Crl. Misc. No. 222-B-2013 Gen. (R) - Islamabad High Court

ISLAMABAD mOB COURTISLAMABADCrt Misc. No.222..B/2013General ®~PervezMusharrafVersusThe :State etc.Petitioners by:Malik Qamar Afzal, ASC, Mr. Nabeel Rehman,Ms. Zainab Effendi & Rehana Zaman, AdvocatesPetitioner in person. on ad-interim bail.State by:Complainant by:Date of decision:Mr. Tariq Mehmood Jehanqir, learned DAG.Mr. Sultan Mehmood, S.LIL0Ch. Muhammad Aslam Ghumman, ASCcomplainant in person.Ch. Muhammad Ashraf Gu.jjar, AdvocateSardar Asmat Ullab: Khan, ASCMr. Nazir Ahmed Bhuita, AdvocateMr. M. Saleheeri Mughal, Advocate18-04.2013.__ .. .. • ~ ,... ... iIIIIIr .,_ ... __ ........ #IM ......... _ _.""' ......... ........... _., __ ..... ., .. _SHAUKAT AUZ SIQDIQUI; ;J: Petitioner seeks pre-arrest bail,in case FIR No.131j2009,dated 11.08.2009, offence under Section344/34 PPC,registered at Police Station Secretariat, Islamabad.2. Brief facts are that complainant Ch. Muhammad AslamOhumman, Advocate Supreme Court of Pakistan) moved anapplication to SHO, P.S Secretariat. Islamabad for registration ofcase but due to non performance of statutory duty by the SHO, hepreferred application u/s22-A, Cr.P.C before learned .Justice ofPeace/ District & Sessions Judge, Islamabad who entrusted thesame to Mr. Muhammad Akmal Khan, Additional District &Sessions Judge, Islamabad, who allowed the application.3. In compliance of directions issued by the learned Justice ofPeace, police registered the above mentioned FIR on 1.1.08.2009,with the following contents:-Rthat on 03.11.2007General ® Peruez ]\fusharra! former Presidentof Pakistan passed an illega.l and immoral PCO against theHonourable Chief Justice {ftikhar Muhammad Chaudhry and sixty

Crl. Misc. No.222-B/20 132Honourable Judges were suspended from their positions and theywere placed under house arrest for a period of five and a halfmonths due to which they were unable to perform their judicialfunctions, andthat the newly elected Government, under the4. Vide order dated 12.04.2013 petitioner was allowed ad-premiership of Mr. Yousaf Raza Gillani,freed the judges during thefirst parliamentary session after which the President and PrimeMinister restored all judges to their position of 02.11.2007. In thisway, general ® Pervez Musharraf, through his illegal actions of03.11.2007 destroyed the judicial system of Pakistan due to whichpublic at large in general and lawyers community in particular wentthrough mental agony and Pakistan defamed, world over.»interim bail with the direction to join the police investigation as andwhen required and to appear before the court for today's hearing.5. Learned counsel for petitioner argued the case at great length,essence of his arguments is in following points.• There is no individual grievance as Hon'ble Judges whoallegedly were confined have not lodged the FIR.• FIR appears to be of public interest.• Learned Additional Sessions Judge passed the orderu] s 22-A, Cr.PC without hearing the petitioner.• Offence vx] s 344 PPC is bailable.• No order of confining the Judges was passed by thepetitioner.• Fixation of barbed wire was for the security of Hon'bleJudges.• There is an inordinate delay in lodging the FIR.• Proceedings of declaring petitioner as proclaimedoffender are rarity.• Complainant got the FIR registered with malafideintention and ulterior motives.

Crl. Misc. No.222-B/20133• Petitioner retired as Chief of Army Staff, remainedPresident.of Pakistan and at present head of a politicalparty "AllPakistan Muslim League" (APML),therefore,entitled to relief as per his status.• Petitioner surrenderedvoluntarily and thereabscontion.before the court of lawis no apprehension of hisIn support of his contentions, learned counsel forpetitioner placed reliance on 2012 SCMR,70, 2013 P Cr.W,394 and 2011 MLD, 64. Learned counsel concluded hisarguments with the prayer ofconfirmationofpre-arrest bail.6. Conversely, learned Deputy Attorney General andcomplainant of the case, opposed the confirmation of bail onthe followinggrounds:-• Petitioner did not join the investigation as was directedby this court. .• There is sufficient material in shape of statements of 10lawyers and number of other persons, supporting thecontent of FIR.• Petitioner is a proclaimed offender, therefore, is notentitled for any discretionary relief.• No malafide has been pointed out against thecomplainant as well as local police which is basicingredient of pre-arrest bail.• The court has to appreciate the contents of FIRand notsection inserted by the local police.The complainant also placed reliance on the statement ofpetitioner published in the Daily ('Jang" Rawalpindidated 19th Sept.

·',' ., .. '".; ~""~.""Crt Misc. No,222-B/2013..-----_....------.- "4.the record.I have heard the learned counsel for the parties and perused7. Bare perusal of the FI,R clearly suggests that local police did.not insert the sections which are made out, from the contents ofFIR.ConfiningHon'bleJudges of superior courts and to stop themfrom the performance of their duties is not an ordinary act, rather itis an act of "Terrorism"as defined by Section 6(1) (b)and 6(2)(b)(g)[i] (m) of Anti Terrorism Act, 1997.For convenience aboveprovisionsare reproduced herein below:-"6, (1) (b):- the use or threat is designed to coerce and intimidate oroverawe the Government or the public or a section of the public orcommunity orsect or create a sense offear orinsecurity in society; or6. (2) (b):-involves grievous violence against a person orgrievous bodily injury or harm to a person;(g)involves taking the law in own hand, award of anypunishment by an organization. individual or group whatsoever, notrecognized by the law, with a view to coerce, intimidate or terrorizepublic) individuals, groups, communities, Government officials andinstitutions, including Law Enforcement Agencies beyond thepurvieui of the law of the land.(i)creates a serious risk to safety of public or a sectionof the public, or is designed to frighten the general public andthereby prevent them from coming out and carrying on their lawfultrade and daily business, and disrupts civillife"From the above definition and contents of FIR, primafacie, offence uls 7 of Anti Terrorism Act, 1997 is attracted, forwhich punishment may extend to imprisonment for life. Localpoliceis bound under the law to insert the section which contents of FIRsuggest.On court question, the 1.0 of the case informed that petitioner

conveyed that material shall be provided before the court. This actof petitioner is defiance of the court order and misuse of theconcession of bail.8. Learned counsel for petitioner failed to point out any malafideon the part of local police or complainant. The act of the petitionerthrough which Hon'ble Judges of Superior Court were confined totheir residences shocked entire nation more particularly communityoflawyers.It is a matter ofrecord that, this act of petitioner and hisco-accused, spread fear in the society, insecurity amongst thejudicial officers, alarm in the lawyers community and terrorthroughout the Pakistan. Moreover,this shameful act lowered thehonour, prestige and status of the country, in the eyes of nations,spread overentire globalface.From the contents of FIR, constituted offencefell within theprohibitoryclause, petitioner also is a proclaimed offenderas suchcannot claim normal right of any accused under the statute.Thebasic ingredient of pre-arrest bail i.e registration of case withmalafide intention, condition precedent to exercise discretion infavour of any accused, is also missing in the instant matter.Petitioneris specificallynominated in the FIR and his person is alsorequired for further investigation, therefore, request of pre-arrestbail of petitioner is hereby declined. He be taken into custody anddealt with in accordancewith law.In forming my opinion, guidance has been sought from thecases reported as PLD 2009 SC 427, 2005 M~D 51~, 20_~1 MLD 93,PLD74 SC 151,2005 YLR 3133.Approved for Reporting.

,..-,'When order in.Crl. Miscellaneous No.222-B/2013 was beingdictated, the learned ~egistrar of this court informed that personalSecurity Guards of petitioner, Gen. ® Pervez Musharaf, facilitatedand helped him to escape instead of surrendering him before localpolice of P.S Secretariat, to perform its duty of affecting arrest ofpetitioner.Apparently, this act of petitioner and his security guards isyet another offence, therefore, I.G Police ICt is directed to explainthatwhy proper police force was not deputed to handle thesituation. He is also directed to submit report about all persons whoacted in aid of petition and action .taken against those policeofficials, who remained napping, instead of performing their dutywith due diligenceand care.The I.G PoliceICT,shall also inform the court about the stepstaken to affect the arrest of accused by putting appearance inperson for tomorrowi.e 19.04.2013.-----._ -• Waqar Ahmed"