SH. NAJAM-UL-HASSAN, J. --- This single judgment shall dispose of Criminal Appeal No. 1630/2006 filed by Ameer Hussain, Criminal Appeal No. 1631/2006 filed by Allah Din, Criminal Appeal No. 1632/2006 filed by Ahmad Ali, Criminal Appeal No. 1633/2006 filed by Muhammad Asif, Criminal Appeal No. 1634/2006 filed by Riasat Ali, Criminal Appeal No. 1635/2006 filed by Allah Ditta and Criminal Appeal No. 1636/2006 filed by Muhammad Ahmad as all these appeals emanate from a single judgment dated 19.10.2006 passed by the learned Special Judge, Anti- Terrorism Court No. 1, Lahore in case F.I.R. No. 399 dated 7.8.2006 registered under Sections 147/511/149, P.P.C. Read with Section 7 of the Anti-Terrorism Act, 1997 at Police Station Old Anarkali, Lahore whereby all the appellants in the said appeals were convicted under Section 7(h) of the Anti Terrorism Act, 1997 and each one of them was sentenced to suffer five years imprisonment and also to pay fine of Rs.
5000/-.
2. Brief facts of the case are that Muhammad Banaras, A.S.I. PW.2 lodged the complaint (Ex.PA) at Police Station Old Anarkali, Lahore on 7.8.2006 wherein he stated that on the fateful day at about 2.10 p.m. He was present alongwith other police officials on duty in the premises of Lahore High Court where he spotted some persons beating each other outside a Courtroom. On hue and cry the complainant alongwith his companions apprehended them who disclosed their names to be the appellants. Hence the F.I.R. Was registered.
3. At the time of arrest, Allah Din, appellant was injured and in semi conscious condition. He was therefore taken to the hospital where he was medically examined by Dr. Malik M.J. Munir, PW.6 who did not observe any sign of physical violence. However, the injured appellant complained of pain in chest and kick blow on testicular area. He attributed his beatings to his opponent group.
4. After completion of investigation, the appellants were challaned to Court to face trial. At the commencement of trial, the appellants were charge-sheeted who denied the charge and claimed trial.
5. In order to prove charge against the appellants, the prosecution produced as many as six witnesses out of which Muhammad Banaras, A.S.I. Appeared as PW.2 and deposed in line with his version stated in the F.I.R. Who was corroborated by Muhammad Ashiq, PW.4 and Naveed Shehzad, PW.4. Nazar Abbas, Inspector had conducted investigation in this case and appeared at trial as PW.5 to prove his investigation. Dr. Malik M.J. Munir PW.6 deposed that he had medically examined Allah Din, appellant.
6. After completion of prosecution evidence, the same was put to the appellants. They dismissed each and every piece, of prosecution evidence in their statements under Section 342, Cr.P.C. In reply to the question, "Why this case against you and why the P.Ws. Have deposed against you, Allah Din appellant replied as under:- "One Mst. Sumatra contracted Nikah with my real son co-accused Ahmad AH against wishes of her parents who in revenge lodged the F.I.R. No. 422 of 2006 under Section 16 of the H.O. 1979 at Police Station Saddar Dipalpur.. Co-accused Allah Ditta is the complainant of the said case. Aforesaid Sumaira denied the allegation of abduction in her statement recorded under Section 164, Cr.P.C.
She had also filed a suit for jactitation of marriage with regard to the alleged Nikah which is pending before the Court of Mr. Munir Ahmad Khokhar, Civil Judge, Dipalpur. I filed Writ Petition in High Court for quashment of the said case. Furthermore, I and my real son co-accused AH Ahmad also filed applications to seek bail before arrest from High Court, Lahore. On 7.8.2006, I and my co- accused AH Ahmad had come to Hon'ble High Court for hearing in bail applications. Co-accused Ameer Hussain is my real brother whereas co-accused Muhammad Ahmad is also my real son and accused Asif and Riasat are sons of my real sister, they had come alongwith us for furnishing sureties bonds etc. From the complainant side co-accused Allah Ditta was accompanied by one Muhammad Fiaz and 6/7 unknown persons. When we were going back after hearing of the case, the companions of co- accused Allah Ditta extending threats of dire consequences if aforesaid Sumaira was not handed over back to them. Upon refusal by us the aforesaid persons became emotional and angry and started beating us with kicks and blows in result whereon, I fell unconscious. The hue and cry by us attracted to the police officials to the spot but upon seeing the police officials, the aforesaid aggressors managed to escape. Ambulance was called and I was sent to hospital for my medical. Having failed to arrest the actual culprits who had escaped after beating us, the police officials falsely implicated us in the instant case. It is relevant to submit here that co-accused- Allah Ditta has not participated in the fight and he had been admonishing his companions to refrain from fighting. He is also innocent. The occurrence in this case has taken place at about 11.45 a. m. And not at 2.15 p.m. As alleged. Furthermore, the occurrence has not taken place in the manner so narrated by the prosecution witnesses. We are innocent, we had been aggressed against and beaten. We had not beaten any one fought with any one."
Rest of the appellants adopted the version adopted by Allah Din, appellant. The appellants did not enter the witnesses-box nor produced defence evidence. At conclusion of trial the. Appellants were convicted and sentenced as noticed above.
7. Learned counsel for the appellants contends that the learned Trial Court wrongly convicted and sentenced the appellants under Section 7(h) of the Anti-Terrorism Act, 1997 as the same was not attracted to the facts and circumstances of the present case; that the opponent group of the present appellants had attacked the appellant party and fight was result of personal vendetta; that no weapon was recovered from possession of any. Of the appellants and in fact the appellant side had filed pre-arrest bail applications in which they had appeared before the High Court on the said date and had also filed a, writ petition for quashment of the F.I.R. And that they had come to pursue their matters when they received injuries at the hands of the rival group who was let off by the police-party and the appellant side was apprehended and falsely implicated in this case. In support of his contentions, learned counsel relied on the cases of Bashir Ahmad v. Muhammad Siddique and others (PLD 2009 SC 11) and Basharat Ali v. Special Judge, Anti- Terrorism Court-ll, Gujranwala (PLD 2004 Lahore 199).
8. On the other hand learned Law Officer vehemently argued that the appellant party was apprehended at the spot while they were fighting each other; that the complainant is the police officer who was present near the spot on duty; that the prosecution witnesses have no personal ill will or grudge against the appellants for their false implication and that the appellants did not deny their presence, at the spot and one of the appellants was even injured which shows that fight had taken place and since the parties had attacked each other at a public place i.e. High Court as such the same created alarm and insecurity in the minds of the lawyers and general public and thus they were rightly convicted and sentenced by the learned Trial Court.
9. We have heard the learned counsel for the parties and have gone through the record. The present occurrence took place in the premises of the High Court. It is the appellants' case that they had come to pursue their cases and while returning back to their houses the parties quarreled with each other and both sides belaboured each other with kicks and fist blows. The police officer present on duty in the High Court apprehended the appellants while the others ran away.
Admittedly no weapon of any kind was recovered from possession of the appellants. The learned Trial Court convicted the appellants under Section 7(b) of the Anti- Terrorism Act, on the premise that the fight which ensued between the parties had created disruption in the proceedings Of the Courts. We have gone through the relevant provisions of the Anti-Terrorism Act of 1997 and find that ingredients constituting the act of terrorism are not made out by the facts and circumstances of the present case. For the ready reference said provision of law is reproduced hereunder:--- "7. Punishment of acts of terrorism. Where commits an act of terrorism under Section 6 whereby:- (a)
(b) -
(c) ..........................
(d) .....................
(e) -.......... -............. .....
(f) .............. ......
(g)
(h) the act of terrorism committed falls under clauses (h) to (n) of sub-section (2) of. Section 6, shall be punishable, on conviction, to imprisonment of not less than five years but may extend to imprisonment for life and with fine. "
In order to find out Whether the offence committed by the appellants fall within the definition of act of terrorism as mentioned in clauses (h) to (n) of sub-section (2) of Section 6 we have also to go through the said provisions of law which run as under:- "6. Terrorism. (1) In this Act; "terrorism" means the use or threat of action where:-
(a) the action falls within the meaning of sub-section (2); and
(b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or
(c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause.
(2) An "action" shall fall within the meaning of sub-section (1), if it:-
(a) ............................
(b) .......... ...
(c) ...
(d) :................
(e)
(f)
(g) ............
(h) . Involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worship;
(i) creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civic life;
(j) involves the burning of vehicles or any other serious form of arson;
(k) involves extortion of money ("bhatta) or property
(l) is designed to seriously interfere with or seriously disrupt a communications system or public utility service;
(m) involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; or
(n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant."
A bare reading of the above provision of law would show that to bring an offence within the ambit of terrorism it is necessary that threat is used to design to coerce and intimidate or overawe the government, public, community or sect , or if the act is made to create a sense of fear or insecurity in society or the purpose is to advance a religious, sectarian or ethnic cause and the action involves firing or serious risk to safety of public or to frighten the general public or burning vehicles etc. Or extortion of money ("bhatta") or the threat is designed to seriously interfere with or seriously disrupt a communications system or public utility service, or it involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duty or involves serious violence against a member of the police/force or public servant.
Sub-section (3) of Section 6 a bit further explains the act of terrorism. It says:- "(3) The use or threat of use of any action falling within sub-section (2) which involves the use of fire-arms, explosives or any other weapon, is terrorism, whether- or not subsection (1)(c) is satisfied."
In the present case, it is the prosecution case that the appellants were fighting with each other. It is also case of the prosecution that the appellants were apprehended at the spot by the complainant and other police officials who were present on duty at the relevant time. It is not claim of the prosecution that the appellants were disrupting any communications system or were violent against the police force or any public servant present at the place of occurrence or that panic had been created at the spot resulting into sense of insecurity among the public. It has come on record rather admitted by the prosecution that the appellants were not armed with any kind of weapon at the time of occurrence. Thus it cannot be presumed that they had or were in a position to use threat in order to create panic or sense of fear or insecurity. It may be mentioned that if an act is not motivated to create fear and insecurity in the society at large it cannot be termed as terrorism.
Even an action which results into some terror cannot be equated with terrorism until it was not intended so because an action amounts to terrorism if it is projected with the mens rea of creating panic or insecurity. It has come on record that the parties had come to pursue their matters pending before the High Court and it appears that at the spur of moment some thing happened culminating into fight between them which was not premeditated nor its object was designed to create fear and insecurity in the society at large or any community for that matter. At the most it can be the result of personal vendetta. Keeping in view the facts and circumstances of the present case we find that the appellants have not committed the offence falling within the ambit of Section 7(h) of the Anti- Terrorism Act, 1997 and we hold accordingly. Consequently, the impugned conviction and sentence recorded against the appellants is set aside.
10. However, it has been proved by the prosecution that the appellants were present in the premises of the High Court when they started fighting each other. Even, the appellants did not deny this fact. Allah Din, appellant was injured and was medically examined. The doctor who medically examined him appeared at trial and verified the factum that the said appellant was brought' by the police and .That the appellant had complained of beating at the hands of his opponents in the premises of High Court. Thus participation of the appellants in the fight in the High Court is established beyond shadow of doubt. Although the appellants claimed that they had come to the High Court to pursue their bail before arrest matter and a writ of quashment filed by them but they did not bring on record even a single piece of evidence nor produced any document in support of this claim. It has come on record that there was some kind of litigation between the appellants and their rival group. In absence of any justification for their presence in the High Court it can well be understood that the appellants had come to the High Court where at the spur of moment they made unlawful assembly and have thus committed rioting within the meaning or Section 146 which is punishable under Section 147, P.P.C. The appellants are, therefore, convicted accordingly.
11. This brings us to the quantum of sentence. All the appellants were apprehended at the spot.
They remained in custody during trial and even during pendency of these appeals before this Court. Sentence of Allah Din, appellant was suspended by this Court on 17.10.2007 in W.P. No. 12332 of 2007 and he was granted bail after almost one year and two months of his arrest. Likewise sentences of the remaining appellants were suspended by this Court on 29.1.2008 in W.P. No. 11302 of 2007 and they were released on bail after about one and a half years of their arrest. Thus they have already undergone more than sufficient period in custody. Hence we think that a sentence already undergone by them would meet the ends of justice.
12. The result is that conviction and sentences recorded against the appellants under Section 7(h) of the Anti-Terrorism Act, 1997 are set aside and instead they are convicted under Section 147, P.P.C.
And sentenced to imprisonment already undergone by them. The appellants are on bail and stand discharge of their bail bonds.
13. With the above modification in the impugned conviction and sentences of the appellants, Criminal Appeals Nos. 1630/2006, 1631/2006, 1632/2006, 1633/2006, 1634/2006, 1635/2006 and 1636 of 2006 are disposed of.