing that the police papers of the remaining four cases be also put up before the Court and an opportunity be given to the counsel for the parties, if they wanted to say anything regarding these police papers. It appears that there was some misunderstanding, and therefore, the matter had to be referred to the Honourable Chief Justice and Acting Chief Justice from time to time and was finally resolved by the order of the Honourable Supreme Court dated I2-9-1991 which reads as under:--

82. "3. We have heard Mr. Aftab Akhund and Mr. Abdul Mujeeb Pirzad and by consent the following order is passed, which seems to be proper and just:--

(1) That Mr. Justice Abdur Rchman Shah will record his reasons within a period of 7 days from the date of receipt of copy of this order. In case he does not agree with the opinion of Mr. Justice Allahdino Memon, the matter shall be placed before the honourable Chief Justice for nominating a third fudge.

(2) Mr. Abdul Mujeeb Pirzada, the learned counsel for the respondent, has no objection if Mr. Justice Abdur Rehman Shah refers to the record of the other four connected cases which Mr. Justice Abdur Rehman Shah wanted to examine. The above record would be made available immediatley to Mr. Justice Abdur Rehman Shah:"

83. Accordingly the Advocate-General, Sindh has produced the police papers of those cases. He has also produced a report of the medical examination of the applicant conducted under the supervision of a Special Medical Board constituted by the Government.

84. These offences had taken place on 22-8-1990 at about 6-00 p.m. As many as 25 persons were killed and over a hundred persons were injured. The F.I.Rs. were; lodged in four cases on the same day and in the remaining cases on the next day. In one of the F.I.Rs. the first informant Syed Salman gave the names of culprits as Zahid Sharif. Khalid Dalmia, Danish and Saood. Immediately on the next day Syed Salman gave further statement wherein he stated that the correct name of Zahid Sharif was Zahid Saeed, while the full name of Danish was Ramzan Ali Danish. As many as seven eye-witnesses namely, Syed Suleman, Musarrat Ali, Kalim Ahmed, Ishrat Ali, Anwar Ali, Muhammad Wasim and Nifasat Ali, who have received injuries also claimed to have seen and identified the above persons firing at the reception camps. Their 161, Cr.P.C. statements were also recorded on 23-8-1990. The police was in search of Zahid Saeed and the other culprits named in the F.I.R. S.H.O. Athar Rasheed Butt of Saddar Police Station succeeded in arresting Zahid Saeed on 24-12-1990, while he was going in a car in front of Mehran Clinic in Block `A' of Sindhi Muslim Housing Society. Zahid Saeed, who was a P.S.F. Worker, was being interrogated by the officers of Saddar Police Station, till, for the first time, on 4-1-1991, he stated before the investigating officer that the offence was committed by him in pursuance of a criminal conspiracy hatched by some top leaders of P.P.P. including Asif Ali Zardari, the husband of the Ex-Prime Minister of Pakistan, Ms. Benazir Bhutto. It was, therefore, decided to obtain the co-ordination of C.I.A. and Army intelligence in the investigation of the case. Thereafter, co-accused Zahid Saeed was further interrogated by the C.I.A. and Army Intelligence Agencies as well. On 16-1-1991, after interrogation, 161, Cr.P.C. statement of co-accused, Razi Haider Jafri alias Baddi, was recorded, who disclosed that Saleemuddin alias Salloo was also involved in this case. On 26-1-1991 judicial confession of Razi Haider Jafri alias Baddi was recorded under section 164, Cr.P.C. On 26-1-1991 after interrogation co-accused Saleemuddin alias Salloo's 161, Cr.P.C. statement was recorded in Crime No. 706 of 1990 of Ferozabad Police Station. He named the applicant. On the same day after further interrogation co-accused Zahid Saeed's 161, Cr.P.C. statement was also recorded by the same investigating officer. He also named the applicant. On 27-1-1991 judicial confession of Zahid Saeed, and on 28-1-1991 judicial confession of Saleemuddin alias Salloo, were recorded, which are self-implicating and in which both of them have implicated the applicant. On 28-1-1991, judicial confession of Anis-ur-Rehman alias Tipu was recorded, who implicated himself as well as a number of co?accused. On the same day judicial confession of Ahmed 11yas alias Rufi was recorded. Looking to all these pieces of evidence it is not difficult to conclude that there are reasonable grounds to believe that the applicant is guilty of schedule offences. The allegation against the applicant is under section 120-B, P.P.C. It is not proper at this stage to embark upon deep appreciation of the evidence in such a case. Necessary proof that is required to bring home a charge of criminal conspiracy, was discussed in the case of Amiruddin v. The State P L D 1967 Lah. 1190, which was also referred with approval in the case of Asif Ali Zardari v. The State (supra) and is reproduced as under:--

85. "28. The learned Assistant Advocate-General whom I heard on this aspect of the case submitted that it is very seldom that there is direct evidence available with regard to conspiracy. It is a matter of inference from the sequence of circumstances and if an inference from those circumstances can legitimately be drawn that privity between the persons concerned existed to commit an offence to achieve an object by unlawful means, the offence of conspiracy will be said to have been proved. In this connection he referred to the case of Reg. v. Duffield and others Coxs Cr.L.C. 404 where the nature of the offence of conspiracy was described in the following words:-?

86. ?In these cases the essence of the offence is the combination to carry out an unlawful purpose and the unlawful combination and conspiracy is to be inferred from the conduct of the parties. If several persons take several steps, all tending towards one obvious purpose, it is for the jury to say whether those persons had not combined together to bring about that end which their conduct so obviously appears adapted to effectuate'.?

29. Reference was also made by the learned Assistant Advocate-General to the following cases:-?

87. Punjab Singh Ujagar Singh v. Emperor A I R 1933 Lah. 977, Benoyendra Chandra Pandey v. Emperor A I R 1936 Cal. 73, Goloke Behan Takol and others v. Emperor A I R 1938 Cal. 51 and Keshabdeo Bagat v. Emperor A I R 1945 Cal. 93.

88. In the Lahore case, referred to above, it was held that though the essence of the offence of criminal conspiracy is agreement between two or more persons to commit an offence or do any of the acts mentioned in section 120-B in the matters described therein, the finding of criminality in such cases is a matter of inference deduced from the acts of persons concerned, done in pursuance of an apparent criminal purpose in common between them. In the three Calcutta cases, referred to above, it is also laid down that the guilt in a charge of conspiracy is to be inferred from facts and circumstances proved before the Court.

89. Mian Aslam Riaz Hussain, also referred to Dur Muhammad and another v. Emperor A I R 1934 Sindh 57, wherein it was held that the prosecution cannot be called upon to prove as to when a conspiracy started and when it ended because this must be in the exclusive knowledge of the conspirators themselves.

90. The principle that emerges out of the above authorities is that an agreement as referred to in section 120-B, P.P.C. is to be inferred from the facts and circumstances of each case. The offence of conspiracy by its very nature is secretive and surreptitious, and if a rule of evidence, as cavassed by the learned counsel for the appellants, is laid down to the effect that an agreement as referred to in section 120-B, P.P.C. is to be positively proved, the proof of conspiracy would become impossible. I, therefore, find that there is no force in the contention raised by the learned counsel for the appellants and hold that the appellants have been rightly convicted under section 120-B, P.P.C. notwithstanding the absence of positive proof of agreement."

91. The case of Asif Ali Zardari v. The State (supra) is almost identical to the present case. In that case also as is in the present case, the value of two confessional statements of the co-accused, was challenged by the applicant on similar grounds and it was contended that the same cannot be used against the applicant. Reference is also made to the well-known case of Zulfiqar Ali Bhutto v. The State P L D 1979 SC 53. The following observations thereof are reproduced with approval:--

92. "125. A perusal of the facts and observations appearing in these cases, however, does not fully support the learned Special Public Prosecutor, as there is in fact no departure from the basic definition as given by the Privy Council in the case of Pakala Narayan Swami already referred to namely, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence, or at any rate to adopt or follow any observations to the contrary appearing in these judgments, in view of the clear enunciation of the law by the Privy Council, which is fully in accord with the terms of section 30 of the Evidence Act. The principle underlying the section is that the consequences of self-implication in an offence afford some sort of guarantee for the truth of the statement, and when the maker of such statement also implicates another prisoner, it is very difficult, if not practically impossible, to require the Court to exclude that statement altogether from its mind when it comes to consider the case against the other accused An admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. These considerations, however, do not apply when the question is whether statement partly inculpatory and partly exculpatory should be used against the maker thereof. In his case, even if the statement does not amount to a confession in the full sense of the term, it could still be used as an admission against him."

93. (The underlining is by us).

94. The case of Arif Nawaz Khan v. The State P L D 1991 FSC 53 is distinguishable from the present case. It only lays down rule that Hadd cannot be imposed on the basis of a confession of a co-accused. It clarifies that Tazeer can be infected on the basis of the confession of a co-accused. Similarly in the unreported decision of Federal Shariat Court in Shariat Petitions Nos. 17/1 of 1989. 3/1 of 1990 and 2-K of 1991, no doubt, it was held that the evidence of an accomplice to whom pardon was tendered was inadmissible also in offences punishable with Qisas, but it was provided that this was so only when there was no corroborative evidence. Hence there is no justification of relying on this report for discarding the confessional statements referred to by the prosecution, which were made by the co-accused implicating the applicant. Contention of the applicant's counsel that in order to establish criminal conspiracy against a person, mere association of such person with others, who 1 were involved in the conspiracy is not enough, is not correct, particularly, when there is evidence to show that he had participated in the meeting dated 21-8-1990, which was held at Bilawal House. Apart from that it is the settled law appearing from the cases cited above that criminal conspiracy is to be inferred from the facts and circumstances of the case. The conspiracy presupposes by its very nature that 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 together to bring that end which their conduct obviously appears to attain. Hence, I am of the clear view that it can be said with certainty that there appear reasonable grounds to believe that the applicant is guilty of a scheduled offence.

95. On going through the police papers of the remaining four crimes it was found that indiscriminate firing was done on the same day near about the same time at font other places on the M.Q.M. Camps and a number of persons were killed and injured: The eye-witnesses in two of those cases i.e. Crime Nos303 of 1990 and 304 of 1990 of Arambagh Police Station, Karachi claimed to have identified four accused namely, Rashid Rabbani, Ilyas Tanveer, Zahid Saeed and Ghulam Muhammad, driving the said car and firing at the camps. The Investigating; Officer in two of these cases, however, expressed the opinion that the judicial confessions given by co-accused Zahid Saeed, Saleemuddin and others were false, as these were inconsistent with the statements of eye?witnesses in material particulars. No doubt such an opinion of the Investigating Officer has to be given weight, and therefore, it creates some doubts about the judicial confessions on which the prosecution case rests, but it does not completely erode the same. As such even after going through the police papers of these four cases, it cannot be said that there are no reasonable grounds to believe that the applicant is not guilty of a scheduled offence.

96. Now I would advert to another aspect of this case. It will not be out of place to refer to the latest judgment of Supreme Court in the case of Allied Bank Ltd, v. Khalid Farooq 1991 S C M R 599 where it was held that relevant provisions of Offences in Respect of Banking (Special Courts) Ordinance, 1984 were almost the same as that of Suppression of Terrorist Activities (Special Courts? Act, 1975. It was, thereafter, held that the provisions of 1st proviso to subsection (1) of section 497 of the Code would not be available to Special Court for the accused of a scheduled offence under the Ordinance. The position of the 3rd proviso of subsection (1) of section 497 of the Code is somewhat nebulous. The possibility of its application through section 561-A of the Code cannot be totally excluded. It was further held that the provisions of subsections (2) to (5) of section 497 of the Code would not stand excluded and it is not possible to subscribe to the view that subsections (5) and (6) of the Ordinance constitute a complete code for grant of bails to person accused of scheduled offences. Even in the case of Asif Ali Zardari v. The State (supra) it was held that the High Court can grant bail to an undertrial prisoner, if his case attracts 3rd proviso to section 497(1), Cr.P.C. Reliance in this behalf was placed by the Division Bench in, inter alia, my (Syed Abdur Rehman, J.) decision, in the case of D.S.P., Larkana v. Mumtaz Ali Bhutto 1988 P Cr. L J 195 in which I had held that section 5(6) of Suppression of Terrorist Activities Act does not place an absolute bar against allowing bail to persons charged with scheduled offences. Even in a case in which there are reasonable grounds to believe that accused is guilty of a scheduled offence, a Special Court can allow bail to him on the ground of old age, sickness and infirmity. The case was taken to intra-Court appeal and my order was upheld by the Division Bench.

97. The findings of the Special Medical Board constituted by the Government of Sindh for the examination of applicant Syed Qaim Ali Shah read as under:--

98. "The Special Medical Board constituted vide M.S. Letter No.C&R (CH)90-91/111200/07, dated the 24th July, 1991, under the chairmanship of Dr. Muhammad Abbas Khan, Acting Medical Superintendent, Civil Hospital, Karachi, met in the office of the Professor Medical Unit-1, Civil Hospital, Karachi, with the following Members of the Board for the examination of the U.T.P. Syed Qaim Ali Shah on 25-7-1991 at 12-30 p.m.:--

(1) Professor MA. Ahnani,.

99. Professor of Medicine,

100. Medical Unit-1,

101. D.M.C. & C.H.K. ???????????? ??????????????????????? ??????????? ??????????? ..... ??????????? Member.

(2) Professor Kishwer Nazli Mehmood,

102. Professor of Surgery,

103. Surgical Unit-111,

104. D.M.C. & G.H.K. ???????????? ??????????????????????? ??????????? ??????????? ..... ??????????? Member.

(3) Professor Matin Ahmed Khan,

105. Professor of Radiology,

106. D.M.C. & C.H.K. ???????????? ??????????????????????? ??????????? ??????????? ..... ??????????? Member.

107. The U.P.T. Syed Qaim Ali Shah was examined at 12-30 p.m. by the abovesaid Board under the Chairmanship of Dr. Muhammad Abbas Khan. The Board finds that U.T.P. Syed Qaim Ali Shah has lost his weight about 10 lbs. His B.P.130/90 mm hg. Pulse 90 permanent and regular. He has tender right mastoid with discharging right ear.

108. He is tender in the right hypochondriun and opigastrich region and right ilic fossa.

109. In view of the above findings Board feels that he may be immediately hospitalised for the urgent investigations and treatment.

110. (Sd.25-7-1991)

111. ??????????? ??????????? (Dr. Muhammad Abbas Khan,

112. ??????????? ??????????? Chairman.

113. (Sd.) ??????????????? ??????????????????????? ??????????????????????? ??????????????????????? ??????????????????????? ??????????? (Sd.)

114. (Professor MA. Ahnani) ??????????? ??????????? ??????????? (Professor Kishwar Nazli Mehmood)

115. Member. ????????? ??????????????????????? ??????????????????????? ??????????????????????? ??????????? Member.

116. (Sd.)

117. (Professor Matin Ahmed Khan)

118. Member."

119. Accordingly the applicant was admitted in Medical Unit V, Dow Medical College and Civil Hospital, Karachi. Report of the medical examination reads as under:--

120. "According to the E.N.T. Surgeon, Mr. Shah is suffering from chronic suppurative otitis media right with perforation. He has deafness which is more of conductive type. He has some perceptive loss too. He is also suffering from deviated nassal septum right and nasal allergy. He has some degree of sinustitis and pharyingitis too. He has been put on medical treatment. If medical treatment will not imporve his condition then surgery will be recommended.

121. The General Surgeon has reported as follows:--

(1) Oral cholecystogram of 15-8-1991 shows a solitary opaque gall bladder calculus, (stone) with functioning gall bladder. The stone requires treatment as it is giving him symptoms. To cure him permanently and to avoid any complications due to chole-lithiasis in fixture, it should have surgical treatment...

122. As it is not giving any acute complication it can be treated conservatively at the moment to relieve his symptoms:

(2) ? He also shows Reflux oesophagitis in his Endoscopy report. He should be treated for that."

123. I am, therefore, satisfied that applicant Syed Qaim Ali Shah is a sick, old and infirm person and is, therefore, entitled to the grant ref bail. I, therefore, agree with my learned brother Mr. Justice Allahdino Memon to the D extent of relief, but on a separate ground and order that the applicant be released on bail on furnishing surety and P.R. in the sum of Rs.1,00,000 (Rupees one lac). I further direct that the Special Medical Board referred ? to above shall every month report about the health of the applicant to us. The applicant shall appear before the Board whenever required by it.

124. N.H.Q./53/Q-K ???????????????????? ??????????????????????? ??????????????????????? ??????????? Bail allowed.