' Through this constitutional petition, Mufti Muhammad Umar, petitioner seeks quashment of F.I.R.
No,338 of 2011 dated 5-7-2011 offences under section 16 of Maintenance of Public Order Ordinance, .1960 and 11 EE of 'ATA-1997 registered at Police Station City Layyah District Layyah.
2. The aforementioned case was registered at the instance of Riaz. Hussain A.S.-I., Security Duty, City, District. Layyah, alleging therein that on the night falling between 4/5-7-2011 a meeting (URDU TEXT) was convened wherein respectables of the area threw light on the character and dignity of the Ashaab-e-Kirams and Hazrat Muhammad (Peace be upon him). It is further alleged in the F.I.R.
That petitioner Mufti Muhammad Umar Haider proented resolutions in the said meeting to the effect that, on the days of birth/ death of all the Ashaab-e-Kirams a holiday should be observed and the persons who pass derogatory remarks in respect of Ashaab-e-Kiroms should be arrested.
Killing of members of Ehl-e-Sunnat Wal Jamat in Karachi should be stopped. Government is responsible in the killing of human being in Karachi and this killing amounts to failure of Government. It was made clear in the said resolutions that if the killing of human being in Karachi would not be stopped they will arrange serious protests against the Government. It is further alleged in the F.I.R. That at the time of seeking permission of meeting Abdul Hafeez, Muhammad Yousaf and other persons had submitted their affidavits that they would not invite the persons in the meeting, names of whom were placed in the 4th Schedule of ATA but by presenting the resolutions against the Government and by inviting the persons who were placed in 4th Schedule, of ATA the accused persons had committed the violation of law, therefore, aforementioned F.I.R.
Was lodged.
3. Learned counsel for the petitioner submits that offence under section 16 M.P.O. Was, a non- cognizable offence, therefore, no case can be registered or investigated under the said section without prior permission of the Magistrate as required under section 156, Cr.P.C. But in the instant case no such permission was sought by the police from any Magistrate. It has further been contended that from the contents of F.I.R. Neither offence under section 16 M.P.O nor offence under section 11-EE of ATA was made out. Therefore, it is submitted that by accepting this petition the aforementioned F.I.R. Is liable to be quashed.
4. Learned Assistant Advocate-General has opposed this petition on the grounds that a meeting was convened, by the petitioner and other accused persons. Nominated in the F.I.R. Wherein they presented resolutions against the Government and in the said meeting the accused persons also invited the persons who were placed in 4th Schedule of ATA, therefore, accused persons had violated the directions of the Government and terms and conditions of the bond submitted by the petitioner. Hence, offences alleged against the petitioner and other co-accused were fully attracted in the circumstances of the case. So this petition is liable to be rejected.
5. We have heard the arguments advanced by learned counsel for the petitioner as well as learned A.A.-G. And perused the record with care.
6. The offence under section 16 of Maintenance of Public Order Ordinance, 1960 is a non-cognizable offence, therefore, it cannot be registered and no investigation thereupon can be conducted without prior permission of the Magistrate as provided by section 155, Cr.P,C. Perusal of record reveals that no such permission was sought from concerned Magistrate and police was investigating the said offence without prior permission of the Magistrate. It has further been noticed by us that from the contents of instant F.I.R. A the provisions of section 16, Maintenance of Public Order Ordinance, 1960 were not attracted. For registering case under the provisions of "section 16 M.P.O" it is necessary that any accused person makes any speech by words whether spoken or written or by signs which causes or is likely to cause fear or alarm to the public or to any section of the public or is likely to further any activity prejudicial to public safety or the maintenance of public order" but resolutions submitted by the petitioner neither caused, any fear or alarm to the public or to any section of the public nor it was pre judicial to the public safety or the maintenance of public order. Therefore, in our view the police have inserted section 16 of M.P.O on account of mala fides.
7. So far as section 11-EE, of ATA, 1997 in the afore-mentioned F.I.R. Against the petitioner and other co-accused of the petitioner is concerned, it has been noticed by us that from the contents of F.I.R.
Offence under section 11-EE of ATA, 1997 is also not made out. We have perused the bond submitted by Mufti Muhammad Umar petitioner as his name was placed in 4th Schedule, .Under section 11-EE of ATA, according to said bond petitioner undertook that he would abide by the following terms and conditions :-
(1) That he would not involve himself in any terrorist activity.
(2) That he would not involve himself in any activity detrimental to the security of public or religious affairs.
(3) That he would not establish any contact with any proscribed organization.
(4) That he would abide by the law of the land and would cooperate with law enforcing agencies.
(5) That he would provide information to the police regarding any terrorist or religious militant or any such organization.
(6) That he would inform the local S.H.O. In writing while leaving the city and he would also inform him on his return.
Keeping in view, the bond executed by the petitioner, it is clear that he has not violated any terms and- conditions given by him in the said bond. In the bond executed by the petitioner it is nowhere mentioned that he would not invite the persons placed in 4th Schedule of ATA in any meeting. Even otherwise, there is no evidence available on the record that accused persons who attended the meeting, were also placed in 4th Schedule, under section 11-FE or ATA. No person from the locality was cited as witness in this case in order to establish the afore-mentioned allegations against the petitioner and other co-accused of the petitioner and only two police constables were cited as witnesses of this case.
8. For what has been discussed above, we have no hesitation in holding that both the offences alleged against the petitioner and other co-accused of the petitioner, are not attracted keeping in view, the allegations narrated in the F.I.R. And this F.I.R. Has been registered against the petitioners and others on the basis of mala fides.. Therefore, this petition is accepted and case F.I.R. No,338 of 2011 offences under sections 16 of Maintenance of Public Order Ordinance, 1960 and 11-EE of ATA, 1997 registered at Police Station City Layyah is quashed.