' WAQAR HASSAN MIR, J.---By way of this single judgment, I intend to dispose of instant criminal appeal as well as Criminal Revision No,70 of 2004, as both these cases have arisen out of the same judgment.
2. Vide judgment dated 12-4-2004, passed by the learned Sessions Judge, Islamabad (Camp at Adiala Central Jail, Rawalpindi), appellant Makhdoom Javed Hashmi son of Makhdoom Muhammad Shah Hashmi was tried in case F.I.R. No,326 dated 29-10-2003 registered under sections 124-A/131/468/469/471/500/505(a) and 109, P.P.C. With Police Station Secretariat, Islamabad and was convicted under sections 124-A, 131, 468, 469, 471, 500, 505(a) and 109 and sentenced as under:--
(i) 3 years' R.I. With a fine of Rs,10,000 or in default to further undergo two months' S.I. For offence under section 124-A, P.P.C.;
(ii) 7 years' R.I. With a fine of Rs,10,000 or in default to further undergo two months' SI for the offence under section 131/109, P.P.C.;
(iii) Two years' R.I. With a fine of Rs,5000 or in default to further undergo one month's S.I. For the offence under section 505(a), P.P.C.;
(iv) 4 years' R.I. On each count with a fine of Rs,5000 on each count, failing which to further undergo one month's S.I. On each count for offences under sections 468, 471, P.P.C.;
(v) 1 year's S.I. And fine of Rs,5000 or in default to further undergo one month's S.I., for offence under section 500, P.P.C.;
(vi) Two years' R.I. With a fine of Rs,2000 or in default to further undergo 15 days' S.I. For an offence under section 469, P.P.C.
' All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to him.
3. The prosecution case as disclosed at the time of trial is that Khurshid Ahmad, complainant, expressed his grievances with the Senior Superintendent of Police, Islamabad, through complaint (Exh.PZ) complaining therein, that on 20-10-2003, he visited National Assembly to see the proceedings of the Assembly, at about 6 p.m., he met Nadir and Jehanzeb, P.Ws., in National Assembly Cafeteria. At about 6-15 p.m. Makhdoom Javed Hashmi, accused, who is a member of the National Assembly, and is known to him previously, addressed a press conference. Some other persons were also present there and before addressing the Press Conference, the accused consulted with his accomplices. It was added that during the Press Conference to the attendants, including a number of press correspondents, letters with the caption of "Qaumi Qayadat Kay Naam", were also distributed by the accused, which were photocopies. In the said letter (Exh.PJ) the contents were written against President of Pakistan, Gen. Pervez Musharraf as well as Pakistan Army. They were being maligned and dis-reputed. Mr. Javed Hashmi, the accused through that letter and press conference, tried to create disaffection between the Army, and the Government, and also instigated for mutiny, and as such, the accused, tried to give an exaggerated incorrect impression for the losses suffered by Government of Pakistan and the country, in Kargil incident, more than that of 1965 and 1971 Wars. He also expressed in the press conference that the Indian side, after the incident of Kargil had managed for a full fledged inquiry and many Brigadiers and Generals had been retired after the Kargil incident, and in this way, the accused attempted to instigate disaffection between the Armed Forces, and contempt between its factors. According to the complaint, the accused further made a false statement in the press conference that General Javed Hasan, the then Major-General, Commander of the Forces, at Kargil, had been working as an Agent with the CIA, for a period for four years, when he was posted as Military Attache, in USA. The letter which was distributed by Javed Hashmi along with his companions, apparently, seemed to be forged, the said letter does not bear the signature of anybody, and the letter pad purported to be of GHQ, prima facie, also seemed to be forged, and the Monogram affixed on the said letter as that of GHQ of Army, also seemed to be forged, and had been placed separately. The accused gave statement in the daily "News" stating that since the letter has been distributed by him, it is sufficient to say that the letter was authenticated and genuine one. According to the complainant, the accused prepared the letter himself on a forged GHQ letter pad, and in this way intentionally and deliberately caused disaffection between Pakistan Army, and also abetted the police against the President of Pakistan, and Army, for mutiny. By the said speck and distribution of the letter, the accused and his companion wanted to create disturbance in the country, and harm the solidarity of the country as well as the Government, and attempted to divide Pak Army in order to break the country. The said Press conference of Javed Hashmi was widely published in the daily newspapers of the country including the "News, Khabrain, Ausaf, Nawa-e-Waqt, and daily Pakistan" duly published on 21-10-2003. According to the complainant, the solidarity, welfare and unity of the Federation of Pakistan was, therefore, impaired and by attempting disunity amongst the armed forces, the country was sought to be dismembered. It was thus prayed that keeping, in view the afore-referred facts and circumstances, the accused may be taken' to legal accountability. The complaint was in fact lodged by the complainant with the SSP Islamabad, who marked the same to the SHO Police Station Secretariat. It was on basis of the said complaint, that the instant F.I.R. Was registered. The accused was apprehended, and during the course of investigation, he was found guilty, and was ultimately challanged to face trial.
4. After submission of challan to the learned trial Court, copies of documents as required under section 265-C, Cr P.C. Were delivered to the accused and on 16-12-2003 after finding sufficient material to proceed further with the case against the accused, charge with seven heads, was framed, read over and explained`to him, but he refused to answer the questions and also refused to sign the charge-sheet and simply stated that he refuses the charge, hence, prosecution evidence was summoned.
5. Prosecution to prove its case against the accused, produced as many as 13 witnesses.
6. P.W.1 Muhammad Akram is a draftsman who prepared the scaled site plan Exh.PA and Exh.PA/1 with the scale of one inch equal to 20 feet on the direction of police and pointation of P. Ws.
7. P.W.2 Rashid Ahmad Head Constable is a formal witness in whose presence the I.O. Took into possession visitor Gallery Card Exh. PB, photo copy of letter titled as Qaumi Qayadat Kay Naam Exh.
PC vide recovery memo Exh.PD. This P.W. Also attested the recovery memo Exh.PG regarding Visitor Gallery Card Exh.PE and a photo copy of letter titled as Qaumi Qayadat Kay Naam Exh.PF.
8. P.W.3 Iftikhar Ahmad, Head Constable is also a recovery witness who attested the recovery memo Exh,PQ regarding the visiting card, photo copy of letter Qaumi Qayadat Kay Naam as well as the newspapers i,e, the daily Khabrain, Ausaf, Nawa-e-Waqt, Pakistan etc. He also identified his signatures Exh.PQ/1 over the recovery memo. He also deposed that in his presence nothing was recovered from the possession of accused at the time of his arrest.
9. P.W.4 Bashir Ahmad is a Personal Assistant to Deputy Commissioner, Islamabad who deposed that on 29-10-2003 the Deputy Commissioner, issued a detailed Press Note for the arrest of Makhdoom Javed Hashmi in case F.I.R. No,326 dated 29-10-2003 Police Station Secretariat Islamabad. He also identified his signatures at Exh.PR as Exh.PR/1.
10. P.W.5 Syed Ghulam Ahmed Shah is Asistant Secretary, National Assembly Secretariat who produced three applications Exh.PS, Exh.PT and Exh.PU moved by complainant Khurshid Ahmad, P.Ws. Jehanzeb Zahoor Awan and Nadir Khan, to the Secretary, National Assembly, which were marked to him and on the basis of said applications he issued DVG Cards.
11. P.W.6 Lt. Col. Khalid Mehmood Raja, General Manager Army Press, GHQ Rawalpindi received the letter Exh.PV through proper channel from SSP Islamabad vide No,7077/C with the subject "Verification of Photo copies of letter, bearing GHQ Monogram, pertaining to the case F.I.R. No,326 dated 29-10-2003". After comparison of monogram of GHQ on Exh.P.W., with the original of Exh.PX, the witness wrote a detailed report dated 8-11-2003, which is typed and signed by him. The said report Exh.PY bears his signature as Exh.PY/1.
12. P.W.7 Khurshid Ahmad is the complainant of the case, who supported the whole prosecution story as narrated in the F.I.R. He also corroborated the statements of P.Ws.
13. P.W.8 Captain Jahanzeb Zahoor Awan deposed that he was present in the Cafeteria of Parliament House, Islamabad where Makhdoom Javed Hashmi addressed to the Press Conference in presence of number of Press Reporters as well as MNAs. He also corroborated the statement of complainant.
14. P.W.9 Munir Ahmad, Deputy Secretary Ministry of Defence Rawalpindi received the letter from SSP Islamabad vide No,3037/R.SSP dated 18-11-2003 pertaining to instant case F.I.R. And in response to the said letter he wrote the letter dated 19-11-2003 to the SSP, Islamabad.
15. P.W.10 Bashir Ahmad Noon, who was the member of investigation Team of this case deposed that in his presence as well as of other P.Ws., the accused got recovered ten photo copies of letters captioned as Qaumi Qayadat Kay Naam, from F-106, Parliament Lodges and the same were taken into possession by the I.O. Vide recovery memo Exh.PEE. He verified his signature as Exh.PEE/1.
16. P.W.11 Muhammad Bashir S.I. Deposed that on 29-10-2003, he was posted as Sub Inspector at Police Station Secretariat Islamabad. On the same day, Khurshid Ahmed complainant approached him in his police station along with an application Exh.PZ. On the basis of said application he recorded an F.I.R. No,326 dated 29-10-2003, at Police Station Secretariat, Islamabad, which bears his signature. He correctly recorded the F.I.R. And the carbon copy of which is Exh.PFF. After registration of the F.I.R., he gave endorsement in the form of case F.I.R. Number and the offence on the application of Khurshid Ahmed, which bears his signature; the same is Exh.PFF/1. On the same date, Khurshid Ahmed the complainant handed over to him a photocopy of letter with the caption Qaumi Qayadat Kay Naam Exh. PJ, copies of daily newspapers from Exh. PK to Exh. PP. He also handed over to the witness the Visiting Card of National Assembly Exh.PHH, and all the said documents, he took the same into possession vide recovery memo. Exh. PQ which bears his signature. The same is Exh.PQ/3.
' On 29-10-2003, Jehanzeb Zahoor P.W. Joined the investigation, produced a photo copy of letter Qaumi Qayadat Kay Naam, along with his Visiting Card to National Assembly, which he took into possession vide recovery memo Exh.PD, which bears his signature, which is Exh.PD/3. The witness stated to have seen photocopy of letter Qaumi Qayadat Kay Naam produced by Jehanzeb Zahoor, which is Exh. PF, and Visiting Card of Jehanzeb Zahoor is Exh.PB which bears his signature i,e, Exh.PB/1. On the same date, Nadir Saleem joined the investigation, produced before him, photocopy of letter Qaumi Qayadat Kay Naam Ex.PC, along with National Assembly Visit Card which is Exh.PE, and his signatures thereon are Exh.PE/1 and both the said documents are taken into possession by the witness, vide recovery memo Exh. PG.
' On 29-10-2003, the witness arrested Makhdoom Javed Hashmi, outside from Parliament Lodges and on his personal search, nothing was recovered. A Fard for personal search was prepared, upon which Habibur-Rehman, and Iftikhar Ahmed signed in his presence. The said Fard is Ex.PGG, which was also signed by Makhdoom Javed Hashmi.
' On 5-11-2003, Mazhar Iqbal, from Daily Islam, joined the investigation. He produced a letter with the caption of Qaumi Qayadat Kay Naam, which is Exh.PHH. He produced photocopy of his Press Card, Exh.PJJ and original newspaper the Daily Islam, Exh.PKK. All the said articles were taken into possession vide recovery memo. Exh.PLL. The said recovery memo was ,signed by Mazhar Iqbal, Muhammad Ishaq Warmish DSP and as well as the witness.
' The witness further stated that on 5-11-2003, Syed Aizaz Hussain Shah, joined the investigation, produced copy of letter Qaumi Qayadat Kay Naam, Exh. PMM and photocopy of his employment/Press Card Exh. PNN. The same were taken into possession vide recovery Exh. PPP. The said recovery memo. Was signed by Syed Aizaz Hussain Shah and Muhammad Ishaq DSP. In his presence on 21-11-2003, he recorded the statement of Munir ahmed Deputy Secretary Ministry of Defence. On 17-11-2003, he also recorded the statements of Bashir Ahmad PA to D.C. And Asmat Ullah Head Constable. Report under section 173, Cr.P.C. Was prepared in his presence as being member of the investigation team, signed by SHO Police Station Secretariat, in his presence, the said report is Exh. PQQ.
17. P.W.12 Muhammad Ishaq Warraich, DSP deposed that on 29-10-2003, he was posted as DSP Investigation Wing, Islamabad. He started investigation the instant case under the order of SSP from 30-10-2003. In his team, other Investigating Officers were, Mussarat Ali Khan Inspector, Bashir Ahmad Noor S.-I. And Muhammad Bashir S.-I. On 30th October, 2003, on the application drafted by Muhammad Bashir S.I. The witness procured physical remand of Makhdoom Javed Hashmi for five days. On 31-10-2003, he inspected the place of occurrence, and prepared a rough site plan. On his application dated 1-11-2003, SSP Islamabad, wrote letter to COS Secretariat Rawalpindi, for comparison of copy of letter captioned as Qaumi Qayadat Kay Naam as well as the Monogram. He interrogated the accused and on interrogation of the accused and then on pointation of the accused on 3-11-2003, he recovered ten photocopies of letter with the captioned as Qaumi Qayadat Kay Naam Exh.PCC/1 to Exh.PCC/1-10. The aforesaid documents were taken into possession vide recovery memo Exh.PEE. He also prepared rough site plan of the place of recovery which is Exh.PSS.
' The witness further deposed that on 4-11-2003, he took physical remand of the accused for nine days. On 5-11-2003, Mazhar Iqbal Press Reporter, joined the investigation and in presence of witnesses produced his press reporting card Exh.PJJ, and photocopy of letter Qaumi Qayadat Kay Naam, which were taken into possession vide memo Exh.PLL, which bears his signature Exh.PLL/2.
The said Mazhar Iqbal also produced original newspaper daily Islam which is Exh.PKK.
' On- 5-11-2003, Press Reporter Syed Aizaz Hussain Shah, in presence of witnesses, produced his employee Press Card Exh.PNN. He produced photocopy of letter Qaumi Qayadat Kay Naam, which is Exh.PNN. The same were taken into possession vide a recovery memo Exh.PP, which bears his signature Exh.PPP/2.
' On 8-11-2003, he along with other witnesses inspected the-place of occurrence along with draftsman Malik Muhammad Akram P.W., who took rough notes of the place of occurrence i,e, Cafeteria of National Assembly. The said Muhammad Akram produced site plan before him Exh: PA and Exh.PA/1. He recorded the statement of Malik Muhammad Akram, Draftsman. The witness wrote letter to FIA through SSP, Islamabad, for verification of photocopy of letter bearing GHQ Pad and Monogram, whereupon, report from Shaukat Ali Inspector was received by him. Shaukat Ali Inspector signed in his presence. The said report of Shaukat Ali is Exh. PDD. He recorded the statement of Shaukat Ali Inspector FIA He remained associated in the investigation, then the final challan Exh.PQQ was got prepared under his supervision from SHO, Police Station Secretariat, Islamabad.
19. P.W.13 Shaukat Ali Inspector FIA, handwriting Expert testified in the manner that he is working as Handwriting Expert in F.I.A., Islamabad since.
1986. He stated that he has brought original file of the instant case with him. He stated that he had seen letter No,7296/C dated 10-11-2003, issued by SSP Islamabad, wherein, opinion was required on GHQ Monogram Mark-A, as questioned document, which was photocopy and was to be compared with the original letter head of GHQ, having the Monogram as Mark-B. Said letter is Exh.PTT. He examined the questioned document with document under reference and had compared the questioned document with the original document and had written report dated 12-11-2003, which is Exh.PZZ, which bears his signature as Exh.PZZ/1. He prepared enlargement photograph chart of questioned monogram. Marked as "A" which bears his signature. The said enlargement of questioned document is Exh.PAAA. The signatures of the witness are Exh.PAAA/1. The genuine monogram has been Marked as "B" and the enlarged original document is Exh.PBBB.
20. Mr. Aamer Saleem Rana, Judicial Magistrate, stepped into the witness box. He had recorded statements of Mazhar Iqbal and Aizaz Hussain P.Ws., under section 164, Cr.P.C.
21. Learned Special Public Prosecutor, vide his statement dated 20-3-2004, gave up Mazhar Iqbal and Aizaz P.Ws. As being unnecessary and closed the prosecution case.
22. Statement of accused was recorded under section 342, Cr.P.C., wherein, all the incriminating evidence was put to him. He has denied the same. The defence taken by him is reproduced, in verbatim as under:--
(i) Sir, the case of prosecution is nothing but a political victimization. I was Federal Minister for Health in the Cabinet of Mian Muhammad Nawaz Sharif, whose Government was toppled on 12-10- 1999. I was against his unconstitutional and illegal (sic). Firstly, I was arrested by the Punjab Police but allowed bail by the honourable Lahore High Court. Then again, I was arrested by the Police for political reasons and even this time, I was allowed bail by the Lahore High Court. Then on 2001, I was arrested by NAB and a totally false reference was filed against me at Lahore. However, I was allowed bail even in NAB reference by the Lahore High Court, Lahore. I contested the General Elections held on 2002 for the Seat of MNA from Lahore, and at that time, I was in Jail. Despite all opposition of the Government, I was elected as MNA. After my release on bail, I took oath and since that date, I am opposing the policies of the Government as they are not in National interest. The Government wanted to get Legal Frame Order (L.F.O.) passed from the Parliament. I was staunchly opposing this design of the Government inside and outside the Parliament. I am Parliamentary Leader of PML (N) in the National Assembly. I am also acting President of PML (N). I am also President and Parliamentary Leader of ARD.
(ii) The Government gave me temptations and threats and when it did not succeed a totally false, baseless and incorrect case has been cooked up against me with the help of different Government agencies. All the prosecution witnesses are Government Servants. They are under immense pressure of the Government to depose against me at any cost. Even the P.W.7 (Khurshid Ahmed) is a retired Army Officer but he deliberately concealed this material fact during the investigation and in all the relevant papers and even before this honourable court. However, in cross-examination, he has admitted that he is retired Army Officer. All the allegations levelled by prosecution in this case against me are incorrect, baseless and fabricated.
23. The accused also placed on record, a statement in vernacular, consisting of hundred pages, wherein he has given his long history and has also reproduced the facts in and around, but not relevant with this case. However, after conclusion of the trial the appellant was convicted and sentenced by the learned trial Court, as mentioned above.
24. Learned counsel for the appellant has argued that the judgment passed by learned trial Court is manifestly against law and not at all supported by any evidence brought on record; that findings recorded by learned trial Court are based solely on surmises and conjectures rather than on any sound legal basis or any evidence brought on record; that evidence available on the file has not been appreciated by learned trial Court in its true perspective; that the appellant is absolutely innocent and has been falsely and maliciously involved in this case fabricated and concocted by the Government agencies at the behest of person who had unconstitutionally manipulated to take into his own hands the whole writ of Government of Pakistan; that prosecution has miserably failed to bring home the guilt of the appellant and therefore, conviction of the appellant is not sustainable; that conviction is not supported in any way by the legal evidence brought on record as it was incumbent upon the prosecution to prove the alleged guilt if any to the hilt and they have failure to do so regarding commission of any of the offence by the appellant; that the case against the appellant was registered at the behest of State functionaries after 9 days of the alleged commission of offence in the Cafeteria of the National Assembly (Parliament House) which clearly shows the mala fide of the complainant; that the Speaker was competent to take notice; cognizance or initiate any action whatsoever and the whole transaction of the registration of case; arrest of the appellant, his custody and torture and the subsequent trial is gravest encroachment on the functioning of the Parliament and the Speaker; that all the prosecution witnesses are government officials, interested and have been planted by the prosecution; that the complainant Khurshid Ahmad is admittedly a retired Army Officer but this fact was maliciously suppressed not just at the time of lodging of F.I.R. But also during the investigation as well as during the trial conducted by learned trial Court that the offence under section 124-A, P.P.C. Is not only non- cognizable but there is no concept of registration of case under section 124-A, P.P.C. By the police; that cognizance of case under section 124-A, P.P.C. Can only be taken on a complaint instituted by the Federal Government; that the provisions of section 196, Cr.P.C. Is couched in the negative language which is mandatory in nature as opposed to being merely directory; that the offences under sections 468/469/471, P.P.C. Are unquestionably non-cognizable; in the last leg of his arguments learned counsel for appellant argued that the impugned judgment dated 12-4-2004 may kindly be set aside and the appellant may graciously be acquitted.
25. On the other hand learned standing counsel while controverting the arguments advanced by learned counsel for the appellant supported the impugned judgment and submitted that the prosecution has proved its case beyond any shadow of doubt. He further submitted that the appellant made the Press conference and distributed amongst the attendants the letter namely `Qaumi Qayadat Kay Naam' as a result of which the accused attempted to bring into hatred, excited, disaffection towards the Central Government established by law; it is also proved that appellant had abetted the mutiny and in consequence of the said abetment attempted to seduce soldiers from their allegiance duty; all the P.Ws. Have supported the prosecution story and corroborated the statement of each other; learned standing counsel lastly prayed for enhancement of the sentence awarded to the appellant and prayed for dismissal of appeal.
26. Arguments heard. Record perused.
27. From the bare reading of the F.I.R. Shows that offence under section 124-A, P.P.C. Is also included in this case which provides as under 124-A. Sedition. Whoever by words, either spoken or written, or by signs or by visible representation, or otherwise brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Central or Provincial Government established by law, shall be punished with [imprisonment for life] to which fine may be added, or with imprisonment which may extend to three years to which fine may be added, or with fine.
The above section 124-A, P.P.C. Is not only non-cognizable but there is no concept of registration of case under section 124-A, P.P.C. By the local Police. The Cognizance of the case under section 124-A, P.P.C. Can only be taken on the complaint instituted by the Federal Government in the present case the same is lacking as the Federal Government had not either specifically examined the case or taken a decision to file a complaint regarding the commission of alleged offence. Inspite of the above, the police has taken cognizance of the offence, investigated the case and filed the challan against the accused in which ultimately the appellant has been convicted and sentenced, thus the entire proceedings started from the registration of the case, investigation, submission of challan in the court, proceedings before the court and culminating into the impugned conviction are not sustainable in the eyes of law; besides the provisions of section 196, Cr.P.C. Is couched in the negative language which is mandatory in nature as opposed to being Merely directed. It would be relevant to reproduce section 196, Cr.P.C. As under:- "196 Prosecution for offences against the State.---No court shall take cognizance of any offence punishable under chapter VI or IX-A of the Pakistan Penal Code (except section 127), or punishable under section 108-A, or section 153-A or section 294 or section 295-A or section 505 of the same Code, unless upon complaint made by order of or under authority from, the Central Government or the Provincial Government concerned, or some officer empowers in this behalf by either of the two Governments."
' Thus non-compliance of section 196, Cr.P.C. Vitiates the entire proceedings. In the absence of the order by the Government as required by section 196, Cr.P.C. Learned trial court has no jurisdiction to hold a judicial inquiry and trial. Reliance in this behalf is placed upon the judgment reported as Muhammad Khan v. Government of West Pakistan (PLD 1960 W.P. Lahore 434), Bashir Ahmad v. The State (2000 PCr.LJ 902), Fazal-i-Raziq v. Riaz Ahmad (PLD 1978 Lah 1082), Gokulchand Dwarkadas v.
The King (PLD 1948 PC 11), Dost Muhammad v. The State (1976 PCr.LJ 184) and Salman Taseer vs. Judge Special Court (1993 SCM R 71). Besides, there is also violation of mandatory B provisions of Code of Criminal Procedure inter alia in the registration of the case, investigation, recording of statement under section 164, Cr.P.C. And non-compliance of section 196, Cr.P.C. The rules of procedure are meant to ensure the right to liberty of the accused and due dispensation of justice, it is the fundamental principle of law that penal laws must be interpreted strictly and not so as to deprive a subject of this c legal right. It is also settled principle of law that if a particular thing is required to be done in a particular manner then it should be done in that D manner or it should not be done or at all. Besides the case against the appellant could have not been registered by any one or an incident taken place within the precincts of the National Assembly except by the Speaker who is designated as "Custodian of the House". No person whosoever except the Speaker was competent to take notice; that the case against the appellant was registered at the behest of the State functionaries after nine days of the alleged commission of the offence in E the Cafeteria of the National Assembly (Parliament House). It is settled legal position that the Cafeteria of National Assembly Parliament house is an integral part of the House. The house is not confined to the Chamber where the sitting and the sitting of the National Assembly takes place but the precincts of the House are also part and parcel of the House.
28. The complainant in this case is admittedly a retired army officer but this fact has not only been suppressed at the time of lodging of F.I.R. But also during the course of investigation and even before the learned trial Court. It was only during the course of examination that he debunked that he was a retired army officer. Another fact is that P.W.8 Jehanzeb Zahoor Awan is a serving Captain of Pakistan Army posted at GHQ. Besides the learned trial court has failed to dilate upon the essential elements to prove the criminal charges and the requisite mens rea and without which there can be no criminal offences. The basic element of section 131, P.P.C. Of abetting mutiny or attempting to seduce a soldier from duty is not disclosed from the prosecution evidence.
29. In the light of what has been stated above the prosecution has failed to prove the charge against the appellant and the learned trial Court has not considered the above aspects of the matter and has erroneously awarded the sentence to the appellant which cannot sustain in the eyes of law, therefore, the impugned judgment is hereby set aside and the appellant is acquitted of the charge. The surety shall stand discharged from his liability. This appeal is accordingly allowed.
' As regards Criminal Revision No,70 of 2004, no case for enhancement of sentence is made out, thus the same stands dismissed.