Faisal Mosque ‘qulfi man’ gets bail

IHC suspends CDA magistrate’s ‘patently, illegal’ order

ISLAMABAD:

The Islamabad High Court (IHC) on Wednesday granted bail to an ice cream vendor who was sentenced to three-month rigorous imprisonment and fined Rs0.5 million for setting up his cart at Faisal Mosque.

Justice Tariq Mahmood Jahangiri suspended the sentence handed down by a special magistrate of the Capital Development Authority (CDA), with the order stating that the issues raised by the petitioner’s counsel Barrister Omer Ijaz Gilani needed consideration.

Farmanullah, a father of five, was arrested by the officials of the CDA’s Enforcement Directorate for operating his cart in the parking lot of the popular mosque without a licence. A father of five, including four with special needs, Farmanullah’s arrest sparked an outcry over the harsh and extreme nature of punishment meted out to a street vendor. He was sentenced under Section 46-A of the CDA Ordinance 1960 and Martial Law Regulation (MLR) No 63.

During Wednesday’s hearing, the petitioner’s counsel argued that due process was not followed with the so-called ‘admission of guilt’ as his client was indicted even before charges were formally framed. Barrister Qazi said that his client was asked by the special magistrate if he had a cart in the Faisal Mosque, to which he replied that he did it to support his family.

In his statement before the CDA senior special magistrate, Farmanullah agreed to not make such a ‘mistake again’. He informed the court that he was a poor man. “I have to feed my family. There is no one to take care of them except me.”

The IHC order from Wednesday observed that the trial court was bound to frame charges under Section 243 of the Criminal Procedure Code (CrPC). If the accused pleads guilty in response, then a show cause notice was to be issued after which the court was liable to convict, it continued.

The court went on to observe that “…in the instant case, no charge has been framed, even in the impugned order there is no word regarding the framing of charge or pleading of guilty…”.

It noted that the order was in violation of relevant provisions of the law and ‘patently illegal’ and issued the order to be set aside.

It granted bail to Farmanullah, who was currently being held at Adiala Jail, against a surety bond of Rs5,000.

Barrister Qazi told The Express Tribune that Farmanullah was convicted within 24 hours of his arrest, without being given the opportunity to seek legal representation. It was also part of the petition submitted to the court of an additional session judge, challenging the conviction.

The application contended that a push-cart could not be considered encroachment as it is a moving vehicle and they are present in large numbers around the Faisal Mosque.

Following Farmanullah’s conviction, members of the Islamabad administration had claimed that he was involved in extorting protection money from other vendors outside the mosque. However, the challan did not have any statements from the said vendor.

CDA Chairman Noorul Amin Mengal had insinuated the same in a tweet while responding to an article on the issue. “There are mafias who manage rehris (push-carts), parking, Gerry’s appointments, bus terminals allocations, Sunday Bazars stalls, land rehabilitation, etc.,” he wrote in response to a BBC story on the issue.

Meanwhile, citizens The Express Tribune spoke to said CDA officials were involved in getting protection money from such vendors and kiosk owners across the city. One person who worked with the department said it was “very likely that this guy failed to pay his monthly bribe to the CDA and was punished to give a clear message to other vendors”.

It warrants mention that the last few years have seen an uptick in anti-encroachment drives across the capital.

Published in The Express Tribune, July 27^th, 2023.