' M. SOHAIL IQBAL MATTI, J. Through This single order we intend to dispose of the instant writ petition as well as Writ Petition No.234 of 2014 (Syed Yasi: Ali v. The State), Writ Petition No.267 of 2014 (Amjad Hussain Kazmi etc. v. The State etc.),. Writ Petition No.278 of 2014 (Shamim ul Hassan v. The State etc.), Writ Petition No.279 of 2014 (Kamran Raza v The State etc.) as all the cases arise out of the same F.I.R.
2. The petitioners seek post-arrest bail in case F.I.R. No.385 dated 15-11-2013, registered under sections 302, 324, 436, 384, 186, 188, 342, 353, 295, 295-B, 148 and 149 of the P.P.C. Read with section 7 of the A.T.A. At Police Station Ganj Mandi, District Rawalpindi.
3. The prosecution story. In brief, as per contents of the F.I.R., is that on 15-11-2013 the complainant along with the other police officials was on duty near `Madrissa Taleem-ul-Quran' Raja Bazar, Rawalpindi in connection with procession of 10th of Moharram-ulHaram. At 1-15 p.m. Qari Shakir started speech while using loudspeaker during which he criticized Wasiak Fiqah Jafria'. The complainant restrained the said Qari from using the loud-speaker and criticizing `shia sect'. At that time the procession was going through Raja Bazar and it had approached at Iqbal Road. The complainant informed Muhammad Sharif Mehona, DSP (Legal) who passed on information to the high-ups regarding this situation. The SSP (Operations) tried to make understand Qari Shakir about the severity of the situation. In the mosque Molana Ashraf, Qari Shakir, Aman Ullah of Madrissa Taleem-ul-Quran, Maqsood Usrnam of Westrege, Tanveer Alam of Sadiq Abad, Abdul Rasheed of Quaid-eAzam Colony, Qari Sana Ullah of. Madni Masjid khayaban, Qari Nisar Ahmed of Dar-ul- Quran, Street No.1 Awan Colony and the leaders of `Sipah-e-Sihaba' and 150/200 unknown prayer performers (Namazi) were also present. The students of `Madrissa' started throwing stones over the participants of the procession. The leaders of the procession of 'Shia' sect also instigated the participants of the procession. Resultantly, both the parties started throwing stones on each other.
In the procession many boys belonging to Para Chanar and Biltastan were also present. On the instigation of the leaders of 'shia' sect about 100/150 participants entered into the `Madrissa' while breaking the fences and the other participants of the procession set on fire the cloth market under the mosque and both the sides started making cross-firing. As a result of firing and stoning Tariq Hussain son of Shah Muhammad, Mehmood son of Atta Muhammad, Awais son of Saleh Ahmed, Inayat son of Ahmed Khan, Ismail son of Azam Khan, Zubair son of Muhammad Javed, Alam Zeb son of Bazeen. Umar Waqas son of Muhammad Bashir, Rizwan son of Kafayat Hussain, Syed Hadayat Hussain son of laved Hussain and Faizan Ahmed Khan son of Muhammad Yaqoob sustained injuries while Rehmat Shah son of Noori Shah, Shakir Ullah son of Farhat Ullah, Habib- urRehman son of Makhdoom Hussain, Muhammad Anwar son of Muhammad Abbas, Tariq son of Falak Sher, Tallat son of Muhammad Bahadur and three unknown persons after receiving severe injuries succumbed to the same. The police had tried to stop the firing and stoning but they cannot succeed because the procession consists of 7/8 thousand people. The people of procession snatched State weapons, (Motorola) Wireless Set of constable/operator S.P. Rawal, and set on fire the motorcycle of official of 1122, 3/4 police officials were also injured. The people of procession detained the S.P. CIA, S.P. Rawal Town, S.P. Traffic and SSP (Operations).
4. The learned counsel for the petitioners have contended that the petitioners and other co- accused have been falsely and malafidely implicated in this case by the complainant having against the petitioners; that the petitioners are neither named in F.I.R. Nor any specific role has been attributed to them; that the petitioners neither participated in the occurrence nor they played any active role as alleged against them. The petitioners were implicated falsely by throwing a wider net on people of the Shia sect; that the identification parade has no value as on the one hand it is the prosecution's own case that they have the photographs/videos/CDs of whole of the occurrence and they obtained the bio data of participants of such activity from the NADRA and on the other hand held the identification parade but interestingly none of the police official who identified the petitioners were shown in the F.I.R. Present at the place of occurrence. It is settled principle of law that the vicarious liability can only be determined after the conclusion of the trial as such the petitioners case is of further inquiry; that the allegation levelled against the petitioners is of general nature and no specific injury is attributed to the petitioners; that the petitioners never participated in any such type of incident as mentioned in the F.I.R.; that the role attributed to the petitioners in the identification parade is of hurling bricks; that delay in holding identification parade and objections by the petitioners at the time of holding identification parade makes the same as doubtful episode; that law was taken into hands by the occupiers of the mosque, who pelted the stones and make firing from the mosque; that these acts were committed by the occupiers of the mosque first and thereafter as the result of provocation and in self-defence, two persons from the procession made firing, as being evident from the footage; that reports of DSR (Daily Situation Report) and the agencies as well as F.I.R. Speaks itself that the occurrence took place at the provocation of the occupiers of the mosque; that persons mentioned in the F.I.R. Have not been taken into custody and hundreds of the people from petitioner's side were arrested legally and illegally; that F.I.Rs. Were got registered from petitioners' side for burning number of Imam Bargahs in the city; that the accused of other side were bailed out in case F.I.R. No.755 dated 16-11-2013 Police Station Ganj-Mandi Rawalpindi by showing them involved in bailable offences and thereafter section 7, A.T.A. Was added but no action has been taken against them; that investigation is totally dishonest; that single legal infirmity creating reasonable doubt in fulfilling the requirements of law makes the whole case doubtful and benefit of the same is to be given to the accused; that nothing incriminating material was recovered, which may connect the petitioners with the alleged offence; that in absence of direct and admissible evidence against the petitioners they could not be deprived of the right of bail; that the sections levelled against the petitioners are not attracted at all in the present situation; that the petitioners are in the judicial lock np and are no more required for further investigation and nothing is to be recovered from them; that petitioners are not previously convicted and there is no apprehension of their abscondence; that the allegations are result of padding, fabrication and there is no ring of truth in the prosecution's evidence; that the petitioners were picked up by the police on different dates and were kept in illegal confinement by the police and after showing the petitioners to the so-called P.Ws.; were sent for identification parade; that case of the petitioners does not fall within the prohibitory clause of section 497, Cr.P.C.; and that the case of the petitioners is one of further inquiry, which can only be determined conclusively in trial. The learned counsel for the petitioners prayed for, grant of post-arrest bail to the petitioners.
5. On the other hand, learned Special Public Prosecutor for the State has vehemently opposed all these petitions and argued that all the petitioners are involved in the occurrence and they have committed a heinous offence. All the petitioners have been arrested after being duly identified upon the statements made by the eye-witnesses and video footages. It has been further argued that the occurrence, which took place on 15-11-2013 spread terror in the city and it was for the first time that the curfew was imposed in the city of Rawalpindi for a period of five days on account of this occurrence. Therefore, the petitioners are not entitled to the grant of bail.
6. We have considered the arguments advanced by the learned counsel for the parties and have also gone through the available record.
7. Undoubtedly, occurrence took place on 15-11-2013 at about 1-30 p.m. And the F.I.R. Was lodged with Police Station Gunj Mandi upon the complaint of SHO Muhammad Arif at 10-50 p.m. Initially, the A interim report was submitted on 20-12-2013 after about one month of the occurrence but the column regarding the name of witnesses is blank. It as been further observed by us that supplement statements were shown to have been recorded on 19-11-2013 but all these individuals whose statements were recorded under section 161, Cr.P.C., are not the witnesses mentioned in the F.I.R. The allegations levelled against the petitioners in Writ Petition No.267 of 2014 are of general character like hurling of bricks or raising of slogans and instigating to people and all the petitioners have been shown outside, `Madrissa'. Similarly, in Writ Petition No.278 of 2014 the role ascribed to the petitioner is that during the incident he was making weird signs. The petitioner in Writ Petition No.139 of 2014 though mentioned in the F.I.R. But he is himself an injured person who has suffered a fire-arm injury to his abdomen. According to his birth record he is only 16' years old and though mentioned in the F.I.R. No role has been attributed to him. The petitioners in Writ Petition No. 234 of 2014 are also not nominated in the F.I.R. And were also not identified during the identification parade. The same is the case with the petitioner in Writ Petition No.279 of 2014.
8. The statement under section 161, Cr.P.C. Was recorded of Abdul Rauf, Muhammad Akram, Zia-ur- Rehman and Syed Fazal, All have never been mentioned in the F.I.R Muhammad Arif, Sub-Inspector the complainant of the case is present along with the record. He has specifically asked as to whether the F.I.R. Which was got registered almost after ten hours of the alleged incident was recorded after collecting initial and basic information from the police contingent deputed on duties on the route of the procession.. He replied in affirmative but it is very strange that the F.I.R.
Which admittedly was recorded after collecting, the initial information as noted hereinabove is silent as to the presence of any such witnesses at the relative places. The said officials were only introduced in the episode by recording their statements under section 161, Cr.P.C. On 16-11-2013 or 19-11-2013. The veracity of the prosecution case thus almost under cloud of doubts unless the said introduced witnesses from prosecution side would enter in the witness box and undergo the test of cross-examination. The learned Special Public Prosecutor during arguments has conceded that the roles of the different petitioners would only be differentiated only during trial. At the present keeping in view the material collected by now by the Prosecuting Agency the prosecution case within the meaning of section 302, P.P.C. Is not, prima facie, forthcoming against any of the petitioner. Against all the petitioners a general nature of allegations of hurling stones or bricks and mischief by fire and at the most are attracted. The allegation of snatching the official ammunitions from the police contingent available at the scene was also alleged in the F.I.R. It was specifically asked from the learned Special Public Prosecutor as to whether any alleged snatched arm/arms were recovered from any for the petitioner to which after consulting the record and after taking instructions from the police officials having with record it was submitted B that a gun was recovered from one Nadim Ahmad. It is worthy to note that said Nadim Ahmad is not amongst the petitioners. We are of the view that while deciding the bail petitions the Court is only required to make a tentative assessm ent and not to go into deeper appreciation of the case. Undoubtedly, disastrous occurrence took place on 15-11-2013 but it was a mob of around. 6,000 to 7,0000 people.
Although none of the petitioners except petitioner in Writ Petition No.139 of 2014 who is himself an injured person-has been nominated in the F.I.R. Similarly, although the statements under section 161, Cr.P.C., were recorded on 16-11-2013 but the interim report was submitted on 20-12-2013 and none of those persons have been nominated in the column of witnesses. Even otherwise the only role ascribed to all the petitioners is of hurling bricks at the `Madrissa' or instigating the people.
None of the petitioners has been alleged to have been entered into the `Madrissa'. The applicability of the provisions of Anti-Terrorism Act, 1.997 is also a question which would only be answered after once evidence from both the sides is recorded. From the contents of F.I.R. It is not clear that the initial C offending act was started with the speech of a speaker who started addressing on loud- speaker from inside Maddrisa-Taleem-ul-Quran. Therefore, it is yet to be gone into as to who was responsible to spread terror, if any. The petitioners were roped in this case through subsequent supplementary statements. It is an established law that where the name of the accused has not .Been mentioned in the F.I.R. And subsequently appeared as a result of supplementary statements then a reasonable doubt would be available and wherever reasonable doubt was noticed and the matter required deeper appreciation bail could be granted to the accused even with reference to the offences which fall within the prohibitory clause. At the most if the version of the prosecution is believed the cases of the petitioners are of their vicarious liability, which could be E determined by the trial Court during the trial after recording of evidence. All the petitioners have suffered the agony of physical remand and now have been lodged incarceration at the request of the Investigating Agency and waiting for their trial. Keeping in view the number of accused persons and also the witnesses a sensitive nature of the earlier conclusion , of the trial, which even not has yet been started, is not insight. Having general and joint role the petitioners cannot be kept behind the bars for an, indefinite period to which would be nothing but a pre-trial punishment which is against the spirit of criminal law. On the basis of findings hereinabove all these writ petitions are allowed. Therefore, the petitioners are admitted to bail in the sum of Rs.2,00,000 (Rupees two hundred thousand) each with two sureties each in the like amount to the satisfaction of the learned trial Court.
9. It is, however, clarified that the observations made herein above are just tentative in nature and strictly confined to the disposal of this bail petition. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.