1980 PLP 613 (SCMR)

Shaukat Ali, Senior Advocate and Ejaz Ahmad Khan, Advocate‑on- Record for Petitioner (in Cr. P. No. 460 of 1979). M. S. Baqar, Advocate and Sh. A. Karim, Advocate‑on‑Record for Petitioner (in Cr. P. No. 465 of 1979). S. M. Zubair, Assistant Advocate‑General (Punjab) and Sh. Ijaz Ali, Advocate‑on‑Record for the State (in all Petitions). Date of hearing : 16th December, 1979. DORAB PATEL, J.‑The Opposition parties, which had formed in 1973 a group known as the United Democratic Front (UDF), had called a public meeting in Liaqat Bagh, Rawalpindi, on the 23rd March, 1973, and it is not disputed that the Government of Mr. Bhutto was against the convening of this meeting, therefore, the District Magistrate had proclaimed section 144 of the Criminal Procedure Code. And, it is common ground between the learned counsel that Police posts had been set up in order to prevent persons from bringing arms and ammunition to Rawalpindi. However, when the meeting of the U. D. F. began, there were disturbances in which at least ten people were killed and many more injured. Therefore, one Ghulam Ali, the S. H. O. of the local Police station, lodged an F. I. R. and 89 persons were arrested. The prosecution also claimed to have recovered arms and ammunition from these persons. However, there was little or no progress in the investigation of the case, although so many precious lives had been lost, and ultimately the case was virtually closed on account of an oral order given by the Provincial Home Secretary Now, according to the prosecution, this meeting had been broken up at the instance of the petitioners, who were active and important members of the Pakistan Peoples Party and as that party was in power, there was no progress in the investigation. However, after the proclamation of Martial Law, one Zafar Ali Shah, an Advocate of Rawalpindi, filed a complaint on 26th July, 1977 against the late Mr. Bhutto, Mr. Ghulam Mustafa Khar, the petitioner in Cr. P. S. J.. A. No. 465 of 1979 and some other persons under sections 302/307/342/365/395/396/397/398/440/148/149/109/114 of the Pakistan Penal Code in the Court of District Magistrate, Rawalpandi. The District Magistrate forwarded the complaint to the Sessions Court and after the learned Sessions Judge had recorded Mr. Zafar Ali Shah's statement. Mr. Zafar Ali Shah moved an application for the transfer of the case, presumably on account of its great public importance to the original side of the Lahore High Court. This application was allowed on 20th August, 1977. But, on 7th May, 1979, the case was re‑transferred to the Sessions Court, Rawalpindi, presumably. because .the Police had also filed an incomplete challan on 4th April, 1979 in the Sessions Court, Rawalpindi, and the High Court directed that the complaint case should be heard with the challan case. Meanwhile, statements, which according to the prosecution make out a strong, prima facie case against the petitioners had been recorded by the Police in January and February, 1978, therefore, the petitioners were arrested on various dates in March, 1979, and shortly thereafter they all filed applications for bail in the Sessions Court, Rawalpindi. The applications were pressed on many grounds, but the principal ground, which was common to all the petitions appears to have been that the prosecution case rested on the uncorroborated testimony of approvers, therefore, the petitioners were entitled to bail under section 497 of the Criminal Procedure Code. However, by orders passed on 14th July, 1979, the learned Judge dismissed the bail applications of all the petitioners, they applied for bail in the Lahore High Court. The applications of the five petitioners were heard by a learned Judge of the Lahore High Court in August, 1979, and the learned Judge examined the statements of the witnesses recorded under section 161 of the Criminal Procedure Code by the Police. He pointed out that the statement of one Mr. Tari, who had been a Minister in the Punjab Government, supported the prosecution case, but he did not rely on it, as he was of the view that it was a statement by an accomplice. He then examined the other state ments, and held that the petitioners were not entitled to bail, because they had been implicated by three or more witnesses therefore, he dismissed the bail applications by his order dated 3rd September, 1979. Hence these petitions for leave. All the learned counsel for the petitioners criticised the delay in the investigation of the cases and submitted that it was mala fide, because the object of the delay was to prolong the illegal detention of the petitioners. And, Mr. Shaukat Ali even went to the length of contending that the re opening of the case against the petitioners was illegal because the F. I. R, had been cancelled. The submission that the F. I. R. had been cancelled is not correct. Ail that happened was that investigations came to a standstill and the persons who had been arrested were released on the oral orders of the Provincial Home Secretary. As this was not a cancellation of the case under the Criminal Procedure Code, there is no bar to the investigations, which commenced with Mr. Zafar Ali Shah's complaint in July, 1977. But, this means that a complicated case was being investigated after a delay of more than four years, and as witnesses become difficult to trace with the passage of time, the delay in investigations does not entitle the petitioners to bail, as they have been in custody for less than a year. 1t is true that some of the petitioners have been in custody for more than a year, but that was because they had been detained on different charge, which had no relevance to the case for which they are now being tried. The learned counsel then pointed out that many persons had been injured in the occurrence, but as the police had not recorded their state ments, the learned counsel submitted that this failure to record their statements proved the mala fides of the prosecution, and/or led to an adverse inference against the prosecution. Now the prosecution's explanation for the delay in recording the statements of these injured persons is that they come from the Frontier Province, and as proper records had not been maintained by the hospitals in Rawalpindi, where they had been treated, the task of the police in tracing these injured persons was very difficult. No doubt in the unusual circumstances of the case, the task of the investigation agency is an uphill task, but the investigation agency should now take more energetic steps to complete the investigations. The learned counsel then submitted that persons other than the petitioners, who had been implicated in the statements recorded by the police, were not being charged, whilst the petitioners were rotting behind bars, therefore, this discrimination manifested the mala fides of the prosecution. The learned Assistant Advocate General however explained that the prosecution did not wish to harass people by reckless arrests, so it was still collecting material, and he thought there would be more arrests in the near future. As we do not wish to make any observations, which might jeopardise the liberties of those who are not before us, we would only observe that we have noted the explanation of the State and as investigations have not been completed, we are not impressed by the allegation of mala fides. However, the main ground on which the petitions were pressed was that the petitioners were implicated only by witnesses who were admittedly accomplices and as the evidence of an accomplice was not sufficient to support a conviction, the petitioners were entitled to bail. But, there are accomplices and accomplices, and as the degree of infirmity, which attaches to the evidence of an accomplice depends on his moral depravity and the role played by him in the crimes for which the accused are being tried. Mr. Zubair submitted that there were witnesses implicating each petitioner, who had either played a very minor role in the occurrence or who had only been spectators at the occurrence. These and other submissions of the learned counsel for the parties turn on the sifting of evidence and as the ultimate Court, we are reluctant to enter into a tentative appreciation of evidence in bail cases, unless it is absolutely necessary to do so. But, it is not necessary to do so in the instant case, because investigations have not been completed, and the prosecution is entitled to complete investigations, the more so, as precipitate haste in completing investigations might only lead to the harassment of innocent persons. On our enquiries, Mr. Zubair submitted that the prosecution needed six months' time to complete investigations and commence the trial. As more than two years have passed, we are of the opinion that the prosecu tion must take more energetic steps to complete the investigation of the case, complicated though it is. Accordingly, we grant them three months' time for this purpose and direct that the case against the petitioners should commence in the Sessions Court not later than three months. In view of this direction, we dismiss these petitions. Petitions dismissed.