P L D 2015 Sindh 20 (PLP)

Laws Cited

Representation

• ----S. 498---Penal Code (XLV of 1860), Ss. 353, 452, 324, 427, 341, 109, 188, 148, 228, 395, 511, 342, 352 & 120-B---Anti-Terrorism Act (XXVII of 1997), S. 7---Assault or criminal force to deter public servant from discharge of his duty, house-trespass after preparation for hurt, assault or wrongful restraint, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, wrongful restraint, abetment, disobedience to order duly promulgated by public servant, rioting armed with deadly weapons, intentional insult or interruption to public servant sitting in judicial proceedings, dacoity, wrongful confinement, assault or criminal force otherwise than on grave provocation, criminal conspiracy, acts of terrorism---Interim pre-arrest bail, confirmation of---Case of mere abetment not backed by any strong evidence-Proving abetment, instigation or conspiracy--- Scope---Accused was a losing candidate in the general elections and allegation against him was that he sent protestors to attack Returning Officer, Assistant Returning Officer (judicial officers) and the court staff so as to get the election results changed in his favour---Contents of F.I.R. reflected that complainant/Assistant Returning Officer was not aware of any conspiracy regarding the protesters and he was informed of the same by an advocate, who did not disclose his source of information---Accused was also not shown to be present at the spot---Case against accused was that of abetment, punishable under S.109, P.P.C---To prove abetment or instigation or conspiracy against any person, it was obligatory upon the prosecution to collect and produce strong and inspiring evidence, but in the present case no detail of hatching conspiracy by accused was mentioned in the F.LR. nor names of persons before whom alleged conspiracy was hatched was discovered during investigation-Unless present matter was tried by the court to ascertain guilt of main accused persons, the charge of abetment could not be proved---Case was one of further inquiry--- Interim pre-arrest bail already granted to accused was confirmed in circumstances.
• FAROOQ ALI CHANNA, J.---Through this Bail Application the applicant Khalid Ahmed Khan Lund seeks pre-arrest bail as he apprehends his arrest with ulterior motives at the hands of police in F.I.R. No. 80 of 2013 at Police Station Ubaro, District Ghotki, lodged by complainant Muhammad Islamul Hague Arain, IInd Civil Judge and Judicial Magistrate, Ubaro that he was appointed as Assistant Returning Officer for constituencies NA-200 and PS-7 to conduct the general election scheduled on 11-5-2013. Mr. Qadir Bakhsh Lohrani, Additional District and Sessions Judge was the Returning Officer. Applicant Khalid Ahmed Khan Lund was one of the contesting candidates for NA-200 whereas Shaheryar Shar and Abdul Khaliq Samejo were the contesting candidates for the seats of Provincial Assembly, P.S. 5 and P.S. 7. They could not succeed the election, such preliminary results were announced on 12-5-2013, consolidations whereof were made on 13-5-2013. It is further alleged that on 14-5-2013 complainant Isamul Haq Arain and Mr. Muhammad Sharif Buriro, Senior Civil Judge, Ubauro along with Court staff were performing their official duties and conducting the judicial proceedings when at about 10.30 hours they were informed by the Court staff and the police personnel deployed in Court premises that some persons duly armed with weapons have entered in Court premises, they are also calling other people saying that the Judges are available in Court. The complainant ordered the police to oust the said persons. In the meanwhile about 2000 to 3000 armed persons encircled the Court building and directed the advocates and the litigant public to exit from the Court premises saying that they will kill the Judges, set the Court building and the record on fire, they shall also get the results of election changed. Both the Judges and their staff on hearing such commotion and threatening slogans ran away from Court premises and by scaling the walls took shelter in the houses of neighbors. The Court staff also took shelter in the old Court building. Some of the persons came at the houses of neighbors and started firing, the ladies entreaties them in the name of Almighty Allah and told them that the Judges are not there. Some of the persons ruthlessly beaten Muhammad Ishaq advocate, Allah Dino advocate, Muhammad Mubarak Malik, advocate and snatched their valuables. Meanwhile S.H.O., Police Station Ubauro, SSP Ghotki along with their staff and Rangers personnels came and rescued them and controlled the riot which continued for three hours. It is further alleged that Shaheryar Khan Shar was leading the procession of 33 persons named in the F.I.R. and 2000 to 3000 unknown persons, such news was telecast on electronic media which spread fear throughout the country. It is further alleged that Muhammad Ishaq Abbasi, advocate informed the complainant that Khalid Khan Lund (present applicant) and Shaheryar Shar the runner ups candidates in collusion and connivance with each other and under some conspiracy arranged the procession and sent the armed persons to cause loss to government's Court building, burn the election record, change the election results and attack upon the Judges in order to commit their murder which act comes within the meaning of terrorism.
• 2. Mr. Zamir Ghumro, Advocate while arguing the matter has referred to the cases of (Imam Bux alias Amoo and another) PLD 2012 Sindh 212 and (Sheroo and others v. The State) (sic) YLR 1383, authored by one of us (Mr. Muhammad Ali Mazhar, J) and has contended that in the above cited cases the bail was granted to the applicants observing that the names of the applicants were not mentioned in the F.I.R. and the police party had mentioned in the F.I.R. they can identify the said persons if see again. The above cited cases are not applicable to the instant case as in the aforesaid cases besides the plea taken by the learned Counsel for the applicant, the bail was granted to the accused persons as their names were disclosed by the police witnesses in their statements under section 161, Cr.P.C. recorded after two days of lodging of F.I.R. though the features and description of the accused persons were not disclosed in the F.I.R. Their identification test was also not conducted before the Magistrate. Learned counsel has further relied upon cases of (Muhammad Saleem v. State) 1999 Pakistan Cr. Law Journal 1315, (Muhammad Arshad v. State) 2012 Pakistan Cr. Law Journal 1181, and (Ahmed Sharif and others v. The State) 2012 Pakistan Cr. Law Journal 882. All the above cited cases bears different facts and circumstances as that of this case therefore the said citations are distinguishable. Learned counsel has further contended that the applicant is a respectable citizen of the locality, he was elected MNA from N.A-200 three times and also held the office of Federal Minister. If he is arrested in this politically motivated false case, he will loose his dignity and reputation in the society. Learned counsel has further contended that admittedly the applicant was not present at the place of scene nor there is evidence of conspiracy or meeting of mind prior to the commission of offence. The police under the influence and at the behest of rival political ruling party has managed this false case against the applicant without any iota of evidence. Learned Counsel has further contended that as per F.I.R. P.W Muhammad Ishaq Abbasi, advocate disclosed to the complainant that the procession was arranged and people were sent by the applicant but the said PW in his statement under section 161 Cr.P.C. has categorically stated that he had not seen the applicant Khalid Khan Lund at the place of incident as such the case is of further inquiry.
• 4. We have heard the arguments and perused the record. Before proceeding ahead, we are clear in our minds that the attack upon the judges and other public servants performing their official duties who saved their lives by scaling the walls took shelter in the houses of neighbors, causing the destruction of the Court building and its record is an extreme act of terror punishable under section 7 of Anti-Terrorism Act and the persons involved in such offenses deserve no leniency if tangible evidence is collected during the investigation. However, the case of present applicant is on different footing as that of co-accused persons who have been nominated in F.I.R. with specific role of taking part in the commission of offence as alleged in the F.I.R. As per the contents of F.I.R. the sole allegation against the applicant is that one Mohammad Ishaque Abbasi, Advocate informed the complainant and Court staff that the protestors were sent by Khalid Khan Lund, as such at the most, the case against the applicant will, be of abetement, punishable under section 109 P.P.C. It is very easy to setup an acquisition of abetement, instigation and. conspiracy against any person, however, to prove the said] acquisition, it is obligatory upon the prosecution to collect and produce strong and inspiring evidence. In this case no detail of hatching conspiracy of th6 applicant is mentioned in the F.I.R. nor the names of the persons before whom conspiracy was hatched discovered during the investigation. The contents of F.I.R. reflects that complainant was not aware of any conspiracy being hatched for the commission of offence and he was informed by PW Muhammad Ishaque Abbasi Advocate that the protestors were sent by the applicant Khalid Khan Lund, but he did not disclose to the complainant the source of his information. It is pertinent to point out that the applicant along with five co-accused persons was allowed interim bail in Special Case No.17/2013 by the learned Special Judge ATC Sukkur, however, vide order dated 6th September, 2013, the bail order was recalled with the observation that the names of the applicants have been mentioned in the F.I.R. with specific role that they were present along with the mob, instigated and attacked upon the court premises. The above observations are contrary to the facts set up in the F.I.R. and the learned special judge while discussing the role or names of other persons failed to distinguish the case of present applicant whose name is not mentioned with any role except abetment in the commission of alleged offence.

Headnotes / Summary

Judgment & Decree