' This order of dispose of Criminal Miscellaneous Nos.785-CB, 786-CB and 787-CB of 1995 having commonalty of facts and law, viz., seeking cancellation of post-arrest and pre-arrest bails allowed to the respondents Brig. (Retired) Imtiaz Ahmad; Haji Gul Sher Khan and Malik Muhammad Naeem by Special Judge Central, Rawalpindi vide the impugned orders dated 20-9-1995, 20-9-1995 and 28-2-1995 respectively emanating out of the case registered vide F.I.R. No,8 of 24-7-1994 under section 120-B/121-B/124-A/153-A/109, P.P.C. Read with section 3(c)/5(1)(a) and (d) of the Official Secrets Act, 1923 with F.I.A. Islamabad enshrining the allegations reproduced herein below as per revelation in the complete challan dated 31-8-1995: "The Intelligence Bureau, Government of Pakistan conducted Operation 'Midnight Jackals' during the month of September/October, 1989 in which 12 audio cassettes were prepared which disclosed unlawful criminal and seditious activities against the then legally constituted Government of the Islamic Republic of Pakistan. The aforementioned Operation revealed that the serving Brigadier Imtiaz Ahmed (who was then serving and was later--17th December, 1990 to 18th April, 1993-the Director, Intelligence Bureau as a retired Brigadier) and Major (Retired) Muhammad Aamer (who was then a serving Major Commanding an Inter-Serwrees Intelligence at Islamabad in connivance with Malik Muhammad Naeem and others were involved in Horse Trading for subverting the loyalties of M.N.As. Of the treasury Benches. All this was done at the behest of the political leaders for whom they were working. Their objective was to overthrow the then legally-constituted Government of Pakistan. Further, the unlawful activities of the said accused persons amounted to inciting disharmony, feelings of enmity, hatred and between the then Government and its opposing political groups as well as among members of the then ruling party itself. In the process, the said Brig. (Retd.) Imtiaz Ahmed and Major (Retd.) Muhammad Aamer also divulged classified information to unauthorised persons. The above said accused person Brig. (Retd.) Imtiaz Ahmed, later on, in his capacity as the then D.I.B. (1990-93) also divulged, or caused to be divulged the classified information to unauthorised persons including Mr. Munir Ahmed, a Journalist/Writer. Mr. Munir Ahmed then went on to write a book "Pakistan Mien Intelligence Agencion Ka Siasi Kirdar' which was possible because of divulgence of information contained in the casettes of operation 'Midnight Jackals' etc. This activity on the part of both Brigadier (Retd.) Imtiaz Ahmed and Major (Retd.) Muhammad Aamer and others have further jeopardised and harmed national interest immensely. The above acts of commission and omission on the part of Brig. (Retd.) Imtiaz Ahmed, Major (Retd.) Muhammad Aamer Malik. Naeem and others constitute offences of criminal conspiracy, sedition, inciting, disharmony and feelings of enmity, hatred and between political groups as well as among the people at large. Their activities created a general feelings of disaffection against the lawful Government of Pakistan.
' During course of investigation supplementary statements of complainant (who was also the officer in charge of Operation 'Midnight Jackals') Rana Abdul Baqi, Deputy Director (CC)
Intelligence Bureau Islamabad was recorded under section 161, Cr.P.C. He corroborated the contents of the complaint and also supplied the extract from the book named Pakistan Mien Intelligence Agencies Ka Siasi Kirdar' and also produced the said book, which was taken into possession by the F.I.A. Through Seizure Memo. Statement of Mr. Rahim Bukhsh DCIO/IB, Islamabad was recorded under section 161, Cr.P.C. Who during the above operation worked under the supervision of Mr. Rana Abdul Baqi at the place of occurrence i,e,, House Nos.60 and 54-A Zikaria Road Westridge-II, Rawalpindi, the residence of Malik Mumtaz Ahmed P.W. Statements of Brig.
(Retd.) Muhammad Akhtar Khan, Joint Secretary Security Prime Minister Secretariat, Islamabad, Malik Mumtaz Ahmed, Mr. Masood Sharif Khan, Director-General Intelligence Bureau, Islamabad, Mr. Muhammad Arif Awan and Rai Rashid Ahmed Bhatti, Ex-M.N.As. Etc. Were also recorded under section 161, Cr.P.C. As per statements of the prosecution witnesses it has revealed that the crime started in September, 1989 in Government Hostel, Islamabad when Malik Mumtaz Ahmed, the then XEN/MES of Pakistan Army was contacted and summoned by Maj. Muhammad Aamar at M.N.A.
Hostel, Islamabad in the room of Haji Gulsher Senator during month of September, 1989.
Muhammad Aamer the then Major of I.S.I. Asked him in the presence of Haji Gulsher, Senator to act as agent in between the M.N.As. Of the sitting Government. Mr. Arif Awan etc. And opposition in order to overthrow the then lawfully constituted Government- of P.P.P. Through unconstitutional means, committed criminal conspiracy against the then Government Malik Mumtaz Ahmed immediately contacted Brig. (Retd.) Muhammad Akhtar J.S. Security Prime Minister's House and brought the story in his knowledge who after examining the situation, referred the matter to Mr. Masood Sharif Khan the then Joint Director, Intelligence Bureau, Islamabad. Mr. Masood Sharif> Khan after discussing the matter with Malik Mumtaz Ahmed, appointed Rana Abdul Baqi complainant, as the officer in charge of operation Nighat Jackals' which continued from 28-9-1989 to 6-10-1989 and as result of this operation 12 cassettes (Audio) and their English Transcription were prepared. In the light of abovementioned evidence, Brig. (Retd.). Imtiaz Ahmed was thorougly interrogated into the matter but he failed to rebut the evidence and rather admitted his participation in the operation.
' During course of investigation, it has also come on record that the accused persons Brig. (Retd.)
Imtiaz Ahmed and Maj. (Retd.) Muhammad Aamer were compulsorily retired from the Army being at fault as a result of findings of informal enquiry conducted by Lt.-Gen. Muhammad Ashraf Janjua, the then Adjutant-General G.H.Q., Rawalpindi. Brig. (Retd.) Imtiaz Ahmed made extra-judicial confession before the Enquiry Officer regarding commission of offences i,e, their involvement in Anti-Government activities. It has also come on record that soon after the compulsory retirement 'being at fault' both the abovementioned accused Army Officers were benefitted even by violating the Rules and Regulations in the Punjab Government by the then Chief Minister, Mian Nawaz Sharif through re-employment of in the higher grades in May, 1990. This was agitated by the G.H.Q., Rawalpindi and a letter in this regard was written to the Defence Secretary, Ministry of Defence, Government of Pakistan. In December, 1990 Mr. Nawaz Sharif became the Prime Minister of Pakistan.
He appointed Brig. (Retd.) Imtiaz Ahmed in Grade-22 as D.I.B, without cancellation of his previous contract with Punjab Government which was against the Rules prescribed by the Federal Government.
' Investigation of the case has revealed that accused Malik Muhammad Naeem (M.N.A.).And Haji Gulsher Khan (Senator) in connivance with Brig. (Retd.) Imtiaz Ahmad and Maj. (Retd.) Muhammad Aamer (during service) illegally and unconstitutionally attempted to overthrow the legally- constituted Government of Mohtarama Benazir Bhutto by changing the loyalties of M.N.As. Elected on the ticket of Pakistan People-'s Party namely Arif Awan etc. By way of offering bribe in the shape of cash and plots etc. The indulgence of the two Army Officers named above further casts the influence as well as threat on behalf of Armed Forces M.N.As. Of Pakistan People's Party to change their loyalties. The investigation had also revealed that the above-mentioned accused person criminally conspired and had attempted to bring hatred, disaffection among the Provinces of Pakistan by promoting enmity between peoples of Provinces. Accused Brig. (Retd.) Imtiaz Ahmed and Maj. (Retd.) Muhammad Aamar by misusing their official capacity also divulged classified information to unauthorised person.
' During course of investigation, it transpired that nominated accused Munir Ahmed (Journalist/Writer) is innocent on the ground that prior to publishing book titled as 'Pakistan Mien Intelligence Agencion Ka Siasi Kirdar' the entire material contained in the book had already been published in the White Paper during the year 1978 relating to General Election of 1977 as well as Daily Musawaat in the year 1992, relating to operation (Mid-night Jackals). Thereupon his name is placed in Column No,2 of the report as being innocent. In view of evidence collected during investigation, the accused persons namely, Brig. (Retd.) Imtiaz Ahmed, Haji Gulsher Khan, Major (Retd.) Muhammad Aamar and Muhammad Naeem are challenged having been found guilty in offences under section 120-B/124-A/153-A/109, P.P.C. And 3(c)/5(1)(a)&(d), Official Secret Act, 1923.
However, Maj. (Retd.) Muhammad flamer, is absconder and has been declared P.O. In accordance with law for proceedings under section 512, Cr.P.C."
2. Contending perversity in the case of Brig. (Retd.) Imtiaz Ahmad and non-advertence to the facts in the case of latter two respondents at all, complete text whereof is set out herein below respectively: I. Brig. Imtiaz Ahmad: "I have heard the learned counsel for the petitioner. Learned Special Public Prosecutor has also been heard. The first point raised by the learned counsel for the petitioner is that the petitioner has already been punished for the alleged offences and that he had been retired from service by army and that the proceedings in the case are hit by Article 13 of the Constitution. The plea is not sustainable. Article 13 is as follows:-- ' No person---
(a) shall be prosecuted or punished for the same offence more than once; or
(b) shall, when accused of an offence, be compelled to be a witness against himself.
' A bare reading of this Article shows that it is necessary that the accused should have been prosecuted and punished. The word 'or' in this Article has been used conjunctively and in this case it cannot be said that there was prosecution and punishment before a competent Court. The definition of the word 'offence' in section 3 of General Clauses Act, 1897 and in section 5 of Cr.P.C.
Also lead to same conclusion. Mere retirement cannot be related to offence as defined in these statutes. Section 403 of Cr.P.C. Also shows that a person should have been tried by a Court of competent jurisdiction for an offence and in this case since the petitioner had not been court- martialed, prima facie, double jeopardy cannot be pleaded in defence. However, I find that, prima facie, it would be debatable if an offence under section 3 of High Treason Punishment Act, 1973 is constituted. Now high treason has been defined in Article 6 of the Constitution and it cannot be said by any stretch of imagination that the acts attributed to the petitioner amounted to an attempt or conspiracy to abrogate or subvert the Constitution. Prima face, it was an attempt or conspiracy to do something, which Constitution permitted but through illegal methods i,e, the use of votes against payment of money. On the face of it, these acts fall within the purview of section 120-B of P.P.C. These acts do not constitute high treason or subversion or abrogation of Constitution or an attempt or conspiracy at abrogation or subversion.
' Prima facie, it would be debatable if offence under section 124-A is constituted because the acts were the nature of a conspiracy and these cannot be taken to constitute an attempt to bring into hatred or contempt, the Government or to excite disaffection towards the Government. The provisions contained in section 124-A of P.P.C. Make it reasonably clear that the section aims at rendering penal only such activities as would be intended or have a tendency to create disorder or disburbance of public peace by resort to violence and the evidence in this case prima facie appears to be insufficient for drawing any such inference. Mere disapprobation of the Government and change of the ruling set through modes allowed by Constitution although adopted through illegal means, prima facie, would not come within the ambit of 'sedition' as defined in section 124-A of P.P.C. Same would be the case vis-a-vis an alleged offence under section 153-A. This conspiracy between these persons cannot be taken as promoting enmity between different groups.
' Prima facie, it was simply an attempt at winning votes through illegal means by putting forward different pretexts. On the face of it, it was a conspiracy for indulging in a correct corrupt practice and of bribery within the meaning of sections 78 and 79 of Representation of the People Act, 1976 and falls within the purview of section 120-B, P.P.C. And the punishment for this offence would be co-extensive with the punishment for the offence under Representation of the People Act, 1976. The plea that the petitioner and his co-accused could be proceeded against under the Representation of the People Act, 1976, that member could be disqualified in terms of Article 63 only by the Chief Election Commissioner is prima facie without any substance.
' Provisions contained in section 26 of General Clauses Act, 1897 clearly shows that where an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for same offence. So, this objection, prima facie, is not sustainable. All the same, I find that the offence which, prima facie, is constituted on this evidence does not appear to be that grave. In this situation I allow this application, and in this case it is due to lack of gravity of offence that the question of abscondence would be of little consequence. I, therefore, hereby allow this petition and admit the petitioner to bail on his furnishing bail bonds in the sum of Rs, one lac with one surety in the like amount to the satisfaction of this Court.
' Announced Dated 20-9-1995 (Sd.)
Special Judge Central, Rawalpindi."
II. Hai I Gul Sher Khan: "The petitioner had also been placed in the column No,2 of the challan. The co-accused Munir Ahmad and Malik Muhammad Naeem, M.N.A. With similar role have been granted the concession of pre-arrest bail. Malik Muhammad Naeem, M.N.A. Was also directed simply to furnish bail bonds.
' If, subsequently the position has been altered in the complete challan then it would not be fair to treat him differently than these other two accused who had been placed in Column No,2 of the challan. So, the petition moved by him is also allowed and the interim bail already granted to him is confirmed.
' Announced Dated 20-9-1995 (Sd.)
Special Judge Central Rawalpindi."
III. Malik Naeem Khan: "The notice of this application be given to the State for 28-2-1995. Since the process to the petitioner under section 204, Cr.P.C. Has already been issued and the petitioner has put his appearance through his counsel, therefore, any proceeding or process earlier issued under section 204, Cr.P.C. Regarding appearance/production of the accused (Malik Muhammad Naeem) in this Court are suspended. In the meanwhile, the petitioner is directed to file his bail bonds in the sum of Rs,25,000 with one surety in the like amount to the satisfaction of his Court. To come up for further proceedings on 28-2-1995.
' Dated 17-1-1995 (Sd.)
S.J.C., Rawalpindi."
"As the bail bonds has been filed on behalf of the petitioner, the further proceedings of this petition is not called.
' Dated 28-2-1995 (Sd.)
S.J.C., Rawalpindi."
3. Englossing upon the urged contentions against Malik Muhammad Naeem the learned Special Public Prosecutor submitted that the application tending to seek permission for filing bail bonds pursuant to the warrants issued by the Magistrate's Court perceived by section 204, Cr.P.C. Was treated as bail petition which in fact was non-existent; who wasn't even in attendance during the course of motion hearing as well as the confirmatory proceedings nor even tendered the bonds; precipitation of the impugned order without application of judicial mind despite the pioneering role and active participation in prolonged series of conspiratorial meetings factum whereof is patently borne out therefrom; to which Haji Gulsher's case was simply pegged.
4. Factum whereof remained undislodged by the learned counsel appearing on behalf of both the respective respondents.
5. Elucidating the case of Brig. (Retd.) Imtiaz Ahmed, the learned Special Public Prosecutor submitted that the prosecution case is based upon 12 recorded cassettes by the I.B. Through bugging gadgetry, originals are with the G.H.Q. Copies and transcription whereof have been catered for to the prosecution, corroboration where to stands furnished by the statements recorded by the Investigating Officers within the contemplation of section 161, Cr.P.C. Of Muhammad Arif Awan, Rai Rashid Bhatti, M.N.As. And Malik Mumtaz Hussain then Executive Engineer M.E.S. On deputation with F.I.A. As Deputy Director; the offences charged fall within the prohibition perceived by section 497(1), Cr.P.C. Since, inter alia, section 124-A ibid attracts imprisonment for life qua the acclaimed extraction of Indian plans of Brass Tack exercise from impregnable safe custody.
6. To which learned counsel for the respondent joining issue submitted that exoneration of Munir Ahmad Journalist of the charge under the Official Secrets Act for the complained of material having already been published in the white papers knocks off the very premise of the prosecution case against Brig. (Retd.), Imtiaz Ahmad on this count; further the alleged violation of the Official Secrets Act is utterly misconceived being not the classified information, conversely at its best could be termed as a boasting of a successful adventure in prime national interest invading the top security measures of the enemy to their detriment and by no stretch of imagination could be branded as advantageous to them; not only authenticity of the acclaimed recorded cassettes as well as the copies and transcription made therefrom patently warrant ascertainment on factual plane as to their genuineness and free from any interpolation but also credibility of Malik Mumtaz Hussain acting as agent provocateur offering his own house for the complained of activities, subsequently seeking refuge in India upon dissolution of the then Government-in-office eventually landing in Briton and upon return therefrom after a lapse of nearly 3 years his induction in the F.I.A.
As a twitting sting of the Government is devoid of credence; independent thereof the respondent at the time of granting of bail had already suffered an incarceration of more than 14 months rendering him entitled to the sought for post-arrest bail on account of lapse of statutory period and the conferred concession hasn't been abused.
7. Having heard the arguments canvassed at the Bar I am of the opinion that the shortcomings pointed out qua the bail granting orders of Haji Gulsher Khan and Malik Naeem suffer from inherent incurability primarily misconstruing the latter's application designed to tender the bail bonds to guard against the non-bailable warrants of arrest procured by the Investigating Officer from F.I.A.'s Magistrate contemplated by section 204, Cr.P.C. Which formed the basis for the likewise bail granting order in the case of Haji Gulsher Khan labouring under the impression to have been placed in Column No,2 of the interim challan which situation did not obtain in the final challan for his having been placed in Column No,3 probably for failure of the Investigating Officer for marking the first situation in red.
8. Neverthless, admittedly, merits. Having not been adverted to the impugned orders dated 20-9- 1995 and 28-2-1995 granting pre-arrest bail to Haji Gulsher Khan and Malik Muhammad Naeem respondents are hereby set aside being a nullity in the eye of law.
9. However, their petitions would be deemed to be pending before the learned Special Judge Central, Rawalpindi with a right to the latter to seek conversion of his application into pre-arrest bail petition inserting such grounds-as may be deemed proper for the sought for relief which should be processed and dealt with in accordance with law after hearing the parties and attending to the record. Meanwhile the respondents should not be arrested.
10. Conversely, the case of Brig. (Retd.) Imtiaz Ahmad stands utterly on different footings because veracity of the banked upon recorded cassettes as well as the transcription thereof, being the sheet anchor of the prosecution story prima facie, warrants to be ascertained, specially being secondary piece of evidence, original whereof even would call for proof of uninterrupted tapping of the entire conversation subjecting to the sonographic test of the participants voices; which the learned Special Prosecutor despite availability of the option opted not to produce entering the plea as to the G.H.Q's custody of which, I am afraid, patently being an organ of the Government no premium could be reaped; therefore, prima facie constitute sufficient grounds for further enquiring into the nature and substance of the allegations on which count the respondent has already suffered beyond 14 months' internment at the time of granting of bail trial whereof till date hasn't even commenced without attribution of any blameworthiness unto the respondent.
11. Likewise the afore-referred statements particularly that of the Agent Provocateur, contemplated by section 161 of the Cr.P.C. Merely. Being Corroborative in nature in terms of juridical classification, with the withholding of the best available material doesn't be justify the respondent's incarceration for indefinite period for the bail can't be denied as a punishment.
12. Whereas, the submission of the learned counsel for the respondent qua the charge under the Official Secrets Act prima facie seems to be well-based.
13. In view of the afore going the impugned bail granting order though not very happily worded in encompassing the scene, but in the circumstances, no case meriting recalling of the conferred concession on the judicial touch stone has been made out nor even abuse thereof has been grudged against.
14. Consequently, the petition qua Brig. (Retd.), Imtiaz Ahmad is hereby dismissed being ill-founded and devoid of any substance.