' Through this criminal miscellaneous, the petitioner has sought his post arrest bail in case F.I.R. No, 30, dated 21-10-2007 registered under sections 448/427(452/506/ 147/149, P.P.C. Read with sections 6/7 Anti-Terrorism Act, 1997 at Police Station Abpara (Islamabad).
2. Brief facts of the case are that Muhammad Ehsan, Chowkidar of Model Children Library, made a complaint before the police, wherein he stated regarding the entering of various girls students of Jamia Saeeda Hafza armed with dandas, after breaking the window pans and taking over possession of the Library by ousting him there from. He also got recorded his supplementary statement on the same day, wherein he implicated the present petitioner and his brother Maulana Abdur Rasheed Ghazi.
3. Learned counsel for the petitioner has argued that all the offences attributed in this case, except section 452, P.P.C., are bailable; that allegations against the petitioner are absolutely false; that the petitioner was not present at the spot; that nothing has been recovered from him; that number of cases were registered against the petitioner, wherein he has been granted bail concession, except this case; that there is no allegation against the petitioner that he was armed with fire arms; that punishment provided under section 452, P.P.C. Does not fall within prohibitory clause and that in such like cases bail is a rule and refusal is an exception. He has further argued that the petitioner has committed no offence, under the law and that he is behind the bars for the last more than one year. He has submitted that the petitioner is even otherwise entitled to the bail concession on the basis of rule of consistency; that although number of cases were registered against the petitioner, but no conviction has been passed in any of case against him; that mere registration of cases does not bar the petitioner from grant of bail. He has stressed that there is no evidence against the petitioner, therefore, he is entitled for the bail concession. In support of his arguments, he has relied on the case laws referred as 2008 SCM R 174 (Mst. Shahida Zareen v. Iqrar Ahmed Siddiqui), 2004 SCM R 1467 (Aftab Hussain v. The State), 1996 SCM R 364, 1996 SCM R 493 and 1996 PCr.LJ 1988.
4. On the other hand, Special Prosecutor appearing on behalf of State, has argued that it is not a case of simple section 452 P.P.C.; that the petitioner has been involved in this case, on the complaint of Government Employee, who has no connection with the Police; that there are overwhelming evidence against the petitioner and case of the petitioner also falls under sections 6/7 of ATA, 1997. He has referred sections 11-X and 21-D(iv) of ATA, 1997. He has referred statement of witnesses, recorded during investigation and submitted that they are quite independent and there is no established on record to falsely implicate the petitioner; that whole occurrence was committed on the instigation of present petitioner, who was commanding the students, who occupied the Library. He stressed that number of requests were made to vacate the Library and restore its possession, but they did not care and instead of restoring the possession, threats of death, were extended for whom, who came forward for vacation of Library. He has added that under section 21-C(iv) ATA some conditions have been imposed for grant of bail and in present case petitioner does not fulfil those conditions; that deeper appreciation cannot be made at bail stage and the Court has only to see the material collected by the prosecution against the petitioner, which is sufficient to believe that the petitioner has committed the offence falling within the preview of section 6 of ATA, 1997; that in such circumstances, bail cannot be granted until fulfilment of conditions made in section 21-D(iv) ibid. He has further submitted that challan in this case has already been submitted in the Court and trial is likely to commence. He has pointed out that in the connected matters, in which bail was granted by this Court, cancellations have been moved before Hon'ble Supreme Court of Pakistan, which are sub judice and has not been decided as yet, therefore, propriety demands that this application be kept pending till said decision.
5. In reply, learned counsel for the petitioner has submitted that there is no relevancy / connection of said cancellation petitions, with the instant one; that no notice has been issued in the said cancellation petitions, therefore, there is no bar on decision of present bail petition.
6. We have heard both sides and perused the record.
7. Complainant of this case is Chowkidar of the Library, on which students forcibly occupied, who is a quite independent person and he was not a police personnel. It is also transpired from the record that serious efforts were made for the restoration of possession peacefully. There is no denial that he is the person, who was Incharge of Lal Masjid and Jamia Hafza and all the students of said Madrasa were under the control of present petitioner and they were ready to go to every extent, in compliance of order of the petitioner. The petitioner was in commanding position. The situation, which was created at the time, of occurrence, had created a panic/insecurity in the people of area.' Window pans were broken during this occurrence and loss was caused to the Library, which was a public property. There is no denial that the students, who occupied the Library by force, did not belong to Jamia Hafza. It is also on the record that whole area where said Library was situated, was presenting a picture of `No go Area' and people of that area were feeling sense of insecurity.
Even they could not purchase the things of daily use. All this has made this case, falling under the preview of section 6 of ATA, 1997, which is reproduced, as under:- ' Terrorism---(1) In this Act, "terrorism" means the use or threat of action where:--
(a) the action falls within the meaning of subsection (2), and
(b) the use or threat is designed to coerce and intimate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or
(i) is designed to seriously interfere with a seriously disrupt a communications system or public utility service'
'Bare reading of above section, it is clear that the act, which creates panic and insecurity among the people, comes under the definition of above section.
8. In such like cases, some parameters have been determined under section 21-D(iv) ATA, 1997 for the grant of bail and without fulfilment of said conditions bail cannot be granted. Argument of learned counsel for the petitioner that section 452, P.P.C. Does not fall under the prohibitory clause, has also no force. Each case should be decided on its on merits. Even bail can be refused, in the cases, which do not fall within the prohibitory clause. Reliance can be placed on the case laws referred as 2007 PCr.LJ 966 (Bashir Ahmed and another v. The State) and 2007 PCr.LJ 1488 (Muhammad Rafiq and 4 others v. The State). Principle of consistency is also not applicable in this case, as the cases in which bail has been granted, are different from the instant case, on facts and merits. Deeper appreciation of evidence cannot be made while hearing the bail application, but only tentative assessm ent of material collected by the prosecution against the accused, can be made. The petitioner has been implicated in this case on the basis of supplementary statement made by Chowkidar of the said Library, who was a relevant person. No mala fide or has come on record, to falsely implicate the petitioner in this case, therefore, question of false implication does not arise. Challan in this case has been submitted before the Court of competent jurisdiction.
9. In view of above discussion, we are of the considered view that the petitioner has failed to make out the case for bail. Same is dismissed.