ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Bail Application No.387 of 2015

---------------------------------------------------------------------------------------------

DATE ORDER WITH SIGNATURE(S) OF JUDGE(S)

---------------------------------------------------------------------------------------------

Mr. Justice Naimatullah Phulpoto

Mr. Justice Shaukat Ali Memon

1) For orders on office objection and reply at “A”

2) For hearing

--------------

05.05.2015

Mr. Umar Hayyat Sindhu, Advocate for Applicant

Mr. Zafar Ahmed Khan, Additional P.G. Sindh

---------------------------------------------------------

NAIMATULLAH PHULPOTO, J.- Applicant/accused Abdul Hadi seeks post arrest bail in Crime No.60/2015, registered at P.S. Clifton, Karachi South under Section 11-W of the Anti-Terrorism Act, 1997.

2. Brief facts of the prosecution case as disclosed in F.I.R. are that on 30.01.2015, SIP Shafiq Tanveer left the police station along with his subordinate staff, when the police party reached at main gate Osman Ghani Masjid, Clifton, Karachi, it is alleged that present accused was standing at the door of the Masjid and he was distributing pamphlets. ASI Shafiq Tanveer read the pamphlet, it contained material against the policies of the Government and the Law Enforcing Agencies. On inquiry accused disclosed his name as Abdul Hadi son of Iqbal Ahmed. He belongs to Hizbul Tahreer organization. He was arrested. 109 pamphlets were recovered from him. Case was registered against the accused under the above referred section and after usual investigation challan was submitted against him in the concerned Anti-Terrorism Court at Karachi.

3. Bail application was moved on behalf of the applicant/accused but the same was rejected by the learned Judge, Anti-Terrorism Court-III, Karachi by order dated 26.03.2015. Thereafter, applicant/accused approached this Court.

4. Learned counsel for the applicant/accused mainly contended that except pamphlets no evidence is available on record against the applicant/accused to connect him in this crime. No private person has been examined by the I.O. in the case. It is argued that alleged offence does not fall within the prohibitory clause of section 497 Cr.PC. In support of his contentions, reliance is placed upon the unreported order passed in Criminal Miscellaneous Application No.5066-B of 2011 dated 16.05.2011.

5. Learned Additional Prosecutor General Sindh argued that pamphlets have been recovered from the possession of the applicant/accused, which contained material against the sovereignty of the State and the Law Enforcing Agencies. He has opposed the bail application.

6. After hearing the learned counsel for the parties, we have perused the record.

7. Section 11-W of the Anti-Terrorism Act, 1997 reads as under:-

11-W. Printing, publishing, or disseminating any material to incite hatred or giving projection to any person convicted for a terrorist act or any prescribed organization or an organization placed under observation or anyone concerned in terrorism. (1) A person commits an offence if he prints, publishes or disseminates any material, whether by audio or video-cassettes or by written, photographic, electronic, digital, wall-chalking or any method which incites religious, sectarian or ethnic hatred or gives projection to any person convicted for a terrorist act, or any person or organization concerned in terrorism or any person organization or an organization placed under observation:

Provided that a factual news report, made in good faith, shall not be construed to mean “projection” for the purposes of this section.

2) Any person guilty of an offence under sub-section (1) shall be liable by way of summary procedure, on conviction, to a maximum term of six months imprisonment and a fine.

8. So far as there is not a single iota of evidence on the police file to connect the applicant/accused with the prescribed organization. At the most, allegation against the applicant/accused is that pamphlets were recovered from him but there is nothing to show that either the police party saw the accused while distributing such material or even heard conversation of the accused which could establish his link with such prescribed organization. No private person has been examined by the I.O. to satisfy the Court that accused was actually distributing the pamphlets, to incite hatred or giving projection to any person convicted for a terrorist act or any prescribed organization. It is argued that accused is a student and police has challaned him in a false case. In the given circumstances, prima facie, applicability of Section 11-W of the Anti-Terrorism Act, 1997 against the applicant/accused makes his case open to further inquiry. Even otherwise, offence with which the accused is charged is not covered by the prohibitory clause. As such, applicant/accused is admitted to bail subject to his furnishing solvent surety in the sum of Rs.75,000/- (Rupees Seventy Five Thousand only) and P.R. bond in the like amount to the satisfaction of the trial Court.

9. Needless to mention here that the observations are tentative in nature and the trial Court shall not be influenced while deciding the case on merits.

JUDGE

Gulsher/PA