Ashiq Ali, Javaid Sabir and Muhammad Riaz petitioners alongwith three others namely, Qamar Din (Convict in Writ Petition No.2202 of 1979). Naimat Ullah (Convict in Writ Petition No.2203 of 1979) and Muhammad Amin (Convict in Writ Petition No. 2204 of 1979) were tried by Summary Military Court No.37, Lahore for offences under Martial Law Regulations No.13/33. They were convicted by the said Summary Military Court and sentenced to various terms of imprisonment vide order, dated 17th February, 1979.
Ashiq Ali was sentenced to 1 year R.I. And 10 stripes.
Javaid Sabir was sentenced to 1 year. R.I. Plus fine of Rs.5,000 and 10 stripes.
Muhammad Riaz was sentenced to 1 year's R.I. Plus Rs.10,000 Line and 10 stripes.
Muhammad Amin was sentenced to 1 year's R.I. Plus Rs.10,000 fine and 10 stripes.
Naimat Ullah was sentenced to 1 years R.I. Plus Rs.10,000 fine and 10 stripes.
Qamar Din was sentenced to 1 yeas R.I. And 7 stripes.
Sentence of stripes was administered on the same day.
Petitioners have assailed their conviction and sentence by means of this Writ Petition. This judgment will dispose of the same.
2. It is alleged by the prosecution that the petitioners alongwith Qamar Din, Naimat Ullah and Muhammad Amin raised objectionable slogans against Chief Martial Law Administrator on 14-2- 1979 at 7-30 a.m. At the main gate of PECO (Kot Lakhpat) and thus excited disaffection toward the Chief of Army Staff and that on the same day and at the same time they also participated in unlawful political activities by raising slogans in favour of a politician. According to the prosecution these acts of the petitioners and convicts fell within the mischief of Martial Law Regulations Nos.13 and 33.
3. The case against the petitioners and their co-accused was registered at Police Station Factory Area on the basis of F.I.R. No.22 of 1979 (Exh. 'M'). It was recorded by Matloob Hussain, Sub-Inspector (not produced) on the basis of a secret report Exh. 'L' which was prepared by Nazir Ahmad, P.W.1.
The case was investigated by Ali Muhammad, Sub-Inspector, P.W.3. He had also arrested the petitioners as well as the co-accused on 16th February, 1979. Prosecution also relied upon the evidence of Muhammad Iqbal Constable, P.W.2, in support of its case.
4. The petitioners as well as their co-accused denied the allegations against them.
Ashiq Ah denied that he took part in any political activities on the day of occurrence.
Javaid Sabir stated that he, too, did not take part in any political activities on 12th February, 1979.
Muhammad Riaz also denied the allegations of the prosecution.
Qanar Din stated that he did not take part in any procession and that he kept on sitting inside the Factory.
Muhammad Amin stated that he did not go to the Factory on 14th February, 1979 as the D.S.P., Kot Lakhpat and S.H.O. Factory Area Ali Muhammad, P.W.3 had told him not to cross the line of Kot Lakhpat Railway Station and that he should not visit the Factory Area on that day. He stated that he obeyed these orders and he did not go to the Factory on that day.
Naimat Ullah stated that he did not go to the Factory as he was stopped by the S.H.O. Ali Muhammad, P.W.3 on that day from entering the Factory. The petitioners and their co-accused, however, did not lead any evidence in defence.
5: Record of the case was produced by Khalilur Rehman's Ramdey, learned Assistant Advocate- General, and the same was perused with the help of the learned counsel for the parties and arguments heard.
6. The case for the prosecution is that on 13th February, 1979 at about 5 p.m. (a day prior to the occurrence) a meeting of PECO Workers Union was held in the office of the Union. It was attended by Muhammad Amin, Naimat Ullah convicts. It was decided to start political activities on 14th February, 1979 for the release of Mr. Z.A. Bhutto. Next day i.e. On 14th February, 1979 at about 5 p.m.
Naimat Ullahi and Muhammad Riaz convicts stood at the gate of the Factory ands informed all the workers to go on strike. Thereafter they brought out a procession of about 250/300 workers with them after having struck work. All the accused are alleged to have raised objectionable slogans.
Nazir Ahmad Constable, P.W.1, is reported to have prepared a secret diary Exh. 'L', on the basis of which F.I.R. Exh. 'M' was registered) against the petitioners/convicts. Muhammad Iqbal Constable, P.W.2, was also present at the gate on 14th February, 1979 when the convicts took out a procession at the main gate of the Factory. The procession, it is alleged by the prosecution, started at 7-00 in the morning and continued till 2-15 p.m. At the main gate of the Factory. Ali Muhammad Sub- Inspector (S.H.O) P.W.3, was present at the main road on the day of occurrence. He was given the secret report by Nazir Ahmad, P.W.1, which was sent to the Police Station for the formal registration of the case. He had not stated anything about the participation of the present convicts at the main gate. He had arrested the convicts on 16th February, 1979.
7. The occurrence in this case is alleged to have taken place new the main gate of DECO Factory which is a congested place situated on the main road, yet no public witness had been examined by the prosecution in this case. According to the statement of Muhammad Iqbal, Constable, P.W.2, the procession and the whole enterprise began at 7' a.m. And continued till 2-15 p.m. At that there were 250/300 persons present at the place of occurrence. Adverse inference can safely be drawn against the prosecution for the non-production of natural and public witnesses in this case. Apart from this, there are features of this case which indicate that the investigation of the case was note conducted honestly. For instance, as per secret report Exh. 'L' names of Qamar Din, Muhammad Amin, Ashiq Ali, Javaid Sabir were not mentioned in the secret report nor were their names mentioned in the F.I.R. Exh. 'M'. Yet they have been implicated in the case. No doubt two policemen namely, Nazir Ahmad, P.W.1 and Muhammad Iqbal, P.W.2, are alleged to have seen the occurrence.
They are public servants and are directly concerned with the success of the prosecution case and can safely be described as interested witnesses. They are not worth) of credence.
8. I have already held .In Writ Petition No.1032 of 1979 decided on 17th April, 1979 which related to this very F.I.R., secret report, and almost same evidence, that the conviction could not be based on they kind of evidence adduced by the prosecution in the case. Conviction eras set aside.
9. I have no hesitation in re-affirming my aforesaid view accordingly hold that the conviction and sentence of the petitioners is based upon interested evidence and that no reasonable person would convict the petitioners on the kind of evidence adduced by than prosecution in this case.
This Writ Petition is accepted. The conviction and sentence of the petitioners is set aside. They are set at liberty forthwith unless they are wanted in some other criminal case.
There would be no order as to costs.