EJAZ and 6 others vs THE STATE and another
This petition was filed directly before the Lahore High Court for post-arrest bail in a case registered under sections 281, 285, 291, 293, and 427 of the Pakistan Penal Code 1860, read with section 7 of the Anti-Terrorism Act 1997 and section 16 of the Maintenance of Public Order Ordinance 1960. The petitioners had directly approached the High Court because the Special Judge of the Anti-Terrorism Court was transferred without a substitute, and the Sessions Judge refused to entertain the bail petition for want of jurisdiction. The prosecution alleged that the petitioners blocked a road, burnt tires, and pelted stones at a police van to protest frequent local thefts. The High Court observed that the underlying offenses under the Pakistan Penal Code 1860 were bailable. Regarding the anti-terrorism and public order charges, the Court held that mens rea is the essence of every offense, which was prima facie missing as the protesters' intention was merely to register a protest against police inaction rather than to spread panic or overawe the police. Consequently, the Court granted bail to the petitioners, holding that the allegations of terrorism required further inquiry.
- Can a bail petition be filed directly before the High Court if the relevant Special Court judge has been transferred without a substitute and the Sessions Court declines jurisdiction?
- Is mens rea an essential element to attract the provisions of the Anti-Terrorism Act 1997 during a public protest against police inaction?
- Whether a public protest resulting in road blockage and minor property damage automatically falls under the definition of terrorism when the primary intent was to register a grievance?
- Section 281, Pakistan Penal Code 1860
- Section 285, Pakistan Penal Code 1860
- Section 291, Pakistan Penal Code 1860
- Section 293, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 7, Anti-Terrorism Act 1997
- Section 16, Maintenance of Public Order Ordinance 1960
ORDER
' In a case F.I.R. No,131 of 2008 dated 15-8-2008 under sections 281/285/ 291/293/427, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997 and section .16 of Maintenance of Public Order registered with Police Station Sakhi Sarwar, District D.G. Khan, the petitioners herein are behind the bars. They have directly approached this Court for their bail on the ground that learned Special Judge, Anti- Terrorism Court, D.G. Khan stood transferred without substitute and the learned Sessions Judge, Dera Ghazi Khan refused to entertain the bail petition for want of jurisdiction.
2. The prosecution case set up in the F.I.R. Lodged at the instance of S.H.O, Police Station Sakhi Sarwar, in brief, is that on 15-8-2008 residents of Sakhi Sarwar Town led by Muhammad Ismaeel, Naib Nazim, Union Council, Sakhi Sarwar took out a procession on Quetta Road, chanted slogans against, local police, blocked the road and burnt used tires to lodge protest against frequent theft incidents in the area. A police party headed by the complainant/ S.H.O. Reached the spot and unsuccessfully persuaded the members of procession to disperse, who in retaliation pelted stones as a result of which the windscreen of police van had broken.
3. Sections 281, 285, 291, 293 and 427 P.P.C, for which the petitioners stand charged, are bailable provisions of law. Far as application of section 7 Anti- Terrorism Act, 1997 and 16 MPO is concerned we must say that mens rea is the essence of each and every offence, which in the case in hand is, prima facie, missing. It is prosecution case that the intention of the procession was not to spread panic or to disrupt communication system or to overawe the Police Force. Frequent incidents of theft in the area tempted the petitioners and their co-accused to lodge protest in order to convey their annoyance to the superior officers of local police. In the circumstances, the allegation of terrorism against the petitioners is open to further inquiry and serious doubt. The petitioners are behind the bars and are no more required for investigation.
'For the foregoing reasons we allow this petition and admit the petitioners to bail subject to furnishing bail bond in the sum of Rs,50,000 (Fifty thousand only) each with one surety each in the like amount to the satisfaction of trial Court/ Sessions Judge, D.G.Khan.