P L D 2013 Islamabad 66 (PLP)

SHAUKAT AZIZ SIDDIQUI, J.

Petitioner seeks pre-arrest bail, in case F.I.R. No.131 of 2009, dated 11-8-2009, offence under section 344/34, P.P.C., registered at Police Station Secretariat, Islamabad.

2. Brief facts are that complainant Ch. Muhammad Aslam Ghumman, Advocate Supreme Court of Pakistan, moved an application to S.H.O., Police Station Secretariat, Islamabad for registration of case but due to non-performance of statutory duty by the S.H.O., he preferred application under section 22-A, Cr.P.C. before learned Justice of Peace/District and Sessions Judge, Islamabad who entrusted the same to Mr. Muhammad Akmal Khan, Additional District and Sessions Judge, Islamabad, who allowed the application.

3. In compliance of directions issued by the learned Justice of Peace, police registered the above mentioned F.I.R. on 11-8-2009, with the following contentions:-- "That on 3-11-2007 General (R) Pervez Musharraf former President of Pakistan passed an illegal and immoral PCO against the honourable Chief Justice Iftikhar Muhammad Chaudhry and sixty (60) other honourable Judges of the superior courts of Pakistan. The honourable Judges were suspended from their positions and they were placed under house arrest for a period of five and a half months due to which they were unable to perform their judicial functions, and that the newly elected Government, under the premiership of Mr. Yousaf Raza Gillani, freed the judges during the first parliamentary session after which the President and Prime Minister restored all judges to their position of 2-11-2007. In this way, General Pervez Musharraf, through his illegal actions of 3-11-2007 destroyed the judicial system of Pakistan due to which public-at-large in general and lawyers community in particular went through mental agony and Pakistan defamed, world over."

4. Vide order dated 12-4-2013 petitioner was allowed ad interim bail with the direction to join the police investigation as and when required and to appear before the court for today's hearing.

5. Learned counsel for petitioner argued the case at great length, essence of his arguments is in following points:-- There is no individual grievance as Hon'ble Judges who allegedly were confined have not lodged the F.I.R. F.I.R. appears to be of public interest. Learned Additional Sessions Judge passed the order under section 22-A, Cr.P.C. without hearing the petitioner. Offence under section 344, P.P.C. is bailable. No order of confining the Judges was passed by the petitioner. Fixation of barbed wire was for the security of Hon'ble Judges. There is an inordinate delay in lodging the F.I.R. Proceedings of declaring petitioner as proclaimed offender are rarity. Complainant got the F.I.R. registered with mala fide intention and ulterior motives. Petitioner retired as Chief of Army Staff, remained President of Pakistan and at present head of a political party "All Pakistan Muslim League" (APML), therefore, entitled to relief as per his status. Petitioner surrendered before the court of law voluntarily and there is no apprehension of his abscontion. In support of his contentions, learned counsel for petitioner placed reliance on 2012 SCMR 70, 2013 PCr.LJ 394 and 2011 MLD

64. Learned counsel concluded his arguments with the prayer of confirmation of pre-arrest bail.

6. Conversely, learned Deputy Attorney General and complainant of the case, opposed the confirmation of bail on the following grounds:- Petitioner did not join the investigation as was directed by this court. There is sufficient material in shape of statements of 10 lawyers and number of other persons, supporting the content of F.I.R. Petitioner is a proclaimed offender, therefore, is not entitled for any discretionary relief. No mala fide has been pointed out against the complainant as well as local police which is basic ingredient of pre-arrest bail. The court has to appreciate the contents of F.I.R. and no section inserted by the local police. The complainant also placed reliance on the statement of petitioner published in the Daily "Jang" Rawalpindi dated 19th September, 2009 which reads as under:-- Learned D.A.-G. placed his reliance on case-law reported as 1990 MLD

204. I have heard the learned counsel for the parties and perused the record.

7. Bare perusal of the F.I.R. clearly suggests that local police did not insert the sections which are made out, from the contents of F.I.R. Confining Hon'ble Judges of superior courts and to stop them from the performance of their duties is not an ordinary act, rather it is an act of "Terrorism" as defined by sections 6(1)(b) and 6(2)(b)(g) (i) (m) of Anti-Terrorism Act, 1997. For convenience above provisions are reproduced herein below:-- "6. (1)(b).

The use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or 6. (2)(b).

involves grievous violence against a person or grievous bodily injury or harm to a person; (g) involves taking the law in own hand, award of any punishment by an organization, individual or group whatsoever, not recognized by the law, with a view to coerce, intimidate or terrorize public, individuals, groups, communities, Government officials and institutions, including Law Enforcement Agencies beyond the purview of the law of the land. (i) creates a serious risk to safety of public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life". From the above definition and contents of F.I.R., prima facie, offence under section 7 of Anti-Terrorism Act, 1997 is attracted, for which punishment may extend to imprisonment for life. Local police is bound under the law to insert the section which contents of F.I.R. suggest. On court question, the I.O. of the case informed that petitioner did not join the investigation, rather a telephonic message was conveyed that material shall be provided before the court. This act of petitioner is defiance of the court order and misuse of the concession of bail.

8. Learned counsel for petitioner failed to point out any mala fide on the part of local police or complainant. The act of the petitioner through which Hon'ble Judges of Superior Court were confined to their residences shocked entire nation more particularly community of lawyers. It is a matter of record that, this act of petitioner and his co-accused, spread fear in the society, insecurity amongst the judicial officers, alarm in the lawyers community and terror throughout the Pakistan. Moreover, this shameful act lowered the honour, prestige and status of the country, in the eyes of nations, spread over entire global face. From the contents of F.I.R., constituted offence fell within the prohibitory clause, petitioner also is a proclaimed offender as such cannot claim normal right of any accused under the statute. The basic ingredient of pre-arrest bail i.e. registration of case with mala fide intention, condition precedent to exercise discretion in favour of any accused, is also missing in the instant matter. Petitioner is specifically nominated in the F.I.R. and his person is also required for further investigation, therefore, request of pre-arrest bail of petitioner is hereby declined. He be taken into custody and dealt with in accordance with law. In forming my opinion, guidance has been sought from the cases reported as PLD 2009 SC 427, 2005 MLD 519, 2011 MLD 93, PLD 1974 SC 151, 2005 YLR 3133. MWA/83/Isl Order accordingly.