Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Syed QAIM ALI SHAH VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Syed Abdur Rahman, Allah Dino G. Memon Title: Syed QAIM ALI SHAH vs THE STATE Case No.: Criminal Bail Applications Nos.937 and 938 of 1991 Date of Judgment:1992-11-06 Reported As: 1992 P Cr.L J 242 Result: Order accordingly
JUDGMENT
JUDGMENT S. ABDUR REHMAN, J. -- These two bail applications have been filed by applicant, Syed Qaim Ali Shah, who is facing consolidated trial in six special cases numbered as 299/1991. His bail applications in the remaining four special cases bearing Nos. 243/1991, 167/1991, 157/1991 and 246/1991 under sections 302, 307, 120-B and 170-B read with section 34, P.P.C. Were granted by us earlier. 2. The prosecution story is that M.Q.M. Leader Altaf Hussain, was to return from London on.22-9- 1990, therefore, various camps were set up at Karachi- to accord him a welcome. There was indiscriminate kalashnikov's firing on some of these reception camps from motor cars in which as many as 25 persons were killed and many more injured. A number of F.I.Rs. Were lodged ~a concerned police stations which included, amongst others, the F.I.Rs. In present two cases. In F.I.R. Criminal No.150 of 1990 which was lodged on 23-8-1990 at 4-OCI a.m. By Muhammad Khalid at Pak Colony, Police Station, it was alleged that at about 9-15 p.m. On the previous night four unidentified persons fired from a car with Kalashnikovs in Rexor Colony and killed 2 persons and injured seven. F.I.R. Of Crime No.240/1990 was lodged by S.H.O. Ashfaq Ahmed at Temooria Police Station on 23-8- 1990 at 4-00 p.m. On behalf of the State, alleging that he had learnt that on 22-8-1990 between 5 and 6 p.m. Unknown persons opened fire with automatic weapons at M.Q.M. Camps at Five Star Chowrangi and killed one person and injured few persons. 3. Investigations were carried in all the cases separately at as many as eight police stations by the various S.H.Os. On 24-12-1990, co-accused Zahid Saeed was arrested on spy information, by Inspector Rasheed Butt of Saddar Police Station from a car in Sindhi Muslim Housing Society in Crime No.342/1990: He was interrogated by the police. His statement under section 161, Cr.P.C.
---
## Page 2
Which was recorded on 4-1-1991, mentions that a criminal conspiracy was hatched on 21-8-1990 at a meeting held in Bilawal House, wherein Asif Ali Zardari, Bashir Baloch, Ebrahim alias Bholoo, Munawar Hussain Seharwardi Shahnawaz Junejo, Ghulam Rabbani, Masroor Ahsan, Manzoor Wasan and Zahid Saeed participated, and wherein it was decided that the reception camps set up by M.Q.M. Should be attacked and indiscriminately fired at. On account of involvement of such important political leaders C.I.A. And military intelligence also participated in the investigation. On 26-1-1991 in consequence of further interrogation, statement under section 161, Cr.P.C. Of accused Zahid Saeed was recorded in Crime No.706/1990 of Ferozabad Police Station, in which he named the applicant and co-accused Salimuddin alias Silloo as additional participants in the criminal conspiracy of 21-8-1990. Hence on 27-1-1990 judicial confession of Zahid Saeed was recorded by Assistant Commissioner and Section 30 Magistrate, Court NO.XII (South) Karachi. On 28-1-1990, 1-61 statement of Salimuddin alias Silloo was recorded by the police and his judicial confession under section 164, Cr.P.C. Was recorded by A.C.M., Court No.XIII (East), Karachi. Both these co-- accused besides implicating themselves in the said criminal conspiracy also implicated the applicant, Syed Qaim Ali Shah, amongst others. The applicant was challaned by the concerned S.H.Os., in all those: cases on 27-1-1991. 4. On coming to know about his implication in the above cases the applicant obtained protective pre-arrest bail first from Rawalpindi, and then from Baluchistan High Court, Quetta. Thereafter he surrendered himself before the Special Judge (Suppression of Terrorist Activitive) Karachi for bail before arrest, but his applications were rejected and he was remanded to custody. Thereafter, the applicant filed four bail applications before this Court, which were granted by us though on different grounds. Now the applicant has filed these bail applications in remaining two cases. 5. We have heard Mr. Abdul Mujeeb Pirzada for the applicant and Mr. Aftab Ahmed Akhund, A: G. Sindh, for the State. It was contended by Mr. Pirzada, learned counsel for the applicant that the applicant's name does not transpire in the F.I.Rs. The prosecution case against the applicant hinges upon the judicial confessions of co-accused Zahid Saecd and Salimuddin alias Salloo, which have been retracted. According to him the said co-accused were kept at C.I.A. Centre, maltreated and coerced to make the judicial confessions. He further contended that Article 16 of the Qanun-e- Shahadat has been struck down by the Federal Shariat Court in the case of Arif Nawaz Khan v. The State PLD 1991 FSC 53 and, therefore, the judicial confessions of the co-accused could not be considered as evidence against the applicant. He submitted that even if it is believed that the applicant was present in the said meeting even then since it is not alleged that he had agreed to any decision or had taken part in the discussion and no overt act is attributed to him, therefore, he could not be held liable for criminal conspiracy. He further submitted that the applicant has taken plea of alibi as he was at the relevant time having meeting with Moulana Shah Ahmed Noorani. It is also contended that some of the alleged participants of the criminal conspiracy were, according to news items in the National Press, out of Karachi, on the relevant day. Thus, the judicial confessions are falsified in material particulars. 6. Mr. Aftab Ahmed Akhund, learned Advocate-General, Sindh, appearing for the State, has vehemently opposed the grant of bail to the applicant and has contended that the applicant and the co-accused had strong motive to create law and order situation as they were carrying on a fascist movement for the last about ten years and had actually succeeded in capturing power in the country for about 20 months and were again after the same by terrorist activities and unlawful means. In this regard he drew attention of the Court to the various allegations and charges levelled by the President of Pakistan against the Government of Benazir Bhutto and decision of the F.B. Of this Court and the Lahore High Court confirming and upholding the same. Besides the above circumstances there was evidence that the above indiscriminate firing at the reception camps was done by workers of P.S.F. Which is a subsidiary of P.P.P. Who were identified on the spot and
---
## Page 3
named in one of the F.I.Rs. Two workers of P.S.F. Viz. Zahid Saeed and Salloo have given judicial confessions implicating the applicant, while other workers of P.S.F. Viz. Baddi, Tipu and Rufi had given judicial confessions corroborating the above. Hence the above judicial confessions are corroborated in material particulars and can be made a basis for conviction of the applicant. He has further contended that since the cases, have not yet proceeded, it will be premature to consider the defects of the judicial confessions made by the co--accused or the plea of alibi. At this stage it cannot be said that there are no reasonable grounds to believe that the applicant is not guilty of a scheduled offence. In support of his contention he has relied upon a recent decision of a D.B. Of this Court in the case of Asif Ali Zardari v. The State 1991 P Cr. L J 595. 7. These offences had taken place on 22-8-1990 at about 6-00 p.m. As many as 25 persons were killed and over a hundred persons were injured. The F.I.Rs. Were lodged in four cases on the same day and in the remaining cases on the next day. In one of the F.I.Rs. The first informant Syed Salman gave the names of culprits as Zahid, Sharif, Khalid Dalmia, Danish and Saood. Immediately on the next day Syed Salman gave further statement wherein he stated that the correct name of Zahid Sharif was Zahid Saeed, while the full name of Danish was Ramzan Ali Danish. As many as seven eye-witnesses namely, Syed Saleman, Musarrat Ah, Kalim Ahmed, Ishrat Ali, Anwar Ali, Muhammad Wasim and Nifasat Ali, who have received injuries also claimed to have seen and identified the above persons firing at the reception camps. Their 161, Cr.P.C. Statements were also recorded on 23-8-1990. The police was in search of Zahid Saeed and the other culprits named in the F.I.R. S.H.O. Athar Rasheed Butt of Saddar Police Station succeeded in arresting Zahid Saeed on 24-12-1990, while he was going in a car in front of Mehran Clinic in Block `A' of Sindhi Muslim Housing Society. Zahid Saeed, who was a P.S.F. Worker, was being interrogated by the officers of Saddar Police Station, till, for the first time, on 4-1-1991, he stated before the investigating officer that the offence was committed by him in pursuance of a criminal conspiracy hatched by some top leaders of P.P.P. Including Asif Ali Zardari, the husband of the Ex-Prime Minister of Pakistan, Ms. Benazir Bhutto. It was, therefore, decided to obtain the co-ordination of C.I.A. And Army intelligence in the investigation of the case. There after, co-accused Zahid Saeed was further interrogated bar the C.I.A. And Army Intelligence Agencies as well. On 16-1-1--91, "after interrogation, 161, Cr.P.C. Statement of co- accused, Razi Haider Jafri alias Yaddi, was recorded, who disclosed that Saleemuddin alias Salloo was also involved in this case. On 26-1-1991 judicial confession of Razi Haider Jan alias Baddi was recorded under section 164, Cr.P.C. On 26-1-1991 after interrogation coaccused Saleemuddin alias Salloo's 161, Cr.P.C. Statement was recorded in (rime No. 706 of 1990 of Ferozabad Police Station. He named the applicant. On the same day after further interrogation co-accused Zahid Saeed's 161, Cr.P.C. Statement was also recorded by the same investigating officer. He also named the applicant. On 27-1-1991 judicial confession of Zahid Saeed, and on 28-1-1991 judicial confession of Saleemuddin alias Salloo, were recorded, which are self-implicating and in which both of them have implicated the applicant. On 28-1-1991, judicial confession of Anis-ur-Rehman alias Tipu was recorded, who implicated himself as well as a number of co--accused. On the same day judicial confession of Ahmed Ilyas alias Rufi was recorded. Looking to all these pieces of evidence it is not difficult to conclude that there are reasonable grounds to believe that the applicant is guilty of scheduled offences. The allegation against the applicant is under section 120-B. P.P.C. It is not proper at this stage to embark upon deep appreciation of the evidence in such a case. Necessary proof that is required to bring home: a charge of criminal conspiracy, was discussed in the case of Amiruddin v. The State PLD 1967 Lah. 1190, which was also referred with approval in the case of Asif Ali Zardari v. The State (supra) and is reproduced as under:-- "28. The learned Assistant Advocate-General whom I heard on this aspect of the case submitted that it is very seldom that there is direct evidence available with regard to conspiracy. It is a matter of inference from the sequence of circumstances and if an inference from those circumstances
---
## Page 4
can legitimately be drawn that privity between the persons concerned existed to commit an offence to achieve an object by unlawful means, the offence of conspiracy will be said to have been proved. In this connection he referred to the case of Reg, v. Duffield and others Cox's Cr.L.C. 404, where the nature of the offence of conspiracy was described in the following words:-- ---In these cases the essence of the offence is the combination to carry out an unlawful purpose and the unlawful combination and conspiracy is to be inferred from the conduct of the parties. If several persons take several steps, all tending towards one obvious purpose, it is for to the jury to say whether those persons had not combined together to a: bring about that end which their conduct so obviously appears adopted to effectuate'." 29. Reference was also made by the learned Assistant Advocate-General to the following cases:-- Punjab Singh Ujagar Singh v. Emperor AIR 1933 Lah. 977 Benoyendra Chandra Pandey v. Emperor AIR 1936 Cal. 73, Goloke Behan Takol and others v. Emperor AIR 1938 Cal. 51 and Keshabdeo Bagat v. Emperor A 1 R 1945 Cal. 93. In the Lahore case, referred to above, it was held that though the essence of the offence of criminal conspiracy is agreement between two or more persons to commit an offence or do any of the acts mentioned in section 120-B in the matters described therein, the finding of criminality in such cases is a matter of inference deduced from the acts of persons concerned, done in pursuance of an apparent criminal purpose in common between them. In the three Calcutta cases, referred to above, it is also laid down that the guilt in a charge of conspiracy is to be inferred from facts and circumstances proved before the Court. Mian Aslam Riaz Hussain, also referred to Dur Muhammad and another v. Emperor AIR 1934 Sindh 57, wherein it was held that the 18 prosecution cannot be called upon to prove as to when a conspiracy started and when it ended because this must be in the exclusive knowledge of the conspirators themselves. The principle that emerges out of the above authorities is that an agreement as referred to in section 120-B, P.P.C. Is to be inferred from the facts and circumstances of each case. The offence of conspiracy by its very nature is secretive and surreptitious, and if a rule of evidence, as canvassed by the learned counsel for the appellants, is laid down to the effect that an agreement as referred to in section 120-B, P.P.C. Is to be positively proved, the proof of conspiracy would become impossible. I, therefore, find that there is no force in the contention raised by the learned counsel for the appellants and hold that the appellants have lay been rightly convicted under section 120-B, P.P.C. Notwithstanding the absence of positive proof of agreement." The case of Asif Ali Zardari v. The State (supra) is almost identical to the present case. In that case also as is in the present case, the value of two confessional statements of the co-accused, was challenged by the applicant on similar grounds and it was contended that the same cannot be used against the applicant. Reference is also made to the well-known case of Zulfikar Ali Bhutto v. The State PLD 1979 SC 53. The following observations thereof are reproduced with approval:-- "125. A perusal of the facts and observations appearing in these cases, however, does not fully support the learned Special Public Prosecutor, as there is in fact no departure from the basic definition as given by the Privy Council in the case of Pakala Narayan Swami already referred to namely, `a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence'. I find it difficult to adopt or follow any observations to the contrary appearing in these judgments, in view of the clear enunciation of the law by the Privy Council, which is fully in accord with the terms of section 30 of the Evidence Act. The principle underlying the section is that the consequences of self-implication in an offence afford some sort of guarantee for the truth of the statement, and when the maker of such statement also implicates another prisoner it is very difficult, if not practically impossible to require the Court to exclude that
---
## Page 5
statement altogether from its mind when it comes to consider the case against the other accused An admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. These considerations, however, do not apply when the question is whether statement partly inculpatory and partly exculpatory should be used against the maker thereof. In his case, even if the statement does not amount to a confession in the full sense of the term, it could still be used as an admission against him." The case of Arif Nawaz Khan v. The State PLD 1991 FSC 53 is distinguishable from the present case. It only lays down the rule that Hadd cannot be imposed on the basis of a confession of a co- accused. It clarifies that Tazeer can be inflicted on the basis of the confession of a co-accused. Similarly in the unreported decision of Federal Shariat Court in Shariat Petitions Nos. 17/1 of 1989, 3/1 of 1990 and 2-K of 1991, no doubt, it was held that the evidence of an accomplice to whom pardon was tendered was inadmissible also in offences punishable with Qisas, but it was provided that this was so only when there was no corroborative evidence. Hence there is no justification for relying on this report for discarding the confessional statements referred to by the prosecution, which were made by the co-accused implicating the applicant. Contention of the applicant's counsel that in order to establish criminal conspiracy against a person, mere association of such person with others, who were involved in the conspiracy is not enough, is not correct, particularly, when there is evidence to show that he had participated in the meeting dated 21-8-199(1, which was held at Bilawal House. Apart from that it is the settled law appearing from the cases cited above that criminal conspiracy is to be inferred from the facts and circumstances of the case, The conspiracy presupposes by its very nature that it is secret and surreptitious and if a rule of evidence is laid down that it should be positively proved, then proof of conspiracy would become almost impossible. If several steps are that the applicant is guilty of a scheduled offence taken by several persons, tending towards one obvious purpose, it can be presumed that those persons had combined together to bring that end which their conduct obviously appears to attain. Hence, I am of the clear view that it can be said with certainty that there appear reasonable grounds to believe On going through the police papers of the remaining four crimes it was found that indiscriminate firing was done on the same day near about the same time at four other places on the M.Q.M. Camps and a number of persons were killed and injured. The eye-witnesses in two of those cases i.e. Crime Nos.303 of 1990 and 304 of 1990 of Arambagh Police Station, Karachi claimed to have identified four accused namely, Rashid Rabbani, Ilyas Tanveer. Zahid Saeed and Ghulam Muhammad, driving the said car and firing at the camps. The Investigating Officer in two of these cases, however, expressed the opinion that the judicial confessions given by co-accused Zahid Saeed, Saleemuddin and others were false, as these were inconsistent with the statements of eye- -witnesses in material particulars. In these two cases the applicant is not challaned. He is challaned in Crime No.150/1990 of Pak Colony Police Station and Crime No.240/1990 of Taimuria Police Station on the basis of judicial confessions of the co-accused Zahid Saeed, Saleem alias Sillo, Razi Hyder, Bilal Ahmer and Tipu. These two bail applications pertain to these crimes, which are being tried jointly with the first four cases referred to initially. Even after going through the police papers of these four cases, it cannot be said that there are no reasonable grounds to believe that the applicant is not guilty of a scheduled offence. Now I would advert to another aspect of this case. It will not be out of place to refer to the latest judgment of Supreme Court in the case of Allied Bank Ltd. v. Khalid Farooq 1991 SCMR 599 where it was held that relevant provisions of Offences in Respect of Banks (Special Courts) Ordinance, 1984 were almost the same as those of Suppression of Terrorist Activities (Special Courts) Act, 1975. It was, thereafter, held that the provisions of 1st proviso to subsection (1) of section 497 of the Code would not be available to Special Court for the accused of a scheduled offence under the
---
## Page 6
Ordinance. The position of the 3rd proviso to subsection (1) of section 497 of the Code is somewhat nebulous. The possibility of its application through section 561-A of the Code cannot be totally excluded. It was further held that the provisions of subsections (2) to (5) of section 497 of the Code would not stand excluded and it is not possible to subscribe to the view that subsections (5) and (6) of the Ordinance constitute a complete code for grant of bails to person accused of scheduled offence. It is evident from para. 19 of this report, which is at pages 620 and 621 that the question whether bail can be granted by this Court on the ground of illness by resort to section 561-A, Cr.P.C., has been left open. Even in the case of Asif Ali Zardari v. The State (supra) it was held that the High Court can grant bail to an under trial prisoner, on the ground of old age, sickness and infirmity. Reliance in this behalf was placed by the Division Bench in, inter alia, one of us (Syed Abdur Rehman, J's) decision, in the case of D.S.P., Larkana v. Mumtaz Ali Bhutto 1958 P Cr. L J 195 in which it was held that section 5(6) of Suppression of Terrorist Activities Act does not place an absolute bar against allowing bail to persons charged with scheduled offences. Even in a case in which there are reasonable grounds to believe that accused is guilty of a scheduled offence, a Special Court can allow bail to him on the ground of old age, sickness and infirmity. The case was taken to inter- Court appal and this order was upheld by the Division Bench. The same view was reiterated by the same D.B. Of this Court in Aftab Ahmed Shah v. The Stag 1989 P Cr. L J 112. Even the honourable Supreme Court has granted leave in Criminal Petition for Leave to Appeal No.11-K of 1991 to consider whether High Court can grant bail in such a case on medical ground, as an authoritative pronouncement is necessary in view of the conflicting views on this point. The findings of the Special Medical Board constituted by the Government of Sindh for the examination of applicant Syed Qaim Ali Shah read as under:-- "The Special Medical Board constituted vide M.S. Letter No.C&R (CH)90-91/111200/07, dated the 24th July, 1991, under the chairmanship of Dr. Muhammad Abbas Khan, Acting Medical Superintendent, Civil Hospital, Karachi, met in the office of the Professor Medical Unit-1. Civil Hospital Karachi, with the following Members of the Board for the examination of the U.T.P. Syed Qaim Ali Shah on 25-7- 1991 at 12-30 p.m.:-- (1) Professor MA. Almam, Professor of Medicine, Medical Unit-I, D.M.C. & C.H.K. (2) Professor Kishwer Nazli Mehmood, Professor of Surgery, Surgical Unit-III, D.M.C. & C.H.K. (3)Professor Matin Ahmed Khan, Professor of Radiology, D.M.C. & C.H.K. The U.P.T. Syed Qaim Ali Shah was examined at 12-30 p.m. By the abovesaid Board under the chairmanship of Dr Muhammad Abbas Khan. The Board finds that U.T.P Syed Qaim Ali Shah has lost his weight about 10 Ibs. His B.P. 130/90 m.m.g. Pulse .90 permanent and regular. He has tender right mastoid with discharging right ear. He is tender in the right hypochondriun and opgastrich region and right ilic fossa. In view of the above findings Board feels that he may be immediately hospitalised for the urgent investigations and treatment. (S.1. 25-7-1991) (Dr. Muhammad Abbas Khan, Chairman.
---
## Page 7
(Sd.)(Sd.) (Professor MA. Almani),(Professor Kishwar Nazli Mehmood), Member. Member. (Sd.) (Professor Matin Ahmed Khan), Member." Accordingly the applicant was admitted in Medical Unit-V, Dow Medical College and Civil Hospital, Karachi. Report of the medical examination reads as under:-- "According to the E.N.T. Surgeon, Mr. Shah is suffering from chronic suppurative otitis media right with perforation. He has deafness which is more of conductive type. He has some perceptive loss too. He is also suffering from deviated nasal septum right and nasal allergy. He has some degree of sinustitis and pharyingitis too. He has been put on medical treatment. If medical treatment will not imporve his condition then surgery will be recommended. The General Surgeon has reported as follows:-- (1) Oral cholecystogram of 15-8-1991 shows a solitary opaque gall bladder calculus (stone) with functioning gall bladder. The stone requires treatment as it is giving him symptoms. To cure him permanently and to avoid any complications due to chole-lithiasis in future, it should have surgical treatment.---. As it is not giving any acute complication it can be treated conservatively at the moment to relieve his symptoms. (2) He also shows reflux oesophagitis in his Endoscopy report. He should be treated for that." The applicant is still hospitalised. He has not been operated upon as yet. We, are, therefore, satisfied that…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.