Mahmood Khan VS The State etc.

Form No: HCJD/C-121

ORDER SHEET.

IN THE ISLAMABAD HIGH COURT, ISLAMABAD,

(JUDICIAL DEPARTMENT).

Writ Petition No. 3010 of 2022 Mahmood Khan Versus The State and another.

Writ Petition No. 3011 of 2022 Mahmood Khan Versus The State and another.

Writ Petition No. 3012 of 2022 Mahmood Khan Versus The State and another.

S.No. of Date of Order with signature of Judge and order/ order/ that of parties or counsel where proceeding proceeding necessary.

(03)28.09.2022 Mr. Shah Khawar, Advocate for the petitioner in all petitions. Mian Zain Qureshi, learned State Counsel.

Sajid Cheema, D.S.P (Legal). Muhammad Riaz, Inspector.

Muhammad Iqbal, Muhammad Saleem, Ijaz Ahmed and Nawazish Ali, Sub- Inspectors.

By way of this single order, I intend to decide the above captioned three (03) writ petitions, filed by Mahmood Khan, Chief Minister of the province of Khyber Pakhtunkhwa (K.P.K)

Writ Petitions Nos. 3010/2022, 3011/2022 & for quashing of F.I.Rs, on the basis of identical question of law.

02.In W.P. No. 3010/2022, the petitioner is seeking quashing of F.I.R No. 425/22 dated 26.05.2022, offence U/S 505, 341, 148, 149, 188 P.P.C and 3/2 Amplifier Act, registered at Police Station Kohsar, Islamabad.

03.In W.P. No. 3011/2022, the petitioner is seeking quashing of F.I.R No. 628/22 dated 26.05.2022, offence U/S 506(ii), 109, 341, 188, 186, 147, 148, 149 P.P.C, registered at Police Station Tarnol, Islamabad.

04.In W.P. No. 3012/2022, the petitioner is seeking quashing of F.I.R No. 627/22 dated 26.05.2022, offence U/S 506(ii), 341, 186, 353, 427, 188, 147, 149 P.P.C registered at Police Station Tarnol, Islamabad.

05.Succinctly stated facts of the case are that the police has registered above mentioned three F.I.Rs against the petitioner, Mahmood Khan, Chief

Writ Petitions Nos. 3010/2022, 3011/2022 & Minister, K.P.K and co-accused, alleging therein that the political party namely Pakistan Tehreek-e-Insaaf (P.T.I) had launched a protest against the government, took out processions on 25.05.2022 and 26.05.2022, against the present regime / government, wherein members of the party under the leadership of Chairman Imran Ahmad Khan Niazi along with other leaders made provocative speeches, blocked main roads, entered into red zone area illegally, used loud speakers and violated the Section 144 Cr.P.C, imposed by the District Administration, ICT Islamabad and spread fear and panic amongst the people.

06.Learned counsel for the petitioner inter alia contends that the petitioner has not committed any crime; there is no evidence available against him; in utter disregard of the order of the apex Court, State has registered the above mentioned F.I.Rs with malafide

Writ Petitions Nos. 3010/2022, 3011/2022 & intentions and by ulterior motives; bare perusal of F.I.Rs has established the malafide, arbitrariness, abuse of process and high handedness of the

respondents who are part and parcel of the State machinery; registration of F.I.Rs against petitioner is sheer political vengeance, in order to humiliate and blackmail him; the F.I.Rs are concocted and politically motivated against the petitioner, who is an elected Chief Minister of the province of K.P.K; the prosecution story is a mere

afterthought, self-made with the consultation of the high ups in the government to persecute him in these politically motivated cases and has prayed that petitions be allowed and the above mentioned F.I.Rs be quashed.

07.Conversely, learned State Counsel has stated that the petitioner is nominated in the F.I.Rs; he has committed heinous crime; sufficient evidence is available against him; the

Writ Petitions Nos. 3010/2022, 3011/2022 & petitioner has alternate and efficacious remedy of filing petition U/S 249-A Cr.P.C for acquittal at any stage in the learned Trial Court; petitions are not maintainable, hence are liable to be dismissed.

08.Arguments advanced by learned counsel for the petitioner and learned State Counsel have been heard and record has been perused with their able assistance.

09.The nature of allegations mentioned in the F.I.Rs registered against the petitioner is as under;

i. In F.I.R No. 425/22 dated 26.05.2022, registered at Police Station Kohsar, Islamabad, it is alleged that petitioner along with co-accused by delivering

provocative speeches has

instigated the public at large for organizing demonstrations,

Writ Petitions Nos. 3010/2022, 3011/2022 & agitation and processions against the government.

ii. In F.I.R No. 627/22 dated 26.05.2022, registered at Police Station Tarnol, Islamabad, it is alleged that on the abetment of petitioner and other co-accused, the unlawful assembly, agitation and procession was organized in Islamabad.

iii. In F.I.R No. 628/22 dated 26.05.2022, registered at P/S Tarnol, Islamabad, it is alleged that upon abetment of petitioner and other co-accused, the

unlawful assembly, agitation and procession was organized in Islamabad.

10.When confronted, the

Investigating Officer of F.I.R No. 425/22 dated 26.05.2022, states that petitioner made alleged provocative speech in Peshawar and the police has recovered USB of said speech, however, learned

Writ Petitions Nos. 3010/2022, 3011/2022 & State Counsel has admitted that no transcript of the said speech is available in police record and there is also no evidence that the speech was made in Peshawar by the petitioner.

11.If the alleged provocative speeches were made by the petitioner in Peshawar, then F.I.R cannot be registered in Islamabad for the said speeches.

12.Learned State Counsel, D.S.P (Legal) and Investigating Officer have also admitted that there is no evidence available regarding the abetment of the petitioner, in respect of commission of offences mentioned in the F.I.Rs, as no statement U/S 161 Cr.P.C of any witness has been recorded in this regard.

13.All the three F.I.Rs consist upon two parts, one part is regarding those persons who took processions, blocked the roads of Islamabad while carrying P.T.I flags, stone, rods and sticks, made

Writ Petitions Nos. 3010/2022, 3011/2022 & provocative / anti-government speeches by using loud speakers, and violated Section 144 Cr.P.C, imposed by the District Administration, ICT, Islamabad, in second part, it is alleged that the said protests were made at the behest / abetment etc. by the leaders of P.T.I.

14.In all the three F.I.Rs, there is no allegation against the petitioner that he entered in Islamabad during the said occurrences / protests, the only allegation leveled against him is that he made provocative speeches and upon his abetment, processions / unlawful assemblies were organized in Islamabad.

15.The following principles of quashing of F.I.R have been laid down by the Hon’ble Supreme Court of Pakistan in a case titled as Miraj Khan Vs. Gul Ahmed and 3 others (2000 SCMR 122), that:-

“4. There is no absolute bar on the power of the High Court to

Writ Petitions Nos. 3010/2022, 3011/2022 & quash an F.I.R. and it is not always necessary to direct the aggrieved person to first exhaust the remedy available to him under section 249- A, Cr.P.C. It is coordinal principle of law that every criminal case should be adjudged on its own facts. The facts of one case differ from the other and, therefore, no rule of universal application can be laid in a certain case so as to be made applicable to other cases. Even in the case reported in PLD 1997 SC 275, relied on by the learned counsel for the petitioner this principle has been recognized that the High Court in exceptional cases can exercise jurisdiction under section 561-A, Cr.P.C without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C., if the facts of the case so warrant. The main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out then it would amount to abuse of process of law to allow the prosecution to continue with the trial.

5.We are of the view that even on admitted facts no offence can be made out against the respondent as the dispute is entirely of civil nature which has been converted into

Writ Petitions Nos. 3010/2022, 3011/2022 & criminal proceedings with ulterior motive. The High Court was, therefore, correct in quashment of the F.I.R. and no exception can be taken to the impugned order. Consequently, leave to appeal is refused and this petition is dismissed”.

16.Reliance is also placed on the following case laws, wherein the Hon’ble Supreme Court of Pakistan has held that the High Court can exercise the discretion to declare any act of police officials without any lawful authority.

i. Raja Haq Nawaz Vs.

Muhammad Afzal and others & Raja Haq Nawaz Vs.

Subedar Sakhi Muhammad and others (1968 SCMR

ii. Rizwana Bibi Vs. The State and another (2012

SCMR 94).

17.In my estimation, registration of cases to the extent of present petitioner on face of it is tainted with malafide, without jurisdiction and even if F.I.Rs are allowed to hold the field, there is no probability of the conviction of the petitioner. The High Court being custodian of the fundamental rights of

Writ Petitions Nos. 3010/2022, 3011/2022 & the citizens is under obligation to provide shield against any invasion made on the guaranteed constitutional rights and protect from discrimination, exploitation, colourable exercise of authority, bolted actions, malafide and stinking proceedings.

18.It is held by the Hon’ble Supreme Court of Pakistan in the case of Kenneth Marshal, reported as 2005 SCMR 594, that partial quashment of proceedings is permissible.

19.Reliance is also placed on a judgment of this Court reported as Sheikh Muhammad Tahir Vs. The State and 2 others (2012 PCr.L.J 1075), wherein F.I.R was partially quashed to the extent of single accused.

20.It is evident from above discussion that there is no evidence available against the petitioner with the police regarding provocative speeches in Islamabad as well as abetment of the protests etc., so the criminal

Writ Petitions Nos. 3010/2022, 3011/2022 & proceedings against the petitioner would amount to abuse of process of law, hence above mentioned writ petitions are allowed and the F.I.Rs are partially quashed to the extent of petitioner, proceedings against co-accused in the F.I.Rs shall continue.

(TARIQ MEHMOOD JAHANGIRI)

JUDGE

Bilal /-

Approved for Reporting.