AKHTAR MAHMOOD, ADVOCATE Versus STATE

ORDER

SALEEM AKHTAR, J .---Both these petitions arise from a common order of the learned Judges of the High Court whereby bail applications of the petitioners were dismissed.

2. Briefly the facts are that F.I.R. No.449 dated 20-9-1994 was lodged on the complaint of Yusuf Ali Shahid, Inspector/SHO, Police Station Waris Khan under section 324/353/188/186/148/149/109, P.P.C. and section 16 of the Maintenance of Public Order Ordinance. The allegations were that Sh. Rashid Ahmed co-accused was planning in his Haveli to make the strike successful. Spy information was received that he longwith Badshah Mir Khan Afridi, Ch. Tanvir Ahmed, MPA, Raja Basharat, MPA, Mahmood Akhtar, Advocate and Munawar Awan and others have hatched a conspiracy. As trade organizations and the shopkeepers were not in a mood to cooperate in the strike, according to a source, under a plan armed persons from N.-W.F.P. in groups were to assemble at Lai Haveli and under the instructions of the leaders they were to disperse in different areas to punish non-cooperative shopkeepers by committing arson, robbery and causing damage to the Government properties. On 20-9-1994 at about 9-30 a.m. people started gathering inside and outside Lai Haveli and the leaders started provoking the people against the Government and incited through loudspeaker to successfully observe the strike against the Government. The Assistant Commissioner/City Magistrate issued warning to the people that they were indulging in unlawful act of rioting, provoking people to go on strike and show of force and asked them to disperse. The aforestated leaders did not pay any heed and playing war songs incited the people for rioting. In small groups they proceeded toward Mochi Bazar and ignoring the repeated warnings Akhtar Mahmood, Advocate and Munawar Awan got the slogan " Takhat or Takhata raised. In the meantime from several sides stones were pelted. The Magistrate ordered for a Lathi-charge to disperse the processionists and save the life and property of the public. Thereafter to put pressure on the police tiring in the air with automatic weapons started from inside the Lai Haveli from different sides. After the warning issued by the authorities, the crowd was teargassed. The leaders instigated the processionists to have a clash with the administration. In the meantime under the leadership of Raja Hafiz and Ejaz Ahmed Khan, General Secretary, ANP, a procession entered Mochi Bazar which started beating the peaceful citizens and started damaging the shops which were open and reached Urdu Bazar. Some unknown persons also fired as a result of which Zebuddin, Muhammad Ashraf, Zulfiqar Ali, F.C., Ch. Muhammad Ashraf, Malik Iqbal and others received injuries. Thereafter Sardar Muhammad Nasim, Shakeel, Awan, Rana Zafar Hayat, Sardar Muhammad Tariq, Arif Butt, Aqeel Shaukat, Altaf Butt, Manzoor Baig, Babar Awan, Kamran Butt and Sh. Munir alongwith other co-accused about 100 in number attacked the police party as a result of which Ch. Iftikhar Inspector, Ghulam Abbas, Muhammad Sarfraz and Muhammad Taj received injuries. They also set on fire the tyres in Urdu Bazar Chowk. More police force reached and surrounded the accused named in the FIR. All these accused committed rioting for 3-4 hours and their leaders instigated the peaceful citizens to rise against the lawful Government by shouting slogans. Out of about 70 accused persons, 60 have been granted bail. The petitioners, namely, Akhtar Mehmood, Advocate and Sh. Rashid Ahmad, NINA were refused bail by the Trial Court as well as by the High Court. The learned Judges of the High Court noted that there were two sets of accused in the case; one was of those accused who were attributed specific role and the other, category was of accused against whom allegations of general nature were levelled. The learned Judges by the impugned order had granted bail to Sardar Muhammad Nasim, Altaf Butt, Sardar Muhammad Tariq, Babar Awan and Sh. Munir Ahmed mainly for the reason that although their names are mentioned in the FIR, the allegations against them are of general nature that they were participants in the procession and no role of specific nature has been assigned to them. However, by the same order while disposing of the bail applications of the petitioners, following observations were made:-------

"Sh. Rashid Ahmed is an, owner in possession of Lai Haveli who allegedly arranged the meeting and hatched conspiracy for the success of the strike. He is in consultation with the others schemed out the ways and means to have the complete and successful strike. Especially by restraining, by force the shopkeepers to close their shops, with the fire weapons the shots were fired from his Haveli. Certain persons were injured and shops were closed and damaged. The role of Sh. Rashid Ahmed is specific. Hence his case is of the nature, in which he does not deserve the privilege of bail. Here it may also be mentioned that Sh. Rashid Ahmed already stands convicted by the Special Judge, Suppression of Terrorist Activities, Rawalpindi in a kalashnikov case and is undergoing seven years' R.I.

As far as Akhtar Mehmood, Advocate (Crl. M. No.679-B/95) is concerned, his name is mentioned in the FIR. Specific role has been attributed to him provoking/exciting the people to indulge in criminal activities by uttering the words " Takhat or Takhata ". He was party leader and groups' leader who criminally acted and also fired. Thus his participation in the affairs is of the nature in which he does not deserve to be released on bail at this stage. "

3. At the outset of the hearing, Mr. M. Yawar Ali, Additional Advocate-General, Punjab stated that he has been instructed not to oppose the bail applications of the petitioners. As in criminal cases relief cannot be granted on mere concession from the State, without any reasonable ground, we inquired whether it was possible to grant bail applications merely on such concession made by the State Counsel. Mr. Ijaz Batalvi, learned counsel for Sh. Rashid Ahmed petitioner contended that such concessions have no meaning in law and case must be decided on merits.

4. Under Cr.P.C., the offences mentioned in P.P.C. have been categorized as bailable and non-bailable; compoundable and not compoundable. Some of them are compoundable with the permission of the Court. However, under section 494, Cr.P.C., any Public Prosecutor is authorised to withdraw from prosecution of any one or more of the offences for which the accused is tried subject to the consent of the Court. This provision is general and wide with the only restriction that the consent of the Court has to be obtained for withdrawal of the case. Although no conditions for withdrawal by the Public Prosecutor have been laid down yet as the consent of the Court is required, it becomes the duty of the Court to examine amongst others whether the withdrawal is not intended to stifle prosecution and is based on reasonable grounds. While exercising its jurisdiction under section 494 the Court has to pass a judicial order and therefore the discretion has to be exercised justly and not improperly and arbitrarily as laid down in Mir Hasan v. Tariq Saeed and others (PLD 1977 SC 451) wherein the following observations were made:----

"Section 494 is an enabling provision, and vests in the public prosecutor the initiative and the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. What the Court has to determine in such a case, for the purpose of giving consent, is whether the general executive discretion given by law to the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for reasons not related to the public interest. The application for withdrawal can be made on many possible grounds which may include the inexpediency of prosecution on grounds of public policy or in the interest of public peace, or the undesirability of permitting the prosecution to continue where there is insufficient or meagre evidence to justify a conviction. In making such an application the public prosecutor may legitimately be instructed by the Government which, under the legal system obtaining in Pakistan, is responsible for the prosecution of all cognizable offences."

This judgment was followed in Saaa Shibli v. State (PLD 1981 SC 617) and it was observed:--

"...On disclosure of satisfactory objective grounds, relatable to public policy, or public peace, and administration of justice, an application under section 494, Cr.P.C. for seeking Court's permission to withdraw from the prosecution can be filed. The Court's duty is to ensure that such a course ' is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes' (AIR 1957 SC 389) or that Courts 'own functioning is not thereby pre-empted' (PLD 1977 SC 451)."

In this regard Muhammad Kassim v. Abdul Hamid Khan and others (PLD 1966 Karachi 331), Nisar Ahmad v. The State and others (PLD 1976 Lahore 1354) and Dhani Parto v. Muthar and others (PLD 1978 Karachi 371) can usefully be referred. The Public Prosecutor while withdrawing the case must show reasonable grounds and should not act on the instruction or orders of the superior authorities alone. As the learned A.A.G. did not advance any reason for his consent except that he has been instructed by the Advocate-General, Punjab, in view of the aforestated principle we have examined the merits of the case.

5. Mr. Ijaz Hussain Batalvi and Sardar Muhammad Ishaq Khan, Advocates for the petitioners have argued the matter. It was contended that offences under sections 353, 186, 148 and 149 except sections 1.88 and 324, P.P.C. are bailable and the allegations against the petitioners are of general nature.

6. The medical reports of all the injured persons particularly the police officials were referred which show that the injuries were simple and most of them had suffered lacerated wounds of minor nature. Muhammad Taj had got his little finger fractured. Muhammad Bashir had simple injury from a fire-arm. There were bruises/swelling on the forehead of Muhammad Iqbal, Magistrate and minor superficial laceration on leg and small wound on left elbow, which was simple caused by blunt weapon. It may be noted that according to F.I.R. when the procession reached-Urdu Bazar, unknown persons started firing which caused injuries to the police officials and persons named in it. None of the petitioners have been accused of firing or causing any injury to any person. The allegations are general in nature. The specific role assigned to Sh. Rashid Ahmed is that in his Lal Haveli he had been working to make the strike call successful from where fires were shot in the air, but no one is alleged to have been injured nor Sh. Rashid Ahmed and Akhtar Mahmood are alleged to have fired. There does not exist reasonable grounds for believing that they were guilty of offence under section 324, P.P.C.

7. The other ground which had impressed the learned Judges in refusing the bail was that Sh. Rashid Ahmed had been convicted by the Judge, Special Court for Suppression of Terrorist Activities, Rawalpindi, who was undergoing seven years' R.I. The learned counsel has pointed out that the petitioner's appeal against conviction has been allowed and the Government too did not oppose that appeal. It closes this chapter.

8. There does not seem to be any distinction between the cases of those persons who have been released on bail by the learned Trial Court and the present petitioners. The distinction pointed out by the learned Judges of the High Court can hardly distinguish their case. Being owner in possession of Lal Haveli where meeting is alleged to have taken place and conspiracy was hatched to make the strike successful does not lead to a logical conclusion that reasonable grounds exist to believe that Sh. Rashid Ahmed has committed the offences alleged against him, particularly as the petitioners have not been alleged to have used force to close down the shops or had fired from the Lal Haveli or any other place.

9. As far as Akhtar Mahmood Advocate is concerned, the point of distinction was that a specific role had been attributed to him for provoking and exciting the people to indulge in rioting and "uttering the words " Takhat or Takhata . The last part of the observation is completely mistaken as in the FIR it is alleged that:

According to this allegation both Akhtar Mahmood, Advocate and Munawar Awan got the slogan of " Takhat or Takhata. (thrown or gallotine) raised from the public. There is no allegation that they had themselves raised this slogan. There was a crowd of hundreds of persons and he is alleged to be a leader of a group, who criminally acted and also fired, but he is not alleged to have fired at all. In these circumstances, prima facie as the case stands on the material before us, there seems to be no distinction between the cases of the persons who have been released on bail and that of the petitioners.

10. Mr. Ijaz Batalvi pointed out that Sh. Rashid Ahmed petitioner was arrested on 17-10-1994 and the application for bail was filed immediately, which was dismissed on 15-1-1995. The application was filed in the High Court on 22-1-1995 which continued to be adjourned till 8-10-1995 when judgment was reserved and was dismissed by the impugned order on 22-11-1995. According to both the learned counsel so far trial has not proceeded at all. The object of making this contention was that unreasonable delay has been caused in deciding the bail applications and the petitioners are in jail. Be that as it may, the fact remains that the petitioners are accused of offences most of which are bailable and in respect of offences under sections 188 and 324, P.P.C., there do not exist reasonable grounds to believe that the petitioners have committed these offences. In fact no tangible evidence has been offered so far which if left unrebutted may lead to the inference of guilt. Reliance has been placed on Tariq Bashir and 5 others v. The State (PLD 1995 SC 34). Perhaps it was for all these aforestated reasons that Mr. M. Yawar Ali, learned Additional Advocate-General under instructions from the State had made the statement not to oppose the bail petitions. We therefore convert these petitions into appeals, allow them, set aside the impugned order of the High Court and grant bail to the petitioners on --furnishing one surety each in the sum of Rs.10,000 to the satisfaction of the Duty Magistrate, Rawalpindi.

N.H.Q./A-1388/S Bail granted.