1995 PLP 544 (MLD)

Mr. Muhammad Aslam Bhatti, learned counsel for the applicant argued that the offences punishable under sections 121, 121‑A and 122 of P.P.C. were non‑cognizable and the F.I.R. in respect of said offences could not have been registered. It was next argued that prosecution of the applicant under the Act of 1974 was bad in law, in absence of the permission to be obtained from, the Federal Government or the Provincial Government or any authorised officer. Learned counsel for the applicant further argued that in prosecuting the applicant, the prosecuting agency has violated section 16 of the Act of 1974 that arrest of the applicant in absence of any warrant was bad, that no complaint by an authorised person has been filed against the applicant, that the F.I.R registered on 28‑9‑1991 is delayed by two years and lastly that any incriminating statement by the applicant made before police cannot be used against him. Learned counsel for the applicant cited the case of Muhammad Sadiq Umrani v. Government of Sindh and others PLD 1993 Kar.

735. Mr. Abdul Ghani Shaikh, learned AA.‑G. conceded that the offences punishable under sections 121, 121‑A and 122 of P.P.C. were non‑cognizable. He, however, argued that the offence punishable under section 13 of the Act of 1974 is a cognisable one. Section 13 of the Act of 1974 prescribes punishment for anti‑national activities. Section 13 of the Act, 1974 reads as below:‑‑‑ (1) Whoever

(a) takes part in or commits, or (b) advocate or abets, or attempts to advocate or abet, the commission of, any anti‑national activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine. (2) whoever, in any way, assists any anti‑national activity of any association declared anti‑national under section 3, shall be punishable with imprisonment for a term which may extend to five years, and shall also be liable to fine:' In respect of subsection (2) of section 13 of the Act, 1974 it may be noticed that the prosecution did not allege if Al‑Zulfiqar Organization was declared by the Federal Government under subsection (1) of section 3 of the Act, 1974 to be anti‑national association. In respect of subsection (1) of section 13 of the Act, 1974, it may be observed that there is nothing in the F.I.R.. to show that the applicant takes part in any anti‑national activity or commits such activity or Advocates or abets or attempts to advocate or abet the commission of any such activity. Even if the applicant has taken training in terrorism in India that does not bring his case within the ambit of section 13 of the Act, 1974. Moreover, there is nothing to show if sanction for prosecution of the applicant for the offence punishable under section 13 of the Act, 1974, has been obtained in terms of section 16 of the Act, 1974. In absence of such sanction, prosecution of the applicant for any offence punishable under the Act. 1974 is bad in law. Even otherwise perusal of the F.I.R. shows that the only evidence against the applicant is his own statement made before police that he had taken training in terrorism in India in 1989 and that he had taken oath for committing anti‑State activities against Pakistan as an active member of Al- Zulfiqar Organization. Such statement made before police, cannot be used against the appellant. Section 121 of `P.P.C. deals with a person waging war against the country. Section 122 of P.P.C. deals with a person collecting men, arms and ammunition or otherwise preparing to wage war against the country. Section 121‑A of P.P.C. deals with conspiracy to commit offence punishable under section 121 of P.P.C. There is no allegation in the F.I.R. if the applicant waged war against the country/State or if the applicant collected men, arms and ammunition to wage such war or if he entered into a conspiracy to wage such war. Even for proving such allegations the prosecution is relying on the statement said to have been made by the applicant before police, which cannot be used against him. In the situation discussed above, pendency of this case against the applicant, where there is no chance even one percent. of his conviction, would be abuse of the process of Court. For the foregoing reasons, we accept this application and quash the Criminal Case No.136 of 1991 pending against the applicant in Court of Judge, Special Court, Suppression of Terrorist Activities, Hyderabad; being outcome of F.I.R. No.81 of 1991 of P.S. Phuleli. N.H.Q./P‑306/K Proceedings quashed.