' M. SOHAIL IQBAL BHATTI, J.---Through this single order we intend to dispose of the instant writ petition as well as W.P. No, 234/2014 (Sued Yasir All versus The State) W.P. No, 267/2014 (Amjad ,Hussain,Kazmi, etc. Versus The State, etc.), W P. No, 278/2014 (Shamim-ul-Hassan versus The State, etc.), W.P. No, 279/2014 (Kamran Raza versa The State, etc.) as all the cases arise out of the same FIR.
2. The petitioners seek post arrest bail in case FIR 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 PPC read with Section 7 of the ATA at Police Station Ganj Mandi, District Rawalpindi.
3. The prosecution story in brief, as per contents of the FIR, is that on 15.11.2014 the complainant alongwith the other- police officials was on duty near Madrissa Taleem-ul-Qur'an' Raja Bazar, Rawalpindi in connection with procession of 10th of Moharram-ul-Haram. At 11:15 p.m. Qari Shaki started speech while using loud-speaker during which he criticized `maslak Fiqah Jafria'. The complainant restrained the said Qari from using the loud-speaker and criticizing shirt at that time the procession was going through Raja Bazar and it had approached at lqbal Road. The complainant, informed Muhammad Sharif Mehona, DSP (Legal) why 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-ulQuran, Maqsood Usmani of Westrege, Tanveer Alam of Sadiq Abad, Abdul Rasheed of Quaid-e-Azam Colony, Qari Sana Ullah of MadnF Masjid Khayaban, Qari Nisar Ahmad of Darul-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 Attar 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 Javed 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-ur-Rehman son of Mahmood 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 niala fide implicated in this case by the complainant Having against the petitioners; that the petitioners are neither nailed in FIR. 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 poke official who identified the petitioners were shown in the FIR 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 allegations 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 FIR; 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 a 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 FIR have not been taken into custody and hundreds of the people from petitioner's side were arrested legally and illegally; that FIRs 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, ATA 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-up 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 PWs, 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 fora 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 FIR was lodged with Police Station Gunj Mandi upon the complaint of SHO Muhammad Arif at 10:50 p.m, Initially, the interim report was submitted on 20.12.2013 after about one month of the occurrence but the column regarding; the names of witnesses is blank. It has been further observed by us that supplementary 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 FIR. The allegations levelled against the petitioners in W.P.No, 267/ 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 W.P. No, 278/ 2014 the role ascribed to the petitioner is ,that during the incident he was making weird signs. The petitioner in W.P. No, 139/2014 though mentioned in the. FIR 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 FIR no role has been attributed to him. The petitioners in W,P. No, 234/2014 are also not nominated in the FIR and were also not identified during the identification parade. The same is the case with the petitioner in W.P. No 279/2014. {{PAGE CUT}}
8. \ The statement under .Section 161, Cr.P.C. Was corded of Abdul kalif, Muhammad Akram, Zia-ur- Rehman id 'Sy/id F,a7al. All have never)-been mentioned in the FIR. Uhaminad Arif, Sub-InspectOr the 'complainant of the case is dent alongwith the record. }k has specific:ally asked as to Nether the FIR which was git registered almost after ten iurs 61' the alleged incident was recorded, after collecting itial and basic information from the police contingent puted on duties on the root of the procession. He replied in firmative but it is very strange that the FIR which admittedly as recorded after collecting the initial information as noted Teinabove is silent as to the presence of any such witnesses the relative places. The said officials were only introduced the episode by recording their statements under Section 161, -.P.C. On 16.11.2013 or 19.11.2013. The veracity of the osecution case is thus almost under cloud of doubts unless e. Said introduced witnesses from prosecution side would ter in the witness 'box and undergo the test of cross amination. The learned Special Public Prosecutor during uments has conceded that the roles of the different itioners would only be differentiated only, during trial. At present keeping in view the material collected by now by Prosecuting Agency the prosecution case within the aning of Section 302, PPC is not, prima facie, forthcoming inst any of the petitioner. Against all the petitioners a leral nature of allegations of hurling stones or bricks and 'chief by fire and at the most are attracted. The allegation of tching the official ammunitions from the police contingent. Ilable at the scene was also alleged in the FIR. It was eifically asked from the learned Special Public Prosecutor '',hether any alleged snatched arm/arms were recovered any tor the petitioner to which after consulting the record fur taking instructions from the police officials havii record it was submitted that a gun was recovered` fron sladiin Alimad. It is worthy, to note that said Nadim id is not amongst the petitioners. We are Of the view that deciding the, bail petitions the Court is only required to a tentative assessm ent and not to go into deeper elation of the lease.' Undoubtedly, disastrous occurrence place on 15.11.2013 but it was a mob of around 6,000 to people. Although none of the petitioners except mer in W.P.No,139/2014 who is himself an injured n has been nominated 'in the FIR. Similarly, although the rents under Section 161, Cr.P.C., were recorded on .2013 but the interim report was submitted on .2013 and none of those persons have been nominated in )1umn of witnesses. Even otherwise the only role ascribed the petitioners is of hurling bricks at the `Madrissa' or ating the people. None of the petitioners has been alleged re been entered into the `Maclrissai. The applicability of bvisions of Anti-Terrorism Act, 1997 is also a question would only be answered after, once evidence from both les is recorded. From the contents of FIR it is not clear le initial offending act was started with the speech of a .Tr who started addressing on loud-speaker from inside risa-Taleem-ul-Quran. Thereibre, it is yet to be gone into who .Was responsible to spread terror, if any. The ner's were, roped in this case through subsequent mentary statements. It is an established law that where me of the accused has not been mentioned In the FIR {{PAGE CUT}} and subsequently appeared as a result of supplementary statements then 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 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.
Writ /Bail Granted. 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.