By way of this single judgment, I intend to dispose of instant criminal appeal as well as Criminal Revision No, 70/2004, as both these cases have arisen out of the same judgment.
2. Vide judgment dated 12.04.2004, 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 FIR No, 326 dated 29.10.2003 registered under Sections 124-A/131/468/469/471/500/505(a) and 109 PPC with Police Station Secretariat, Islamabad and was convicted u/S. 124-A, 131, 468, 469, 471, 500, 505(a), & 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 U/S.124-A PPC.
(ii) 7 years R.I. with a fine of Rs, 10,000/- or in default to further undergo two months S.I. for the offence u/S. 131/109 PPC; (iii)Two years R.I. with a fine of Rs,5000/- or in default to further undergo one month S.I. for the offence u/S. 505(a) PPC.
(iv) 4 years R.I. on each count with a fine of Rs,5000/- on each count, failing which to further undergo one month SI on each count for offences u/S. 468 & 471 PPC; (v)1 year S.I. and fine of Rs,5000/- Or in default to further undergo one month S.I., for offence u/S. 500 PPC; (vi)Two years R.I. with a fine of Rs,2000/- or in default to further undergo 15 days, SI for an offence u/S. 469 PPC.
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 (Ex.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, PWs, 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 photo copies. In the said letter (Ex.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 alongwith his companions, apparently, seemed to be forged, the said letter does not bear the signature of any body, 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 FIR was registered. The accused was apprehended, and during the course of investigation, he was found guilty, and was ultimately challaned 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. PW-1 Muhammad Akram is a draftsman who prepared the scaled site-plan Ex.PA and Ex.PA/1 with the scale of one inch equal to 20 feet on the direction of police and pointation of PWs.
7. PW-2 Rashid Ahmad Head Constable is a formal witness in whose presence the I.O. took into possession visitor Gallery Card Ex.PB, photo copy of letter titled as Qaumi Qayadat Kay Naam Ex.PC vide recovery memo. Ex.PD. This PW also attested the recovery memo. Ex.PG regarding Visitor Gallery Card Ex.PE and a photo copy of letter titled as Qaumi Qayadat Kay Naam Ex.PF.
8. PW-3 Iftikhar Ahmad, Head Constable is also a recovery witness who attested the recovery memo. Ex.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 Ex.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. PW-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 FIR No, 326 dated 29.10.2003 P.S. Secretariat Islamabad. He also identified his signatures at Ex.PR as Ex.PR/1.
10.PW-5 Syed Ghulam Ahmed Shah is Assistant Secretary, National Assembly Secretariat who produced three applications Ex.PS, Ex.PT and Ex.PU moved by complainant Khurshid Ahmad, PWs 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.PW-6 Lt. Col. Khalid Mehmood Raja, General Manager Army Press, GHQ Rawalpindi received the letter Ex.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 FIR No, 326 dated 29.10.2003". After comparison of monogram of GHQ on Ex.PW, with the original of Ex.PX, the witness wrote a detailed report dated 8.11.2003, which is typed and signed by him. The said report Ex.PY bears his signature as Ex.PY/1.
12.PW-7 Khurshid Ahmad is the complainant of the ease, who supported the whole prosecution story as narrated in the FIR. He also corroborated the statements of PWs.
13.PW-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.PW-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 FIR and in response to the said letter he wrote the letter dated 19.11.2003 to the SSP, Islamabad.
15.PW-10 Bashir Ahmad Noon, who was the member of investigation Team of this case deposed that in his presence as well as of other PWs, 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. Ex.PEE. He verified his signature as Ex.PEE/1.
16.PW-11 Muhammad Bashir S.I. deposed that on 29.10.2003, he was posted as Sub-Inspector at P.S. Secretariat Islamabad. On the same day, Khurshid Ahmed complainant approached him in his police station alongwith an application Ex.PZ. On the basis of said application he recorded an FIR No, 326 dated 29.10.2003, at P.S. Secretariat, Islamabad, which bears his signature. He correctly recorded the FIR and the carbon copy of which is Ex.PFF. After registration of the FIR, he gave endorsement in the form of case FIR Number and the offence on the application of Khurshid Ahmed, which bears his signature; the same is Ex.PFF/1. On the same date, Khurshid Ahmed the complainant handed over to him a photo copy of letter with the caption Qaumi Qayadat Kay Naam Ex.PJ, copies of daily newspapers from Ex.PK to Ex.PP. He also handed over to the witness the visiting card of National Assembly Ex.PHH, and all the said documents, he took the same into possession vide recovery memo. Ex.PQ which bears his signature. The same is Ex.PQ/3.
On 29.10.2003, Jehanzeb Zahoor PW joined the investigation, produced a photo copy of letter Qaumi Qayadat Kay Naam, alongwith his visiting card to National Assembly, which he took into possession vide recovery memo. Ex.PD, which bears his signature; which is Ex.PD/3. The witness stated to have seen photo copy of letter Qaumi Qayadat Kay Naam produced by Jehanzeb Zahoor, which is Ex.PF, and visiting card of Jehanzeb Zahoor is Ex.PB which bears his signature i,e, Ex.PB/1.
On the same date, Nadir Saleem joined the investigation, produced before him, photo copy of letter Qaumi Qayadat Kay Naam Ex.PC, alongwith National Assembly visit card which is Ex.PE, and his signatures thereon are Ex.PE/1 and both the said documents are taken into possession by the witness, vide recovery memo. Ex.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 Ex.PHH. He produced photo copy of his Press Card,.
Ex.PJJ and original newspaper the Daily Islam, Ex.PKK. All the said articles were taken into possession vide recovery memo. Ex.PLL. The said recovery memo. was signed by Mazhar Iqbal, Muhammad Ishaq Warraich 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, Ex.PMM and photo copy of his employment/Press Card Ex.PNN. The same were taken into possession vide recovery Ex.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 U/S 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 Ex.PQQ.
17. PW-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 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 CGS 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 photo copies of letter with the captioned as Qaumi Qayadat Kay Naam Ex.PCC/1 to Ex.PCC/1-10. The aforesaid documents were taken into possession vide recovery memo. Ex.PEE. He also prepared rough site-plan of the place of recovery which is Ex.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 lqbal Press Reporter, joined the investigation and in presence of witnesses produced his press reporting card Ex.PJJ, and photo copy of letter Qaumi Qayadat Kay Naam, which were taken into possession vide memo. Ex.PLL, which bears his signature Ex.PLL/2. The said Mazhar Iqbal also produced original newspaper daily Islam which is Ex.PKK.
On 5.11.2003, Press Reporter Syed Aizaz Hussain Shah, in presence of witnesses, produced his employee Press Card Ex.PNN. He produced photo copy of letter Qaumi Qayadat Kay Naam, which is Ex.PNN. The same were taken into possession vide a recovery memo. Ex.PP, which bears his signature Ex.PPP/2.
On 8.11.2003, he alongwith other witnesses inspected the place of occurrence alongwith draftsman Malik Muhammad Akram PW, who took rough notes of the place of occurrence i,e, Cafeteria of National Assembly. The said Muhammad Akram produced site-plan before him Ex.PA and EX.PA/1.
He recorded the statement of Malik Muhammad Akram, Draftsman. The witness wrote letter to FIA through SSP; Islamabad, for verification of photo copy 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 Ex.PDD. He recorded the statement of Shaukat Ali Inspector FIA. He remained associated in the investigation, then the final challan Ex.PQQ was got prepared under his supervision from SHO, Police Station Secretariat, Islamabad.
19.PW-13 Shaukat Ali Inspector FIA, handwriting Expert testified in the manner that he is working as handwriting Expert in FIA, 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 photo copy and was to be compared with the original letter head of GHQ, having the Monogram as Mark-B. Said letter is Ex.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 Ex.PZZ, which bears his signature as Ex.PZZ/1. He prepared enlargement photograph chart of questioned mono-gram Marked as "A" which bears his signature. The said enlargement of questioned document is Ex.PAAA. The signatures of the witness are Ex.PAAA/1. The genuine monogram has been Marked as "B" and the enlarged original document is Ex.PBBB.
20.Mr. Aamer Saleem Rana, Judicial Magistrate, stepped into the witness box. He had recorded statements of Mazhar Iqbal and Aizaz Hussain PWs, under Section 164 Cr.P.C.
21.Learned Special Public Prosecutor, vide his statement dated 20.3.2004, gave up Mazhar Iqbal and Aizaz PWs 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. Firstly, I was arrested by the Punjab Police but allowed bail by the honourable Lahore Hie 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 PW-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 leveled 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 FIR but also during the investigation as well as during the trial conducted by learned trial Court; that the offence U/S 124-A PPC is not only non-cognizable but there is no concept of registration of case under Section 124-A PPC by the police; that cognizance of case under Section 124-A PPC 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 Section 468/469/471 PPC 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 PWs 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 FIR shows that offence U/S 124-A PPC is also included in this case which provides as under: 124-A. Sedition. Whoever by words, either spoken or written, or by sings 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 PPC is not only non-cognizable but there is no concept of registration of case U/S 124-A PPC by the local Police. The Cognizance of the case under 'Section 124-A PPC 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.0 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 vs. Government of West Pakistan (PLD 1960 W.P. (Lahore) 434), Bashir Ahmad vs. The State (2000 PCr.LJ 902), Fazal-i-Raziq vs. Riaz Ahmad (PLD 1978 Lah. 1082), Gokulchand Dwarkadas vs. The King (PLD 1948 PC 11), Dost Muhammad vs. The State (1976 PCr.LJ 184) and Salman Taseer vs. Judge Special Court (1993 SCM R 71). Besides, there is also violation of mandatory 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 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 manner or it should not be done at all. Besides the case against the appellant could have not been registered by any ne 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 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 FIR 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 PW-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 PPC 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 leaned trial Court has not consider 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, 70/2004, no case for enhancement of sentenced is made out, thus the same stands dismissed.