1998 P Cr (PLP)

Applicants detained in Crime No.7 of 1995 registered at Police Station Gulshan‑e‑Iqbal and facing trial before the Special Court for (Suppression of Terrorist Activities) No.l, Karachi for offences under sections 302, 324 and 109/34, P.P.C., seek their release on bail in the following circumstances.

2. According to the P.I.R. lodged .by Syed Sabahul Hassan on 4‑2‑1995 at about 5‑45 p.m. while he was available at Yousuf Zaman Town Gulshan‑e‑Iqbal he received information that students of Jamia Arabia Ahsanul Uloom and children of the Mohallah were playing in K.M.C. Park adjacent to Jamia Arabia Ahsanul Uloom when a Suzuki Alto red in colour carrying four persons entered the ground. It is alleged that two persons duly armed with muffled faces got down from the car and fired indiscriminately with Kalashnikov and T.T. Pistol at the children as a result whereof children Gul Nawaz son of Fazal Sharif died on the spot while Usman son of Noorullah succumbed to his injuries. P.Ws. Abdul Rehman, Abdul Rashced, Gul Muhammad and Noorullah as well as a baby known as daughter of Muhammad Amir sustained injuries.

3. Applicants Syed Muhammad Hashim, Seed Kashif Hussain and Syed Zakir Hussain were arrested on 16‑3‑1995. During the course of interrogation they' claimed to the connected with Sipah‑e‑Muhammad and admitted the commission of acts of firing and causing injuries to persons at the instance of Zulqarnain and Zaffar alias Moula Ka Hathi of Sipah‑e‑Muhammad. It is said that on 2‑3‑1995 at the pointation of these applicants police secured a kalashanikov and sten gun, a pistol of 33 bore whereas their companions Haider Raza and Navaid Ahsan succeeded in making good their escape after throwing away one L.M.G. and a pistol of 30 bore. On 27‑3‑1995 they admitted the commission of various incidents and pointed out the place of incident in the aforesaid crime. On 30‑3‑1995 they were produced Before a First Class Magistrate for recording their judicial confessions where their confessions were recorded.

4. We have heard learned counsel for the applicants end learned Assistant Advocate‑General for State.

5. It is contended on behalf of the applicants that there appear no reasonable grounds for believing that they have been guilty of scheduled offences alleged against them in as much as they were neither nominated in the F.I.R., nor were their descriptions divulged therein because the assailants who fired had muffled their faces, that they were produced before the Magistrate for recording their confessions on 14th day of their arrest at the expiry of their remand in police custody and that apparently there are material variations in the prosecution case as well as the alleged confessions.

6. On the other hand, learned counsel for the State expressed the view that while hearing an application for bail this Court would not enter into detailed scrutiny of the confessional statements of the applicants whose conduct prima facie connects them with the commission of scheduled offences as apart from their confessional statements, there is circumstantial evidence with regard to pointation to the place of incident, production of weapons and identification by the witnesses.

7. After a careful consideration of the facts and circumstances and a comparative study of the F.I.R. as well as the confessional statements, we are tentatively of the view that the prosecution case is not fully supported by the alleged confessional statements of the applicants. Suffice to say according to F. I. R., four persons came to the place of incident in a Suzuki Alto car of red colour, but a perusal of the confessional statements tends to show that at least six persons went to the K.M.C. part in a Hyundi Taxi and another taxi. Be that as it may, the two divergent statements cannot apparently be reconciled with each other. It is not disputed that the confessional statements were recorded on oath on 14th day of the arrest of the applicants Nos. l to 3 without any warnings administered to them and without allowing time for reflection. Besides the certificate of satisfaction appended by the Magistrate at the foot of the confessional statement does not seem to be in consonance with the provisions of law. The circumstances that the confessional statements were made on 14th day of the arrest of the applicants is prima facie sufficient to raise a suspicion as regards voluntary character of these statements.

8. Adverting to the evidence with regard to identification parade suffice to say, faces of the assailants were muffled at the time of incident, the incident took, place at 5‑45 p.m. in the first week of February when the sun sets sufficiently before the time of incident. Besides, no description of assailants was given in the F.I.R. Evidence with regard to belated identification per se may not be sufficient enough to disentitle the applicants to the concession of bail after a lapse of more than 18 months when the trial has not yet commenced. Likewise it is difficult and doubtful to say whether pointation to the place of incident by the applicants after their arrest would be admissible in evidence at the trial. Even the so‑called recovery of weapons is not a strong ground to refuse the concession of bail. 9.. The case of the applicant No.4 i.e., Syed Ahmed Hussain stands on a better footing as his name was disclosed in the alleged confessions by the other applicants. In the identical circumstances co‑accused Naveed Ahsan and Rehan Ahsan were admitted to bail by us in Criminal Bail Application No.965/1996 decided on 24‑7‑1996. In all fairness, he is entitled to an equal treatment in the eyes of law and concession of bail cannot be refused to him.

10. Considering the case of the applicants from all angles we are of the considered view that there appear to be no reasonable grounds for believing that the applicants are guilty of the scheduled offences and indeed their case called for a further inquiry into their guilt. Reliance on the judgments is 1989 PCr.LJ 1970, PLD 1995 Karachi 514, 1992 PCr.LJ 1513, 1969 SCMR 521, and 1989 PCr.LJ 1526 by the State Counsel is misplaced.

11. For the aforesaid facts and grounds, applicants are directed to be released on bail subject to their furnishing solvent surety in the sum of Rs.100,000 each and P.R. Bond to the satisfaction of the Trial Court. A.A./M‑222/K Bail granted.