1. MUKHTAR AHMED JUNEJO, J: --Application Perwaiz has moved for quashment of the criminal case pending against him in Court of the Judge, Special Court (Suppression of Terrorist Activities), Hyderabad, for the offences punishable under sections 121, 121-A and 122 of P.P.C. Read with section 13 of the Anti-National Activities Act, 1974 (hereafter called as the Act of 1974). Said case is outcome of F.I.R. No.81 of 1991.
2. According to the F.I.R., applicant Perwaiz was apprehended on 28-9-1991 by Inspector Bashir Ahmed, S.H.O. Police Station Phuleli Hyderabad. During his interrogation the applicant told police that as an active member of Al Zulfiqar Organization (A.Z.O.) he had taken training in terrorism in India in 1989 and that he had taken oath for committing anti-State activities against Pakistan. Such F.I.R. Was lodged by S.H.O. Phuleli, Hyderabad. After due investigation the case was challaned against the applicant, for the offences mentioned in para. 1. Hence this application.
3. Mr. Muhammad Aslam Bhatti, learned counsel for the applicant argued that the offences punishable under sections 121, 121-A and 122 of P.P.C. Were non-cognizable and the F.I.R. In respect of said offences could not have been registered. It was next argued that prosecution of the applicant under the Act of 1974 was bad in law, in absence of the permission to be obtained from, the Federal Government or the Provincial Government or any authorised officer. Learned counsel for the applicant further argued that in prosecuting the applicant, the prosecuting agency has violated section 16 of the Act of 1974 that arrest of the applicant in absence of any warrant was bad, that no complaint by an authorised person has been filed against the applicant, that the F.I.R registered on 28-9-1991 is delayed by two years and lastly that any incriminating statement by the applicant made before police cannot be used against him. Learned counsel for the applicant cited the case of Muhammad Sadiq Umrani v. Government of Sindh and others PLD 1993 Kar. 735.
4. Mr. Abdul Ghani Shaikh, learned AA.-G. Conceded that the offences punishable under sections 121, 121-A and 122 of P.P.C. Were non-cognizable. He, however, argued that the offence punishable under section 13 of the Act of 1974 is a cognisable one.
5. Section 13 of the Act of 1974 prescribes punishment for anti-national activities. Section 13 of the Act, 1974 reads as below:--- ---(1) Whoever-----
(a) takes part in or commits, or
(b) advocate or abets, or attempts to advocate or abet, the commission of, any anti-national activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine.
(2) whoever, in any way, assists any anti-national activity of any association declared anti- national under section 3, shall be punishable with imprisonment for a term which may extend to five years, and shall also be liable to fine:'
6. Even otherwise perusal of the F.I.R. Shows that the only evidence against the applicant is his own statement made before police that he had taken training in terrorism in India in 1989 and that he had taken oath for committing anti-State activities against Pakistan as an active member of Al--- Zulfiqar Organization. Such statement made before police, cannot be used against the appellant.
7. Section 121 of `P.P.C. Deals with a person waging war against the country. Section 122 of P.P.C. Deals with a person collecting men, arms and ammunition or otherwise preparing to wage war against the country. Section 121-A of P.P.C. Deals with conspiracy to commit offence punishable under section 121 of P.P.C. There is no allegation in the F.I.R. If the applicant waged war against the country/State or if the applicant collected men, arms and ammunition to wage such war or if he entered into a conspiracy to wage such war. Even for proving such allegations the prosecution is relying on the statement said to have been made by the applicant before police, which cannot be used against him.
8. For the foregoing reasons, we accept this application and quash the Criminal Case No.136 of 1991 pending against the applicant in Court of Judge, Special Court, Suppression of Terrorist Activities, Hyderabad; being outcome of F.I.R. No.81 of 1991 of P.S. Phuleli.