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Criminal Miscellaneous No. 4371/13 of 1973, decided on16th November 1973.

‑ Ss. 497 & 498 read with Defence of Pakistan Rules, 1971, rr. 49 & 210‑Bail‑Petitioners hauled up on basis of information and recoveries comprising of (i) a copy of threatening letters addressed to members of National Assembly; (ii) two pamphlets against recogni tion of Bangla‑Desh'; (iii) a commando‑plan, giving details of manner in which Indian Embassy was to be assaulted and Indian Ambassador was to be abducted, and (iv) a list of arms to be used while execut ing said plan‑Contention that there was neither Indian Ambassador in Pakistan since 1970 War nor any arms recovered from petitioner, the action of Police was mala fides‑‑‑Held, correct‑ Petitioner granted bail, in circumstances.‑[Bail].

Rafiq Ahmad Bajwa for Petitioners.

Sh. Muhammad Usman alongwith Fazal‑ur‑Rehman, S. I. Police for the State.

Date of hearing : 12th November 1973.

This is an application by Zaheer Ahmad, Shahzad‑ul‑Hassan, and Zahid Hussain, under sections 497/498, Cr. P. C. read with section 210, Defence of Pakistan Rules, 1971, for grant of bail. They are accused alongwith five others of offences under sections 49/52, D. P. R. All of them are B. A. Students. Zaheer Ahmad petitioner is the Secretary of 'Qaumi Tehrike Tulbaa' while Shahzadul Hassan and Zahid Hussain petitioners Nos. 2 and 3 are the members of the said Tehrik. It is alleged in paragraph No. 1 of the petition that since the summer vacation in the Educational Institution in the Province were being extended, the student community in general and Zaheer Ahmad petitioner on behalf of 'Qaumi Tehrik Tulbaa' in particular, protested and demanded that the Educational Institutions be re‑opened without further delay, failing which the students may resort to bringing out a procession to ventilate their grievances. In paragraph No. 2 of the petition it is alleged that petitioner No. 1 addressed a Press Conference on the same issue and the said Conference was also joined by petitioners Nos. 2 and 3.

2. It was alleged, by their counsel on their behalf that this was resented by the Government and consequently the petitioners were arrested at 9 p. m. on 20‑9‑1973 from the house of a common friend of the pets, named Rizwan Ahmad, in Pakki Thathi, which lies in the jurisdiction of Police Station Nawankot, Lahore. They were then removed to the Lahore Fort and detained there till the 28th of September 1973. It was contended further that on the basis of a false F. I. R. (No. 516/73 dated 18‑9‑1973) a case under Rules 49 and 52 of the Defence of Pakistan Rules, 1971, was registered against the petitioners and their co‑accused alleging that they had typed, cyclostyled and sent threatening letters to the members of the National Assembly telling them to desist from voting in favour of any measure enabling the recognition of Bangla Desh' or else their lives and property shall no longer be safe. It was contended further that the petitioners were being victimized for opposing the Government and for that reason they had been specially sent to the Lahore Fort where they had been subjected to torture.

3. The F. I. R. in the case is based upon a written complaint sent by Malik Allah Bakhsh, Inspector Special Branch, to S. H. O. Police Station, Old Anarkali, Lahore. It will be useful to reproduce its verbatum:

"To

The S. H. O. Police Station,

Old Anarkali, Lahore.

Subject :‑‑Registration of case under Rule 49, D. P. R.

From information received through reliable sources it has come to notice that the following persons :‑‑

(1) Mr. Zaheer Ahmad (leader) Student of University New Campus, Lahore, resident of Bashir Mansion No. 2 Turner Road, Lahore, near A. G. Office).

(2) Mr. Shahzad Ahmad, 3rd year Student of Islamia College, Lahore, resident of Sadat Manzil, Lahore, adjacent to the Old Anarkali Police Station.

(3) Zahid Saeed, Lawrence, Garden, Lahore.

(4) Zahid Hussain, Student of B. A., Islamia College Civil Lines, Lahore.

Drafted a threatening letter and addressed its copies to the members of the National Assembly of Pakistan. The contents of the letter are as follows‑.‑

Islamabad,

June, 1973.

Members of the National Assembly of Pakistan.

The recognition of the so‑called state of Bangla Desh is the ideo logical destruction and total political disintegration of Pakistan. You are hereby warned that if you vote for any kind of legislative measure which causes or enables the recognition of Bangla Desh, at any time, neither your life nor your property shall be safe any longer; and even if you temporarily manage to escape punishment you will have to spend your time in hiding like a wanted criminal until retributive justice finally catches up with you. "Determined Patriot".

The contents of the letter substitutes commission of a cognizable offence under rule 49, D. P. R. As such a case may be registered.

(Sd.) Allah Baksh, Inspector,

S. P. I. Branch, Fort, Lahore.

18‑9‑1973."

It will be noticed that names of four persons are mentioned in the F. I. R. as accused, namely, the three petitioners and one Zahid Saeed who could not be arrested.

4. The correctness of the above‑noted allegations was denied by Fazal ur‑Rehman, S. I., who was present in Court. He stated that during the investigation it was revealed that the boys were of very desperate character; that they had prepared a very dangerous plan, namely, to kidnap the Indian Ambassador in Pakistan and that for this purpose they had prepared a Commando Plan' which envisaged that about 12/13 persons, armed with step‑guns, hand‑grenades and other varieties of fire‑arms, would attack the Indian Embassy in Islamabad and execute their plan by force, if necessary. The S. I. also stated that during the investigation Zahir Ahmad petitioner No. 1 had revealed that Mian Manzar Bashir, Advocate had financed the entire plan and that his manager Iftikhar Hussain co‑accused had procured a typewriter and the Cyclostyle machine with which the letters addressed to the M. N. As. were prepared. He stated further that Iftikhar Hussain co‑accused, in turn, revealed the names of Muhammad Siddiq and Arshad Hussain co accussed as having helped him in this connection. The Cyclostyle machine is said to have been recovered from the office of Tehrik‑e‑Istiqlal, Lahore. He stated further that (i) a copy of the threatening letters and (ii) two pamphlets against the recognition of Bangla Desh'; (iii) a Commando Plan' and (iv) a list of arms of weapons to be used while executing the said plan, were re covered during the investigation. (Note : Only the list and not the arms etc.. mentioned in it, were recovered). A typewriter and a Cyclostyle machine was also recovered. No fire‑arms mentioned in the aforementioned list of weapons was, however, recovered, except that an unlicensed revolver is said to have been recovered from Zahir Ahmad petitioner No. 1.

5. It may be mentioned that Bashir Ahmad, the brother of petitioner No.1 had filed n Habeas Corpus petition under Article 199 (1) (b) (1) of the Constitution of Pakistan, against the legality of the petitioner's detention as well as the legality of the 'manner' of their detention. During the hearing of that writ petition, Mr. Muhammad Azeem Durrani. D. S. P., appeared alongwith a Law Officer and stated that the students had planned, and were about to execute an extremely dangerous plot which would endanger the security and safety of Pakistan. He objected even to their being visited by their parents or brothers on the grounds that they may pass on vital informa tion which may lead either to the destruction of evidence or the disappearance of the co‑accused, who had not yet been arrested. In support of his allegations against the detenus/petitioners, he volunteered to show me certain secret documents, which he was not willing to show to the learned counsel for the detenus (i.e. the present petitioners). I, however, declined to look at them because such a course may have tended to prejudice me against the detenus (petitioners), behind their back and would have been absolutely unfair but also against the principle of natural justice, for it would have amounted to condemning them not only without being heard on the point, but even without their knowing as to what was being alleged against them. Subsequently, in the course of his submission, however, the D. S. P. did disclose that the plot made by the detenus (petitioners) envisaged the kidnapping of Mrs. Indra Gandhi, the Prime Minister of India. It was, however, pointed out to him that this could be possible only if Mrs. Gandhi was to visit Pakistan (of which he admitted, there was no possibility in the near future), or when she was visiting a foreign country or in India itself. It was also pointed out by the learned counsel for the writ petitioners that the safety of Mrs. Gandhi in India or foreign countries was not the responsibility of the 'Special' Branch or Pakistan Police and that the Indian Department, Incharge of her safety, was perhaps more efficient. It may also be mentioned that since then there appears to have been a change of programme, and the plot conceived by the students, is said to be for the abduction of the Indian Ambassador to Pakistan and not Mrs. Gandhi.

6. As there were allegations of torture in the said writ petition, the detenus were ordered to be examined by the Physician and were subsequently ordered to be transferred to judicial custody. They are still in jail and hence the present application.

7. I have heard the learned counsel for the petitioners as well as the learned State counsel and Mr. Fazal‑ur‑Rehman, S. I., at considerable length I have also gone through each of the documents produced by the Investigating Officer. It was admitted by Fazal‑ur‑Rehman S. I., who was associated with the investigation of the case, that none of the weapons mentioned in the 'list of arms' (mentioned in paragraph No. 4 at (iv) above), had been recovered during the investigation. He read out the 'Commando Plan' wherein the details of the manner in which the Indian Embassy was to be assaulted and the Indian Ambassador was to be abducted, were given. The learned counsel for the petitioners however pointed out that there was no Indian Ambassador in Pakistan since the last war. It was evident from their contention on hearing this, that the learned State counsel as well as the S. I. were completely taken by surprise. However, they had no opinion but to admit this fact According to the counsel for the petitioners, the fact that there is no Indian Ambassador in Pakistan at present, appears to have escaped the notice of the Police while preparing the case against the petitioners and other person indulging in political activity, who were sought to be arrested in this case. I was also admitted that Mian Manzar Bashir, the main accused, who is said to have financed the entire project, has already been released on bail before arrest. It was further admitted that there has been no allegation or complaint that the co‑accused who have not yet been arrested, or the relatives of the present petitioners have, in any way, attempted to subvert or destroy any evidence, or have influenced or threatened any of the prosecution witnesses.

8. As already mentioned I have heard the parties at considerable length. I have considered every aspect of the case very minutely. But if I were to state my reasons for coming to the conclusion that there appear to be reasonable grounds for believing that the petitioners are not guilty of the allegations made against them, it may be urged by the prosecution that its case has been prejudiced because those reasons may tend to show that the prosecution case has fallen like a house of cards. I do not therefore, consider it appropriate to give my reasons for coming to the above‑noted conclusion and deem it sufficient to say in the language of rule 210 of the Defence of Pakistan Rules that there are reasonable grounds for believing that the petitioners are not guilty of the contravention (or the offences) alleged against them. In this view of the matter I grant them bail in the sum of Rs. 5,000 (Rupees five thousand) each with the two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Lahore.

Petition allowed.

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