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. Through the impugned judgment/conviction, learned trial court passed impugned conviction/sentence against 17 persons. Among the said 17 persons, 9 persons have challenged the impugned judgment/conviction through separate appeals.
2. The occurrence reported through FIR No.20/2011, (Exb.PW-16/A), dated 11-08-2011, 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, numbering 700/800 persons, led by the appellant and 9 others gathered on road in front of the UBL Branch Aliabad Hunza and demanded payment of the compensation amounts of the protestors.
The people so gathered 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, conducted investigation and submitted challan of the occurrence. Police challaned appellant with other accused and the trial court convicted appellant for the offences alleged against him. After completing trial proceedings, the learned trial court passed impugned order. For ready reference, we reproduce the relevant part of the impugned judgment/conviction hereunder:--
114. "In the light of the above discussions, I hold that the prosecution has proved the guilt of 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 All 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 All and Driver Nasir under sections 436/149, P.P.C. Read with section 7(d) of the Anti TerrorismAct 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 orie year imprisonment. 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 All 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.100,0000- (Rupees one hundred thousand only) each and the above named accused are also convicted and sentenced to undergo 2 years imprisonment as "Tat zir". The above named accused are also convicted under section 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 Httssain, 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 ammunition 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 assessm ent and be deposited into the Govt. Treasury. "
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3. Prosecution produced 28 PWs in proof of guilt of the appellant/convict. 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. Abscission.
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. The learned trial court has referred above 6 kinds of evidence of prosecution but almost all of the above kinds of evidence are not available on file. So the above reference of 6 kinds of evidence has not been produced by the prosecution. The learned Deputy Advocate General had no answer when confronted with the above situation. 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, name of the appellant is appearing in the promptly chalked FIR. The ocular evidence referred by the learned trial court is comprised of statements of PW-1, PW-4, PW-7 and PW-16. Instead of reproducing full statements of the above named four eye- witnesses, we reproduce hereunder the relevant parts of the said PWs. PW-1 has stated that:- "Most of the participants of the mob were muffled. Among them, I could recognize Iftikhar, Irfan Karim, Salman Karim, Sher Khan, Aleem, Ahmed Khan, ' Ghulam Abbas and Mittoo etc. PW-7 has stated that:- "I saw Iftikhar Hussain and Ahmed Khan among the mob."
" PW-4 has stated that:- "I recognized the accused among the rioters namely accused Baba Jan, accused Iftikhar Hussain, accused Aleem, accused Fazal, accused Ghulam Abbas, accused Ahmed Khan Fauji and another an accused, whose name I have not remember now, were present at the time of occurrence."
' PW-16 has stated that:-- "During the month of August 2011, I was performing my duties as SHO Police Station ,Aliabad. On 11- 08-2011, I was present in Police Station Aliabad. At about 1300 hours, rioters in supervision of accused Baba Jan, Imam Dad, Sultan, Hassan son of Shah Gul Hayat and Iftikhar Hussain, the rioters have attacked on Police Station. The rioters set on fire the Govt. Vehicle, which was parked inside Police Station. They attacked on Koth and taken Govt. Arms and ammunitions and the rioters also set on fire, whole the Police Station and the rioters set on fire the personal commodities of police personnel, which consisting of clothes, uniforms, beds etc."
' From perusal of above parts of the statements of the above named PWs, it is evident that PW-1 identified only Iftikhar, Irfan Karim, Salman Karim, Sher Khan, Aleem, Ahmed Khan, Ghulam Abbas and Mitto etc. PW-4 identified only two persons namely Iftikhar Hussain and Ahmed Khan. PW-7 identified Baba Jan, Iftikhar Hussain, Aleem, Fazal, Ghulam Abbas and Ahmed Khan. PW-16 identified Baba Jan, Imam Dad, Sultan, Hassan son of Shah Gul Hayat and Iftikhar Hussain.
5. 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 co- accused of the appellant and has discarded the other parts of the statement of PWs regarding some accused. This view 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 United Bank (UBL) or Karakuram Cooperative Bank (KCBL) Aliabad Hunza, turned into an illegal mob entailing to the occurrence. Very strangely, the learned trial court has convicted appellant although none of the PWs are charging the appellant 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 appellant for trial, by the prosecution. In such a case, to sustain a conviction for rioting, it is essential for prosecution first to prove the existence of an unlawful assembly with a common object and then to prove that one or more members of the assembly used violence or force in furtherance of the common object. The prosecution evidence is silent about the common object of the alleged rioters. None of the above PWs are stating about any kind of common object of the rioters. None of the PWs have charged appellant for any of the offences of above sections. The PWs, who have even charged the appellant, have stated about mere presence of the appellant in the mob. Mere presence of the appellant at the place of occurrence is never sufficient to prove that he shared the common object of the unlawful assembly. The provisions of the above referred sections do not require conviction and punishment merely on the basis of only presence or identification of the appellant as member of the mob. None of the PWs have stated that appellant 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 appellant for the said offences although none of the PWs have stated in proof of any circumstance or occasion that showed involvement of the appellant for the said offences. We are of the opinion that the circumstances of the case stated by the PWs 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 appellant. The prosecution evidence hardly shows presence of appellant on the place of occurrence but without showing any role of the appellant 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 appellant 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 appellant. Firstly because, according to the circumstances of the case in hand, the circumstantial evidence is corroborative piece of evidence, meaning thereby that 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 appellant. For example, PW-10 states about Ex.PW-9/A, which is not against the appellant. PW-11 is taking names of Aleemullah with five other accused. Out of the said five persons, two were acquitted by the trial court although charged by the PW in similar terms like those convicted. PW-12 states about recovery of 80 cartridges about 2 months and 22 days after the occurrence. We have gone through the document Exh.PW-12/D which does not contain name of any of the accused. So the circumstantial evidence accepted as evidence by the trial court is not only irrelevant but cannot be termed as circumstantial evidence in the peculiar circumstances of the case.
9. Learned trial court has accepted the statement of the appellant recorded under section 21-H of Anti-Terrorism Act and have read the same against the appellant. In our opinion, accepting or reading the confessional statement of appellant recorded under section 21-H of Anti-Terrorism Act is really astonishing as the superior courts of our country have repeatedly held such statement as not admissible and irrelevant against the appellant. In the peculiar circumstances of the case also, the learned trial court should have discarded such confessional statement as the said statement does not contain any question showing that the prosecution had no alternative except to produce the appellant before the S.P. Who recorded such statement. In the case in hand, we have noted that PW-22 has recorded confessional statement (Ex.PW-22/F) of appellant on 22-09-2012, although the occurrence has been reported in Police Station on 11-08-2011. In cross-examination, the said PW has admitted that the said confessional statement (Exh.PW-22/F) was recorded by the Reader of the said PW.
10. The prosecution has leveled allegation of looting the weapons and cartridges from Koth (Malkhana) 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 appellant, in the Koth (Mal Khana) of Police Station. Without such proof, merely alleging that the looted articles were stored in the Koth (Mal Khana) is never any proof of any theft or looting etc.
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 appellant. PWs are not stating about causing any injury by appellant to the person or persons examined by the medical officer. So the medical report is not against appellant.
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 impugned conviction and sentence. This file be consigned to record.