Fahim Ashraf and Muqeem Abrar convicts were tried alongwith fifteen others by Summary Military Court No.2, Lahore for offences under M.L.R. 18(5), M.L.R. 18(4)(b), M.L.R., 10 and M.L.R.
9. It was alleged that the convicts and their co-accused took out a procession of political nature in Lahore on 6th April, 1979 at about 2.45 p.m. And propagated the cause of Pakistan People's Party and that during the course of this enterprise, they damaged Government property, i.e. Bus No. RID-8027 by setting the same on fire and that they also damaged car No. MR-676, Suzuki Van No. LER 8388 and Muslim Commercial Bank by setting the same on fire. They also attacked and injured members of police and inujured Habib Ali A.S.I. Waris Ali, F.C. Ghulam Mohy-ud-din F.C. And Nazir Ahmad F.C.
2. Fahim Ashraf and Muqeem Abrar, convicts alongwith Pervaiz Chohan, a co-accused were convicted while the remaining 14 co-accused were acquitted. Fahim Ashraf was sentenced to three months' R.I. And five lashes while Muqeem Abrar was sentenced to three months' R.I. And three lashes. According to the record of the Summary Military Court, Fahim Ashraf was 16/17 years old while Muqeem Abrar was 15/16 years old.
The petitioner has assailed the conviction and sentence of the aforementioned two convicts, namely Fahim Ashraf and Muqeem Abrar through this writ petition. This judgment will dispose of the same.
3. The case against the convicts has been registered on the basis of F.I.R. No. 102 of 1979 (Exh.L.), dated 6-4-1979 of Police Station, Tibbi, Lahore which was recorded on the statement of Ghulam Asghar A.S.I.
4. Prosecution produced Habib Ali A.S.I. P.W.1, Nazir Ahmad, constable P.W.2, Ghulam Mohy-ud-Din, Constable P.W.3, Muhammad Ayub, Driver, P.W.4 and Umar Din, Conductor of the Bus P.W.5 and Ghulam Asghar A.S.I. P.W.6.
5. The convicts when examined denied the allegation against them. Fahim Ashraf stated that .On the day of occurrence he alongwith Muqeem Abrar was going on a bicycle at 2.40 p. m. They were going to the ground to play cricket. As their friends had not turned up in the ground, they started towards their homes and when they were near Dargah Data Darbar a police jeep came from behind and they forcibly put them in the jeep alongwith bicycle. They were first taken to Police Post, Badami Bagh and later to a place near Sabzi Mandi. At night they were brought to Police Station, Tibbi. He stated that he was innocent. Muqeem Abrar also made a similar, statement. They also produced three witnesses in their defence.
Muhammad Azam D.W.1 stated that when Fahim Ashraf did not come to his house on that day, he searched for him and he came to know that they were at Police Station, Tibbi and that the bicycle which was with Fahim Ashraf was lying at Police Station, Badami Bagh. He further stated that Fahim Ashraf, convict had no political affiliation.
Abdul Ghani D.W.2 stated that Fahim Ashraf, convict was known to him since childhood and that he was his neighbour. He was studying in Matric and that he had no political affiliation and that he belonged to a respectable family.
D.W.3 Arshad Ahmad is a Platoon Commander of Qaumi Razaqar. He stated that the convict, Fahim Ashraf was known to him. He stated that the convict was innocent and that he had no political affiliation.
6. Habib Ali A.S.I. P.W.1 stated that he was posted alongwith other Constables near Attique Stadium when a crowd of about 60/70 persons came from Chowk Yadgar. This crowd damaged a standing car No. MR-676. They also stopped the bus and the crowd then set this bus on fire. He further stated that the police force was near Minto Park Chowk when the bus was stopped by the agitators and when they saw this he alongwith other members of police force ran towards the spot but the agitators had already stoned and broken the wind screen of the bus. He apprehended two convicts in this case, who, according to him, were leading the procession. He has not said a word about the damage of the car by Fahim Ashraf and Muqeem Abrar, convicts. There is nothing in his statement to indicate that these two convicts injured any member of the police force either. Although, he is alleged to have arrested the convicts, he could not remember the type of clothes which were being worn by them. He denied that Fahim Ashraf and Muqeem Abrar were going on a bicycle when they were apprehended near Data Darbar.
Nazir Ahmad, Constable P.W.2 stated that the bus was set on fire by the mob before the police reached the spot and that the mob consisted of 100/150 persons. He stated that at that time, two persons alongwith a bicycle were caught and apprehended. According to him these were the two convicts in the instant case.
Ghulam Mohy-ud-Din P.W.3, stated that two persons who tried to run away were apprehended. He however, categorically added that they were not having any bicycle with them at the time of their arrest. This witness was also injured but he did not attribute his injury to the present convicts.
Muhammad Ayub P.W.4 is the driver of the bus while Umar Din P.W. Is the Conductor of bus No. RID 8027.
Ghulam Asghar P.W.6 stated that the convicts were apprehended by Habib Ali A.S.I. P.W.1 in his presence. He has sent the report, Exh. 'L' for the formal registration of F.I.R. Exh. 'L/1' and investigated the case.
7. Record of the case has been produced by the learned A.A.-G and the same has been perused with the help of learned counsel for the parties and arguments heard.
8. The prosecution has failed to prove all the four charges against the convicts. There is nothing on the record to suggest that the convicts took out the procession of political nature or damaged the property attacked or injured any member of the police force. Habib: Ali A.S.I has stated that they were near Minto Park when the bus was stopped by agitators. They rushed to the spot but the agitators had already stoned and broken the wind screen of the bus. He stated that the two convicts namely, Fehim Ashraf and Muqeem Abrar were leading the procession. Yet in cross- examination, when he was asked to describe the type of clothes which were being worn by the convicts, he could not remember the same. It may be noted that the witness was being examined four days after the occurrence only. He also denied that the convicts were having a bicycle with them, Nazir Ahmad P.W.2 however, demolishes the case of the prosecution completely. He admitted that the two convicts namely, Fahim Ashraf and Muqeem Abrar were going on a bicycle when they were caught and apprehended. He further stated that the bus was already set on fire before the police could reach there. As far as the injury received by the police force, he attributed it to accused No.8. He also stated that it was accused No. 8 who was leading the procession. Ghulam Mohy-ud-Din P.W.3 stated that the convicts had nothing with them at the time they were arrested.
He thus contradicted the evidence of Nazir Ahmad P.W.2. He stated that he was injured by the mob near Shahi Qila. He did not attribute the injury to the present convicts. Muhammad Ayub and Umar Din have not implicated the present convicts in any manner.
It is not out of place to mention here that according to the record of the Summary Military Court, Fahim Ashraf was 16/17 years old while Muqeem Abrar was 15/16 years old. Fahim Ashraf was sentenced to three months' R.I. And five lashes while Muqeem Abrar was sentenced to three months R.I. And three lashes. M.L.O. 5 clearly lays down that whipping shall not be inflicted on persons below the age of 18 years. Admittedly as per record of the Summary Military Court, Fahim Ashraf and Muqeem Abrar, convicts were below 18 years yet sentence of whipping was inflicted upon them. This was clearly contrary to the provisions of M.L.O. 5 and absolutely illegal and unwarranted.
9. In view of the above discussion, I hold that the prosecution has failed to prove its case against the convicts. The evidence adduced by the prosecution in the case could not establish any of the charges for which the convicts were tried. This is a case of no evidence. This writ petition is accepted. The conviction and sentence of Fahim Ashraf and Muqeem Abrar, convicts is set aside.
They are set at liberty forthwith unless they are wanted in some other case.