Malik MUHAMMAD ISHAQ vs THE STATE and others

' ASIF SAEED KHAN KHOSA, J.---Through this petition Malik Muhammad Ishaq petitioner has sought leave to appeal against the order dated 11-5-2011 passed by a learned Division Bench of the Lahore High Court, Lahore in Criminal Miscellaneous No, 2342-B of 2011 whereby post-arrest bail was refused to the petitioner in case F.I.R. No,252 registered at Police Station Gulberg, Lahore on 3-3- 2009 in respect of offences under sections 302/324/353/120-A / 186 / 427 / 395 / 148 / 149/109, P.P.C., sections 3/4 of the Explosive Substances Act, 1908, section 13-B of the Pakistan Arms Ordinance, 1965 and section 7 of the Anti-Terrorism Act, 1997.

2. We have heard the learned counsel for the petitioner and the learned Additional Prosecutor- General, Punjab appearing for the State and have gone through the record of this case with their assistance.

3. The allegation levelled by the prosecution against the petitioner is that he had conspired with his co-accused for commission of the above mentioned offences. It is not disputed that the petitioner was not present at the scene of the crime at the relevant time and, thus, he does not stand saddled with the responsibility of any overt act at the spot. It is also not denied that at the time of the present occurrence the petitioner was lodged at a high security prison and he has spent the last about 13 years in such prison without ever coming out of the same. According to the prosecution the petitioner had conspired with his co-accused from inside the prison for the purposes of commission of the offences alleged in the present case. We have searchingly and repeatedly required the learned Additional Prosecutor-General, Punjab appearing for the State to point out any legally admissible piece. Of evidence supporting the above mentioned allegation against the petitioner but he has not been able to refer to any such piece of evidence. The investigation of this case has already been completed and a Challan has been submitted and, thus, physical custody of the petitioner is no longer required at this stage for the purposes of investigation. According to the learned Additional Prosecutor-General, Punjab the petitioner is a known terrorist who is involved in many heinous offences but, it goes without saying, we cannot brutalize justice in the name of terrorism if no legally admissible evidence has been shown to us to be available on the record against the petitioner.

4. For what has been discussed above this petition is converted into an appeal and the same is allowed and, resultantly, the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs, 5,0,000 (Rupees five hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.