2017 PLP 1665 (YLR)

MALIK HAQ NAWAZ, J.

The petitioners were booked for the offence under sections 188/341/295-A/298-A, P.P.C. read with 6/7 of Anti Terrorism Act 1997 vide FIR No. 34/2016 dated 28-10-2016 registered at Police Station, Danvore, Gilgit.

2. The brief facts of the case are that on 26-10-2016 the petitioner and about one hundred other persons took out a procession in violation of an agreement with the local administration and chanted slogans. The act of the petitioners as per version of complainant was not only security risk putting the lives of the people in danger but it created law and order situation in the area and the complainant prayed that the culprits be dealt with in accordance with law.

3. After completion of investigation the petitioners were committed to judicial lock up.

4. The petitioners applied for post arrest bail in the Court of Anti Terrorism Gilgit, which was declined vide order dated 22-11-2016 and feeling aggrieved from the said order/judgment, the petitioners have approached this Court for concessions of bail.

5. The learned counsel for the petitioners submitted at bar that the case is false and have been registered maliciously just to show an authority and efficiency, and the mala fidies of local police and administration are evident from the imposition of sections 6/7 ATA in the instant case. Per learned counsel the imposition of sections 6/7 ATA against the law abiding citizen is sheer abuse of authority. The learned counsel further submitted that FIR has been lodged without following the mandatory provisions of section 196, Cr.P.C., thus the case of the petitioners has become a case of further inquiry. Per learned counsel all the remaining penal sections are bailable, therefore, the petitioners may very kindly be admitted to bail.

6. On the other hand the learned Dy. Advocate General opposed the petition and submitted that the petitioners/accused are directly charged in the FIR and offences are heinous in nature. The act of the petitioners was designed to create law and order situation in the area, which tendency must be dealt with severely and bail should not be allowed to such like criminals.

7. We have heard the parties at length and have perused record of the case with their able assistance. The learned Advocate General at the very outset was asked to satisfy us regarding imposition of section 295-A, Cr.P.C. in the FIR without resorting to the mandatory provisions of section 196, Cr.P.C. The learned Dy. Advocate General stated that in view of the section 30 of Anti-Terrorism Act, 1997 which has an overriding effect, no sanction was required to register a FIR under section 295-A, Cr.P.C. The learned Dy. Advocate General further submitted that as provided in section 19 of Anti-Terrorism Act, if no section is received within 30 days, it would be deemed that sanction has been accorded. We are afraid such a plea cannot be entertained. No doubt Anti-Terrorism Act, 1997 is a special law, but in the Court of Anti-Terrorism. The procedure for regulating the criminal proceeding is derived from Cr.P.C. The proposition that no sanction was required for registration of case under section 295-A, Cr.P.C. was misconceived. For the purpose of ready reference section 196, Cr.P.C. is reproduced as under:--

196. Prosecution for offences against the state. No Court shall take cognizance of any offence punishable under chapter VI 19[or IXA] of the Pakistan Penal Code (except section 127), or punishable under section 108-A, or section 153-A or section 294-A,20 [or section 295-A] or section 505 of the same code, unless upon complaint made by order of or under authority from 1[the 2[Federal Government], or the provincial Government concerned, or some officer empowered in this behalf by either of the two Governments].

8. The provisions of section 196, Cr.P.C. are mandatory in nature and non compliance has brought the case of present petitioners within the compass of further inquiry under section 497(2), Cr.P.C. and when a case becomes a case of further inquiry an accused can claim bail as a matter of right and not as a grace or concession.

9. In view of above the petitioners are admitted to bail subject to furnishing of bail bonds in the sum of Rs.500,000/- (Five lac only) with two solvent sureties in the like amount to the satisfaction of trial Court. WA/251/GB Bail granted.