1997SCMR1234 (PLP)

ABDUL HAFEEZ MEMON, J.‑‑‑These two petitions for leave to appeal are directed against the orders, both dated 2‑12‑1996, passed by the learned High Court of Sindh, in two bail applications, one bearing, No.1890/96 filed by Dr. Muhammad Shoaib Suddle, D.I.JG. Police, Karachi, petitioner in Criminal Petition No.214‑K of 1996, and the other bearing No.1881 of 1996 filed by Shahid Hayat Khan, A.S.P. Saddar, Karachi, and Rai' Muhammad Tahir, A.S.P. Darakshan, Karachi, petitioners in Criminal Petition No.215‑K of 1996, whereby the learned Judge in the High Court recalled the earlier orders passed by him granting interim pre‑arrest bail to the petitioners, and dismissed both the applications, declining to grant bail before arrest to the petitioners in both their petitions.

2. Since both these criminal petitions arise out of the similar orders passed by the High Court relating to the same incident, the same are being disposed of by this common judgment.

3. The relevant facts of these petitions are that an unfortunate incident took place on 20‑9‑1996 on the Shahrah‑e‑Iran in front of Clifton Gardens, in which Mir Murtaza Bhutto, Chairman Pakistan People's Party (SB), Ashiq Hussain Jatoi, President P.P.P. (SB), Sindh, and six others of their party and said to be their security guards lost their lives and two other persons were injured and, allegedly, two members of the police party, namely, Haq Nawaz Sial, S.H.O. Clifton and Shahid Hayat Khan, A.S.P. received injuries. The First Information Report bearing No.386 of 1996, which was first in point of time, regarding the said incident was lodged at 10.10 p.m. at Clifton Police Station at the instance of Haq Nawaz Sial, S.H.O. of the said police station, which gave the version of the incident as under:‑‑ After four days of the lodging of the first F.I.R., second F.I.R. bearing No.399 of 1996 was registered at the same police station on 24‑9‑1996 at 00‑59 hours at the instance of complainant Asghar Ali, who was a personal servant of late Mir Murtaza Bhutto and was said to have been present in the same vehicle alongwith late Mir Murtaza Bhutto at the time of the incident. The version given by the complainant in this second F.I.R. reads as under:‑‑

4. As, however, Mrs. Ghanwa Bhutto, widow of late Mir Murtaza Bhutto, and Mrs. Badarunnisa, widow of late Ashiq Hussain Jatoi, were not satisfied with the version of the incident given in the said two F.I.Rs., they filed Constitutional Petition No.D‑1720 of 1996 in the High Court of Sindh, Karachi, seeking directions to the Clifton Police Station, Karachi, for the registration of a third F.I.R., giving their own version of the incident. The learned High Court allowed the petition and directed S.H.O. Clifton Police Station to register the F.I.R. which may be lodged on behalf of the petitioners in the said Constitutional petition. As a result, third F.I.R. bearing No.443 of 1996 was registered on 9‑11‑1996 at the same police station, on the basis of proposed F.I.R. submitted on behalf of the petitioners, in which complainant was one Noor Muhammad: The said F. I. R. reads as under: The complainant states as under:‑‑ (I) That on 20‑9‑1996, a public meeting was scheduled to be addressed by Mir Murtaza Bhutto, Chairman Pakistan People's Party (S.B.) at Yousuf Goth, Surjani Town, Karachi (West) at about 6‑00 p.m. (II) That Mir Murtaza Bhutto, left his house, 70 Clifton at about 5‑45 p.m. to address the said meeting and was accompanied by party leaders, workers and personal guards including Mr. Ashique Hussain Jatoi, President P.P.P. (S.B.) Sindh, Mr. Sajjad Hyder Gakhro, Finance Secretary P.P.P. (S.B.) Sindh, Mr. Yar Muhammad Balouch, a member Sindh Council, Dr. Mazhar Memon, Vice‑President P.P.P. (S.B) Hyderabad Division, Mr. Wajahat Hussain Jokhio, Information Secretary Hyderbaad Division, Noor Muhammad Gugo, Secretary (P.R) two official guards Mr. Ayyaz Dayo and Mr. Ghulam Muhammad Bhutto, personal servant Asghar, party workers Ismail, Bachal, and Waqar, private guards, Akhtar Mirani, Qaiser Balouch, Muhammad Rahim Brohi and Abdul Sattar Rajper, drivers Mehmood Bhalai and Asif and others, in four different vehicles. (III) That on reurn from said public meeting when Mir Murtaza Bhutto in Pajero Jeep, of Mr. Ashique Hussain Jatoi, driven by Mr. Ashique Hussain Jatoi himself and his companions named above and others reached at the distance of about 100 metres from main gate of 70 Clifton, on Shahra‑e‑Iran, 80/100 police personnel duly armed with automatic weapons, had already taken position at the place of incident. The police officers namely Wajid Durrani, S.S.P. South, Karachi, Shahid Hayat A.S.P. Saddar, A.S.P. Darakhshan (name not known), Haq Nawaz Sial S.H.O. Clifton, Zeeshan. Kazmi S.H.O. Khokrapar, S.H.O. Garden (name not known), Agha Jamil S.H.O. Napier, signalled the convoy to stop. As soon as the convoy stopped and Mir Murtaza Bhutto lowered the window pan of Pajero Jeep, the said police officers shouted "FIRE" whereupon, Yar Muhammad Balouch Wajahat Jokhio and Sajjad Hyder rushed towards Mir Murtaza Bhutto to provide cover around him but in the meanwhile the police started target shooting, killing Yar Muhammad Balouch, Sajjad Hyder Gakhro Wajahat Jokhio and Ashique Hussian Jatoi, Muhammad Rahim Brohi, and Abdul Sattar Rajper on the spot and critically injured Mir Murtaza Bhutto, Ayyaz Dayo, Ismail, Bachal, Asghar and Doctor Mazhar Memon. ' (IV) That the accused police personnel left Mir Murtaza Bhutto and the abovenamed injured to profusely bleed at the place of incident for about 50 minutes and then Mir Murtaza Bhutto was taken to nearby Mideast Hospital and others were taken to Jinnah Post Graduate Medical Centre, Karachi, Mir Murtaza breathed his last at about 23‑55 hours and Bachal succumbed to injuries next day at J.P.M.C. (V) That on the same day at about 16‑00 hours Shaheed Mir Murtaza Bhutto while addressing a press conference at 70‑Clifton, had disclosed that a conspiracy is hatchet by the Government through Mr. Shoaib Duddle, D.I.‑G., Karachi, Wajid Durrani S.S.P. (South) Karachi and Muhammad Ramzan Channa S.S.P. C.I.A., Karachi to arrest him and his workers at large scale on false and concocted charges, but he had said that they face these atrocities politically. (VI) That the political opponent of Mir Murtaza Bhutto in the Federal and Provincial Governments of Sindh, jealous of his rising popularity had conspired to eliminate him and in league with accused Police Officers named above and one Maj. (Retd.) Masood Sharif, a Senior Officer of Intelligence Bureau have cold‑blooded murdered Mir Murtaza Bhutto, Ashique Jatoi, Sajjad Hyder Gakhro, Wajahal Jokhio. Muhammad Rahim Brohi, Abdul Sattar Rajper and Muhammad Bachal and caused fire‑arm injuries to Ayaz Dayo, Ismail, Dr. Mazhar and Asghar with intention to kill them. (VII) That in order to forestall false defence against cold‑blooded murder of Mir Murtaza Bhutto a bogus F.I.R. is registered by Police at Police Station Clifton, showing a fake encounter. Whereas, in fact pre‑planned and premeditated murders are ' committed by the accused. The complainant seeks redress .... Complainant"

5. After the third F.I.R. was lodged, Shahid Hayat Khan, A.S.P. Saddar and Rai Muhammad Tahir, A.S.P. Darakhshan, Karachi, petitioners in Criminal Petition 215‑K of 1996, approached the learned High Court for grant of bail before arrest, and they werc granted interim pre‑arrest bail on 9‑11‑1996. Thereafter, Dr. Muhammad Shoaib Suddle, D.I.‑G. Karachi petitioner in Criminal Petition No.214‑K of 1996, applied for bail before arrest and he was also granted interim pre‑arrest bail on 11‑11‑1996. Subsequently, the applications of the petitioners‑accused came up before the learned Judge in the High Court for confirmation of their interim pre‑arrest bail, but the learned Judge recalled his earlier orders of interim pre‑arrest bail and dismissed the applications of the aforesaid petitioners vide his orders, both dated 2‑12‑1996. Hence, these petitions. .

6. Mr. K.M.A. Samdani, learned counsel appeared for the petitioners in both these petitions Taking up first the Criminal Petition No.214‑K of 1996, filed on behalf of the petitioner Dr. Shoaib Suddle, D.I.G. Police, Karachi, the learned counsel, after personally regretting the occurrence of the unfortunate incident, submitted that the petitioner was a highly placed police officer with an impeccable record of 23 years of service to his credit and had been falsely involved in the case with which he had nothing to do. Learned counsel further submitted that the petitioner had been involved in this case mala fide and the police was out to arrest him for ulterior motives to cause him humiliation and unjustified harassment. In this connection, learned counsel submitted that in the none of the three F.I.Rs. the petitioner is even alleged to be present at the scene of occurrence at the time of incident, nor any allegation has been made against him involving him with the commission of offence resulting in the incident. Learned counsel next submitted that even regarding the allegation of his being party to the conspiracy hatched by the Federal and Provincial Governments to eliminate late Murtaza Bhutto due to his popularity, he has not been assigned any role, nor any material has been disclosed by the prosecution showing his involvement in the alleged conspiracy which, the learned counsel submitted, was borne out by the fact that name of the petitioner has not been included in the interim challan as an accused, nor his name is shown even in column‑2 thereof. Learned counsel accordingly contended that in spite of his name being not mentioned in the interim challan, the police was out to arrest him, which amply showed mala fides on the part of the police who wanted to arrest him for ulterior motives to humiliate and harass him and to implicate him in the offence with which he had nothing to do, and, therefore, the learned counsel submitted the petitioner had made out a good prima facie case for grant of bail before arrest, and the learned High Court was not justified in declining to confirm interim pre‑arrest bail earlier granted by it to the petitioner and dismissing his application. Taking up the ‑next Criminal Petition No.215‑K of 1996, learned counsel contended that though in the F.I.R. the petitioners were alleged to be present at the scene of occurrence at the time of the incident and were accused of committing the offence it was nowhere stated in the F.I.Rs. that they had participated at the alleged target‑shooting of Mir Murtaza Bhutto and his companions, and that mere presence of the said petitioners at the place of incident alongwtth other police personnel did not make out a prima facie case against them of commission of the aforesaid offence. Learned counsel next submitted that it is also not stated in the F.I .R s that the petitioners knew about the alleged conspiracy so as to make out a case of murder against them, moreso, when they were not even alleged to have been armed. Learned counsel here submitted that the possibility of the incident being the result of sudden flare up provoked by firing by the companions of Mir Murtaza Bhutto could not be ruled out, therefore, it being an established principle that law should not be stretched in favour of the prospsection and if there is doubt about the case its benefit must go to the accused; the petitioners had made out a prima facie good case for bail before arrest. Mr. M.L. Shahani learned Advocate‑General, Mr. I.A. Hashmi, learned counsel for the complainant, opposed the bail and submitted that the incident having occurred the petitioners were not entitled to pre‑arrest bail.

7. We have heard Mr. K.M.A. Samdani, learned counsel for the petitioners in both petitions, Mr. M.L. Shahani, learned Advocate‑General Sindh, and Mr. I.A. Hashmi, learned counsel for the complainant.

8. Since the investigation in the three F.I.Rs. giving various versions is yet not complete, as stated by the learned Advocate‑General, we would refrain from making any observations regarding the contentions on merits, lest it may prejudice the case of either party at any subsequent stage and at the trial which is yet to take place and we would confine ourselves only to consider whether the petitioners herein have made out a case for grant of pre‑arrest bail to them. In this connection, we would refer to the following observations made by late Cornelius, J. in his judgment in the Full Bench case of Hidayatullah Khan v. The Crown (PI,D 1949 Lah. 21), which were quoted with approval by this Court in the case of Sadiq Ali v. The State (PLD 1966 SC 589) regarding grant of bail before arrest:‑ "The exercise of this power should, however, be confined to cases in which not only is good prima facie ground made out for the grant of ,, bail in respect of the offence alleged, but also, it should be shown that if the petitioner were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motives and with the object of injuring the petitioner, or that the petitioner would in such an eventually suffer an irreparable harm. " In Murad Khan's case (PLD 1983 SC 82) this Court reiterated the same principle that arrest for ulterior motives such as humiliation and unjustified harassment A was a valid consideration for grant of pre‑arrest bail. Similar rule was laid down in Ziaul Hassan's case (PLD 1984 SC 1) and in the case of Jamaluddin v. State (1985 SCMR 1949). It, therefore, requires consideration whether on the facts the petitioners have made out a case for grant of pre‑arrest bail with the above. As to the case of Dr. Muhammad Shoaib Suddle, petitioner in Criminal Petition No.214‑K of 1996, it will appear that in none of the three F.I.Rs. he is shown to be present at the place of occurrence at any time before or after the incident, and this was not disputed even by the learned Advocate‑General. The learned Advocate‑General, however, submitted that the petitioner Dr. Shoaib Suddle was party to the conspiracy hatched by the political opponents of Mir Murtaza Bhutto in the Federal Government and the Provincial Governments to eliminate him due to his rising popularity and in league with the petitioner and other named police officers had got Mir Murtaza Bhutto, Ashiq Hussain Jatoi and others killed, and in this connection referred to the third F.I.R. registered at the Clifton Police Station on the direction of the learned High Court. Perusal of the said F.I.R. would, however, appear to show that the conspiracy first mentioned therein refers to the press conference held by Mir Murtaza Bhutto at his residence at 70‑Clifton, Karachi, before proceeding to Sarjani Town to address public meeting there, wherein he had expressed that the conspiracy was hatched by the Government through Mr. Shoaib Suddle, D.I.‑G., Karachi and other police officers named therein to arrest Mir Murtaza Bhutto and his workers at large scale on false and concocted charges, but they would face the atrocity politically. As to the further allegation in the F.I.R. that political opponents of Mir Murtaza Bhutto in the Federal Government and the Provincial Government had conspired to eliminate him in league with the named police officers, including the petitioner, learned Advocate‑General was called upon to state whether beyond the said allegation there was any material available with the prosecution showing involvement of the petitioner in the alleged conspiracy, he replied that as yet there was no such material available with the prosecution, but the investigation was continuing and had not been completed. The learned Advocate‑General, however, submitted that the manner in which the first F.I.R. was got registered by S.H.O. Haq Nawaz, who was subsequently murdered, and the second F.I.R was got registered at the instance of Asghar Ali, a private servant of late Mir Murtaza Bhutto, while he was in police custody, showed that the petitioner Shoaib Suddle was party to the alleged conspiracy. We are not impressed with the last submission of the learned Advocate -General, but would again refrain from making any observation regarding it, as the case is still under investigation. Suffice it to say, it being an admitted position that petitioner Shoaib Suddle is not shown in all the F.I.Rs. to be present at the scene of occurrence at any time before or after the incident, resulting in the death of Mir Murtaza Bhutto and his companions, and that there was no material as yet available with the prosecution showing his involvement in the alleged conspiracy by the political opponents of Mir Murtaza Bhutto in the Federal and Provincial Governments to eliminate him, and the fact that the petitioner's name is not included in the interim challan as an accused m the relevant columns, nor his name is included in column‑2 thereof, and yet the police is out to arrest him, we are of the view that the petitioner has made out a case for grant of pre‑arrest bail within the rule laid down by this Court in the cases referred to above. We accordingly convert Criminal Petition No.214‑K of 1996 into appeal and allow it and grant him pre‑arrest bail in the sum of Rs.200,000, with two sureties, each in the like amount, to the satisfaction of the Sessions Judge (South), Karachi, subject to the conditions firstly, that the petitioner shall cooperate with the Investigation Agency and secondly, if the Investigating Agency is able to collect material against him, an application for cancellation or re‑calling of the bail order can be moved by 'the State. Coming to the case of Shahid Hayat Khan, A.S.P. and Rai Muhammad Tahir, A.S.P., petitioners in Criminal Petition No.215‑K of 1996, they are shown to be present at the place of occurrence at the time of incident which C resulted in the death of Mir Murtaza Bhutto, Ashiq Hussain Jatoi and their other six partymen due to firing by the police party. That being so, we are of the view that no case for grant of pre‑arrest bail to them is made out, and we dismiss their petition. N.H.Q./M‑3366/S Order accordingly.