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Petitioner: (1) Dr.Asim Hussain (2) Usman Moazzam (3) Anees Qaimkhani (4) M.A.Rauf Siddiqui VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Abdul Maalik Gaddi Title:(1) Dr.Asim Hussain (2) Usman Moazzam (3) Anees Qaimkhani (4) M.A.Rauf
Siddiqui vs The State Case No.: Cr. Bail Appl.Nos.993, 1076, 1120 & 1144 of 2016 Date of Judgment:2016-11-11 Reported As: 2016 SHC 20 Result: N/A Judgment Muhammad Ali Mazhar-J: This common order will dispose of the aforesaid post arrest bail applications moved in Crime No.197/2015, lodged by the State through Superintendent Pakistan Rangers, 61-Wing, Abdullah Shah Ghazi Rangers Mitha Ram Hostel, Karachi on 25.11.2015 at Police Station North Nazimabad, Karachi under Section 201, 202, 216, 216 (A), 409/34 P.P.C and Sections 6 (7) a, 21(I), 21(J) A.T.A. 1997. The bail applications filed by the applicants in the trial court were rejected. For the ease of reference, the text of FIR is reproduced as under:- {{URDU TEXT}} 2. Sardar Lateef Khosa, learned counsel for the applicant Dr.Asim Hussain argued that the bail application was dismissed by the trial court without considering the material available on record. The applicant was taken into preventive detention for 90 days under Section 11-EEEE of the ATA 1997 on 26.8.2015 while the FIR was lodged on 25.11.2015. In the intervening period JIT was constituted and the FIR is based on the findings of the JIT without any independent investigation. The two I.Os conducted investigation one after the other . The learned Administrative Judge, ATC directed the second I.O. to submit his report. The final report was submitted on 21.12.2015 in "A" Class due to lack of sufficient evidence but the Administrative Judge disagreed the final report and took the cognizance and transferred the case to ATC Court-II for trial. He further argued that the political parties mentioned in the FIR are not proscribed or banned terrorist organizations but they are registered under the Political Parties Act. No record was produced before the Administrative Judge or the trial court that they have abetted or harboured the criminals. The entire material obtained during the preventive detention of the applicant is manufactured and concocted. After submitting report by the prosecution in "A" Class there was no justification to withhold the applicant from the right of bail. At present the case is of two versions. The applicant is suffering from physical and psychiatric disease with serious back problems and he is hospitalized on the recommendation of several board of doctors constituted from time to time. If the bail is granted to him he would not be in a position to influence any witness or change the record nor his release will prejudice the case of any party . The applicant is in custody for last considerable period but the
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trial court has failed to frame the charge. The track record of the trial shows that much time will be consumed for concluding the trial. He further argued that PW-Dr.Muhammad Yousuf Sattar was the In charge of the Hospital whose statement was recorded under Section 164 Cr.P.C. when he was in custody . The case requires further inquiry . So far as the alleged bills issued for the treatment of terrorist or militant s, the witness S.M. Shaiq in his 161 Cr.P.C. statement clearly stated that all the bills are forged and tampered. He further stated that besides computerized bills, they also maintained and entered the names of patients manually in the Register . Another witness Muhammad Faheem, Inchar ge Medical (Record) disclosed that 07 persons came and took over computer hard-disks in their possession and Dr.Yousuf Sattar was also taken into custody . Since there was no tangible evidence, therefore, I.O submitted report under Section 497 Cr.P.C. for the release of applicant but his report was not accepted by the Administrative Judge ATC. 3. Mr.M.Ilyas Khan, the learned counsel for the applicant Anees Qaimkhani argued that the applicant is president of Paksarzameen Party . FIR was lodged when he was not in Pakistan. The FIR is based on the alleged statement of Dr.Asim Hussain when he was in preventive detention. In view of the stipulations laid down under Article 37, 38 and 39 of the Qanoon-e-Shahadat Order such type of state ments relating to self- incrimination are inadmissible which otherwise required to be proved against the co-accused in terms of Article 30 of the Qanoon-e-Shahdat Order. He further argued that Sections mentioned in the FIR except Section 6 (7) (a), 21 (I) and 21 (J) of ATA 1997 are bailable. As far as ATA Sections are concerned, the punishment falls between the lines of non-prohibitory clause. It is well settled principle of law that while considering the bail the courts consider lesser punishments of the offences rather than maximum sentence. While dismissing the bail application the trial court relied upon the statement of Dr.Yousuf Sattar recorded under Section 164 Cr.P.C. which has no evidentiary value. No opportunity was provided to the applicant to cross examine Dr.Yousuf Sattar at the time of recording his statement under Section 164 Cr.P.C. No evidence of any injured/sick patient was recorded to support the case of the prosecution. No incriminating material is available on record which may reasonably connect the applicant with the offence. If the statement of Dr.Yousuf Sattar is considered to be true even then this is a case of two versions which cannot be decided unless the evidence is recorded by the trial court. 4. Mr.Shaukat Hayat, learned counsel for the applicant M.A.Rauf Siddiqui argued that reading of FIR makes it quite visible that it was lodged on the alleged discloser of Dr.Asim during his detention which is not admissible under Article 37, 38, 39 and 40 of the Qanoon-e-Shahadat Order . The JIT report cannot be equated with joint investigation conducted after registration of FIR, therefore, JIT is not a substantial piece of evidence. Earlier I.O. Rao Zulfiqar , SIO, North Nazimabad recorded eight 161 Cr.P.C statements there after, the investigation was transferred to Altaf Hussain, DSP/SDPO, Khawaja Ajmer Nagri, who recorded further PWs' statements. One 164 Cr.P.C statement of Dr.Yousuf Sattar was also recorded before the Magistrate. The two sets of state ments recorded by two different I.Os are contradictory . Second I.O. discarded the investigation of Rao Zulfiqar and submitted the final report in "A" Class but the Admin istrative Judge disagreed with the investigation of the Second I.O. which shows that the case is of two versions and requires further inquiry . No name of any alleged Target Killer , militant or terrorist is mentioned whom the applicants harbored, sheltered or caused disappearance to any evidence of the crime and knowingly or intentionally not informed the police. The trial court failed to appreciate the statement of PW Shahzad Ali, PW-Muhammad Faheem, PW-Dr.Shreen and PW-Mst.Sabina Khalid who said that Dr.Yousuf Sattar was taken into custody on 29.8.2015 from Dr.Ziauddin Hospital. His wife filed petition against the missing of her husband in this court. No prior notice was issued to the applicant to provide opportunity to cross examine Dr .Yousuf Sattar . 5. Mr.Muhammad Farooq, the learned counsel for the applicant Usman Moazzam argued that the applicant is General Secretary of "Pasban". He has been implicated in the case with the sole purpose that he filed C.P.No.D-3656 of 2015 in this court against the law enforcement agencies for disappearance of his son Saad Siddiqui who was missing since 11.6.2015. The law enforcement agencies raided the house of the applicant between the night of 19t and 20t of July, 2015 and taken away the applicant and his another son, thereafter , his wife filed another C.P.No.D-4352/2015 for the recovery of her husband and her son in which it was disclosed that the applicant was taken into custo dy for 90 days under Section 11- EEEE, ATA, 1997. The name of the applicant is not mentioned in the FIR. The 164 Cr.P.C. statement was recorded without providing any opportunity of cross examination to the applicant. The learned trial court has wrongly observed that the statement of Dr.Yousuf Sattar was recorded in presence of applicant and he was duly served with the notice for availing opportunity of cross examination. The 164 Cr.P.C. statement was recorded on 30.11.2015 while the present applicant was arrested in this FIR on 30.01.2016, therefore, the question of his presence at the time of recording 164 Cr.P.C statementh h
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does not arise. No incriminating material is available on record to connect the applicant with the alleged crime. The applicant is not known to Dr .Asim Hussain nor he has any personal or professional relationship with him. Judicial precedents. (1) 2016 SCMR 18 (Zaigham Ashraf v. The State and others). Section 497. Words "reasonable grounds" as contained in Section 497, Cr.P.C., required the prosecution to show to the court that it was in possession of sufficient material/evidence, constituting 'reasonable grounds' that accused had committed an offence falling within the prohibitory limb of Section 497, Cr.P.C. For getting the relief of bail accused only had to show that the evidence/material collected by the prosecution and/or the defence plea taken by him created reasonable doubt/suspicion in the prosecution case and he was entitled to avail the benefit of it. To curtail the liberty of a person was a serious step in law, therefor e, the judges should apply judicial mind with deep thought for reaching at a fair and proper conclusion albeit tentatively . Such exercise should not be carried out in vacuum or in a flimsy and casual manner as that would defeat the ends of justice because if the accused charged, was ultimately acquitted at the trial then no reparation or compensation could be awarded to him for the long incarceration, as the provisions of Criminal Procedure Code and the scheme of law on the subject did not provide for such arrangements to repair the loss, caused to an accused person, detained in jail without just cause and reasonable grounds. (2) 1995 SCMR 1249 (Chaudhry Shujat Hussain v. The State). Section 497. A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should not probe into the merit of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused which if left unrebutted, may lead to inference of guilt. The term "reason to believe" can be classified at a higher pedestal than mere suspicion and allegation but not equivalent to prove evidence. Even the strongest suspicion cannot transform in "reason to believe". (3) PLD 2014 S.C. 760 (Alam Zeb and another v. The State and others). Section 497(1). Bail refusal of. "Reasonable grounds". Scope. Reasonable grounds had to be grounds which were legally tenable, admissible in evidence and appealing to a reasonable judicial mind as opposed to being whimsical, arbitrary or presumptuous. (4) 2014 SCMR 27 (Nisar Ahmed v. The State and others). Section 497(2). Bail, right of. Scope. Case of further inquiry . When an accused became entitle d to bail as of right under Section 497(2), Cr.P.C. the same could not be withheld on the ground of practice because the latter was relatable to exercise of discretion, while the former was relatable to exercise and grant of a right. (5) AIR 1952 Supreme Court 354 (Palvinder Kaur v. The State of Punjab). Penal Code (1860), Section 201. Evidence of offence. Circumstantial evidence. (Evidence Act (1872). Section 3). In order to establish the charge under Section 201 Penal Code, it is essential to prove that an offence has been committed, that the accused knew or had reason to believe that such offence had been committed and with the requisite knowledge and with the intent to screen the offender from legal punishment causes the evidence thereof to disappear or gives false information respecting such offences knowing or having reason to believe the same to be false. (6) AIR (31) 1944 Privy Council 54 (K.R. Easwaramurthi Goundan v. Emperor). (a) Penal Code (1860), Section 216. Ingredients of offence laid down. Section 216 requires, if the offence is to be established, first that there has been an order for the apprehension of a certain person as being guilty of an offence, secondly knowledge by the accused party of the order , thirdly the harbouring or concealing by the accused of the person with the intention of preventing him from being apprehended. (7) 2000 SCMR 107 (Mian Manzoor Ahmad Watto v. The State). Section 497(1). Correct criteria for grant of bail to an accused in a non-bailable case on medical ground would be that the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the jail premises and that some specialized treatment is needed and his continued detention in jail is likely to affect his capacity or is hazardous to his life. (8) 1998 SCMR 1065 (Zakhim Khan Masood v. The State). Section 497(1). Bail on medical grounds. Ailment of accused according to medical report was likely to have hazardous effects on his life because stress and strain
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could aggravate his disease. Accused was undoubtedly sick and needed treatment in conducive conditions free from any kind of pressure. Accused could not have full peace of mind in custody which could surely make his recovery from ailment slow putting seriously his life to danger. Bail was allowed to accused in circumstances. 6. The learned Special Public Prosecutor argued that during investigation by both the I.Os eighteen 161 Cr.P.C statements were recorded and 01 statement under Section 164 Cr.P.C. The investigation has been completed. The case is fixed for framing of charge in the trial court. He further argued that the second I.O. submitted the report in "A" Class for lack of evidence but the Administrative Judge ATC took the cognizance and transferred the matter to ATC for trial. When this court asked the Special Public Prosecutor whether he is conceding or opposing bail applications. He responded that the bail applications may be decided on the available documents including the "A" Class final report. He further addressed that Dr.Asim Hussain (main accused) is seriously ill and confined to bed whose proper treatment and medication is not possible in the custody or jail, therefore, the Special Public Prosecutor conveyed his no objection if Dr.Asim Hussain is granted bail but for remaining applicants/accused he opposed and countered the bail applications without supplementing any more arguments. 7. Mr.Sajid Mehboob Shaikh, the learned counsel for complainant argued when Dr.Asim Hussain was in preventive detention, JIT was constituted by the Home Department. He referred to the findings of JIT report and argued that accused Dr.Asim disclosed his involvement before the JIT members in harbouring, facilitating the Target Killers and militants of MQM and other banned outfits by providing them medical facilities in Dr.Ziauddin Hospital and on his statement, the JIT members observed that matter requires further probe. Some other allegations are also mentioned in the JIT Report which are subject matter of NAB proceedings. He further argued that the first I.O. had completed investigation hence there was no need to appoint second I.O. Against the unlawful transfer of investigation to second I.O. the complainant filed C.P.No.D-7806/2015 which was disposed of vide order dated 18.12.2015 with observation that if the complainant/petitioner has any grievance against the transfer of investigation, he may approach to the Administrative Judge, ATC, Karachi. An application against the transfer of investigation/change of I.O has been moved to the Administrative Judge, ATC but it is pending. He has also referred to the observation of the trial court at page-07 in the bail rejection order of Dr.Asim that the intention of the second I.O. was to create evidence and get release the accused. The defence evidence was created on 10.12.2015 in presence of Dr.Sabeena Khalid and this is not mentioned in zimni dated 10.12.2015. There is also no record in the Roznamcha about these witnesses created by second I.O. The second I.O. conducted partial investigation. The learned counsel further argued that 330 FIRs of terrorists/militants were handed over to the I.O. those were provided medical treatment in Dr.Ziauddin Hospital while 27 bills issued by the Hospital against treatment were also handed over including head money Notifications of some criminals. All these documents have been provided to the accused by the trial court in compliance of Section 265-C Cr.P.C. Dr.Asim Hussain never challenged the JIT report nor he challenged the order of the Administrative Judge whereby the cognizance was taken. The opportunity to cross examine Dr.Yousuf Sattar on his 164 Cr.P.C. statement was provided to Dr.Asim Hussain but the cross is reserved. The statement of Dr.Yousuf Sattar is clear that on the directions of Dr.Asim Hussain, injured and target killers of different political parties and banned organizations were being admitted in the hospital for treatment. The first I.O. Rao Zulfiqar prepared the memo of seizure on 28.11.2015 and sealed the documents including the JIT report, 330 FIRs against terrorists and proclaimed offenders and head money notifications issued by Home Department but when this parcel was opened in the court nine bills relating to MQM were found missing. So far as other bail applications are concerned the learned counsel argued that they are equally responsible and involved in the crime and they facilitated various criminals and terrorists and on their request Dr.Asim Hussain provided treatment in his Hospital. He further argued that overwhelming incriminating material is available against the applicants but the I.O. has submitted the final report in "A" Class with mala fide intentions. So far as the medical report submitted by the learned counsel for Dr.Asim Hussain on record, he argued that the medical board was not constituted under the directions of this court but it was constituted under the directions of the NAB court which has no legal sanctity. He concluded that Dr.Asim Hussain is involved in heinous crimes therefore even on medical grounds he is not entitled to bail. 8. The I.O.DSP Altaf Hussain frankly and straightforwardly stated that after making the thorough investigation in the matter he found nothing and due to lack of evidence, he submitted the final report in "A" Class. He further affirmed that for the
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same reasons he submitted a report before the Administrative Judge, ATC for the release of accused under Section 497 (2) after the approval of SSP Investigation, West-II, Central Karachi. 9. Heard the arguments. Let us first thrash out the minutiae and niceties of the offences mentioned in the F.I.R. Section 201 P.P.C makes accountable to a person who knowingly or having reason to believe that offence has been committed, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false. Whereas Section 202 P.P.C. holds responsib le whoever , knowingly or having reason to believe that an offences has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give. Then again Section 216 P.P.C. makes liable to any person convicted of or charged with an offence being in lawful custody for that offence, escapes from such custody or whoever , knowing of such escape or order for apprehension, harbours or conceals that person with the intention of preventing him from being apprehended. While Section 216-A. P.P.C. indicts a person who harbours the criminals with the intention of facilitating the commission of such robbery or dacoity , or of screening them or any of them from punishment. Section 409 P.P.C was deleted by the first I.O. hence it is not mentioned in the Final report. According to Schedule-II, Tabular Statement of Offences, Chapter XI, "False Evidence and Offences against Public Justice" Criminal Procedure Code, Sections 201, 202, 216 and 216-A P.P.C. are bailable offences. Now let us recommence the provisions of Anti-T errorism Act 1997. Section 21-(I) is an offence of aiding and abetting any offence under this Act while 21- (J) is an offence of harbouring any person who has committed an offence under this Act. A person guilty of an offence under sub-section (1) shall be liable on conviction to punishment as provided in Sections 216 and 216-A of the Pakistan Penal Code. Whereas Section 6,sub-section 7 defines the word "terrorist" in Clause (a) which means an individual who has committed an offences of terrorism under this Act, and is or has been concerned in the commission, preparation, facilitation, funding or instigation of acts of terrorism. According to Section 21-D of ATA 1997, all offences under this Act punishable with death or imprisonment exceeding three years are non-bailable. The word "Harbour" has been delineated under Section 52-A, Chapter-II, General Explanation, Pakistan Penal Code 1860 as under:- "Harbour--Except in Section 157 and in Section 130 in the case in which the harbour is given by the wife or husband of the person harboured, the word "harbour" includes the supplying a person with shelter , food, drink, money , clothes, arms,ammunition or means of conveyance, or the assisting a pers on by any means whether of the same kinds as those enumerated in this section or not, to evade apprehension" 10. It is an admitted fact that Dr.Asim Hussain was taken into preventive detention for 90 days on 26.8.2015 under the provisions of 11-EEEE, ATA 1997 but the FIR was lodged on 25.11.2015 which is predominantly structured on the revelations of Dr.Asim Hussain in the course of interrogation by JIT members that he knowingly provided medical treatment on discounted rates to the injured terrorists of Lyari Gangwar, proscribed or banned organizations and MQM, who were injured in the encounters with Rangers or Police. In the beginning, matter was being investigated by I.O. Rao Zulfiqar, afterward the investigation was transferred to DSP Altaf Hussain who on 21.12.2015 put forward the final report in "A" Class due to lack of evidence with further assurance that as and when tangible evidence would be available the matter shall be resurrected and revitalized. It is also significant to point out that on 30.11.2015, statement of Dr.Yousuf Sattar was recorded under Section 164 Cr.P.C. before the Xth Judicial Magistrate, Karachi Central who testified to have been performing duties as Deputy Medical Director since 2005. He further divulged that the Hospital was providing medical treatment to the injured militants of proscribed/banned organizations and the workers of militants' wings of MQM, TTP, Lyari Gangwar, ANP, JI, Peoples Aman Committee and Pasban Pakistan on the instructions of Dr.Asim Hussain without informing anyone and 50% discount was also being provided to them and sometimes the treatment was done free of cost. Bills of MQM injured peoples were being sent to KKF and other bills were being issued in the name of patients. It is further stated by him that Dr.Nusrat Shaukat, MQM KKF, Rauf Siddiqui, Waseem Akhter, Adil Siddiqui, Anees Qaimkkhani, Qadir Patel, Saleem Shahzad, Osman Moazzam were used to call for the discount of their private persons and party patients. When this statement was recorded, partial cross examination was conducted by Dr.Asim Hussain but further cross examination was reserved at his request. The final report in "A" Class was rebuffed and repelled by the learned Administrative Judge ATC. In the closing paragraph of the order dated 21.12.2015, the learned Administrative Judge reproduced the findings of the JIT that the accused Asim Hussain disclosed his involvement in harbouring/facilitating the target killers, militants of MQM and other banned outfits through providing medical facilities in
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his own Dr.Ziauddin Hospital system which needs further probe. He further remarked that deeper appreciation of evidence is not permissible at this stage. In the same order the learned Administrative Judge further observed that the I.O. was not legally justified to release the accused Dr.Asim Hussain. The concluding paragraphs of the Final Report in "A" Class are reproduced as under:- {{URDU TEXT}} 11. At this stage, the cumulative effect of the alleged disclosures made by Dr.Asim Hussain before the JIT members, the…
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