Khadija Shah bail order in 9 May case
The court's unique decision focused on granting bail to Khadija Shah due to insufficient evidence and the need for further inquiry. It highlighted the presumption of innocence and the importance of due process.
### Unique Point Decided by the Court
The unique point decided by the court in this case was the application and interpretation of **Section 497(2) of the Cr.P.C.** in the context of vicarious liability and the sufficiency of evidence required for denying bail.
### Detailed Explanation:
1. **Application of Section 497(2) of the Cr.P.C.:**
- The court applied Section 497(2) of the Cr.P.C., which allows for bail if the case against the accused requires further inquiry. This provision is typically invoked when the evidence is not strong enough to conclusively establish the accused's guilt without further investigation.
- In this case, the court highlighted that the evidence presented by the prosecution, including witness statements and digital evidence, did not conclusively link Khadija Shah to the violent acts. The evidence was found to be insufficient and required further scrutiny.
2. **Vicarious Liability:**
- The court addressed the concept of vicarious liability, which pertains to holding a person indirectly responsible for the actions of others. The prosecution's case relied on the argument that Khadija Shah incited the crowd, making her vicariously liable for the violence that ensued.
- The court decided that the determination of vicarious liability should be made after a thorough examination of evidence during the trial. This nuanced approach to vicarious liability as it pertains to the specific actions and influence of Khadija Shah was a unique aspect of the decision.
3. **Further Inquiry and Presumption of Innocence:**
- The decision emphasized the importance of the presumption of innocence and the necessity for clear and convincing evidence before an accused can be detained. By granting bail and requiring further inquiry, the court reinforced the principle that detention should not be based on inconclusive evidence or premature assumptions of guilt.
### Conclusion:
The unique point in this case is the court's careful consideration of the sufficiency of evidence under Section 497(2) of the Cr.P.C. in the context of vicarious liability. The court's decision to grant bail based on the need for further inquiry and the lack of conclusive evidence against Khadija Shah underscores the judiciary's commitment to due process and the presumption of innocence.
Khadija Shah
The State, etc.
11.10.2023 Mr. Sameer Khosa, Advocate for the petitioner.
Mr. Tariq Siddique, APG, and Rai Akhtar Hussain, APG,
with Zahid Inspector.
The petitioner-Khadija Shah, seeks post-arrest bail in
the case F.I.R. No.1271/2023, dated 10.05.2023, registered
under section 7 of the Anti-Terrorism Act, 1997 and
sections 302, 324, 290, 291, 353, 186, 153, 153-A, 153-B,
152, 149, 148, 146, 147, 131, 121, 121-A, 120-A, 107, 109,
505, 452, 436, 427, 395, 120-B of the Pakistan Penal Code,
1860, at Police Station Gulberg, District Lahore.
2.
Heard. Record perused.
3.
In the instant case, initially, the case was registered
under Sections 109, 120-B, 147, 148, 149, 186, 152, 153,
290, 291, 302, 324, 353, 395, 427, 436, 452, 505 of the
Pakistan Penal Code, 1860, read with Section 7 of the AntiTerrorism Act, 1997 on 10.05.2023. The complainant,
Imran Sadiq, Inspector, alleged in the complaint that the
protest took place on the arrest of Imran Khan in connection
with the Al-Qadar Trust case on 09.05.2023 at 11:50 p.m.
The complainant alleged that the protestors turned violent
and attacked different public and private premises. In the
said incident, one person engulfed in flames in the Askari
Tower, lost his life, who was later identified as Hamza
Imran, stated to be a worker of P.T.I. Admittedly, the
petitioner was not named in the FIR as one of the protestors
leading the protest rally of P.T.I. After that, Imran Sadiq,
Inspector, made his statement under section 161 of Cr.P.C.,
Crl.Misc. No.64830-B/2023
2
which was recorded by the investigating officer after 10-
minutes of the registration of the case on 10.05.2023,
wherein he improved the contents of the FIR and introduced
the petitioner as one of the accused leading the protest while
raising slogans against the Government, Judiciary, and
Army. The relevant portion of the FIR is reproduced
hereunder: -
"دخبتم انجب ڈوییٹ ارسف اھتہنربلگگ الوہر االسل و مکیلع! اکبر رساک ر رحتری ےہ ہک ںیم
ہعم ادس زہشا د SI، ومیس اابقك SI، آفص اابقك ASI، ااسحم اہلل 16360/C،
اافشق 8330/C، ومیس 6660/C، اگڑی LEG/658، ڈراویئر اونا ر
بج ی راتہلسلسب ال اڈنی
11:50 وبتق05.09.2023 ومرہخ ارموز ،D/10441
آرڈر ڈوییٹ ربلیٹ وگك رکچ وموجد اھت ہک ایس اانثء ںیم رحتکی ااصنف اپاتسکم ےک ڈیلر امحد
ارہظ حلسم اہحلس آںیشت، ااجعز ادمح وچدہری حلسم اہحلس آںیشت ا ور رمع رسرفا ز ہمیچ حلسم اہحلس
آںیشت یک ایقدت ںیم 1000/1200 اکرانکم PTIحلسم اہحلس آںیشتو وسےٹ و
ڈڈنےاوررٹپوكب م بدعہیلاوراپکوفجےکالخفرعنےابزیرکرےہےھتہکہیوج
دتشہ رگدی ےہ اس ےک ےھچیپ وردی ےہ۔ رمعا م وک راہ رکو ، رمعا م وک راہ رکو، اخم ریتے
اجم اثنر ےب امشر ےب امشر رکےت وہےئ واہں رپ آےئ ا ور اسھت یہ رکسعی اٹور واعق ربلیٹ
وچک الوہر رپ ہلمح آور وہےئ ا ور وتڑ وھپڑ رشوع رک دی۔ اب ادماد رمہایئ المزامم ےن ام وک
روےنک یک وکشش یک وت اوھن ں ےن وپسیل اپریٹ رپ ہلمح رک دای ا ور اس دورا م ذتمرکہ ابال
ڈیلرا م ا ور حلسم اکرانکم PTIاکللرے امرےت ا ور ےتہک رےہ ہک آج ا م وک رمعا م اخم
رئیچنیم PTIوک رگاتفر رکےن اک زمہ اھکچےت ںیہ۔"
In his (Imran Sadiq, Inspector) statement under section 161
of Cr.P.C., he stated that after collecting evidence from the
place of occurrence, i.e., Askari Tower, and dealing with
the law-and-order situation, the FIR was registered. On
perusal of the contents of the FIR, it reveals that the
petitioner's name was not mentioned therein, and the same
was introduced in the statement of Imran Sadiq, Inspector
under section 161 of Cr.P.C. The relevant portion of the
statement under section 161 of Cr.P.C. is reproduced
hereunder: -
Crl.Misc. No.64830-B/2023
3
"ایبم ایک ےہ ہک ںیم وطبر SHOاھتہن ربلگگ الوہر ںیم انیعتت وہں۔ ومرہخ
09.05.2023وبتق رقبی -/3دیجبم ہلسلسب ڈوییٹ الء اڈنی آرڈر رمہاہ ادس زہشا د SI
، ومیس اابقك SI، آفص اابقك ASI، ااسحم اہلل 16360/C، اافشق 8330/C،
ومیس 6660/C۔وسبا ری اگڑی رساکری LEG/658، ڈراویئردمحم اونا ر 1044/C
ربلیٹ وگك رکچ وموجد اھت ہک امح د ارہظ حلسم اہحلس آںیشت، ااجعز وچدہری حلسم اہحلس آںیشت ،
رمع رسرفا ز ہمیچ حلسم اہحلس آںیشت ۔ ڈارٹک اینیمس رادش۔ دخہجی اشہ ا ور دنعبیل ابعس یک
ایقدت ںیم 1000/1200 ےک رقبی PTIاکرانکم حلسم اہحلس
ڈڈنے۔۔۔۔۔۔۔۔۔۔۔"
The complainant has not specifically named the witnesses
who disclosed the petitioner's name and role during the
protest before him. Asad Shahzad, S.I, Waseem Iqbal S.I,
Asif Iqbal A.S.I, Ehsan Ullah 16360/C, and Muhammad
Waseem 6660/C, prosecution witnesses, in their statements
under Section 161 Cr.P.C. did not state a single word that
they informed to the complainant about the involvement of
the petitioner in the instant case. Instead, the statements of
these witnesses were verbatim of the statement of the
complainant under section 161 of Cr.P.C. regarding the role
of the petitioner. During the investigation, statements under
section 161 of Cr.P.C. of Muhammad Boota son of Abdul
Aziz, Gulsher son of Laal Badshah, and Muhammad Islam
son of Muhammad Suleman, security guards of Askari
Tower, were recorded. They had not stated that the
petitioner was among one of the protestors who set Askari
Tower on fire or she was leading the protest. Admittedly,
the petitioner has not entered the Askari Tower premises,
nor is it the case of the prosecution that she set on fire
Askari Tower. However, as mentioned above, the role of
raising slogans was attributed by the complainant to the
other accused, who were named in the FIR.
4
4.
During the investigation, on 13.06.2023, Muhammad
Mubashar 27626/C Operator, C.R.O investigation,
produced U.S.B and six pages of script before the
investigation officer, who took the same into possession. On
14.06.2023, the petitioner was joined in the investigation,
and on 19.06.2023, the request for her physical remand was
turned down by the trial court. After that, on 06.09.2023,
offenses under sections 107, 120, 121, 121-A, 131, 146,
153-A, and 153-B PPC were added, and physical remand
was allowed by the trial court on 09.09.2023. On
11.09.2023, Muhammad Mubashar 27626/C, Operator
C.R.O. (Inv), also produced two U.S.Bs and eight pages of
script before the investigating officer, who took the same
into possession. On 16.06.2023, Sr. Superintendent of
Police Investigation, Lahore, through letter No.592/05-SSPInv, sent the audio/video transcripts of the petitioner in USB
and written form to the Additional Director Operations,
Cyber Crime Islamabad, for verification of the social media
account (Instagram) of the accused petitioner, and whether
the videos were uploaded from her account or same are
fake. The request for CCTV potages made to Safe City
Lahore is also available. However, the reports are not
available.
5.
As far as the contention of learned Additional
Prosecutor Generals that the petitioner, alongwith others,
enticed and motivated the general public against the
Pakistan Army, State Institutions, and anti-state activities,
leading to a devastating impact on the country, is
concerned, the reports whether she made such tweets and
same were uploaded from her social media accounts or not
is still awaited. She admitted that one controversial tweet
was uploaded which was subsequently deleted through her
Crl.Misc. No.64830-B/2023
5
Twitter message. She tweeted and deleted it by admitting
her wrongdoing. The petitioner, in her other Tweet after
deleting the objectionable tweet, tendered apology through
her tweet. The state is like a mother; one should be given a
chance if she/he commits a mistake and apologizes. In these
circumstances, prima facie prosecution case against the
petitioner falls under the ambit of further inquiry into her
guilt under Section 497(2), Cr.P.C. The learned law officer
submitted that the prosecution case against the petitioner is
of vicarious liability. In this regard, it is relevant to mention
here that the learned trial court would see the vicarious
liability of the petitioner after recording the parties’
evidence.
6.
For the reasons supra, we hold that the case against
the petitioner is of further inquiry as contemplated under
Section 497 (2) of Cr.P.C. Therefore, this petition is
accepted, and the petitioner is admitted to post-arrest bail
subject to her furnishing bail bonds in the sum of
Rs.5,00,000/- with two sureties in the like amount to the
satisfaction of the trial court.
(Asjad Javaid Ghural)
(Aalia Neelum)
Judge
Judge
Announced in open Court on _____________
Judge
Judge
Approved for Reporting
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