This judgment will dispose of Criminal Appeal No. 2209 of 2003 directed against the judgment dated 19.12.2003 passed by the learned Special Judge, Anti Terrorism Court, Sargodha whereby he convicted the appellant u/S. 9 of ATA, 1997 and sentenced him to undergo two years R.I. with fine of Rs. 5,000/- or in default thereof two months R.I with benefit of Section 382-B Cr.P.C.
2. The facts of the case in brief as narrated by the complainant in the FIR are that the appellant had got printed and distributed the pamphlet containing the script against the religious feelings and belief of Ahle-sunnatwal Jamiat. He had been distributing and pasting that pamphlet in the village in presence of the PWs.
3. After getting information about this incident the local police completed all the necessity formalities and thereafter Muhammad Aslam S.I went to the place of occurrence where complainant produced pamphlet Ex. P.B. which he took into possession vide memo Ex. P.C. He inspected the scene of crime and drew visual site-plan Ex. PD. He arrested the accused/appellant on the same day. After completing the investigation he challaned the accused/appellant.
4. The prosecution in order to prove its case has produced as many as four witnesses including I.0 and the complainant. After giving up Rafi ullah and Tariq Ahmad S.I./S.H.O. as necessary learned DDA closed the prosecution evidence. Thereafter statement of the accused/appellant was recorded u/S. 342 Cr.P.C. in which he pleaded his innocence. Learned trial Court after taking into consideration the evidence produced by prosecution and hearing the argruments advanced by both the parties convicted and sentenced the appellant as mentioned above. Hence this appeal.
5. Learned counsel for the appellant in support of this appeal submits that the complainant had not mentioned in the FIR that the appellant had given pamphlet in question to him and thereafter the FIR was lodged. Learned counsel submits that except said pamphlet which was produced by Muhammad Akbar PW.2 no other pamphlet was produced to the police by any body else during the course of investigation and even no other person from the village came forward in this regard, that Muhammad Aslam S.1, PW.4 the 1.0 had admitted that there was no danger of criminal breach of peace and that there was no proof of pasting the pamphlet on the walls, that the appellant has also denied the fact of publishing and pamphlet and does not own the same even, that there is no evidence on the record that from where this pamphlet was published or who made the payment in this regard, that initially the case was registered u/S. 295-A PPC without getting permissibn from DCO concerned and when the prosecution came to know this legal defect then the case was converted from Section 295-A PPC to Section 9-ATA, 1997. He submits that Section 9 ATA is only applicable if ingredients of Section 8-ATA, 1997 are available, that in fact there was rivalry between the appellant and the complainant party so the appellant has been falsely implicated in this case, that the complainant party had himself manufactured the pamphlet and then produced the same before the police in order to falsely implicate the appellant, that no case is made out against the appellant and he is entitled to acquittal.
6. On the other hand learned counsel for the complainant submits that both the witnesses are independent and that there was no question of false implication. There was no enmity between the parties also, that in fact the appellant initially belonged to Shatru District Khushab and had migrated from there to Mianwali and there he did this nefarious set, that the version taken by the appellant while replying to Question No. 6 during his statement recorded u/S. 342 Cr.P.C., is totally baseless. He supports the judgment of the learned trial Court.
7. Learned Addl. A.G. submits that the FIR was lodged on 25.11.2003 and on the some day the said pamphlet was produced before the police by the complainant which was taken into possession by the police vide memo Ex. P.C. and that is sufficient evidence against the appellant.
8. I have heard the learned counsel for the parties. There is delay of 5/6 days in lodging the FIR. No publisher or owner of press was produced by the prosecution to prove that the said pamphlet in question was published in their press, no evidence was produced by the prosecution due to which any sectarian hatred had taken place in the village. Even the I.0 had admitted that there was no criminal breach of peace. The I.O. even did not take into possession any such like poster from any wall of the village because it was the allegation leveled in the FIR that the appellant had been pasting such pamphlets on the walls of the village. Except these two witnesses no body came forward to support them. Both the witnesses are Rajput by caste while the appellant is pathan by caste and he had migrated from Shatru to Mianwali, Even this fact was not mentioned in the FIR by the complainant. That he received the pamphlet from the appellant and in this regard he made the supplementary statement on 1.12.2003. The appellant in his statement recorded u/S. 342 Cr.P.C. while replying to Question No. 6 had denied the prosecution evidence in an open Court. He had taken oath even in this Court that he did not get the pamphlet printed nor distributed the same or pasted on the walls of the village.
9. After having heard the learned counsel for the parties and going through the record available on the file, while granting benefit of doubt to the appellant, I accept this appeal and set aside the conviction and sentence awarded to him by the learned trial Court. The appellant is on bail, he is discharged from his bail bonds. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.