2002 P Cr (PLP)

Mian Muhammad Bashir, A.A.‑G. for Respondent. Date of hearing: 8th June, 2001. The facts giving rise to the present writ petition are that one Muhammad Afzal step‑son of the petitioner had been arrested in a false case F.1.R. No.70 of 2000, dated 9‑4‑2000 under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Zahir Pir District Rahim Yar Khan and remained under police custody till 16‑3‑2001. During physical remand, the said accused person was tortured and severely maltreated; by the police headed by Zahoor Rabbani, S.H.O. as a result of violence by the police, Muhammad Afzal accused died in custody. The police torture on the victim had been witnessed b; four persons, namely, Muhammad Tayyab, Shafique Ahmad, Ijaz Ahmed and Muhammad Tahir.

2. On this incident, the members and relatives of the family of the deceased, including the petitioner, had protested against the murder of their beloved. They first approached the higher Police Officers and administration as well as the, Army Monitoring Cell but all in vain. They also sent numerous applications to the Chief Executive and other concerned authorities, so as to their misfortune no positive step was taken in this direction by those who are at the helm of affairs.

3. In the state of disappointment, on 17‑4‑200 petitioner and other person of localities men, women, children had assembled on the KLP roadside raised slogans against the police and the administration and burnt tyres on the road ‑just to attract the concerns for redressal of their grievance of registration of criminal case about the murder of Muhammad Afzal at the hands of the police employees.

4. The Inspector S. H. O. Zahopr Rabbani sent a writing to the Moharrir of the police station, who on receipt of this writing, registered a case F.I.R. No. 124 of 2001 under sections 148, 149, 341, 431, 186/188 and 506, P.P.C. read with section 16 of M.P.O. The quashment of the abovesaid criminal case has been sought through the instant writ petition.

5. Learned counsel for the petitioner has contended that from the contents of the F.LR no offence against the petitioner and others is made out and case is registered malafidely just to pressurize the relatives and family members of the deceased to make the issue of death of the deceased as dead. He further contended that the mens rea which is essential requirement to constitute an offence is missing in the case.

6. On the other hand, learned Law Officer has vehemently opposed arguments of the learned counsel for the petitioner

7. I have heard the arguments of learned counsel for the parties anxiously and` perused the record.

8. The allegation levelled by the complainant in the F.I.R. are that the persons nominated in the case, were standing, raising slogans against the police having Dandas and banners in their hands, who were asked to disperse but they threatened to the dire consequences and attempted to break the mirrors of the vehicles.

9. Before commenting upon the merits of the case, it would be useful for further reads reference to reproduce the relevant section of the P.P.C. "Section

186. Whoever, voluntarily obstructs any public servants in discharge of his public functions, shall be punished with imprisonment of either description of a term which may extend to three months or with fine which may extend to five hundred rupees," According to the language of the above section, a person is liable for punishment who obstructs a public servant in discharge of his public duties. The word "obstruction" would mean a positive act to interrupt the public servant from carrying on his public duties. It is a physical obstruction. Mere threat would not amount to obstruction. It must be A followed by overt act preventing a public servant from executing his duty. As laid down in case of Emperor v. Babulal Munilal AIR 1936 Nag. 86, wherein it is settled that obstruction in section 186, P.P.C. is meant physical obstruction. No evidence has been collected by the Police to the effect that any of the accused persons named in the F.I.R., has physically obstructed or wrongfully restrained the police functionaries in discharging of their duties and the people from proceeding The only mentioning in the F.I.R. that they have h threatened for dire consequences, is not sufficient to constitute the offence under sections 186 and 341, P.P.C "Section

341. Whoever wrongfully restrains any person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both." Where it is not disclosed, that a human body was obstructed and that the obstruction was only to vehicle and passage was common to both thus no offence would be committed under section 341, P.P.C. "Section

431. Whoever commits mischief of doing any act, which renders as which he knows to be likely to render any public road, bridge navigable river or navigable channel artificial impassable or less safe for travelling or conveying property, shall be punished with imprisonment of either description for a term which may extend to five years or with fine or both."

10. To prove the mischief under the above section, it is necessary to prove that the mischief was committed there must be evidence of intention to cause wrongful loss or damage or knowledge of the wrongful loss or damage likely to be caused. "Section

506. Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both." The criminal intimidation has been defined in section 503, whoever threatens another person with any injury to his person reputation or property. It means that threat should be of an illegal act unless it was I to cause a person to do any act which he was not legally bound to do or omit to do any act which that person is legally bound, the provision of section 503 would be inapplicable as observed in case of Darya Khan and 3 others v. The State 1988 PCr.LJ 1560.

11. There is no record available to establish that the section 144 has been imposed by the Magistrate, the violation of which had been done by the accused persons. The next feature of the case is that no offence can be constituted if "mens rea" in the commission of the offence is not proved. There is no evidence with the police that the I number of accused persons actually intended to commit the said offence and the poor people only were aggressive of the murder of that person Muhammad Afzal deceased for whose death no responsible person in authority had taken any notice. The road had not been blocked by those people, in any manner, the burning of tyres on the road would not mean that the road was blocked or the vehicle had been restrained or stopped by them. They were protesting in peaceful manner. The complainant has not stated in the F.I.R. that they have F taken the law into their hands. Had the agitators any intention to cause any loss to the vehicie or to police official in any manner they could do easily but thank God nothing bad happened at the alleged place of occurrence and the argument is supported from the contents of the F.I.R. itself wherein the complainant has lastly stated that:‑‑ It woul suffa to prove that the agitators have no such intention to create the law and order situation and commit any of the above offences. Among the gathering, there were 25 poor and illiterate l simpleton bodies who can weep and cannot violate the law. There is G also no evidence with the police to establish the activities of the accused prejudicial to public safety or maintenance of public order under West Pakistan Maintenance of Public Order, 1960.

12. The case has been registered against the poor and helpless villagers by the police malafidely only to save their side as counterblast. This being the state of law and the circumstances. I am constrained to quash the case F.I.R. No.124 of 2001 under sections 148, 149, 341, 431, 186. 188 to 506 and section 16 of Maintenance of Public Order registered at Police Station Zahir Pir, District Rahimyar Khan against the petitioner, etc. Resultantly, the writ petition is accepted and abovementioned F.I.R. is quashed . JAM/R‑94/LF.I.R. quashed. --‑‑‑‑‑‑‑‑‑