' MUHAMMAD ALAM, J.---This is a criminal appeal under section 410, Cr.P.C. Read with section 25 of Anti-Terrorism Act, 1997. Conviction/judgment dated 25-09-2014 of the learned trial court of Anti- Terrorism has been challenged through this appeal.
2. The occurrence reported through FIR No,20/2011 in Police Station Aliabad Hunza discloses the following background of prosecution version of the occurrence. On the day of occurrence, a number of Internally Displaced Persons (I.D.Ps.) of Ata-Abad Lake led by the appellants gathered in the KCBL Branch Aliabad Hunza and demanded payment of the compensation amounts of the protestors. The appellants started beating police personnel present on the scene of occurrence and when the situation further worsened, the rioters started setting fire on different nearby government buildings and government vehicles. After the occurrence police chalked FIR and submitted challan of the occurrence after conducting the investigation. Police challaned 17 persons for trial, out of whom, 3 are absconders, 5 have been acquitted and 9 persons convicted.
The 7 appellants are among the convicted 9 persons. After completing trial proceedings, the learned trial court passed impugned order. For ready reference, we reproduce the relevant part of the impugned judgment hereunder:--
114. "In the light of the above discussions, 1 hold that the prosecution has proved the guilt of accused Iftikhar Hussain, accused Irfan Ali, accused Baba Jan, accused Aleentullah Khan, accused Sher Khan, accused Rashid Minhas, accused Sarfaraz, accused Musa Baig, accused Shukrullah Baig alias Mittoo and proclaimed offenders Meher Ali, Deedar Ali and Driver Nasir for mischief by fire to destroy house etc, mischief by fire to cause damage to property, mischief causing damage, house trespass, assault on public servant, bodily hurt to the injured persons, rioting, Haraba (Daketi) and create a sense of fear and insecurity in the area in furtherance of their common object, hence I convict accused Iftikhar Hussain, accused Irfan Ali, accused Baba Jan, accused Aleemullah Khan, accused Sher Khan, accused Rashid Minhas, accused Sarfaraz, accused Musa Baig, accused Shukrullah Baig alias Mittoo and proclaimed offenders Meher Ali, Deedar Ali and Driver Nasir under sections 436/149, P. P.C. Read with section 7(d) of the Anti- Terorisnz Act 1997 and sentence them to undergo rigorous imprisonment for life and the accused to pay fine of 100000 (Rupees one hundred thousands only) each. The above named accused are also hereby convicted under sections 435/149, P.P.C. And sentence them to undergo seven (7) years imprisonment and the accused to pay fine of Rs,100,000 (Rupees one hundred thousands only) each. I convict the above named accused under. Sections 427/149, P.P.C. And sentence them to undergo 2 years imprisonment. The above named accused are also convicted under sections 448/149, P.P.C. And sentenced them to undergo one year imprisonment. I convict the accused Iftikhar Hussain, accused Wan Ali, accused Baba Jan, accused Aleemullah Khan, accused Sher Khan, accused Rashid Minhas, accused Sarfaraz, accused Musa Baig, accused Shukrullah Baig alias Mittoo and proclaimed offenders Meher Ali, Deedar Ali and Driver Nasir under sections 353/149, P. P. C. Read with section 7(h) of the Anti- Terrorism Act, 1997 and sentence them to undergo 5 years imprisonment. The above named accused are also convicted under sections 147/149, P.P.C. And sentenced them to undergo imprisonment for 2 years: I convict the above named accused under sections 337-A/149, P.P.C.
And sentence them to pay "Daman" of Rs,100,000. (Rupees one hundred thousand only) each and the above named accused are also convicted and sentenced to undergo 2 years imprisonment as "Ta'zir". The above named accused are also convicted under sections 337- F(iii)/149, P. P. C. Read with section 7(c) of the Anti-Terrorism Act 1997 and sentenced them to pay "Daman" of Rs,100,000 (Rupees one hundred thousands only) each and sentenced them to undergo 5 years imprisonment as "Ta'zir". The amount of "Daman" shall be paid to the injured persons. I convict the accused Iftikhar Hussain, accused Irfan Ali, accused Baba Jan, accused Aleemullah Khan, accused Sher Khan, accused Rashid Minhas, accused Sarfaraz, accused Musa Baig, accused Shukrullah Baig alias Mittoo and proclaimed offenders Meher Ali, Deedar Ali and Driver Nasir under sections 17/20 Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 read with sections 395/149, P. P. C. And section 7(d) of the Anti-Terrorism Act 1997 and sentence them to undergo rigorous imprisonment for ten (10) years and to pay fine of Rs,100,000 (Rupees one hundred thousands only) each. In default 'of payment of fine, the above named convicts-accused, shall undergo two years imprisonment.
115. "Proclaimed offenders/ absconder accused Meher Ali, Deedar Ali and Driver Nasir are hereby convicted under section 21-L of the Anti-Terrorism Act, 1997 and sentenced them to undergo ten
(10) years imprisonment."
116. "Before parting with the file, it is pertinent to mention here that the convicts-accused have given a heavy loss to the Govt. Exchequer by putting on fire the Police Station Aliabad and two Govt. Vehicles and have taken the arms and ammunitions from the Mall Khana of Police Station Aliabad.
' The convicts-accused are responsible for the damages given to Govt. Exchequer. Hence, the cost of all the damages be recovered from the convicts-accused, as an arrear of land revenue, as per assessment and be deposited into the Govt. Treasury.
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3. Prosecution has cited 39 PWs as prosecution evidence but abandoned 9 PWs, 2 PWs have turned hostile and produced 28 PWs in proof of guilt of the appellants. Appellants did not produce any evidence in defense, except appellant Baba Jan, who produced 3 DWs as defense witnesses.
Appellants did not opt for recording their statements under section 340(2), Cr.P.C. In the opinion of learned trial court, prosecution relied on the following categories of prosecution evidence:--
(I) Ocular Evidence.
(II) Circumstantial Evidence.
(III) Confessional Statements appellants.
(IV) Recoveries.
(V) Medical Evidence.
(VI) Absconsion.
4. We have gone through the file and have thoughtfully considered arguments of the learned counsel for parties. In the case in hand, the way the learned trial court has appraised the prosecution evidence is although beautifully worded but the conclusion is completely contradictory to the prosecution evidence. In para No,6 of the impugned judgment, learned trial 'Court has written the arguments of the prosecutor, wherein, it is clear that, in the opinion of the learned public prosecutor, who appeared before the trial court, the occurrence is of day light, therefore, names of the appellants are appearing in the promptly chalked FIR. The ocular evidence referred by the learned trial court is comprised of statements of P.W.1, P.W.4, P.W.7 and P.W.16.
Exh.P.W.16/A is the FIR of the occurrence, wherein, the number of persons who were members of the mob is 700 to 800. Prosecution story of occurrence clearly shows that FC Qayyum, FC Saleem, FC Wazir Aman, Saifullah and Zafar, who are PWs of the occurrence also, were beaten by the appellants and other members of the mob. So we are taking up statement of P.W.16, FIR lodger (Gulzar Hussain, IP/SHO Police Station Aliabad), first for discussion. The examination-in-chief part of this PW is worth perusal, wherein, this PW has stated that at the time of occurrence, rioters in supervision of Baba Jan, Imam Dad, Sultan, Hassan and Iftikhar Hussain, attacked Police Station Aliabad. The rioters set the vehicles, then parked in the Police Station, on fire. While giving findings in para No,114, the learned trial court has taken names of appellants, lftikhar Hussain, Irfan Ali, Baba Jan, Aleemullah Khan, Sher Khan, Rashid Minhas, Sarfaraz, Musa Baig and Shukrullah Baig with some absconder accused. So the findings of the learned trial court are quite different from the examination-in-chief part of the statement of IP/SHO Gulzar Hussain (P.W.16). Accused Baba Jan, Imam Dad, Sultan and Hassan are not appellants of this case, whose names the P.W.16 is taking, alleging their supervision in the occurrence. Accused Imam Dad, Sahib Khan, Hassan and Rahim Muhammad are admittedly discharged under section 169, Cr.P.C. So it is very strange that the learned trial court has relied on statement of this PW although the prosecution has discharged at least two persons, i,e,, Imam Dad and Hassan, that this PW is charging for the offence. The second eye-witness of the occurrence is HC Muhammad Ismail (P.W.1), who has stated that a mob entered in the police station, at the time of occurrence. This PW has taken names of eight (8) persons responsible for the occurrence out of whom four accused, namely Irfan Karim, Salman Karim, Ahmed Khan and Ghulam Abbas have been acquitted by the trial court. This fact is a clear indication that the learned trial court did not rely on said PW to the extent of his involving the said four accused. This PW has taken names of Iftikhar Hussain, Salman Karim, Ahmed Khan, Ghulam Abbas and Mitto as members of the mob but the said persons are not appellants of this case. HC Muhammad Yaseen (P.W.4) is the third eye-witness of the occurrence, who is taking names of Iftikhar Hussain and Ahmed Khan among the mob but the said two persons are also not among the appellants of the case in hand. HC Muhammad Akram Baig (P.W.7) is the fourth eye-witness of the occurrence who is taking names of Baba Jan, lftikhar Hussain, Aleem, Fazal, Ghulam Abbas and Ahmed Khan as the accused who the PW has claimed to have identified as members of the mob.
Baba Jan, Iftikhar Hussain, Fazal and Ghulam Abbas are not among the appellants of the case in hand. So evidently, all the above referred eyewitnesses are taking names of different persons as members of the mob. It is very important and interesting that none of the above referred PWs are attributing any role of any of the offences alleged against the appellants. The said PWs are simply taking names of few of the appellants showing only their presence in the mob.
5. P.W.4 is taking names of two accused namely Iftikhar Hussain and Ahmed Khan and is not taking names of any of the appellants for the occurrence. It is not disputed that accused Ahmed Khan has been acquitted. P.W.6 is the Magistrate who is not taking names of any of the appellants for the occurrence. P.W.7 has taken name of appellant No, 3 but with five (5) other accused out of whom two have been acquitted. From perusal of prosecution evidence, it is evident that the learned trial court did not rely on the whole statement of any of the PWs. So the views and findings of the learned trial court are against the principle of acceptance of whole of the statement of any PW or discarding the whole. The learned trial court has on the one hand accepted part statement of PWs against some of the accused and has discarded the other parts of the statement of PWs regarding some accused. This attitude of the learned trial court is without any explanation on his part to that effect.
6. The occurrence is basically of the offences of sections 147, 148, 149, 427, 436, 353 and 448, P.P.C.
Prosecution story shows that about 700 or 800 persons gathered in front of Co-Operative Bank Aliabad Hunza, turned into an illegal mob entailing to the occurrence. Very strangely the learned trial court has convicted appellants although none of the PWs are charging the appellants for any of the above offences. In a case of rioting by a mob, every member of the mob is responsible for the occurrence, while in the case in hand, the learned trial court has accepted selection of appellants for trial, by the prosecution. None of the PWs have charged petitioners for any of the offences of above sections. The PWs who have even charged few of the appellants have stated mere presence of the appellants in the mob. The provisions of the above referred sections do not require conviction and punishment merely on the basis of only presence or identification of the appellants as members of the mob. None of the PWs have stated that any of the appellants did any act amounting to offence of any of the above sections. For ready reference, we reproduce the sections 147, 148 and 149, P. P .0 hereunder :
147. Punishment for rioting.---Whoever, is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
148. Rioting, armed with deadly weapon. --Whoever, is guilty of rioting being armed with a deadly weapon or with anything, which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.---If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
7. The prosecution evidence does not show any circumstance or circumstances showing attraction of the offences of sections 6/7 of Anti-Terrorism Act and offence of section 17 of Offences Against Property (Enforcement of Hudood) Ordinance 1979. The learned trial court has very wrongly tried the accused for the said offences although none of the P.Ws.. Have stated in proof of any circumstance or occasion that showed involvement of the appellants for the said offences. We are of the opinion that the circumstances of the case stated by the P.Ws. Constituted the case in hand, hardly a case of offences of sections 147, 148, 149, 427, 436, 353 and 448, P.P.C. And that also without any concrete evidence against the appellants. The prosecution evidence hardly shows presence of few of the appellants on the place of occurrence but without showing any role of the appellants in commission of the alleged occurrence of even the above referred offences.
8. The second piece of evidence is the circumstantial evidence. In the case in hand, once it is established that reading of ocular evidence against the appellants is not only insufficient in the above circumstances but is wrong also. In such circumstances, circumstantial evidence is not only of no worth but also is irrelevant against the appellants. Firstly because, according to the circumstances of the case in hand, the circumstantial evidence is corroborative piece of evidence, meaning thereby such evidence could hardly corroborate the ocular evidence. Secondly because the prosecution evidence that the learned trial court termed as circumstantial evidence is mostly silent about the appellants. For example, P.W.10 states about P.W.9/A which is not against the appellants. P.W.11 is taking names of appellant Aleemullah with five other accused including appellant No,3 and two others. Out of the said five persons, two were acquitted by the trial court although charged by the PW in similar terms like those convicted. P.W.12 states about recovery of two cartridges about 7kms away from the scene of occurrence and that also about two months and 22 days after the occurrence. This PW is also stating against only appellant No,l. P.W.13 is stating about recovery of .12 bore rifle from appellant No,4. But the people of Jamat Khana gave the same short gun to police saying that the same belong to appellant No,4. So the circumstantial evidence accepted as evidence by the trial court is not only irrelevant but cannot be termed at circumstantial evidence in the peculiar circumstances of the case.
9. Learned trial court has accepted the statements of the appellants recorded under section 21-H of Anti-Terrorism Act and have read the same against the appellants. In our opinion, accepting or reading the confessional statements of appellants recorded under section 21-H of Anti-Terrorism Act is really astonishing as the superior courts of our country have repeatedly held such 'statements not admissible and irrelevant against the accused. In the peculiar circumstances of the case also, the learned trial court should have abandonee ouch confessional statements as the said statements do not contain any question showing that the prosecution had no alternative except to produce the appellants before the learned S.P. Who recorded such statements. In the case in hand, we have noted that P.W.17 has recorded confessional statement of accused Musa Baig on 22-9-2012 although the occurrence has been reported in Police Station on 11-8-2011. In cross-examination, the said PW has admitted that the said confessional statement (Exh.P.W.17/A) was recorded by the Reader of the said PW. P.W.14 is also an S.P. Namely Hanifullah who has recorded confessional statement of accused Shukrullah Baig, admittedly on 15-6-2013, i,e,, about 2 years after the occurrence. This PW has recorded the statement of said accused in Cantt. Police Station, Gilgit. In his statement, the said PW has admitted that then 2 Judicial Magistrates were working in the City Gilgit.
10. The prosecution has leveled allegation of looting the weapons and cartridges from Koth (Mal Khana) of Police Station. In this connection we do not find any evidence showing that the police had stored any weapons in the said Koth (Mal Khana). In our opinion, the prosecution is bound to prove that they had stored the weapons, allegedly looted by the appellants, in the Koth (Mal Khana) of Police Station.
11. As to medical evidence, mere proof of any injuries to any person is not sufficient to hold that the same were caused by the appellants. PWs are not stating about causing any injury by any of the appellant to the person or persons examined by the medical officer. So the medical report is not against any of the appellants.
12.In the sequel of above discussion, we hold that the impugned order is very bad in the eye of law and merits reversal we allow this appeal and set aside J impugned conviction and sentence. . This file be consigned to record.