EJAZ and 6 others vs STATE and another
This criminal petition was filed directly before the Lahore High Court by the petitioners seeking post-arrest bail in FIR No. 131 of 2008 registered under Sections 281, 285, 291, 293, and 427 of the Pakistan Penal Code 1860, Section 7 of the Anti-Terrorism Act 1997, and Section 16 of the Maintenance of Public Order, after the Special Judge Anti-Terrorism Court was transferred without a substitute and the Sessions Judge refused jurisdiction. The core legal question was whether the offences, particularly under the Anti-Terrorism Act, were made out prima facie given the context of a public protest against local thefts. The Lahore High Court held that mens rea, the essence of every offence, was missing as the protest was merely to convey annoyance over thefts rather than to create terrorism, making the terrorist charges subject to further inquiry. The petition was consequently allowed, admitting the petitioners to post-arrest bail. The key principle laid down is that where a public protest lacks the requisite mens rea to create terror or overawe authorities, the application of anti-terrorism laws is open to serious doubt and further inquiry, warranting the grant of bail.
- Whether post-arrest bail can be granted when the application of anti-terrorism provisions is open to further inquiry due to lack of mens rea?
- Can a High Court directly entertain a bail petition when the relevant Anti-Terrorism Court judge stands transferred without a substitute?
- Does a peaceful protest against local police inaction regarding thefts attract the provisions of Section 7 of the Anti-Terrorism Act 1997?
- 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
ORDER
In a case FIR No, 131 of 2008 dated 15.8.2008 under Section 281/285/291/293/427 PPC 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 FIR lodged at the instance of SHO, Police Station Sakhi Sarwar, in brief, is that on 15.08.2008 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/SHO 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 PPC, for which the petitioners stand charged, are bailable provisions of law. So 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 bonds in the so 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.