' This judgment shall dispose of Criminal Appeal No, 210 of 2004 as the same is directed against the same impugned judgment of acquittal of the respondents, dated 24-1-2004 passed by Mr. Muhammad Gulzar Ahmad, the learned Special Judge Anti-Terrorism No, III, Lahore, whereby, respondents were acquitted from the case registered vide F.I.R. No, 93 of 2003, dated 6-3-2003 under sections 109/149/ 337-H(2)/455/324/395, P.P.C. Read with sections 6/7(b) of the Anti- Terrorism Act, 1997, Police Station Ferozewala, District Sheikhupura.
2. The prosecution story, as unfolded through F.I.R. Registered on the statement of complainant Sheraz Ahmad Ansari (P.W.2) is that on 5-3-2003 he was present at his Dera in the area of Mauza Shamkey, Tehsil Ferozewala, District Sheikhupura when at 4-00 p.m Asad and Irshad came to inform him that Baba Said was asking Haji Kalay Khan and Haji Shada to teach a lesson to the complainant by making firing upon him; that at 5-45 p.m., the accused persons/respondents, along with others, while variously armed, came there in cars and motorcycles; that, after having identified the accused persons, the complainant closed his main gate and informed the police on telephone; that thereafter the accused persons/respondents started firing on his farm; that after an hour, the police reached the spot whereupon the accused/respondents slipped away from there; that the police brought the complainant to Lahore; that thereafter the accused again gathered there and started making indiscriminate firing on his Dairy Farm and Eye-Centre; that the accused continued firing throughout the night which caused fear, insecurity and terror in the locality; that on the next morning the complainant found that his valuable articles valuing rupees three lac were looted by the accused; that he also found marks of firing on different places of his premises; that empties of different kinds of bullets and cartridges including two magazines of .8 mm rifle along with bullets and a bag containing bullets were found at the spot and that the machinery lying at the spot like deep freezer, eye-instruments, tractor-trolley and other valuable articles were also damaged by the accused persons. The motive behind the occurrence, as per complainant, was that about two years prior to the occurrence, the complainant purchased 20 acres of land which was intended to be purchased by the accused party as well and that due to the said grudge, the above said damage was caused to him coupled with terrorism in the vicinity due to their said act.
3. That, after having completed the investigation and other legal formalities and having found the accused/respondents guilty of the offences under sections 455/ 395/148/149/109, P.P.C. Read with section 7(b)(i) of the Anti-Terrorism Act, 1997, challaned them to face trial before the learned Special Court constituted under the Anti-Terrorism Act, 1997, where, the accused when examined under section 342, Cr.P.C. Denied the prosecution story and claimed trial, while, the prosecution, in order to prove its case, produced nine witnesses during the trial held by the learned Special Court constituted under the Anti-Terrorism Act, 1997.
4. The Learned Additional Advocate General/Public Prosecutor, Punjab Mr. Najeeb Faisal Chaudhry, in support of this appeal against the acquittal of the respondents and while seeking their conviction, contends that it was not a case of only firing but includes dacoity committed by the respondents/accused persons at the spot coupled with murderous assault and criminal trespass at a place owned and possessed by the complainant; that since the accused/respondents, by their act, had caused fear and insecurity in the locality, therefore, the provisions of section 7(b)(i) of the Anti-Terrorism Act, 1997 were also attracted as the manner in which the occurrence took place and the respondents/accused acted, was gruesome and sensational one; that the ocular account furnished by the complainant and the other eye-witnesses, namely, Irshad and Abdul Ghaffar is corroborative with each other which is further corroborated by the evidence of recovery of crime empties and weapons of offence and that it was not a case of acquittal as held by the learned trial Court.
5. Khawaja Fahim Ejaz, Advocate, who filed W.P. No, 2144 of 2004 against the acquittal of the acquitted accused/ respondents, while adopting arguments of the Public Prosecutor Punjab and advancing his arguments, added that the passage of the impugned judgment is the result of non- reading and misreading of evidence brought on record by the prosecution; that the reasons given by the learned trial Court for acquittal of the respondents are artificial and fanciful; that vide order, dated 4-6-2003 passed in W.P. No, 3921 of 2003 (Sheraz Ahmad Ansari v. Ch. Ghulam Rasool, Judge Anti-Terrorism Court No,IV, Lahore etc.), a learned Division Bench of this Court consisting of their Lordships Raja Muhammad Sabir and 13ashir A. Mujahid, JJ., (as they then were), while quoting a judgment of the august Supreme Court of Pakistan reported in State through Advocate-General N. -W.F.P., Peshawar v. Muhammad Shafiq (PLD 2003 SC 224), held that this was a case which was to be tried by the Court constituted under the Anti-Terrorism Act, 1997; that W.P. No, 3527 of 2003 (Haji Kalay Khan v. S.H.O. Etc.) was withdrawn from a learned Division Bench of this Court on 26-3-2003; that there is Crl. Revision No, 776 of 2003 (Haji Kalay Khan v. The State) which was disposed of by this Court on 18-12-2003 as the case was going to be completed in the near future; that, as per oral contention of the learned counsel, the respondents/accused had also approached the apex Court of the country against the order of the learned Division Bench of this Court but the same was dismissed; that the instant case was investigated by P.Ws. 5 to 9 who, in their successive investigations, held the respondents guilty of the offence and none amongst them found the respondent to be innocent during the investigation which shows that the prosecution case was believed by the Investigating Officers; that respondents were named in the F.I.R. With the attribution of specific roles; that the statements of the P.Ws., which were corroborated by other evidence, was a sufficient material to bring home guilt of the respondents; that no question of false implication of the respondents arises as there was no previous enmity, whatsoever, existed between the parties; that the motive is also established on record; that the suggestion put to the prosecution witnesses that three respondents, namely, Saifullah, Arif and Abbas also got received injuries while exercising their right of self-defence, has no force and that since the impugned judgment of acquittal cannot stand the test of judicial scrutiny, therefore, it would be in the paramount interest of justice if the same is set aside resulting into conviction of the respondents under the charges framed against them:
6. Mr. Pervaiz Inayat Malik, Advocate learned counsel appearing for the respondents/acquitted accused, while defending the impugned judgment of acquittal and pleading their case, contends that the learned trial Court has not committed any illegality or material irregularity in passing the impugned judgment by arriving at a conclusion that the case was not triable by the learned Special Court and the provisions of the Anti-Terrorism Act, 1997 were not attracted in the facts and circumstances of the case and the said provisions would only attract if the death is caused during the occurrence and that nobody, including the eye-witnesses, received injuries in this case. While making his submission that (not conceded but for the sake of arguments), only section 7(b) is made out and not section 7(a) of the Anti-Terrorism Act, 1997.
7. Learned counsel for the respondents, while defending the case of the respondents and while advancing his arguments, further submits that there is no eye-witness of the occurrence and the learned trial Court was right in saying so; that the statements of the prosecution witnesses do not inspire confidence as the same are uncorroborated by any other independent evidence and are of interested and inimical eye-witnesses; that the tenor of registration of the F.I.R. Shows that it was a case of well-planned conspiracy hatched against the respondents in which they were rightly acquitted by the learned Special Court constituted under the Anti-Terrorism Act, 1997; that the employees of the complainant have been shown as witnesses of motive and recoveries and that as the case of the prosecution is full of contradictions, therefore, the learned trial Court has rightly acquitted them from the case.
8. While concluding his submissions, learned counsel for the respondents submits that as far as recovery of weapons of offence from the three respondents are concerned, those recoveries were effected from their residences; that it is a well-reasoned judgment of acquittal which is in accord with the evidence brought on record, within the jurisdiction and does not call for interference by this Court as no case either under the Pakistan Penal Code or under the Anti-Terrorism Act, 1997 was made out against the respondents.
9. I have heard learned counsel for the parties, have gone through the evidence, impugned judgment of acquittal with their able assistance, relevant provisions of the Pakistan Penal Code and the Anti-Terrorism Act, 1997, have perused the order of a learned Division Bench of this Court, dated 4-6-2003 passed in W.P. No,3921 of 2003 whereby the case was directed to be tried by the Special Court constituted under the Anti-Terrorism Act, 1997 and have also given anxious consideration to the submissions made by the respective parties at the bar coupled with having visited the precedent case-law on the subject.
10. Motive behind the present occurrence was that the complainant, who is resident of Lahore, had purchased twenty acres of land in Mauza Shamkey, District Sheikhupura to earn his livelihood after having spent his hard-earned money and thereby created a Dairy Farm and an Eye-Centre for the treatment of poor people of the locality, while, the respondents/ accused, who were residents of the said area, at first, wanted to purchase the said land but, when failed to get the same by hook or by crook, acted in the manner which resulted into loss alleged coupled with terror, fear and insecurity in the minds of the people of the area so that they may not dare to resist their evil designs in future as well. The motive part of the prosecution story was furnished and proved by Sheraz Ahmad Ansari/Complainant-P.W. Before the learned trial Court. This Court finds it plausible, believable and convincing one.
11. The case was registered on the written application of the complainant on 6-3-2003 at 11-05 p.m.
About an occurrence took place on 5-3-2003 at 4-00 p.m. The prosecution, to prove its case, produced nine witnesses and the accused, when examined under section 342, Cr.P.C. Produced D.W.1 Dr. Muhammad Riaz who had medically examined Irfan son of Muhammad Ramzan and Arif Hussain son of Shahadat Ali on 2-3-2003 at 5-30 p.m. And the duration was given as six hours. But the same were of no avail to the respondents as how could the said injuries be connected with the present occurrence which were reported to be present on persons of the said accused persons, allegedly received by them three days prior to the present occurrence. Even these injuries are incised wound 1 x 0.3 c.m. Skin deep in the middle of left hand, an incised wound 5 x 0.5 skin deep on left forearm and an incised wound 3.5 c.m. Skin deep distal to Injury No,2. According to D.W.1, "there is no cut in Kames, so Injuries Nos.2 and 3 require circumstantial evidence to rule out self- infliction". This Court holds that the said injuries, on one hand, are the result of self-infliction and, on the other hand, have no nexus with the present case, therefore, there is no need to dilate upon them any further.
' Even Motive is attributed to the respondents to commit the offence as it has come on record that about two years prior to the occurrence, the complainant purchased 20 acres of land which was intended to be purchased by the accused party as well and that due to the said grudge, the above said damage was caused to him coupled with terrorism in the vicinity due to their said act. For nothing but to keep up their so-called name in the area and to expel the complainant from the place of which he had become a lawful owner in possession and which was his business place having established upon it a Dairy Farm and an Eye-Centre for the welfare of the poor and needy people of the area.
12. There are two eye-witnesses of the occurrence, namely, complainant himself appeared as P.W.2 while Muhammad Irshad appeared as P.W.3 and Abdul Ghaffar entered the witness-box as P.W.4.
The latter is the witness of "Wajtakkar". From the bare perusal of the statements of these witnesses, it transpires that there was no background of previous enmity between the parties, therefore, no question for false implication or substitution of real culprits with the respondents, arises in the instant case. Both P.W.2 and P.W.3 have fully supported the prosecution case and claimed to be the eye-witnesses of the recovery as well while the learned trial Court has given finding to the contrary which is to the effect that the said P.Ws were not eye-witnesses of the case. I have myself asked the learned counsel for the respondents to show this Court from the statements of these two eye- witnesses especially of P.W.2 that they were not eyewitnesses of the case, but he failed.
13. The Investigating Officer, while reaching the spot on 7-3-2003, had not only prepared one rough site plan but two rough site plans (Exhs.P.W.6/1 and P.W.6!2) which are on pages 63 and 65 of the judicial record which show that the damage was not caused only to the Eye-Centre belonging to the complainant but also to his Dairy Farm. There were marks of bullets on the main gate, operation theater, roof of the tube-well room, tyres of the tractor etc. Some photographs were also taken from the place of occurrence and video film was also prepared but neither the photographer nor the person who prepared the video film were produced during trial. However, this fact was brought on record by the Investigating Officer but he was not cross-examined on this point.
Therefore, the same is not fatal to the prosecution case.
14. It is also important to note that during the course of spot inspection by the Investigating Officer to the place of occurrence, in all 531 crime empties were recovered from there i.e, 89 crime empties of .12 bore gun, 49 crime empties of .222 rifles, two missed bullets of .44 bore rifle, 24 crime empties of .44 bore rifle, 87 crime empties of .7mm/.8mm rifles, 73 crime empties of .12 bore gun, 12 crime empties of .12 bore gun, 67 crime empties of .222 rifle, 15 missed bullets of .222 rifle, 31 crime empties of .44 bore rifle, 4 missed bullets of .44 bore rifle, 98 crime empties of .7mm/ 8mm rifles, two magazines of .8mm rifle, 5 live cartridges, 1 crime empty of .30 bore pistol.
15. The large quantity of crime empties recovered from the spot shows that different fire-arms were used at the place of occurrence by the accused/respondents which also coincides with number of assailants/respondents. Even the Additional S.P., Rai Muhammad Tahir who appeared as P.W.5 stated that although no case under sections 395/452, P.P.C. Was made out but opined that as far as offence under section 324, P.P.C. Was concerned, that was made out. Besides the ocular account, all the Investigating Officers found the respondents guilty of the offence. None amongst the Investigating Officers uttered a word regarding innocence of the accused/ respondents. From three of the acquitted accused/respondents fire-arms were recovered i.e, from Saifullah, Abbas and Arif. Though opinion of the police is not binding on the Courts but to reach at a just decision of the case the Court can see it.
16. All the witnesses, who appeared before the learned trial Court to support the prosecution case, were disinterested, trustworthy having no animus against the present respondents, their statements are confidence-inspiring and this Court see no reason to discard those statements.
17. It is settled by now that the Court has to see the quality of evidence and not the quantity.
Evidence in the form of statements of two eye-witnesses i.e, Sheraz Ahmad Ansari and Muhammad Irshad i.e, P.W.2 and P.W.3 is coming from an unimpeachable source having its intrinsic value.
Further more that their evidence is corroborated by Abdul Ghaffar P.W.4 who is a witness of "Wajtakkar" and this Court finds no reason to disbelieve him as well. Irshad P.W. Has furnished eye- witness account of both the occurrences while Sheraz Ahmad Ansari P.W. Has given eyewitness account of the first part of the occurrence. Therefore, the case in hand is not only proved through ocular account but the same is also corroborated through other evidence as well i.e, evidence of recoveries of large quantity of crime empties, weapons of offence, marks of bullets .At the place of occurrence and on different articles lying there coupled with the opinion of police regarding guilt of the respondents.
18. As far as delay in lodging the F.I.R. Is concerned that was fully explained in the F.I.R. And even in such like circum-stances its late recording is not fatal to the prosecution case. "In Salar Khan's case (1986 PCr.LJ 1482), a learned Division Bench of Azad Jammu and Kashmir relying on 1978 SCMR 135, PLD 1978 SC 41, and 1979 SCMR 230 expressed the view that delay in F.I.R. Per se was not fatal to prosecution although it could have such effect in some particular circumstances. The view taken in Tahir Hussain's case (1992 PCr.LJ 478) was that if the evidence inspires confidence, the delay in registration of the case becomes a secondary factor and does not materially affect the veracity of the prosecution". It was so held at page 239 by a Full Bench of the Sindh High Court Karachi reported in Mian Muhammad Nawaz Sharif and others v. The State and others (PLD 2002 Karachi 152).
' Even otherwise, it is a matter of common knowledge that the police, in suchlike incidents, hesitate to register cases in consequence whereof the aggrieved persons have to approach the higher police officials or the Courts of law for the said purpose. Therefore, if some delay has occurred in the registration of the present case then the same is not fatal to the prosecution and the contention of the learned counsel for the respondents, in this regard, is repelled.
19. After having adjudged the case from every angle, having scrutinized the case with the help of the learned counsel for the parties and having sifted the grain from the chaff, this Court is of the considered view that it is a laboured judgment which is reflective of not only non-reading and misreading of evidence brought on record but the same cannot stand the test of judicial scrutiny as the same is fanciful, artificial and against the weight of record. Normally, this Court and the apex Court of the Country refrain from interfering with the judgments of acquittals but when it is proved from the record that the judgment of acquittal is artificial, shocking and ridiculous disclosing glaring misreading and indicating grave miscarriage of justice of showing perfunctory, wholly artificial or shocking conclusions which no reasonable person would perceive, then the same can legitimately be interfered with. By and large same principles are applicable to adjudication of a matter by High Court in exercise of powers under section 417, Cr.P.C. Or section 25(4) read with section 32 of the Anti-Terrorism Act, 1997 rather the Superior Courts are duty bound to do complete justice. The impugned judgment in the case in hand is a such one wherein grave injustice has been done with M the complainant because the golden principle of criminal jurisdprudence is very much lacking in this case according to which justice should not only be done but it should manifestly be seen to have been done. These are Courts of law and while N sitting in the appellate jurisdiction it is the duty of the Court to sift grain from the chaff. In the present case the complainant who purchased 20 acres of land where he established a Dairy Farm to earn his livelihood and an Eye- Centre for the welfare of the area was attacked upon by the respondents and act of the respondents was so desperate and hardened and is reflective of their cruel minds that in furtherance of their common object they indiscriminatory fired more than five hundred shots having caused heavy loss to 0 the said Dairy Farm and Eye-Centre. In other words it was a lesson for the others not to resist their unlawful and criminal acts. Such like acts/offences should not go unattended because if the same are left unpunished then nobody would dare to resist the criminal acts of such-like persons. The result would be that nobody would adopt the profession of their choice to earn his livelihood and shall not feel secure and safe. The act of the respondents have resulted into terror, insecurity and fear in the vicinity. Therefore, this Court is of the view that it is a fit case in which this Court should interfere with the judgment of acquittal so that justice should prevail in the society and the people should gain confidence in the Courts.
20. It would also not be out of place to mention here that vide order, dated 4-6-2003 passed in W.P.
No, 3921 of 2003 (Sheraz Ahmad Ansari v. Ch. Ghulam Rasool, Judge Anti-Terrorism Court No,IV, Lahore etc.), a learned Division Bench of this Court consisting of their Lordships Raja Muhammad Sabir and Bashir A. Mujahid, JJ., (as they then were), while quoting a judgment of the august Supreme Court of Pakistan reported in State through Advocate-General, N.-W.F.P. Peshawar v.
Muhammad Shafiq (PLD 2003 SC 224), while setting aside the order passed on the application of the accused whereby case was transferred to the ordinary Court, the case was ordered to be tried by the Court constituted under the Anti-Terrorism Act, 1997 and although the charged was framed under sections 455/ 395/148/149/109, P.P.C. Read with sections 7(B)(i) of the Anti-Terrorism Act, 1997 but the finding of the learned Special Court is contrary to the said view.
21. For a just decision of the case it is imperative to quote clause (b) to subsection (1) of section 6 and sub-clauses (b) and (i) to section 7 of the Anti-Terrorism Act, 1997 which mandate as under:-- "(6) Terrorism (1). In this Act, "Terrorism" means the use or threat'of action where:-- (a)
(b) the use of threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or the public or community or sect or create a sense of fear or insecurity in society". (Underlining is mine)
"(7) Punishment for acts of terrorism.---Whoever commits an act of terrorism under section 6, whereby:-- (a)
(b) He does anything likely to cause death or endanger life, but death or hurt is not caused, shall be punishable, on conviction, with imprisonment of either description for a term which shall not less than five years but may extend to fourteen years and with fine;
(c) Any other act of terrorism not falling under clauses (a) to (h) above or under any other provision of this Act, shall be punishable, on conviction to imprisonment or not less than six months and not more than five years or with fine or with both." (Underlining is mine)"
22. In view of the above analysis of the case, this Court is of the considered view that the so far as case of respondent Baba Said Muhammad is concerned, he was made accused of abetment only, therefore, he is acquitted from the case as the provision of section 109, P.P.C. Is not attracted in the facts and circumstances of the case.
23. So far as the other all acquitted accused/respondents are concerned, the prosecution has proved case against them that they, in furtherance of their common object and having formed unlawful assembly, have ,committed the offences punishable under sections 7(b), 324/149, 1-8 and 455 P.P.C. His Court holds so. Although there is a mention of section 324, P.P.C. In the F.I but it is missing from the charge framed against the accused persons. As it has already been held that the respondents/acquitted accused are also guilty of the offence under section 324, P.P.C. Therefore, they are also being punished under the said provision of law is fully attracted in peculiar facts and circumstances of this case. In this regard, this Court is fortified with a famous judgment of the august Supreme Court reported in Zulfiquar Ali Bhuttoo v. The State (PLD 1979 Supreme Court 53), wherein the apex Court of the Country in the judicial hierarchy, at page 355 and in para. 826 of the judgment, observed as under:-- "826. The survey of the cases shows that the law, as embodied in sections 236 and 237 of the Criminal Procedure Code and read together, appears to be that if on the facts alleged it was doubtful which of several offences the proved facts will constitute, and on the facts eventually proved, of which the accused may be taken to have notice during the recording of evidence at the trial an offence other than the one charged has been committed, then he may be convicted of this other offence, even though he was not charged with it. Their Lordships of the Privy Council have indeed put it simply and shortly by saying that a man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made". (emphasis supplied)
' Resultantly, Cr1. Appeal No, 210 of 2004 (filed by the State) against the acquittal of the respondents is allowed, the impugned judgment of acquittal, dated 24-1-2004 passed by the learned Special Judge Anti-Terrorism No, III, Lahore is set aside. So far as W.P. No, 2144 of 2004 filed by the complainant is concerned, since the main appeal filed by the State is being disposed of through this judgment, the above writ petition is disposed of having become infructuous. The respondents, except Baba Said Muhammad, are convicted and sentenced as under:--
(1) Under section 7(b) of the Anti-Terrorism Act, 1997.---to five years' R.I. Each with a fine of Rs,20,000 each in default whereof to undergo six months' R.I. Each.
(2) Under sections 324/149, P.P.C.--to undergo five years' R.I. With a fine of Rs,20,000 each in default whereof to further undergo six months' R.I. Each.
(3) Under section 148, P.P.C.---to one year's R.I. Each with a fine of Rs,10,000 each in default whereof they are further directed to undergo three months' R.I. Each.
(4) Under section 455, P.P.C.---to undergo five years' R.I. With a fine of Rs,20,000 each in default whereof to further undergo six months' R.I. Each.
(5) Under section 395, P.P.C.---As far as charge under this section is concerned, I am of the affirmed view that the same is not made out against the respondents because no recovery of looted articles was effected from them.
(6) Under section 109, P.P.C.--As the offence of abetment has not been proved against the respondents, therefore, they are also acquitted of the same.
' The respondents, who are now convicts, shall be taken into custody by the concerned authorities to serve out the above sentence which shall run concurrently coupled with benefit of section 382-B, Cr.P.C. accordingly.