SHAKEEL AHMAD, J. This is a petition for bail submitted by Mufti Kifayat Ullah son of Rafique-ur- Rehman by caste Swati resident of village Tarangri Tehsil and District Mansehra, (now confined in the Central Jail at Haripur), who is detained under sections 506/505/ 503/153-A/131/124-A, P.P.C. read with section 11-X(2)(3) and sections 6/7, Anti-Terrorism Act, 1997 and sections 120- A/120(b)/188, P.P.C. The case against him arises out of crime No.508 dated 31st December 2020 of Police Station Baffa, District Mansehra. The case has been registered against him after more than
(03) three months of the occurrence. Today, the petitioner also moved Cr. M. No.731-A/2021 for addition of sections 120-A/120-B/188, P.P.C. in the bail petition, which could not be mentioned therein at the relevant time. Notice of the CM was given to the learned AAG, who did not oppose the Criminal Miscellaneous application. Accordingly, this Criminal Miscellaneous application is allowed and office is directed to make necessary entries in the bail petition and the relevant register.
2. The prosecution case as set forth in the crime report is that the petitioner attended a programme "SAWAL" at SAMA TV, on 26.12.2020, hosted by Anchor person Faraz Ahmad, in which he delivered anti State/anti-establishment comments/expressions and asked to prepare list of thieves and initiate merciless and indiscriminate accountability. In the said talk show, he went on to say to cut off/amputate hands of General (Retired) Asif Saleem Bajwa and arrest General (Retired)
Pervez Kiyani. Likewise while issuing threats, spoken that if our demand is not accepted, it would result in resignations and in order to create civil commotion, he further stated that you will have to call the uniform personnel as thieves and asked that whether General (Retired) Pervaiz Musharraf and General (Retired) Pervaiz Kiyani were not thieves and demanded to hang them by neck, leveling further allegations, on 09.10.2020 spoken that in order to put an end to procession of Imran Khan, the students of Army Public School were martyred brutally, He remarked that due to security lapses the foreign enemies entered into the territory of Pakistan. In order to create hatred in the mind of public at large, he blamed that the country is facing actual martial law. He further stated that the people should raise their voice against tyranny. It was alleged that the aforesaid talks of the accused has not only created unrest in the mind of the people but also created hatred in their hearts and there is strong apprehension that these talks may lead to mutiny against constitutional and elected Government of Pakistan and is also an attempt to wage war against the State. He was also found involved in delivering identical views in different talk shows on different occasions by the investigating officer. The petitioner was placed under arrest on 17.04.2021. Vide order dated 03.06.2021, he was declined post arrest bail by the learned Judge Anti-Terrorism Court, Hazara Division at Abbottabad. Hence, this application.
3. It was argued by the learned counsel for the petitioner that there is inordinate delay in lodging the crime report. They next argued that accused is a prominent political leader of KP and the case is false, fabricated one and politically motivated. They further argued that none of the section of law is applicable under the attending circumstances of the case. They added that investigation of the instant case is complete and petitioner is no more required to, the police for the purpose of investigation and his further detention would serve no useful purpose to the prosecution.
4. As against that the learned A.A.G. representing the State submitted that the prosecution has got no ill-will or personal grudge to falsely implicate the petitioner. He next submitted that the petitioner has levelled frivolous accusation against Pakistan Army, thus attempted to create unrest, hatred and commotion in the mind of the people of Pakistan against the Pak Army. They further stated that the sections of law fully attract to the present case. They added that twitter account of the petitioner is still operational wherein he has attributed defamatory remarks against army establishment, which is an attempt to lower the position of the law enforcing agencies in the eye of public at large. They further added that petitioner has got history of previous involvement in identical nature cases. They lastly submitted that the offence with which the petitioner is charged falls within the prohibition contained in section 497, Cr.P.C, therefore, he is not entitled to the concession of bail.
5. I have heard the arguments of the learned counsel for the parties an examined the record with their able assistance,
6. I shall now proceed to examine the validity of various contentions urged on behalf of the learned counsel for the parties in support of their respective pleas/contentions. It appears from the record that the accused is alleged to have violated various provisions of Pakistan Penal Code and Anti- Terrorism Act, 1997. Before, however, I do so, it is necessary to set out at this stage the relevant sections under which the petitioner was detained. The following are the relevant sections which have bearing on the determination of questions raised before me.
OFFENCES UNDER PAKISTAN PENAL CODE.
Section 503: Criminal Intimidation: Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation: A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
Section 506: Punishment for criminal intimidation: Whoever commences the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Section 153-A: Promoting enmity between different groups, etc.: Whoever
(a) by words, either spoken or written, or by signs, or by visible representations or otherwise, promotes or incites, or attempts to promote or incite, on grounds of religion, race, place of both, residence, language, caste or community, or any other ground whatsoever disharmony or feelings of enmity, hatred or between different religious, racial, language or regional groups or castes or communities; or
(b) commits, or incites any other person to commit, any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities or any group of persons identifiable as such on any ground whatsoever and which disturbs or is likely to disturb public tranquility; or
(c) organizes, or incites any other person to Organize, and exercise, movement, drill or other similar activity intending that the participants in any such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in any Such activity will use or be trained to use criminal force or violence or participates, or incites any other person to participate, in any such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in any such activity will use or be trained, to use criminal force or violence, against any religious, racial, language or regional group or caste of community or any group of persons identifiable as such on any ground whatsoever and any such activity for any reason whatsoever cause or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment for a term which may extend to five years and with fine.
Section 131: Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his duty: Whoever abets the committing of mutiny by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of Pakistan, or attempts to seduce any such officer, soldier, sailor, or airman from his allegiance of his duty, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 124-A: Sedition: Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Federal or Provincial Government established by law shall be punished with imprisonment for life to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Section 120-A Definition of criminal conspiracy; When two or more persons agree to do, or cause to be done,
(1) an illegal act, or
(2) an act which is not illegal by illegal means such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Section 120-B Punishment of criminal conspiracy:
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding 'six months, or with fine or with both.
OFFENCES UNDER ANTI-TERRORISM ACT, 1997 Section 11-X(2)(3): Responsibility for creating civil commotion.......(2) A person guilty of an offence under subsection (1) shall on conviction be punishable with imprisonment for a term not less than six months and not more than five years and shall pay compensation as may be determined by the Court, from the funds of the organization to which he belongs or from his own personal resources or assets for the hurt or damage or destruction caused as result of the commission of the offence under subsection (1).
(3) A person commits an offence if he addresses a meeting or gathering or delivers a sermon to religious gathering by any means whether verbal, written, electronic, digital or otherwise to incite religious, sectarian or ethnic hatred and contempt, and shall, on conviction, be punishable with imprisonment not less than six months and not more than three years of fine or with both.
Section 6: Terrorism.- (1) In this Act, "terrorism" means the use or threat of action where:
(a) The action falls with the meaning of subsection (2). And
(b) The use or threat is designed to coerce and intimidate 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
(c) The use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause. 2)
An "action" shall fall within the meaning of subsection (1), if it:
(a) Involves the doing or anything that causes death;
(b) Involves grievous violence against a person or grievous body "injury or harm to person;
(c) Involves grievous damage to property:
(d) Involves the doing of anything that is likely to cause death or endangers a person's life;
(e) Involves kidnapping for ransom, hostage- taking or hijacking;
(f) Incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance;
(g) Involve stoning, brick-batting or any other from of mischief to spread panic:
(h) Involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worship;
(i) Creates a serious risk to safety of public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil (civic) life;
(j) Involves the burning of vehicles or an other serious form of arson;
(k) Involves extortion of money (bhatta) or property;
(l) Is designed to seriously interfere with or seriously disrupt a communications system or public utility service;
(m) Involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; or
(n) Involves serious violence against a member of, the police force, armed forces, civil armed forces, or a public servant.
(3) The use or threat or use of any action falling within subsection (2) which involves the use of fire- arms, explosives or any other weapon, is terrorism, whether or not subsection (1(c)) is satisfied.
(4) In this section "action" includes and act or a series of acts.
(5) In this Act, terrorism includes any act done for the benefit of a prescribed organization.
(6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism.
(7) In this Act, a "terrorist" means:
(a) A person who has committed an offence or terrorism under this Act, and is or has been concerned in the commission, preparation or instigation of acts of terrorism;
(b) A person who is or has been, whether before or after the coming into force of this Act, concerned in the commission, preparation or instigation of acts of terrorism, shall also be included in the meaning given in Clause (a) above.
Section 7: Punishment for acts of terrorism.---whoever commits an act of terrorism under section 6, whereby
(a) death of any person is caused, shall be punishable, on conviction, with death or with imprisonment for life, and with fine; or
(b) he does anything like to cause death or endangers life, but death or hurt is not caused, shall be punishable, on conviction, with imprisonment for description for a term which shall be not less than five years but may extend to fourteen years and with fine;
(c) grievous bodily harm or injury is caused to any person, shall be punishable, on conviction, with imprisonment of either but may extend to imprisonment for life and shall also be liable to a fine; or
(d) grievous damage to property is caused, shall be punishable on conviction, with imprisonment, of either description for a term not less than ten years and not exceeding fourteen years, and shall also be liable to a fine: or
(e) the offence of kidnapping for ransom or hostage-taking has been committed, shall be punishable, on conviction, with death or imprisonment for life and shall be liable to forfeiture of property; or
(f) the offence of hijacking, has been committed, shall be punishable, on conviction, with death or imprisonment for life, and shall also be liable to forfeiture of property and fine;
(g) the act of terrorism committed falls under section 6(2)(t) and (g), shall be punishable, on conviction, With imprisonment of not less than six months and not more than three years and with fine; or
(h) the act of terrorism committed falls under. clauses (h) to (n) of subsection (2) of section 6, shall be punishable, on conviction, to imprisonment of not less than one year and not more than ten years and with fine; and
(i) any other act of terrorism not falling under Clauses (a) to (h) above or under any other provision of this Act, shall be punishable, and not less than six months and not more than five years or with fine or with both.
5(sic.) A plain reading of section 153-A of the Code reflects that it takes into account the act of promoting enmity between groups and classes. It is intended to prevent accused from making attacks on a particular community as it exists at the present time and also to curb various classes from coming into conflict by mutual abuse and recrimination and to prevent breaches of public tranquility which might result from exciting feelings of enmity between different religious, racial or language groups or castes or communities. Whereas, section 131 of the Code could be attracted when are offender abets the committing of mutiny by an officer, soldier, sailor or airman in the Army, Navy or Air Force of attempts to seduce any such officer, soldier, sailor or airman from his allegiance of his duty. However, the term mutiny has not been defined in the Code. It implies a collective insubordination to obey high command, a revolt, a resistance or refusal to obey lawful command especially in the military and naval services. In criminal law it means an insurrection of soldiers or seamen against the authority of their commanders, a sedition or revolt in the Army or Navy. According to Black's Law Dictionary one is guilty of mutiny who with intent w usurp or override lawful military authority refers in concert with any other E person or persons to obey orders or otherwise do his duty or creates any violence or disturbance.
Section 124-A of the Code provides measures to protect Government from seditious activities actual or attempted disaffection oral or advocacy as to over throw the Government (Central or Provincial) by force or violence. So far as sections 120-A and 120-B are concerned, the prosecution is required to collect some tangible evidence to attract these provisions of law.
6. Now adverting to section 11-X(2)(3) and sections 6/7 of Anti Terrorism Act, 1997, section 11(2)(3) of the Anti-Terrorism Act would come into play when an accused makes any call for action or shut down, imposed through the use of threats or force resulting in damage or destruction of property or injury to person, however, this is not the case of the prosecution. So far as sections 6/7 of the Act are concerned, in my view, for attraction of the provisions of section 7 of the Anti-Terrorism Act, it is necessary that ingredients of alleged offence must have nexus with the object of case as contemplated in section 6 of the Anti-Terrorism Act, 1997 and for this purpose it would be essential to have a glance over allegations made in the crime report. record of case and surrounding circumstances.
7. In this backdrop, the question arises as to whether the allegations as set forth in the crime report, on the face of the record, disclose violation of the aforesaid provisions of law or not, is yet to be answered by the prosecution. Under these circumstances, insertion, applicability and attraction of the said Sections requires further probe into the guilt of the petitioner. The rest of the sections of law i.e. 505, I 506, 188, P.P.C. do not fall within the ambit of prohibition contained in section 497, Cr.P.C. It is by now established that grant of bail in such like offence is a rule and refusal thereof an exception. In this behalf reference may be made to the cases reported as "Hazrat Wali v. The State" (2008 PCr.LJ 611) and "Muhammad Tanveer v. The State" (PLD 2017 SC 733).
8. No doubt, a list of different criminal cases registered against the petitioner was placed on record by the investigating officer, however, in these cases he was either acquitted of the charges or released on bail. Hence, suffice it to observe that at this stage, this Court is only seized of the instant bail application and the effect/impact of the said criminal record against the petitioner is -not relevant for disposing of the instant petition.
9. Coming to availability of objectionable material on the twitter account of the petitioner, I deem it appropriate to leave its evidentiary value to be adjudged by the learned trial court after recording evidence.
10. At the moment, the tentative assessment of the material available on record leads me to the conclusion that there are reasonable grounds to believe that the prosecution case requires further probe into the guilt of the petitioner, falling with the ambit of subsection (2) of section 497, Cr.P.C, thus, he has made out a case for grant of bail.
11. For the foregoing reasons, this petition is allowed and the petitioner is admitted to bail and be released on bail on his furnishing bail bonds in the sum of Rs.500,000/- (Five Lakh) with two sureties each in the like amount to the satisfaction of the learned Judge Anti-Terrorism Court, Hazara Division at Abbottabad, who shall ensure that the sureties are local, reliable and men of means, besides, he shall also submit an undertaking to the learned Judge Anti-Terrorism Court, Hazara, Division, Abbottabad, binding himself not to make any anti-state or anti-establishment comments in future, which may cause hazards to the security of Pakistan.
Above are the detailed reasons for short order of this Court of even date. 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.