GHULAM MUJTABA Versus State Mehmood A. Qureshi , Habib Ahmed

ORDER

1. The applicant has sought quashment of F.I.R. No. 298/2007 under section 11-F(1)(b)(ii) of Anti-Terrorism Act, 1997 read with section 123-A/124, P.P.C. registered at Police Station Mubeena Town, Karachi.

2. The necessary facts disclosed in the First Information Report are that A.S.-I. Shabbir Hussain Gopang of Mubeena Town Police Station during the patrolling duty reached near Bilal Masjid. Gulshan-e-Iqbal, Karachi on 28-11-2007, found that four suspected persons were pasting posters on the wall of mosque, they were signalled for the purpose of inquiry but three culprits managed to escape on motorcycle while one running on the spot, was intercepted and disclosed his name as Muhammad Waqas, from his possession posters of Hizbul Tahreer Davia Pakistan were recovered, having derogatory remarks against the Government and political leaders he also disclosed the name of the applicant along with co-accused the student of NED University. On his pointation from a room of NED Hostel in the absence of the applicant alleged literature was recovered. Consequent upon the registra tion of the First Information Report, the applicant has resorted to file Criminal Bail Application No. 35 of 2008 which was allowed.

3. The applicant has resorted to file an application under section 265-K, Cr.P.C. before the trial Court which was declined by order, dated 7-2-2008.

4. The learned counsel for the applicant submits that the applicant has been involved in the commission of crime on the basis of the statement of the co-accused.

5. It is urged that the alleged recovery of the derogatory literature is found in open room of NED Hostel which was accessible to all by no stretch of imagination, it will be held that the recovery was in consonance with the Code of Criminal Procedure. It is next urged that the name of the applicant appears in Column No.2 of the challan as the investigating agency could not collect the evidence suggesting applicant in connection with the Hizbul Tehreer Davia Pakistan Organization, therefore, proceeding launched against the applicant is liable to be quashed.

6. Mr. Habib Ahmed, learned counsel appearing for the State failed to controvert the contention raised by the learned counsel for the applicant.

7. We have considered the submissions made out by learned counsel for the parties perused the record.

8. It is explicitly borne out from the record that the applicant has been connected in the commission of crime on the basis of the statement of co-accused and recovery of literature was not effected on the pointation. In the absence of cogent evidence, therefore, the applicant was nominated in Column No.2 of the challan. It is also borne out that after eight days of the alleged incident the statement of the co-accused Muhammad Waqas was recorded implicating the applicant and the alleged recovery was affected from a place easily accessible to the students, administrative staff of the University, therefore, alleged recovery as against the applicant is not sustainable in law.

9. It is well-settled law that if the charge is groundless and there is no possibility of conviction of an accused then evil should be nipped in the bud even prior to the filing of the charge-sheet. This view is modified from Zahoor-ud-Din v. Khushi Muhammad and 6 others 2005 YLR Peshawar 2800, 1998 SCMR 1840, Nazeer Ahmed v. The State 2005 YLR Karachi 3153 and Mst. Nayyara Naureen alias Shazia v. Muhammad Arif Butt Sabri 2005 YLR Lah. 1047.

10. Having considered the above facts and circumstances of the case we are of the opinion that the charge against the applicant is groundless, in the absence of evidence c the charge shall not result into the conviction of the applicant as it is groundless.

11. In view of the above circumstances, proceeding pending before the Anti-Terrorism Court No.II, Karachi against the applicant is hereby quashed and the applicant is acquitted from the charges levelled against him. These are the reasons by the short order dated 7-7-2008 whereby the application was allowed.

12. N.H.Q./G-24/K Proceedings quashed.