' AQEEL AHMED ABBASI, J.---Through this M.A. No,4125/14 filed by the appellants namely Mumtaz (Full name Mumtaz Ali) son of Abdullah Samejo, Abdul Rauf son of Abdullah Samejo, Ashraf son of Parcho, Muhammad (Full name Muhammad Khan) son of Karim Dino, Asif (Full name Asif Ali) son of Abdullah, Muhammad Yousif son of Sobdar, Akbar (Full name Ali Akbar) son of Sobdar and Muqeem son of Mehran, under section 561-A Criminal Procedure Code read with Article 10-A of the Constitution of Islamic Republic of Pakistan for suspension of sentence of appellants in the instant appeal filed under section 25 of the Anti-Terrorism Act, 1997 read with section 561-A Criminal Procedure Code against the impugned judgment dated 30-4-2014 passed by the Anti-Terrorism Court Mirpurkhas Division @ Mirpurkhas in Special Case No,08 of 2013, Crime No,27 of 2013 registered at Police Station Chachro District Tharparkar, whereby the appellants have been convicted and sentenced to suffer R.I. For five (5) years each under sections 6(2)(m)/7(h) of Anti- Terrorism Act, 1997 and to pay a fine of Rs,100,000 (Rupees one lac) each, whereas, in default of payment of fine they are required to suffer further R.I. For six months each and the benefit of section 382-B, Cr.P.C. Is extended to them, the appellants have prayed for suspension of sentence and their release on bail during pendency of the instant appeal on their furnishing surety before the Nazir of this Court.
2. Learned counsel for the appellants, at the very outset has submitted that the impugned judgment suffers from patent illegalities, material defects, whereas, the appellants have been falsely implicated in the instant crime in view of admitted political rivalry. Per learned counsel, there is no material or evidence against the appellants, which may connect them with the alleged crime and the appellants have a prima facie good case for their acquittal, however, per learned counsel, since instant appeal has been recently admitted for regular hearing vide order dated 14-5-2014 and there is no likelihood that instant appeal may be heard in near future in view of large number of cases pending before this Court, therefore, it has been prayed that the listed application, seeking suspension of the sentence awarded to the appellants and their release on bail during pendency of the instant appeal may be granted as the sentence is otherwise short one.
3. It has been contended by the learned counsel for the appellants that all the appellants are innocent and have been falsely implicated in the instant crime at the instance of political rivals in a crime relating to Representation of the Peoples Act, 1976, whereas, on the directions of the Civil Judge and Judicial Magistrate, Chachro, police has filed the challan before the Anti-Terrorism Court, Mirpurkhas Division. Per learned counsel, there is delay of five (5) days in the registration of F.I.R., whereas, neither any recovery has been effected from the appellants nor any specific allegation or role has been assigned to them in the F.I.R. Which may attract the provision of the sections, particularly relating to Anti-Terrorism Act, 1997, which have been incorporated by the prosecution in the instant case. Per learned counsel, admittedly, on the date of alleged incident, neither any complaint was lodged before the concerned police nor even the Presiding Officer, the complainant in the instant case, reported tile matter to the relevant authority/forum regarding the alleged incident in accordance with law, whereas, after an unexplained delay of five (5) days the instant F.I.R. Has been managed to politically victimize and to cause harassment and humiliation to the appellants. Per learned counsel, from perusal of the statement of the complainant, it can be seen that neither the names of the appellants were given by the complainant at the time of registration of the F.I.R. Nor the complainant has identified them as the accused persons, who took part in the alleged incident on the fateful date. It is further contended by the learned counsel that no offence, even on the basis of allegations as reported in the F.I.R., attracts the provisions of Anti- Terrorism Act, 1997, whereas, the learned Judge of the ATC Mirpurkhas Division has failed-to record any finding in this regard, and inspite of such fact, has convicted the appellants in a mechanical manner without applying his independent mind to the facts and circumstances of the case.
Learned counsel has read out the prosecution evidence and the impugned judgment to show that there are certain legal defects and contradictions in the prosecution evidence and has prayed that the appellants have a prima-facie case on merits, as there are legal defects in the impugned judgment, whereas, the sentence is short one, therefore, the appellants, may be released on bail by suspending sentence during pendency of instant appeal, as the appellants have no previous criminal record. In support of his contention, learned counsel for the appellants has placed reliance in the following cases:-
(1) Iftikhar Ahmed v. The State and others 2014 SCM R 7
(2) Naseer and others v. Khuda Bakhsh and others 2011 SCM R 1430
(3) Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31.
4. Conversely, the learned Addl. P. G. Has formally opposed the grant of bail, however, could not controvert the factual and legal position as well as the defects pointed out by the learned counsel for the appellants in the impugned judgment.
5. We have heard the learned counsel for the appellants and the learned Addl.P.G., perused the impugned judgment and record with their assistance. Admittedly, there is delay of five (5) days in registration of the F.I.R., which is not explained, whereas, the Presiding Officer, who is the complainant in the instant case, did not report the matter to the appropriate forum in accordance with law on the date of alleged incident. Complainant has stated in his evidence that he did not give the name of the appellants at the time of registration of the F.I.R., nor he could identify the appellants produced in Court to be the persons, who committed the alleged offence. No incriminating material has been recovered from the appellants nor any other evidence has been produced by the prosecution which may directly connect the appellants with the alleged offence.
Inspite of such fact, the learned Judge of ATC Mirpurkhas Division has convicted the appellants under sections 6(2)(m)/ 7(h) of Anti-Terrorism Act, 1997, without even recording any finding as to whether the alleged offence falls within the definition of Terrorism or not.
6. In view of hereinabove facts and circumstances of the case the case-law relied upon by the learned counsel for appellants, the defects in the impugned judgment and contradictions in the prosecution witness, and keeping in view that the sentence awarded to appellants is short one, we are of the opinion that the appellants, who have no previous criminal record, have made out a case for their release on bail by suspending the sentence awarded to them during pendency of the instant appeal. Accordingly, the sentence awarded by the learned trial Court to the appellants was suspended and the appellants were directed to be released on bail subject to their furnishing solvent surety in the sum of Rs,100,000 (Rupees One Lac) each with P.R. Bond in the like amount to the satisfaction of the Nazir of this Court vide our short dated 17-6-2014 and these are the reasons for such short order.