Asghar Hussain Versus State
Order
Raja Shakeel Ahmad, J .--- The above titled petitions are inter-connected in nature as the FIR is one and the same, as such I deem it just and proper to dispose of both the petitions (Cr. Misc. No. 339/2025 and Cr. Misc. No. 346/2025) through this single order.
2. The prosecution case as set forth in the crime report is that, SHO Police Station Airport Gilgit lodged FIR No. 46/2025 on the basis of Murasila submitted by complainant Sudheer Ahmad Magistrate, against petitioners and their co-accused namely 1. Ehsan Ali,
2. Mumtaz Hussain,
3. Nusrat Hussain,
4. Ali Abrar,
5. Nafees,
6. Masood-ur-Rehman,
7. Sher Nadir,
8. Javed Naji,
9. Ta'aruf Abbas,
10. Mehboob Wali and some others, who were protesting against the State at the gate of Press Club River View Road Gilgit by raising slogans as:
Ehsan advocate while delivering speech said "Martial law and dictatorship has been imposed in Gilgit-Baltistan." He went on to say that "the State is a thief and dacoit and a hooligan. The war between India and Pakistan is a war of interests and looting. The rulers of India and Pakistan have created an atmosphere of war merely to occupy the resources." Likewise, the accused Mumtaz Hussain said in his speech that the "State has occupied the land and minerals in the disputed territory of Gilgit Baltistan and is killing our children in the name of war." It was alleged that the aforesaid talks of the accused have not only created unrest in the mind of the people but also created hatred in their hearts as such by delivering speeches and raising slogans against the State the above named accused have created an atmosphere of fear and terror in the area. After registration of FIR No. 46/2025 the accused were arrested by the local police and after completion of investigation they were committed to judicial lock up. The petitioner preferred bail petition before the Anti Terrorism Court Gilgit which was dismissed, hence these petitions for grant of bail.
3. The learned counsel for the petitioners contended that the petitioners are innocent and have falsely been implicated in the instant case. The FIR against the petitioners/accused was lodged without resorting to provisions of Section 196, Cr.P.C. and there is no concept of registration of FIR under sections 123-A, 153 and 505, P.P.C, thus non-compliance of section 196, Cr.P.C. vitiate the entire proceedings. The petitioners have no prior criminal record nor they have been convicted by any Court of law, rather the petitioners are famous human rights activists. Detention of petitioners/accused is without justification as the petitioners/accused have nothing to do with the aforementioned allegations as they are not alleged with a specific role in the FIR, in fact the petitioners were not present at the scene of occurrence on the relevant time and date but the local police on the basis of grudge against the present petitioners have involved them in this case, which makes the whole case of prosecution doubtful. The registration of criminal case by the ordinary police official involving the petitioners/accused under sections 123-A, 153, 505/34, P.P.C is without jurisdiction. Sections 6/7 ATA do not attract in the instant case. The investigation to the extent of petitioners is completed and they are no more required for the purpose of investigation. The allegations levelled against the petitioners are fabricated; concocted and based on mala fide intention in this regard the petitioners have also filed an affidavit duly attested by the superintendent Jail that, the petitioners are not involved in any activity against the state of Pakistan. They are law abiding citizens and under take that they shall not be indulged in such activities in future.
4. On the other hand, the learned Addl. A.G. vehemently opposed the contention of the learned counsel for the petitioners and submitted that the petitioners were assembled outside the Press Club and started slogans against the State. The learned Addl. A.G. further argued that there is apprehension of repetition of the offences if granted the bail to the petitioners. Lastly, the learned Addl. A.G. prayed for dismissal of the petition.
5. I have heard the arguments advanced by the learned counsel for the parties and perused the record of the case.
6. Admittedly the accused petitioners of Cr. Misc. No. 339/2025 namely Asghar Hussain and Waheed Hassan are not nominated in the FIR No. 46/2025, and in the police file no specific role of speech or derogatory words attributed to them, the IO present in Court, produced the images of CCTV Camera and video clip so captured and recorded on the day of occurrence and sent to the forensic examination of pre-test, which was seen in the Court, and could not found the presence of accused either in the photos or video clip; when the I.O. of the case present in Court was asked to identify the petitioners in the video clip he also failed to identify and locate them in the video presented by him in the Court. As for as the case of the accused petitioner of Cr. Misc. No. 346/2025 is concern, perusal of police file shows that, there is contradiction between the contents of FIR video clip produced by the I.O and statement under 21-H of the accused/petitioner Mohammad Nafees. Perusal of statement recorded under 21-H, which is identical to a confessional statement recorded under section 164 of Cr.P.C and admissible in evidence no offence against the petitioner Mohammad Nafees is prima facie made out. According to the contents of FIR the accused Mohammad Nafees was present along with other accused nominated in the FIR, but in his statement under 21-H of ATA before the Superintendent Of Police he has stated that "he was present in the office of High Court Bar Association Konodas Gilgit, on the day of alleged occurrence, the accused Ehsan Ali called him and said that, the DC Gilgit has not permitted him to go Skardu, so go to the Office of Home Secretary GB and bring an attested copy of such written order, so that, we can challenge it before the Court. On the request of Advocate Ehsan Ali I went to office of the Home Secretary, where the officials refused to provide me any such order as such I went home, and was not present in the protest on the relevant time. When the learned Addl. A.G. was confronted with the statement of accused Mohammad Nafees recorded under 21-H ATA and inquired him to explain, whether on the basis of this confessional statement any offence against the petitioner Mohammad Nafees is made out?, he categorically replied in negative.
7. In this backdrop of the above situation, the question arises as to whether the allegations as set forth in prosecution file, disclose any offence against the present petitioners or not, which is yet to be answered by the prosecution. Under these circumstances, insertion, and applicability and attraction of the said Sections mentioned in the FIR against the present petitioners requires further probe into the guilt of the petitioners within the ambit of sub section (2) of section 497, Cr.P.C. Furthermore the counsels for the petitioner have submitted affidavits on behalf of the petitioners, which are duly attested by the Superintendent Jail, wherein the petitioners have solemnly affirm that "they are not involved in any activity against the State of Pakistan. They are law abiding citizens and under take that they shall not be indulged in such activities in future". Keeping in view of the contents of affidavits filed by the petitioners, in my humble opinion the petitioners may also be granted bail on the basis of their affidavits, and if the petitioners were found indulged any activities against the state after their release on bail the same facility may be recalled.
8. For the foregoing reasons, these petitions submitted by the petitioners are admitted to bail. These are the reasons for my short orders dated 22/07/2025 passed in each petition, which is reproduced hereunder:
"For the reasons to be recorded in my detailed order on a separate paper and on the basis of undertaking/affidavit submitted by the counsel on behalf of the petitioners duly attested by DS Jail, I accept instant bail petition filed by the petitioners. The petitioners/accused shall be released on bail subject to their furnishing bail bonds in the sum of Rs. 500,000/- (Rupees five lac only) each with two local and sound sureties each in the like amount to the satisfaction of the trial Court.
The bail orders issued by this Court shall deem to have ceased its efficacy, if the petitioners violate the terms of the undertaking of the affidavits and found indulged in any anti-State activities after release on bail."
9. Before parting this judgment it is clarified that the above observations made in this order are tentative in nature and shall not have any bearing upon the pending proceedings. The trial Court may reach its own conclusions after recording evidence in the case.
10. Office is directed to place a certified true copy of this order in Cr. Misc. No. 346/2025. Both the above titled petitions disposed of accordingly. File.
JK/25/GB Bail granted.