1989 PLP 2071 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑Petitioner is a Member of National Assembly of Pakistan and has been Governor and Caretaker Chief Minister of North‑West Frontier Province and is a retired Lieutenant General of Pakistan Army. He is an accused along with 14 others in a case under sections 302, 120 B/34, P.P.C. and has filed this petition for leave to appeal from the order of Peshawar High Court dated 30‑8‑1989 dismissing his application for release on bail pending trial of the case. The facts briefly stated are as under: On 5‑8‑1988 at 5‑00 a.m. Allama Arif Hussain Al‑Hussaini, a renowned Shia Leader was shot to death inside Madrassa Marifat‑ul‑Islamia, Peshawar at a distance of 4 to 5 kilometres from Police Station, Chamkani. Report of the crime was lodged by Abdullah Jan, Chowkidar of Madrassa, at 6‑30 a.m. in which none was named as culprit. He was offering prayers at that time and on hearing shouts of Tauseef, a student of the Madrassa, that an assailant had run away after committing murder, he interrupted his prayers, and went in pursuit of the assailant but could not find him. In the first instance, three accused persons were arrested. Jamil Ullah Khan on 5‑9‑1988 and two others, Sher Gul and Ramzan son of Pir Bakhsh on 7‑9‑1988, and all the three made judicial confessions: Jamilullah and Sher Gul on 10‑9‑1988 and Ramzan on 12‑9‑1988. It transpired from these confessions that other persons were also involved in commission of the offence, namely, Captain Majid Raza Gilani, Siraj, Faqir Gul, Badray, Ghalib Raza Gilani and his sister Uzma Gilani. The last two Ghalib Raza Gilani and Uzma Gilani were later on arrested but were released on bail. Accused Jamilullah in his confessional statement stated, inter alia, that Siraj, approver in the case, had approached him about 20 to 25 days before the occurrence with an offer of Rs.10,000 for causing murder of a Mulla. On the third day, Siraj accompanied by Badray, Faqir Gul and Sher Gul again came and persuaded him to commit the proposed murder. His version of the actual incident was that on the night of occurrence he, Siraj, Badray, Faqir Gul and Sher Gul stayed in the house of Siraj's friend and went to the Madrassa in the morning. He and Badray went inside the Madrassa and Siraj, Faqir Gul and Sher Gul remained in Car No. PRH‑9050. He fired a pistol shot at the Allama and then ran away accompanied by Badray. Accused Sher Gul deposed in his confession that he is a driver by profession and on the request of Siraj and Badray for help to purchase a car, he accompanied them and purchased a vehicle for Rs.29,000 from a Bargain‑Centre. On the following day he accompanied them to Mohmand Agency for the purchase of a Klashmkoy. According to him it was in his presence that Siraj, Jamilullah, Badray and Faqir Gul planned the murder of the Allama. He fully corroborated the version of Jamilullah accused with regard to the actual occurrence. Ramzan in his confessional statement stated that he was driver of Captain Majid Raza Gilani. He had taken the Captain to Peshawar 4 or 5 days after the Eid in his Car No. JG‑97(

10. He drove the car from Nowshera to Turlandi to the residence of Siraj who however was not available, and they returned to Islamabad. On the next day, Siraj came to Islamabad and met the Captain. On the third day, the Captain again went to Turlandi and then to the Dera of Siraj. After some days, Siraj came to Islamabad, and on the following day, the Captain and Siraj went to Peshawar and stayed in the hotel of Zarwar Khan. On the following day, Captain asked him to take Siraj wherever he wanted to go. They went to a village 10 to 12 miles on Charsadda Road where Siraj collected one person with beard and returned to the hotel. They again spent the night at the hotel and while they were returning on the next day, on his enquiry the Captain told him that a Moulvi had to be killed. In his detailed statement Ramzan accused narrated the role of Captain Majid Raza Gilani with the other conspirators in the crime. According to the prosecution, upto this stage, the entire story of the crime had not been revealed and the efforts of the investigating agency to apprehend Siraj failed as he had absconded to Afghanistan. The Investigating Officer however collected evidence of the purchase of Car No.PRH‑9050 by Siraj from one Karimullah on 16‑7‑1988, and the vehicle was recovered on 13‑9‑1988 from a place near Poly Technical College, Nowshera. 1t transpired from the statement of Kamal Shah, Manager of Hotel Doha Palace that accused Captain Majid Raza Gilani had stayed in the hotel on 12‑9‑1988. Car No. JG‑9700 belonging to accused Captain Majid Raza Gilani was recovered from Islamabad on 7‑9‑1988 and from its glove‑compartment, admission forms of the Madrassa were recovered. One Jehanzeb, attendant of the Petrol Pump of Javed, was examined on 12‑9‑1988 who confirmed that Siraj used to purchase petrol during that period from that Pump for his car which was driven by accused Sher Gul, his (Jehanzeb's) cousin. The Investigating Officer also recorded statement of one Sher Ali of village Malongi, Gharibabad on 14‑9‑1988 according to which accused Jamilullah, Sher Gul, Ramzan, Siraj and Badray had stayed in his house on the night between 4th and 5th August 1988 and in the morning they were not available when he took morning tea for them. At this stage it is relevant to mention that no substantial progress was made in the investigation till Siraj was arrested on 2‑6‑1989 on his voluntary surrender. He explained in his statement that his brother, son and other relatives came to meet him in Kabul and on being informed that accused Senator Hashim Khan and the petitioner had deputed some persons to kill him he voluntarily surrendered himself to the police to save his life. In his statement Siraj approver gave a detailed version of his role in the conspiracy. He stated that accused Senator Hashim Khan introduced him to accused Captain Majid Raza Gilani by saying that he was deputed by his brother‑in‑law, the petitioner for the task which he had to perform. This task was revealed by the accused Captain in the meeting arranged at Sirai's house on the next day. In this connection Siraj approver has mentioned in his statement as under: According to Siraj, in the subsequent meeting accused Captain Majid Raza Gilani told him that the victim of the murder was to be Allama Arif Hussain Al‑Hussaini. It was also arranged that he would meet the petitioner and accused Senator Hashim Khan took him and Faqir Gul in a car to Frontier House in Peshawar. While he and Faqir Gul waited in the car accused Senator Hashim Khan went to meet the petitioner inside the house and after half‑an‑hour he came and told them that petitioner will come to Bretty after two or three days and will meet both of them and that they had to do the job what the Army Captain assigned to them. Again a day before Eid‑ul‑Azha of 1988 accused Senator Hashim Khan informed him as under: As to the version of the actual occurrence Siraj approver narrated to the same effect as accused Jamilullah, Sher Gul and Ramzan. After the arrest of accused Siraj, Senator Hashim Khan applied for bail before arrest on 7‑6‑1989. Learned Sessions Judge, Peshawar allowed him ad interim pre‑arrest bail but did not confirm the same and rejected the bail application on 24‑6‑1989 where after the accused Senator Hashim Khan absconded and he is still a fugitive from law. Petitioner in the first instance applied for bail before arrest to Lahore High Court and was given interim protection with the direction to apply to the Court of competent jurisdiction by 18‑7‑1989. In the circumstances, he filed an application for pre‑arrest bail in Peshawar High Court and was given ad interim relief but the request was rejected by the learned Chief Justice of the High Court on 22‑7‑1989. The foremost plea raised on b1half of the petitioner in support of the request for pre‑arrest bail was "the mala fide of the intending arrest for ulterior motive to humiliate and harass the petitioner so as to cause irreparable injury to his reputation and to tarnish his political credit and status". To support the plea of mala fides, it was submitted that as Caretaker Chief Minister, N.‑W.F.P. he removed Mr. Muhammad Abbas Khan from the post of Inspector General, N.‑W.F.P. and after he was assigned an insignificant post of Officer on Special Duty, he was transferred to Sind Province and posted as Inspector General of Police. However, on the induction of the Pakistan People's Party, Mr. Muhammad Abbas Khan was immediately brought back as Inspector‑General of Police, N.‑W.F.P. Learned Chief Justice rejected this plea for the reasons in his words: "The two acts, one of the petitioner in transferring the Inspector‑General of Police and the other false implication in a murder case arc incommensurate, the last one not expected from a Senior Police Officer of this Province". It was further pleaded before the High Court that the approver had made a false statement that he had met the petitioner and accused Senator Hashim Khan on Eid‑ui‑Aiha of 1988, for, Senator Hashim Khan was not in the country having gone to Haj This plea was rejected for the following reasons: "In the judicial as well as the police files there is nothing to show that Hashim Khan was out of country. The learned counsel for the petitioner wanted me to examine the passport of Hashim Khan. It is not for this Court to examine and verify the entries of the passport at this stage. Hashim Khan accused was allowed ad interim bail before arrest by the learned Sessions Judge. During that period of seventeen days (from7‑6‑1989 to 24‑6‑1989) he did not approach the investigating agency to raise the plea of alibi nor produced any evidence in support of it. He instead has chosen to become a fugitive from law." After petitioner's application for pre‑arrest bail was rejected by Peshawar High Court he was taken into custody and he therefore applied for release on bail to the Ilaqa Magistrate who however rejected his application by the order dated 31‑7‑1989. Petitioner then approached the Sessions Court, Peshawar but again his application was dismissed by the order dated 10‑8‑1989. In the circumstances, he again approached Peshawar High Court for release on bail but this time too his application was dismissed by the impugned order dated 30‑8‑1989. Learned Judge in the High Court in rejecting petitioner's request observed as under: "From the evidence which has so far been collected by the Investigating Officer in this case, it appears that a conspiracy to kill the Allama was prepared prima facie by Captain Majid Raza Gilani in collusion with Hashim Khan, the petitioner and accused Siraj. For that purpose, hired assassins accused Jamilullah and absconding accused Badray were engaged by accused Siraj. The latter also purchased a car for the said purpose from the money which was provided by accused Captain Majid Razes Gilani. The latter is still absconding. One more person accused Faqir Gul had also played a role in the occurrence but he is also absconding. There is no evidence on the record to show that accused Siraj had any enmity against the Allama or any grudge against the petitioner in order to falsely implicate him along with himself. From the evidence which has so far been recorded there appear reasonable grounds to believe that the petitioner has been guilty of an offence punishable with death or imprisonment for life. As such under the provisions of clause (1) of section 497, Cr.P.E. he is not entitled to the concession of bail." Learned counsel for the petitioner appearing before the High Court urged that petitioner was innocent and he is neither involved in the conspiracy nor in the actual murder of the Allama and that he had been falsely implicated by accused Siraj. He further contended that Ilashim Khan Senator had gone to Saudi Arabia for the performance of Haj and Siraj approver could not have possibly met him and the petitioner on Eid‑ul‑Azha, 1988. Learned Judge in the High Court rejected this plea on the ground that it was not raised before the Investigating Officer, and that the original passport or other travelling documents to prove that Hashim Khan was actually out of Pakistan during those days were not produced before the Investigating Officer. Mr. S. M. Zafar, learned counsel for the petitioner submitted that the only piece of prosecution evidence that seeks to connect the petitioner with the crime is the statement of Siraj approver that he met petitioner and accused Senator Hashim Khan on Eid‑ul‑Azha which fell on 24‑7‑1988, but this version is totally false for the reason that on that day accused Senator Hashim Khan was in Saudi Arabia for performing Haj, having gone with 14 other persons. Learned counsel made grievance that neither the High Court nor the Courts below took notice of the documents produced by petitioner in support of the assertion that accused Senator Hashim Khan was outside Pakistan from 22‑7‑1988 till 3‑8‑1988. In this behalf, learned counsel further submitted that being frustrated with this situation, an application was made to the Ilaqa Magistrate on 7‑9‑1989 with the documentary evidence in support of the above plea with the request that the Investigation Agency be directed to investigate this defence plea but no steps were taken on the ground that the passport of the accused Senator Hashim Khan has to be produced by him, well‑knowing that he is an absconder. Learned counsel heavily relied on the decision of this Court in Khalid Javed Gillan v. State (P L D 1978 S C 256) and certain other cases in support of the submission that even at the stage of a bail application if some tangible evidence in support of his defence plea is produced by an accused, the Court must examine it in order to consider if there appear reasonable grounds for believing that he has committed the offence attributed to him. Learned counsel further submitted that it is now a well‑settled principle of law that before a conviction can be based on the evidence of an approver, it must be corroborated by independent evidence, in material particulars, not only as to the circumstances of the crime but also as to the identity of the accused. In this connection he referred to the decisions of this Court in Abdul Majeed v. State (P L D 1973 S C 559), Muhammad Bashir v. State (P L D 1971 S C 447) and other cases. On the basis of the above principle of law learned counsel sought to support the plea that there being no other piece of corroboratory evidence of Siraj approver's statement except his word that he met petitioner on Eid‑ul‑Azha of 1988 (24‑7‑1988) which assertion .is totally false, it cannot be held that there appear reasonable grounds for believing that petitioner has been guilty of the offence alleged against him and is thus entitled to grant of bail. Learned counsel also referred to the decision of Lahore High Court in the famous case of Zulfiqar Ali Bhutto v. State (1979 P Cr. L J 331) m which in somewhat similar circumstances bail was granted by K.M.A. Samdani, J. (as he was then and who now appears as a counsel for the first informant in the case). On being referred to page 320 of the same volume on which the decision of a Full Bench of Lahore High Court presided by the then Acting Chief Justice in the same case, is reported, by which bail granted by K.M.A: Samdani, J. was cancelled, Mr. S. M. Zafar submitted that the grounds on which bail was cancelled were totally invalid on facts and in law and had this Court been hearing an appeal against the order of that Full Bench it would surely be allowed. Mr. S. M. Zafar then recalled that during the period petitioner was Caretaker Chief Minister, N.‑W.F.P., five accused; Jamilullah, Sher Gul, Ramzan, Ghalib Raza Gilani and Uzma Gilani were not only arrested, but the first three accused made judicial confessions, which fact clearly indicates that petitioner had no connection with the crime, for, otherwise he would not have made efforts for their arrest. Learned counsel further pleaded that petitioner has been falsely involved due to political considerations, and in support of this plea stated that petitioner as Caretaker Chief Minister, N.‑W.FR, had removed Mr. Muhammad Abbas Khan, Inspector‑General N.‑W.F.P., but he was brought back to that post after the induction of the present Government. The suggestion was that the investigation of the case under Mr. Muhammad Abbas Khan, Inspector‑General of Police, N.‑W.F.P., was not carried out honestly. In this regard; learned counsel referred to Press Report in Daily Nawa‑i‑Waqt of 12‑6‑1989 wherein Mr. Muhammad Abbas Khan is said to have made the statement about his differences with petitioner on account of transfer. At this stage, we may at once observe that the plea of petitioner's false implication due to political considerations is just a bare oral word and therefore groundless. As regards the allegation against Mr. Muhammad Abbas Khan, Inspector‑General of Police we agree with the learned Chief Justice of the High Court that it is inconceivable that he falsely implicated the petitioner for the reason of a displeasure he may have felt on account of his transfer. This plea is not even worth mention, but have done so only to reject it. In reply, learned Deputy Attorney‑General submitted that although it is true that the five accused persons namely, Jamilullah, Sher Gul, Ramzan, Ghalib Raza Gilani and Uzma Gilani were arrested during the period petitioner was Caretaker Chief Minister, N.‑W.F.P., but this circumstance cannot help the defence plea, for, none of these accused has implicated him. According to learned Deputy Attorney. General petitioner had a different scheme for Siral approver, namely, that of his physical elimination on account of danger of his disclosing the real story of the crime. In this connection he referred to the statement of Siraj approver that he surrendered to the police in order to protect his life as he came to know that petitioner and his brother‑in‑law, accused Senator Hashim Khan had detailed certain persons to kill him. Learned Deputy Attorney‑General submitted that no reliance can be placed on the entries in the passport of accused Senator Hashim Khan or other documents produced by the petitioner in support of the alleged absence of accuesd Senator Hashim Khan from Pakistan between period 22‑7‑1988 and 3‑8‑1988 and these documents arc no evidence by themselves, and were not produced before the Investigation Agency. Learned Deputy Attorney‑ Gencrai submitted that since all the pleas raised by the learned counsel for the petitioner have already been examined in details by the two lower Courts and again twice b5 Peshawar High Court and rejected on valid grounds in law. there is no valid justification for this Court to interfere. Learned Deputy Attorney‑General further submitted that like his brother‑in‑law accused Senator Hashim Khan petitioner will also abscond and will be fugitive from law, and on this ground alone he is not entitled to grant of bail. Mr. K.M.A. Samdani, learned counsel for the first informant was allowed to present his case as he had appeared on both the occasions before the High Court in opposition to the bail applications. While adopting the submissions made by the learned Deputy Attorney‑General, he stated that Shia Community is supporting the first informant in the case as their leader, Allama Arif Hussain Al-Hussaini, has been murdered, and they arc interested that the real culprits should be dealt with in accordance with law. Learned counsel explained that the Shia Community has, otherwise, no personal grudge against the petitioner and do not wish to prosecute him if he is really innocent Learned counsel submitted that accused Senator Hashim Khan is already a fugitive from law, and if petitioner is released he likewise will abscond as the means available to the absconding accused are also available to petitioner in equal measure if not more. The scenario that emerges from the pieces of evidence collected by the investigation Agency so far is that the murder of Allama was persuant to a conspiracy, which was to be executed by accused Captain Majid Raza Gilanr who hired Sirat approver for the commission of the murder. In turn, Siraj took the assistance of his confederates Jamilullah. Sher Gul and Badray, and also hired accused Faqrr Gul to serve as driver of the car purchased for the commission of the crime. Upto this point, there is no controversy between the prosecution case and the defence pleaded by Mr. S. M. Zafar, who in fact claims credit on behalf of the petitioner for the arrest of the accused Jamilullah, Sher Gul, Ramzan, Ghalib Raza Gilani and Uzma Gilani. As regards the conspiracy, Mr. S.M. Zafar submitted during the course of his arguments that a foreign "hand" in the assassination of the Allama is involved, and in support of this piea, quoted from the statment of Siraj approver that accused Captain Majid Raza Gilani was to be paid from ,abroad in foreign currency after Allama is killed, and the Captain brought US Dollars worth Rs.50,000 for him for the purchase of a car to be used in the crime, and yet another statement of the approver that accused Captain had taken him to a house in Islamabad where a saw a foreign couple. In this regard, learned Deputy Attorney‑General argued that even if it is conceded for the sake of argument that a foreign "hand" is involved, surely that "hand" has to operate through local persons at much higher level than low‑key persons, such as, Siraj approver, Jamilullah, Sher Gul, Faqir Gul, Ramzan etc. According to learned Deputy Attorney‑General, the conspiracy was at the highest level in Pakistan, operating through the petitioner, who at the relevant time was Caretaker Chief Minister, and accused Captain Majid Raza Oilani, an Army Officer was to execute the object of the conspiracy. We are, however, not called upon to decide in these proceedings all the points raised before us by the learned counsel for the parties, for, these are meant to be dealt with by the trial Court after the evidence is recorded in the case. At the present stage, the case is under investigation and other culprits arc yet to be arrested. The question in these proceedings simply is whether the High Court and the Courts below have refused to release the petitioner on sound and well‑settled principles of law. The answer of this question depends on the appraisal of solitary statement of Siraj approver that connect the petitioner with the crime that he met the petitioner on Eid‑ul‑Aiha of 1988 which fell on 24‑7‑1988. The statement of the approver has already been reproduced wherein he mentioned the presence of accused Senator Hashim Khan on that day in the company of petitioner. The presence of accused Senator Hashim Khan is denied by the petitioner, and this assertion is sought to be supported by the international passport of accused Senator Hashim Khan and other documents according to which Senator had left for Saudi Arabia on 22‑7‑1958 for performing Haj and returned on 3‑8‑1988. There has been prima facie a failure on the part of the Investigation Agency to notice and examine the plea taken by the petitioner for challenging the veracity of the statement of the approver on a material point. The reasons advanced for explaining this failure are not very satisfactory. The Investigation Agency and even the Haqa Magistrate, considers that the documents referred to and relied upon by the petitioner have to be produced by the holder thereof, implying the absconder Hashim Khan, and not the petitioner. From the reply by the learned Deputy Attorney‑General also, it appears that the, Investigation Agency is not prepared to examine the documents and the plea taken up by the petitioner of the alleged contradiction in the statement of the approver till the accused Senator Hashim Khan appears, produces documents and takes up such a plea. Such should not have been the stand of the Investigation Agency which is charged with the duty "to find out the truth of the matter under investigation and not to commit "prematurely to any view of the fact for or against any person" (Rule 25.2 of the Police Rules). We are therefore clearly of the view that this is a case for further inquiry in the meaning of section 497(2) of the Criminal Procedure Code and pending such inquiry, petitioner is entitled to bail. Though there has been nothing remiss, so far as the record produced before us is concerned, in the conduct of the petitioner in submitting to the process of the Court. However, as number of accused have still to be ‑ apprehended and accused Senator Hashim Khan, brother‑in‑law of the petition has apparently circumvented and subverted the process of law, we feel called upon to make terms of the bail somewhat onerous so that the progress of the investigation is not impeded and the process of law not subverted or circumvented. For the above reasons, the petition is converted into an appeal and it is C allowed, the impugned order of the High Court and the Courts below are set aside and the petitioner shill be released on bail on the following terms and conditions: (a) He shall furnish five sureties, each in the sum of Rupees twenty lac and to execute personal bond in the like amount to the satisfaction of the Registrar, Peshawar High Court. (b) He shall not leave Pakistan till the results of the trial of the case, and shall surrender his passport/travel documents with the District Magistrate, Peshawar. (c) He shall associate with the investigation as and when called upon to do so, and every time before leaving the limits of District Peshawar, intimate, in writing, his address and dates so as to be available in case of need for the purpose of investigation in the case. (d) In case of violation of any of the conditions in paragraph (b) or (c) above, or if some material evidence connecting petitioner with the crime is collected by or made available to the prosecution at any stage hereafter, it will be open to the prosecution to apply to the trial Court for v cancellation of the bail granted by this order. On such an application being made, learned trial Judge shall pass orders in accordance with law. M.B.A./149/S Bail granted.