1980 P Cr (PLP)

13. As a result of the investigation by the Police the five petitioners along with. Ali Baba, Ha bib Ahmad, Dr. Jawaad Hussain, Abdul Qayyum Butt, Ahmad Saeed Awan and Mian Abbas were arrested. The last mentioned accused has now been executed in Nawab Muhammad Ahmed Khan murder case.

14. The first point raised by the learned counsel was that there was no evidence worth the name against any of the accused persons. I have checked the record. Iftikhar Ahmad Tari has involved all the accused persons but since he also participated in the offence and has neither been arrested nor made an approver, I will not take his evidence into consideration.

15. Dr. Ghulam Hussain is directly involved by Muhammad Akram, Muhammad Aslam son of Imam Din, Muhammad Akram son of Bhullo, Sardar Aurangzeb, Munir Ahmad, Muhammad Yaqoob and Abdul Rafique. As against Javed Hakim Qureshi, there is evidence of Munir Ahmad, Sardar Zulfiqar Ali, Abdul Rafique and Sardar Aurangzeb. The evidence of Munir Ahmad, Sardar Zulfiqar Ali, and Abdul Rafique also involves Malik Hakmeen Khan directly. As against Talib Hussain there is evidence of Muhammad Yousuf, Muhammad Ramzan and Ashiq. There is direct evidence also against Muhammad Afzal regarding his role of burning o buses and this evidence comprises of the statements of Raja Aurangzeb, Sardar Zulfiqar Ali, Munir Ahmad and Sardar Aurangzeb.

16. Dr. Ghulam Hussain, Malik Hakmeen Khan, Javed Hakeem Qureshi and Talib Hussain were seen at the place of occurrence exhorting their respective Goondas to fire at the meeting. There is evidence that Talib Hussain had distributed some fire‑arms among the assailants. A large number of persons, according to the evidence, had been brought to participate in the attack from Mandi Baba‑ud‑Din and other places. Thus there is direct evidence to connect each of the accused.

17. The learned counsel for Talib Hussain submitted that the witnesses against him were hostile and inimical to him, and, in any case, their evidence would be inadmissible as all of them had admitted having participated in the firing and the disruption of the meeting. This argument is without force. There is not the slightest evidence that any of the witnesses was on inimical terms with Talib Hussain petitioner. On the other hand, it appears that Ashiq and Muhammad Ramzan, against whom the allegation of enmity was made by the learned counsel, were introduced to Talib Hussain when they were brought to National Park, Rawalpindi. He further argued that his client was not named in the complaint by Zaffar Ali Shah. But‑ this is no ground for holding that the petitioner is not guilty of the offence since Zaffar Ali Shah had made the complaint on the basis of his own observations. He further argued that Talib Hussain‑vas a lawyer of 22 years standing and had even been a leader of the opposition. It was not expected from him that he collected Goondas as alleged. He referred to Rashid Javed Glllani v. The State (P L D 1978 S C 256) in support of his submission that the Court can tentatively appreciate the evidence at the time of deciding the question of bail though such assessment would not be conclusive for the trial. This argument, however, is not that of appreciation of evidence but an argument introducing conjectures contrary to the evidence.

18. The other argument that these persons had condemned themselves by admitting that they had participated in the offence is also without merit since none of them admits having fired a shot or taken the law in his own hands. Their evidence is only to the effect that they hid, been armed.

19. Mr. M. S. Baqir, learned counsel for Malik Hakmeen Khan and Javed Hakeem Qureshi also produced authorities to show that the Court can appreciate evidence in order to see whether the case is likely to be proved against the petitioner if the evidence on record goes un-rebutted and submitted that this evidence is not sufficient. I have already stated that there is sufficient evidence against all the accused and I have arrived at that conclusion in the light of the later Supreme Court authority referred to above, that there is no bar against the tentative sifting of evidence as distinguished from an elaborate sifting of evidence at the bail stage and the Court can appreciate evidence while dealing with bail application. I, however, find that if the evidence produced against each of the petitioner goes un-rebutted, it will stand proved that they have participated in the occurrence which has resulted in the death of at least ten persons whose post‑mortem examination reports are on the record and injuries to 89 persons.

20. It was argued that out of the accused persons Habib Ahmad and Abdul Qayyum had been discharged. This was denied by the prosecution. The learned counsel relied upon an affidavit of Syed Muzaffar Ali said to be the Stage Secretary of the U. D. F. in which he had exonerated Dr. Ghulam Hussain. Although it is open to this Court to appreciate evidence but it is not possible to rely upon the affidavit of one person who had not seen Dr. Ghulam Hussain as against the statements of persons who were positive about having seen him.

21. Some allegations of mala fide against the Investigating Agency were also made on the basis of the first F. I. R., but I am not impressed by these arguments. Mr. D. M. Awan argued that it was a case of cross firing, in which a numbers of P. P. P. members bad been killed or injured. This argument, as a matter of fact, impliedly concedes the presence of armed P. P. P. Members who were not expected to participate in the meeting. The prosecution case is rather strengthened by this argument. However, even with out that there is sufficient evidence on the record to involve each petitioner.

22. It was also argued that though the evidence of these witnesses had been collected by the Investigating Agency in the beginning of 1978, but the petitioners had been arrested in March, 1979, from which it should be inferred that this evidence was not considered satisfactory or sufficient to involve the petitioners.

23. This argument cuts at the root of the earlier argument about mala fide of the Investigating Agency. However, nothing turns on the mere delay in the arrest of the accused persons.

24. An argument was also based on the delay in the collection of evidence in January, 1978, though the High Court had already referred the case under section 202, Cr. P. C. to the Crimes Branch in August 1977. It was argued that investigation is likely to be delayed since there is very little progress in finding out those who had actually fired the shots. It was also suggested that in the absence of actual assailants, the case against the, petitioners cannot succeed.

25. I do not agree that there was any delay in collection of evidence which was recorded in early part of 1978 since in a‑case of this nature a large number of persons are said to have disrupted a largely attended meeting by resort to firing and for more than 4J years no action had been taken to And out the clues of these culprits.

26. As regards the argument about the delay that is to follow it was argued by the learned A. A.‑G. that none of the particulars of Pathans injured in this case were recorded even in the hospital record. Only their names and vague addresses have been given. It was for this reason that it had been difficult to trace them but now very little time will be spent in tracing them and obtaining their evidence. Similarly, efforts are being made to find out the offenders who had resorted to firing. It was argued that Mian Abbas could throw light on the persons from F. S. F. who participated in this crime but he has now been executed and it was after a very long delay that permission was‑granted to question him about this occurrence.

27. It is no doubt true that in the circumstances some time is likely to be taken by the Crimes Branch in finishing the investigation but in the circumstances related by the learned A. A.‑G. this delay cannot amount to an abuse of the process of the Court. It was held in Riasat Ali v. Ghulam Muhammad (P L D 1968 S C 353) that inordinate delay in the prosecution of a case, if not explained by the prosecution amounting to an abuse of the process of law, can be considered as a ground . for bailing out an accused person even in a murder case depending on the nature of the delay and the circumstances that have caused it. In Barkhurdar v. Liaqat Ali (P L D 1978 S C 434) it was reiterated that the "delay per se in all cases of murder regardless of its responsibility or other circumstances" does not justify grant of bail. In view of this, the mere likely delay in the present case is not sufficient for releasing the petitioners on bail.

28. It was further argued that no valid remand order was passed in this matter since after the submission of incomplete challan in April, 1979, the matter had been adjourned sine die by the Court. But this argument ignores Shadi Khan v. Muhammad Saleem (P L D 1978 S C 38) in which it was held that where having taken cognizance of the offence under section 193 (1), Cr. P. C. the Sessions‑Judge postponed the commencement of the trial till such time as the case was fixed for hearing as it was not possible to give any firm date in every case on account of a large number of cases having been sent to the, Court of Session pursuant to the deletion of the committal proceedings from the Criminal Procedure Code, such sine die adjournment was not opposed to the provisions of section 344, Cr. P. C.

29. It was also. argued that at most lalkaras are attributed to the petitioners except Raja Muhammad Afzal and this is by itself sufficient for grant of bail since lalkara is attributed generally to involve innocent persons, It was however, held in Chiragh Din v. State (P L D 1966 S C 340) that the case in P L D 1966 S C 658 is not to be read as laying down that a Lalkara is never to be regarded as a sufficient overt act; if proved, to establish abetment. The question must be decided by the trial Court on an appreciation of all the facts, including the degree of interest in the crime possessed by the person who shouted the lalkara and the part he played in the background of the affair. ‑ Muhammad Ashiq v. Muhammad Tufail (1977 S C M R46) is a case in which the bail of a person raising lalkara granted by the High Court was cancelled by the Supreme Court on the ground that the respondent was alleged to be present at the place of occurrence armed with a pistol and. though he did not fire with the pistol but if this allegation remains unrebutted it discloses prima facie case against the respondent and the respondent was therefore, bailed out on wrong exercise of discretion. Again in the case of Nazar Muhammad v. State (P L D 1978 S C 236) the Court referred to the vicarious liability of the person who was a member of an unlawful assembly sharing common intention with others alleged to have caused death of the assailant. It was held that the case of the person vicariously responsible for the major offences is covered by‑section 497(1) of the Code of Criminal Procedure. This argument is, therefore, without force.

30. Similarly, the argument that no case is made out against the petitioners unless actual assailants are traced has also no merit. If this argument is taken to its logical conclusion it would mean that if actual assailants die or abscond, the abettors would not be convicted. There is no logic behind such an argument. This analogy can safely be extended to a case where the assailants remain untraced.

31. It was argued that Malik Hakmin Khan is ill but it was admitted in the Services Hospital where he is to be operated upon for some serious trouble. This means that he is being well looked after.

32. In regard to Dr. Ghulam Hussain also it was submitted that he has contracted some disease in Jail for which he was advised immediate admission in the Nishtar Medical Hospital for Biopsy operation but he was never treated as advised and in the result his disease has become aggravated and is now suspected to be Cancer. Dr. Ghulam Hussain was checked up medically and his general condition was reported to be satisfactory, his pulse, temperature and blood pressure was found under normal limits. His blood and urine examination shows nothing abnormal. It was reported that there are small growth under the skin specially in the arms, legs and abdominal walls, which according‑to the certificate is mobile but not painful. Apparently the growth are simple in nature. From the report of the Medical Superinten dent, it appears that the detention in the Jail is in no way detrimental to the health of the said petitioner. In the face of this report the argument or the learned counsel is repelled.

33. I find no merit in any of the petitions and dismiss them. Petitions dismissed.