2019 PLP 570 (MLD)

MALIK HAQ NAWAZ, J.

Since all the above captioned bail petitions involved almost all similar question of law and facts, thus, these are being disposed of through this single judgment. However, for ready reference a gist of the accusation contained in FIRs against each petitioner/accused are precisely given below:-- Cr. Misc No. 213/2016. Marook Shah v. The State.

1. The petitioner was placed in schedule IV, vide Notification No. SOH 24/2016-(5)-(S.IV) dated 07-04-2016. He was under surveillance, when found and detected in organizing BNF, which is a ban organization, headed by one Abdul Hameed, who is involved in anti State activities and is in self exile. Cr. Misc No. 214/2016. Niat Wali v. The State.

2. The petitioner was already arrested in FIR No. 40/2016, which was registered under sections 120 (B), 123-A, 124-A, 153-B, P.P.C., when during investigation he led to the recovery of some sophisticated arms/ammunition and the present FIR No. 37/2016 was registered against him under section 13, A.O. read with sections 6/7 ATA, 1997. Cr. Misc No. 160/2016. Muhammad Qayum Khan v. The State.

3. The petitioner was placed in schedule IV, and was under observation, when it was reported that he is involved in Anti-State activities and FIR No.29 of 2016 dated 18-08-2016, under section EE II-IV read with sections 6/7 ATA, 1997 was registered. Cr. Misc. No. 215/2016. Sanaullah v. The State.

4. The petitioner got subversive material booked from Rawalpindi for District Ghizer for onward distribution and the consignment was containing 42 cartons of books and pamphlets. These books were taken into possession by the local police and above FIR was registered against the petitioner. Cr. Misc No. 216/2016. Inayat Karim v. The State.

5. The petitioner was recipient of subversive material, which was booked from Rawalpindi by Mr. Sanaullah an accused of FIR No. 215/2016. The books/material was containing anti-State and hatred material against the State and integrity of Pakistan and FIR No. 40/2016 was registered against the accused. Cr. Misc No.28 /2017. Daulat Jan v. The State.

6. The petitioner is a key person in publishing the anti-State material and the books containing anti-Pakistan ideas. The books were published thousand in numbers and were booked from Rawalpindi to District Ghizer for their distribution in the area of Gilgit-Baltistan and the petitioner was booked in FIR No. 40/2016 dated 02-10-2016.

7. All the learned counsel for the petitioners argued their cases one by one and put forth their submissions for grant of bail to their respective clients. The arguments when summarize in brief could be reproduced as under:-- a. The cases registered against the petitioners are false and baseless and based on no evidence. b. The accusations are ill founded and there is no worth reliance evidence to link the petitioners with the alleged offences. c. The FIRs were lodged without resorting to the provisions of Section 196, Cr.P.C, thus all the further proceedings are illegal and without law full authority. d. The penal section imposed in the FIRs are not attracted from the bare reading of accusation leveled in FIRs. e. The petitioners are neither previous convicts nor have any criminal history at their credit. f. The bail cannot be withheld as a matter of advance punishment and the petitioners if acquitted after trial, their compensation would not be possible. g. The investigation is complete and the detention of the petitioners will not serve any useful purpose.

8. On the other hand the learned Dy. Advocate General refuted the arguments advanced by the contingent of defence lawyers. The learned Dy. Advocate General submitted at bar that all the petitioners are active members of BNF, which is headed by one Abdul Hameed, who is an active agent of Indian Intelligence Agency "RAW", which is not denied and cannot be taken lightly and concession of bail should not be extended to the petitioners/accused.

9. We have heard the learned counsel for the parties and perused whole record of the case. It is pertinent to mention that, it is not the case as simple as the learned defence counsel tried to build up. The offences registered under the provisions of Anti-Terrorism Act, 1997 are non-bailable and when a case is registered under a special law, it has to be dealt with on different parameters. Section 32 of Anti-Terrorism Act, 1997 has an overriding effect over all the other laws and needless to mention here that in case of an inconsistency between the general and the special law, the Special law will prevail. Material collected during investigation prima facie suggest that the petitioners are active members of BNF. Therefore, in order to constitute a prima facie case against them it was not necessary, that, what part has been played by each of them and who was the principal offender and who was an offender of a lesser degree, as such determination would tantamount to prejudice their case at this stage, when their trial has yet to take place. At this stage it is very difficult to ignore the accusation leveled against them by the investigation agencies against whom there is no ill will or malice ever attributed by the learned counsel for the petitioners. There is another factor, which tilted our mind against the petitioners. The act of petitioners falls within the definition of "FITNA" which has been termed graver offence than murder in various versus of "The Holy Quran". Some of these Holy verses are quoted below for ready reference:-- "It is inter alia for this reason that Allah abhors Fasad in the land and condemns those who create the same. Some of the Verses available in the Holy Qur'an on the subject are reproduced below:- Do no mischief on the earth, after it hath been Set in order, but call on Him with fear and longing (in your hearts): For the Mercy of Allah is (always) near to those who do good. (7.56). For Allah loves not those who do mischief. (28.77). Thereof: so see what was the end of those who acted corruptly! (27.14). "Fasad" according to Elias' Modern Dictionary Arabic-English, published by Elias Modern Press, Cairo, inter alia means, to spoil, to vitiate, to ruin, to demoralize, to foil, to frustrate, to negate, to deteriorate, to invalidate, to putrify or to decompose. "Arz", according to the same Dictionary means, land but is also used to indicate a piece of land such as a State or a country. From what has been noticed above, it appears that the ones guilty of creating Fasad-Fil-Arz are inter alia those who disturb the collective peace and tranquility in a society; are those who disrupt the orderly running of the State; are those who breach law and order; are those who disobey the lawful commands of the Ul-il-Amr (people in authority); are those who take up arms against the State. It may be added here that some of the scholars and jurists of Islam have gone to the extent of declaring that unauthorised deforestation; illegal destruction of crops; polluting resources from natural and other sources and causing harm to environment and the like acts also fall within the purview of Fasad Fil Arz."

10. The Hon'able Lahore High Court has held in an another case reported in PLD - 1969 - Lahore - 209 that:- "Prevention is better than cure and danger to public peace is more serious even than murder." The verse of Holy Quran in this regard is reproduced as under:-- "Disturbance of public peace is much more serious than murder."

11. Showering accused with the bounty of bail out and out "judicious discretion" of the Court being moved for the said relief, Courts of the country cannot be oblivious and indifferent to the circumstances which act as a solid bad germinating various situation throwing gauntlet to the Courts acting as custodian of both the public and the constitution one and the same time, currently over the bossom of Gilgit-Baltistan CPEC has started the bloom, which in itself carries the promise of a better future for the people of Gilgit-Baltistan in particular and rest of the Country in General, this beneficial project has been and will remain an eye sore for those argus eyed satanic powers whose eyes are jealously set to see the said project ending in fiasco, same ring true for their cronies who have auctioned their conscience off and under the "concerned persons" are hell bent to push the entire Gilgit-Baltistan in the vertex of miseries, poverty unemployment and underdevelopment, such people who advertently want to crucify the interest of State at the altar of personal gains do not deserve any concession from the Courts whether it be a relief of bail or otherwise. Keeping in view the current scenario, the State interest the well being and prosperous future of the people of Gilgit-Baltistan, we have not reservations to dismiss the instant bail petitions and a loud and clear message should be conveyed to all such likeminded people that they will dealt with iron hands and any anti-State activity shall be nipped in the bud.

12. All the above petitions dismissed accordingly. JK/148/GB Petitions dismissed.