SHAHID HAMEED DAR, J.---This appeal arises from the judgment, dated 16.3.2015, whereby learned Judge, Anti-Terrorism Court, Faisalabad convicted Muhammad Imran, Muhammad Ayub, Muhammad Younas, Muhammad Ramzan, Muhammad Ali, Zahid Rashid, Zahoor Hussain, Muhammad Talha Zubair, Abdul Razzaq son of Muhammad Hussain, Abid Hussain, Ghulam Shabbir and Nadeem Imran alias Nadeem Muavia (appellants) under section 9 of the Anti-Terrorism Act, 1997 and sentenced them to rigorous imprisonment for two years each with fine of Rs.20,000/- each or in default thereof to undergo simple imprisonment for two months each. Benefit of section 382-B, Cr.P.C. was extended to them. Their co-accused Abdul Razzaq son of Allah Bakhsh, Ghulam Rasool, Mumtaz Hussain, Jamshed Ali, Sain Muhammad Siddique, Usman Haider and Yousaf Ali Agha alias Yousaf Jhangvi were, however, acquitted of the charge on extension of benefit of doubt.
It all happened on conclusion of their trial in case-FIR No.12/15, dated 7.1.2015, under sections 13/16 of the West Pakistan Maintenance of Public Order Ordinance, 1960 and sections 7(g), 9 and 11-F of the Anti-Terrorism Act, 1997, registered at Police Station City Shorkot (Shang).
2. Written complaint (Exh.PA) submitted by Farooq Azam, ASI (P.W.1), on the basis of which formal FIR (Exh.PA/1) was registered, contained the allegations that he along with his fellow police officials including Muhammad Younas 1358/C, Imtiaz Ali 1622/C, Ghulam Haider 162/C, Kashif Nadeem 1246/C, Muhammad Arif 658/C-II (P.W.3) was present at Usmania Park Shor Kot, at 2.00 p.m. on 7.1.2015, where funeral prayer of Ahmad Ali, who had been executed in the morning of the said day was to be offered; the arrangement for funeral of the deceased had been made by Akhlaq Ahmad, President Ahl-e-Sunnat WalJamaat, Shor Kot and Muhammad Ali Tagga, real brother of the deceased; Mufti Muhammad Hassan, Khateeb Jamia Masjid Bait-uz-Zikr led the funeral prayer, which was largely attended by people of the area (detail given in the FIR), including Qari Muhammad Imran Muavia, Qari Muhammad Talha Zubair, Qari Abdul Razzaq, Zahid Rasheed, Nadeem Muavia, Ghulam Shabbir, Sajid Ali, Abdul Razzaq son of Muhammad Hussain, Muhammad Ramzan, Muhammad Younas, Qari Muhammad Ayub, Zahoor Ahmad, Muhammad Abid and Muhammad Asif, the appellants as well; Maulana Muhammad Alam Tariq, Qari Ghulam Rasool Shah of Bahawalnagar and Maulana Muavia Azam of Jhang delivered fiery speeches and stirred sentiments of the audience; after their address, all the participants chanted slogans against the armed forces and the Shi'ites and called them the infidels; all the mourners present at the spot involved themselves in objectionable and provocative slogneering and spread sectarianism and hatred; he (complainant) and his co-police officials heard and visualized the entire scene. He drew up complaint (Exh.PA) at 6.05 p.m. and despatched it to the police station through Kashif 1246/C for registration of case against the accused, on the basis of which Munawar Hussain 1451/HC drafted formal FIR (Exh.PA/1) at 6.20 p.m., the same day.
3. After registration of the case, its investigation was entrusted to Muhammad Shafi SI (P.W.5) on 7.1.2015, who inspected the place of occurrence and prepared visual site-plan (Exh.PC); arrested Hafiz Abdul Razzaq accused on 8.1.2015; Farooq Azam ASI (complainant/P.W.1) produced before him written application whereby he nominated Ghulam Rasool, Mumtaz Hussain and Jamshaid as accused on 9.1.2015; he arrested Mumtaz Hussain, Ghulam Rasool on 12.1.2015 and Jamshaid on 13.1.2015; he altered the offence and added section 11-F of the Anti-Terrorism Act, 1997 and handed over the file to the SHO.
Thereafter, GhazanfarAli Inspector (P.W.6) took over investigation of the case under the orders of the District Police Officer, Jhang on 15.1.2015; he added sections 7(g) and 9 of the Anti-Terrorism Act, 1997 to the list of offences; arrested Muhammad Imran, Muhammad Ayub, Muhammad Younas, Muhammad Ramzan, Muhammad Ali, Zahid Rasheed, Zahoor Hussain, Muhammad Talha Zubair, Abdul Razzaq son of Muhammad Hussain and Abid Hussain on 22.1.2015; he recorded supplementary statement of the complainant, on 25.1.2015, whereby he nominated thirteen other persons as accused; he prepared incomplete challan against fourteen (14) accused persons.
The District Police Officer, Jhang then entrusted the investigation to Zulfiqar Ali Inspector (P.W.7) on 2.3.2015, who arrested Ghulam Shabbir, Sain Muhammad Siddique, Usman Haider and Nadeem accused; Farooq Azam ASI (complainant/ P.W.1) and Muhammad Ali 1368/C (P.W.4) produced before him C.Ds (P1 & P2) along with memory-card (P3) on 5.3.2015, which he seized vide memo of recovery Exh.PB. On completion of the investigation, he submitted challan against the accused before the court for their trial in accordance with the law.
4. The accused on indictment pleaded not guilty and claimed a trial. The prosecution, in order to prove its case, produced seven witnesses, namely, Farooq Azam ASI (complainant/P.W.1), Munawar Hussain 1451/HC (P.W.2), Muhammad Arif 658/C (P.W.3), Muhammad Ali 1368/C (P.W.4), Muhammad Shafi SI (P.W.5), Ghazanfar Ali Inspector (P.W.6) and Zulfiqar Ali Inspector (P.W.7). Thereafter, the accused were examined under section 342, Cr.P.C., whereby they professed their innocence in the matter and denied all the allegations levelled against them. Muhammad Ali accused (appellant) answered the question, why this case against him and why the PWs deposed against him, as under:- MUHAMMAD ALI: "It is a fake case. I am thorough patriot. I cannot even imagine to say single word against the Government etc. The funeral ceremony of Ahmad Ali alias Sheesh Nag was a simple procession of ordinary nature. Neither anyone raised slogan against any sect or against the Government. I have no nexus at all with any banned or proscribed organization. The police has registered this case just to show their efficiency. The PWs are police official and they have deposed against me and others with connivance of their high-ups. I am innocent."
Rest of the appellants simply adopted the stance, as taken by Muhammad Ali accused. They did not depose within the scope of section 340(2), Cr.P.C. nor adduced evidence in their defence.
The learned trial judge on conclusion of the trial held the appellants guilty of the offence charged and sentenced them as mentioned hereinabove.
5. Learned counsel for the appellants has submitted that the appellants did not commit any offence if they had offered funeral prayer of Ahmad Ali, who had been executed being a convict of some criminal case; the antecedents of Ahmad Ali, the hanged convict, could not be brought on the record, which created a big gap in the prosecution case, making it literally impossible to understand as to why the hate slogans would allegedly be raised by the appellants; the identification of the appellants could not be established during trial and their involvement in this case was a doubtful circumstance; the appellants did not belong to any banned organization nor any evidence was produced against them to prove the said fact; the impugned judgment suffered from misreading and non-reading of evidence and it resulted in grave miscarriage of justice, therefore, it may be set aside and the appellants may be acquitted of the charge.
6.On the contrary, learned Deputy Prosecutor General Punjab has hotly contended that the appellants were a criminal lot being members of a proscribed outfit, who participated in the funeral prayer of a hanged terrorist on the fateful day and they raised anti-state as well as sectarian slogans in response to the fiery speeches, made by their co-accused; the accused stirred up sectarian hatred by their provocative act, to disintegrate the society, which offence was fully established by the prosecution through plausible evidence, hence, the impugned judgment may be sustained at the cost of the appellants appeal.
7.Learned counsel for the parties have been heard to their satisfaction and the relevant record has been minutely gone into with their intelligible assistance.
The text of FIR (Exh.PA/1) revealed that one Ahmad Ali had been executed on 7.1.2015, whose funeral prayer was fixed at 2.00 p.m., the same day at Usmania Park Shor Kot (Jhang). The arrangements in this regard had been made by Akhlaq Ahmad, President Ahl-e-Sunnat Wal Jamaat Shor Kot and Muhammad Ali Tagga (appellant), real brother of the deceased. The funeral prayer was led by Mufti Muhammad Hassan, Khateeb Jamia Masjid Bait-uz-Zikr, which was "largely attended" by the mourners (23 named and 25/30 unnamed/unknown), including the appellants. According to the allegation, some incendiary speeches were delivered by a few speakers, inciting the participants to raise provocative and schismatic slogans against the shia sect besides they denounced the military courts and policies of the government through deafening exhortations. All the speakers and the audience allegedly stirred up sectarian hatred and resultantly exposed public peace to a grave danger.
8.There may be found a couple of crucial questions, arising from the subject of FIR as well as from the testimonies of the eye-witnesses (P.W.1 & P.W.3), which had to be plausibly answered by the prosecution but they seemingly overlooked cruciality thereof and, thus, left them unanswered, turning veracity of the allegation against the accused perceivably dubious. The first and foremost question in this regard related to the source of identification of the accused and secondly, the antecedents of Ahmad Ali deceased, as to the case and offence, he had been hanged for, so as to understand the cause of emotional outburst of the appellants against a particular sect (Shi'ites) and the government functionaries.
9. So far as identification and nomination of the appellants in this case is concerned, we come across no clue in this context in the FIR. The eye-witness/ complainant. Muhammad Farooq Azam AS 1 (P.W.1), however, contended in his testimony that he nominated the accused in complaint (Exh.PA) by knowing their names through security officials and C.T.D. officials, who were present at the spot then. He did not disclose names of the said officials. He claimed to have captured the event by a camera studded cell-phone, on the strength of which he got prepared two C.Ds (P1 & P2) through Muhammad Ali computer operator (P.W.4), who used his memory card (P3) for the said purpose. The complainant did not contend, whether the scenes preserved by him in the C.Ds (P1 & P2) helped, in any way, identify the accused of this case. He mentioned number of the participants of Janaza-prayer being less than one thousand but more than five hundred in his testimony but he did not furnish this figure in complaint (Exh.PA). He denied to have mentioned in Exh.PA the factum of nominating the accused, courtesy the C.T.D. officials and security officials. He innocently replied to a question that he did not cite any of the source-persons as a witness of this case. He categorically admitted that none from the shia sect appeared before him to state that his religious feelings had been injured due to exasperating sloganeering by the accused. His simpleton is astonishing as he stated that he did not know any of the accused, that he named in the FIR prior to the occurrence, as they were not earlier required by the police in any case. He firmly added that he did not disclose mode of identification of the accused in any of the applications that he presented before the investigating officers. It may also be gathered from his testimony that he did not take into possession the megaphone, allegedly used by some of the accused to deliver objectionable speeches. He showed his ignorance when he was asked about his acquaintance with one Yousaf Ali Agha, President of Anjuman-e-Taj ran City Shor Kot. The testimony of the complainant is nothing but an unresolved riddle, which did not establish identification of the accused, as having participated in funeral prayer of Ahmad Ali deceased or having chanted annoying slogans to fan out sectarian hatred or stir-up a furore in consequence thereof.
10. Muhammad Arif 658/C (P.W.3) is another eye-witness of the alleged occurrence, who said nothing as to "fiery speeches" of Maulana Alam Tariq, Ghulam Rasool and Muavia Azam, which renders allegation of raising sectarian slogans against the shia community out of place, as words quoted by him regarding speech of Maulana Alam Tariq looked absolutely harmless, which could not be termed as abusive or instigative in any way. He also said that none from the shia sect joined investigation in this case in his presence. He introduced a new item in his testimony which related to enlistment of the names of Muhammad Ali, Muhammad Ramzan and Abdul Razzaq (appellants) in the 4th schedule of the Anti-Terrorism Act, 1997, so as to claim that they regularly visited the police station to fulfil the requirement of law. This witness is a police constable and he brought forth an important fact about the appellants but complainant of this case who was an ASI at the same police station, categorically asserted that the appellants were not previously involved in any criminal activity nor they were required by the police in any case and it was why, he didn't know them prior to the occurrence. The constable eye-witness (P.W.3) overemphasized identity of the triplet, when he talked about their nomination in the 4th schedule and he apparently did so to abridge the gap. The prosecution did not tender any order or notification in evidence as to aforesaid factum of fourth (4th) schedule. The faulty identification of the accused remained a big question-mark over tenor of the prosecution's case, which must have been keenly handled by them through some cogent evidence, but it was not to be.
11. Muhammad Ali 1368/C (P.W.4), who was a computer operator at Police Station City Shor Kot (Jhang), accompanied Muhammad Farooq Azam ASI (P.W.1) to the office of the DPO hang on 5.3.2015 where they produced memory card (P3) to the Incharge, CDU/Computer Branch, who prepared two C.Ds (P1, P2) on the basis of memory card (P3), which he delivered to them, the same day. Zulfiqar Ali Inspector (P.W.7) took these articles into possession vide seizure memo a Exh.PB.
Muhammad Ali constable (P.W.4) claimed to have seen both the C.Ds but he did not prepare any transcription thereof. He did not tell anything as to the contents of the C.Ds. Muhammad Shafi SI (P.W.5), Ghazanfar Ali Inspector (P.W.6) and Zulfiqar Ali Inspector (P.W.7) had no idea whatsoever as to what was preserved in the C.Ds (P1 & P2). It was, however, so said by Zulfiqar Ali Inspector (P.W.7) that he seized the C.Ds (P1, P2) and memory card (P3) on 5.3.2015 vide memo of recovery Exh.PB, whereafter he handed over these articles to the Muharrar for keeping them in safe custody and its onward transmission to the Forensic Science Agency. He claimed to have recorded statements of the Muharrar PW (not produced) and Javed constable PW (not produced) regarding transmission of the C.Ds to the Forensic Science Agency on 13.3.2015. Munawar Hussain 1451/HC (P.W.2) recorded the formal FIR (Exh.PA/1), but he said nothing as to have ever received the C.Ds. or memory card from the investigating officer (P.W.7) or to have despatched them to the Forensic Science Agency for forensic analysis thereof. It is why, no such forensic report existed on the record.
Javed constable did not appear at trial as a witness.
12. Learned public prosecutor closed the prosecution evidence on 14.3.2015 by giving up a couple of other police officials being unnecessary and till then, none of the examined prosecution witnesses knew anything about the contents of the C.Ds (P1 & P2). It does not transpire from statements of any of the prosecution witnesses that learned trial court had ordered playing of the said C.Ds at any stage or ever felt the necessity of its internal viewing, so as to satisfy itself about the identification and nomination of the appellants in this case. It is strange that such an important aspect skipped attention of the learned trial court, albeit statement of the complainant (P.W.1) had raised serious questions about identity of the accused and their nomination as such in the FIR.
Learned trial court dealt with this crucial question in a casual manner and disposed of the issue by observing in paragraph 15 of the impugned judgment that "the identification of the accused is also proved. The eye-witnesses confidently explained as to how they identified the accused", completely overlooking the cracking gaps, left by witnesses of the ocular account, in relation to identity of the accused in their testimonies. The complainant, who is author of complaint (Exh.PA) personally knew no one from the appellants prior to the occurrence nor he made a request for displaying the C.Ds, allegedly prepared by him at the crucial hour, still his act of naming them as accused in the FIR was not inquisitively looked into by the learned trial court. The officials of the CTD or that of security agencies, who allegedly informed the complainant about names of the accused did not join the investigation nor they said anything in this regard at trial and they continuously remained hidden without any lawful excuse. The questions hovering over identity of the accused, astonishingly did not cause any judicial anxiety to the trial court, probably for the reason that it had too a little time at its disposal to ponder over this subtle issue, for, it concluded trial of the accused within three days after its commencement on 14.3.2015. It is a golden maxim of law that justice delayed is justice denied but it cannot be forgotten either, that justice hurried is justice buried.
Learned trial court could certainly consume some more days under the law to conclude the trial so as to avoid delivering a vulnerable judgment, but it probably felt haunted by scarcity of the time and held the appellants guilty of offence without any plausible cause. The prosecution could not establish identity of the accused beyond mere estimations. To select a few from hundreds of slogan-raisers, if at all it was so, for naming them as accused in this case required a high degree of sensibility, which was not shown by any. The extra pace of the trial overcame much needed sensibility as to the said fact, resulting in a fallacious verdict of guilt against the appellants.
13. The prosecution presumably shut their eyes from another important aspect of the case, which has precedingly been jotted down as a question vis-a-vis, who was Ahmad Ali, the hanged- convict; what offence he had committed; and what he had been convicted, sentenced and hanged for. It was essentially significant for the prosecution to create a nexus between his hanging to death and the ensuing fiery speech-making by some firebrand speakers and nasty sloganeering by the accused so as to render its case logical and easy to understand. As discussed earlier, the backdrop of hanging of Ahmad Ali is still an undisclosed fact, which would reflect on the veracity of allegations, levelled by the prosecution against the accused. It cannot be presumed gratuitously that Ahmad Ali had been executed for having committed an act of terrorism. Some oral or documentary evidence must have been produced by the prosecution in this regard. This hidden aspect of the case makes the matter still hazier. Both the questions, as enumerated herein above, have gone a unanswered by the prosecution, thus reducing believability of its case just to nothing. The prosecution did not lead any evidence to establish that the appellants were members of a proscribed organization or they had a blotted past with this particular background. The allegation of their coming from some banned outfit is nothing but a mere claptrap. In a nutshell, they appeared to have been condemned gratuitously and injudiciously by the learned trial court without caring for the established tenets of dispensation of criminal justice. The impugned judgment does not qualify to be held sustainable, being bereft of any sound reason or merit, hence, annulled.
14. The present appeal is accepted. The conviction and sentence of the appellants is hereby set aside and they are acquitted of the charge. They are present on bail, for, their sentence had been suspended by this court on 28.9.2015. Their bail bonds are cancelled and sureties discharged.