Syed Iftikhar Hussain, Advocate was tried alongwith his brother Syed Mussarrat Hussain and one Ch. Ijaz Hussain by Summary Military Court No.30 Sahiwal under M.L.R. 13 read with M.L.R.
33. The said Summary Military Court vide order, dated 16th January, 1979 convicted Syed Iftikhar Hussain and sentenced him to 9 months' rigorous imprisonment plus a fine of Rs.5,000. In default of payment of fine he was ordered to undergo additional rigorous imprisonment for a period of 3 months. Syed Mussarat Hussain (petitioner in Writ Petition No.297 of 1979) was also convicted and sentenced to 1 years rigorous imprisonment. Ijaz Hussain was sentenced to 9 months rigorous imprisonment plus a fine of Rs.5,000. In default of payment of fine he was ordered to undergo additional rigorous imprisonment for a period of 3 months.
2. Ijaz Hussain was pardoned vide order, dated 12th February, 1979 of Deputy Martial Law Administrator, Multan.
3. Syed Iftikhar Hussain Shah petitioner has assailed his conviction and sentence by means of this Writ Petition while his brother Mussarat Hussain has assailed his conviction and sentence by means of Writ Petition No.297 of 1979. This judgment will dispose of both the aforementioned two Writ Petitions.
4. It was alleged by the prosecution that Syed Iftikhar Hussain petitioner alongwith Syed Mussarat Hussain (petitioner in Writ Petition No.297 of 1979) attempted to excite disaffection towards the Armed Forces in that on 16th of October, 1978 they were raising slogans saying, "MARTIAL LAW MURDA BAD. PEOPLES PARTY ZINDA BAD, JIWAY BHUTTO JIWAY, GARIBON KI MAJBOORI HAI BHUTTO BARA ZARURI HAI' at Mohallah Miran Shah, Pakpattan. It was further alleged that the petitioners propagated the cause of a politician at Mohallah Miran Shah on 16th October, 1978 by displaying placards with the slogans written thereon. Slogans were to the following effect: - "INTIKHAB KARAO AUR WAPIS BAIRKON MAIN JAO, BHUTTO KO REHA KARO, MARAIN GAY YA MAR JAIN GAY BHUTTO KO REHA KARWAIN GAY, AIN KA TAQADAS BAHAL KARO."
These acts of the petitioners, it is alleged, fell within the mischief of M.L.Rs. No. 13 and 33 respectively.
5. Record has been produced by Mr. Khalil-ur-Rehman's Ramdey learned Assistant Advocate- General, and has been perused with the help of the learned counsel for the parties.
6. Prosecution examined four witnesses in support of its case namely, Muhammad Ali, P.W.1; Haji Ghulam Hussain, P.W.2; Saif Ullah Niazi Sub-Inspector, P.W.3 and Muhammad Afzal Moharrir Head Constable, P.W.4.
7. The petitioners/ accused denied the allegations against them. They stated that the local police arrested them on 15th October, 1978 one day prior to the present occurrence and that they had been falsely implicated in this case. They produced Muhammad Sharief, D.W.1, Muhammad Bakhsh, D.W.2. Muhammad Ali, D.W.3, Muhammad Mubeen, D.W.4, and Ghulam. Qadir, D.W.5, in their defence.
8. The Court examined Sardar Muhammad as a Court witness.
9. The F.I.R. Exh. 'O' in this case was lodged on 16th October, 1978 at 5-10 p.m. On the basis of written intimation which was sent to the Police Station by Saif Ullah Niazi, Sub-Inspector, Police Station, Pakpattan, P.W.3. It was alleged in the F.I.R. That the petitioners alongwith others had taken out a procession from Mohallah Miran Shah and that they were carrying placards and that they were also raising objectionable slogans. Formal F.I.R. Was recorded by Muhammad Afzal Moharrir Head Constable, P.W.4. The said F.I.R. Was recorded under section 16 of Maintenance of Public Order Ordinance.
10. According to the F.I.R. As well as according to the charge sheet narrated above it was alleged that procession was taken out by the petitioners alongwith others from Mohallah Miran Shah. The prosecution, however, miserably failed to prove that any such procession was in fact taken out from Mohallah Miran Shah as alleged in the F.I.R. And in the charge sheet. Muhammad Ali, P.W.1, stated that he saw a procession comprising about 50 persons from near the Town Hall; Pakpattan.
He further added that the petitioners were heading the procession and that persons in the procession behind the accused/ petitioners were raising slogans. As regards the recovery of the placards which were alleged to have been taken into possession by the police at the spot, he stated that he signed a blank paper on the understanding by the police that recovery memo. Of placards would be prepared later on at the Police Station. He also admitted in cross-examination that he did not visit Mohallah Miran Shah on the day of occurrence at all. He also did not remember what was written on particular placard. He also admitted that five persons were arrested by the police on the spot and that two persons were released on the recommendations of the P.N.A. In an answer to a Court question, he stated that the accused were raising slogans in order to bring disaffection towards the Armed Forces and advocating the cause of Mr. Bhutto, the position. He, however, gave no particular of such slogans.
Haji Ghulam Hussain, P.W.2 stated that the police took into possession the placards from the petitioners. He also admitted that he signed the recovery memo. At the Police Station later on. He also admitted that at the time of signing the recovery memo. It was totally blank. He also added that the procession was taken out from Town Hall, Pakpattan. He admitted in cross-examination that he did not visit Mohalla Miran Shah on the day. He also added that Mohalla Miran Shah was situated on the eastern side of Dhaki Pakpattan while the Town Hall was on the western side of Dhaki Pakpattan and that distance between Mohalla Miran Shah and Town Hall was two furlongs by road. Like the earlier witness Muhammad Ali, he replied in an answer to a Court question that the accused were raising slogans in order to bring disaffection towards the Armed Forces advocating the cause of Mr. Bhutto the politician. Once again, the particulars of slogans were not given.
Saif Ullah Niazi, Sub-Inspector, P.W.3, admitted in cross---examination that he had written the place of occurrence as Mohalla Miran Shah as alleged in the F.I.R. He also contradicted the testimony of Muhammad Ali and Ghulam Hussain P.Ws and stated that the recovery memos. Were prepared at the spot and that he did not obtain the signatures of the said two witnesses on the blank papers as alleged by them.
11. Muhammad Sharif D.W.1, deposed that no procession was taken out on 16th October, 1978 at Town Hall. Muhammad Bakhsh, D.W.2, stated that the accused were arrested by the local police on 15th October, 1978 a day prior to the occurrence and that he saw these accused/ petitioners at the local Police Station on that day. Malik Muhammad Ali, D.W.3, who is a shopkeeper and lives in the vicinity, stated that he did not see any procession near Town Hall on the day of occurrence.
Muhammad Mubeen, D.W.4, deposed that he saw the petitioners in police custody on 15th October, 1978. Ghulam Qadir, D.W.5, also deposed that the petitioners were arrested a day earlier i.e. On 15th October, 1978.
12. Sardar Muhammad, the Court witness, is Nazim-e-Aala and Senior Vice-President of P.N.A.
Pakpatten. He stated that the petitioners were raising slogans tending to bring the Armed Forces into disaffection.
13. The petitioners in this case had been specifically charged for taking out procession, raising objectionable slogans and carrying objectionable placards in the F.I.R. As well as in the charge sheet at a particular place i.e. Mohalla Miran Shah. Prosecution witnesses on the other hand categorically deposed that they did not visit Mohalla Miran Shah on that day and that in fact the procession was taken out from near Town Hall and that the two places separate from each other by about two furlongs. Saif Ullah Niazi, P.W.3, admitted that he had sought to change the venue of the procession as he did not know the city of Pakpattan. The charge, therefore, is clearly not proved against the petitioners. This fact alone is sufficient to set aside their conviction. But there are certain other features of the case which may also be noted. The recoveries of the objectionable placards from the custody of the petitioners are also belied by the prosecution witnesses themselves. Muhammad Ali, P.W.1, and Haji Ghulam Hussain, P.W.2, have categorically stated that the police obtained signatures on blank papers and these blank papers were subsequently converted into recovery memos. Suffice it to say that the recovery of their placards in this case cannot be relied upon against the petitioners. In fact none of the prosecution witnesses ascribed any slogans to the accused /petitioners in this case except in an answer to a Court question and then, too, the petitioners slogans had not been given.
14. Prosecution has sought to prove its case by the testimony of Sardar Muhammad, a Court witness. He is not mentioned in the F.I.R. Nor had he been named by any of the prosecution witness.
His name does mention in the record of the prosecution anywhere. He is the only witness who had sought to implicate the petitioner in this case. His testimony had been used to fill in lacunas and gaps left in the case of the prosecution. He is a Senior Vice-President of a political party opposed to the petitioners. Besides, there is nothing on the record to indicate that provisions of Rule 118 of Pakistan Army Rules were followed with regard to his evidence. The record of the Summary Military Court is silent about it.
14. As a result of the above dissolution, I hold that the prosecution had failed to prove the charge against the petitioner and that there was not sufficient material on the record to connect the petitioner with the charge. Moreover, no reasonable person would convict the petitioner on the kind of evidence adduced by the prosecution in the case.
15. This Writ Petition is accordingly accepted. The conviction and sentence of the petitioner is set aside. He is set at liberty forthwith unless he is wanted in some other case.