2018 P Cr (PLP)

ALI BAIG, J.

Through the instant bail petition the petitioner/accused namely Mir Nisar Hassnain Ramal seeks post-arrest bail in case FIR No. 17/2017 dated 03-8-2017, registered at Police Station Aliabad Hunza for the offences under sections 123-A, 124-A, 153, P.P.C. and section 11-E(4), A.T.A., 1997 at the instance of one Abdullah Shah , ASI, SHO Police Station Aliabad Hunza.

2. Precisely allegations against the petitioner/accused as narrated in the FIR are that petitioner/accused was placed in Schedule IV of Anti-Terrorism Act, 1997 and he was being monitored by the police. Recently the petitioner/accused has been sending detestable/objectionable messages against the State, Bureaucrats, Pak Army, Ulema/ Scholars of various Schools of thought through whatsapp messages by his mobile phone No.0355977363 and he has tried to provoke the emotions of people of Gilgit-Baltistan.

3. The learned counsel appearing on behalf of the petitioner/accused contended that the petitioner/accused is innocent and police have falsely implicated the petitioner/accused in this case. The learned counsel for the petitioner/accused further argued that sections of P.P.C. and Anti-Terrorism Act 1997 reflected in the FIR do not attract to the case of the petitioner/ accused as he has not sent any detestable/ objectionable messages through his mobile phone and neither the petitioner is a member of any proscribed organization. The learned counsel for the petitioner further argued that the FIR against the petitioner was lodged on 03-8-2017 but despite lapse of more than nine months the learned trial court has failed to conclude the case of the petitioner, in violation of mandatory provisions of Anti-Terrorism Act, 1997.

4. In support of his submissions the learned counsel for the petitioner has relied upon the following case laws/authorities of this Court and High Court:- i) Bail Petition titled Azer Ahmed v. The State. ii) Bail Petition titled Col. (Retd.) Nadir Hussain and others v. The State. iii) Bail Petition Ehsan Ali and others v. The State. The above mentioned bail orders have been passed by the Division Bench of this Court. iv) 2014 PCr.LJ

1084. 4(sic.) On the other hand the learned Dy. Advocate General vehemently opposed this petition by contending that the petitioner/accused has been sending detestable/objectionable messages through Whatsapp by his mobile phone and has tried to provoke feeling/emotions of peaceful people of Gilgit Baltistan. The learned Dy. A.G further argued that the name of the present petitioner/accused was placed in IV Schedule of Anti-Terrorism Act and despite that the petitioner has committed the offences mentioned in the FIR, therefore, the petitioner is not entitled for concession for bail. Concluding his arguments the learned State counsel argued that offences alleged against the petitioner in the FIR fall within the ambit of prohibitory clause of section 497, Cr.P.C.

5. We have carefully considered the submissions made by the learned counsel for the parties and perused the record as well as case laws relied upon by the learned counsel for the petitioner.

6. From perusal of record it transpires that the FIR against the accused/petitioner was lodged on 03-8-2017 and challan has been submitted in the court on 30-10-2017 after lapse of more than two months of the lodging of FIR. Whereas under section 9(1) of A.T.A., 1997 the Investigating Officer or JIT (Joint Investigation Team) was bound to complete investigation in respect of the case of the petitioner within thirty working days and forward a report under section 173, Cr.P.C., but the concerned I.O. has forwarded the challan/Police report on 30-10-2017 in utter violation of the above mentioned mandatory provisions of law which is fatal to prosecution's case. Moreover, under section 19 subsection (7) of Anti-Terrorism Act, 1997 the learned trial court is also bound to proceed with the trial from day to day basis and shall decide the case within seven days but in the present case challan/report against the petitioner/accused has been submitted in the trial court on 30-10-2017, but despite lapse of more than six months the learned trial court has failed to decide the case of present petitioner within the prescribed period and has violated the above said mandatory provisions of law.

7. From the perusal of record it transpires that till now the learned trial court has examined only two PWs and the learned special prosecutor has abandoned three PWs out of total 13 PWs. Now the learned trial has to examine 9 more PWs and next date of hearing has been fixed on 01-6-2018 for prosecution evidence. Thus there is no probability of case of the petitioner being concluded in near future and petitioner/accused cannot be detained in prison for indefinite period.

8. Furthermore, section 11-EE(IV) of A.T.A., 1997 was meant for the proscribed organization or members of proscribed organization but the present petitioner is admittedly not a member of proscribed organization. Prima facie the prosecution has placed name of the petitioner in Schedule IV of section 11-EE of A.T.A., 1997 with mala fide intention.

9. We have also perused the contents of messages send by the petitioner to various individual through his mobile phone and found that the petitioner has not forwarded any detestable message and neither has provoked the feeling/emotions of people of G.B nor has condemned the creation of the State and it sovereignty, hence the petitioner is entitled for concession of post arrest bail. Furthermore, case laws submitted by the learned counsel for the petitioner are identical to the case of the petitioner and have direct bearing on the case of the present petitioner.

10. For what has been discussed above, this petition is allowed and consequently the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in sum of Rs.500,000/- with two sound sureties each in the like amount to the satisfaction of the learned trial Court.

11. However, the observations made herein above are tentative in nature and the learned trial court will not influence from the aforesaid remarks/observations and shall decide the case of the petitioner strictly on merits after recording evidence of the parties. File. MQ/171/GB Bail granted.