' This criminal appeal impugns the judgment, dated 12-3-2001 passed by Ch. Asad Raza, Judge, Special Court, Anti-Terrorism, Rawalpindi Division and Islamabad Capital Territory. Whereby he convicted the appellant under section 381-A, P.P.C. And sentenced him to seven years' R.I. With a fine of Rs,1,00,000 and in default of payment of fine, he was to suffer further six months' Si The appellant was also convicted under section 411, P.P.C. And was sentenced to three years' R.I. With a fine of Rs,5,000 and in default of payment of fine, he was to suffer further six months' S.I. He was further convicted under section 7(ii) of the A.T.A. 1997, and was sentenced to seven years' R.I. With a fine of Rs,5,000 and in default whereof, he was to suffer further six months' S.I. The sentences were to run concurrently. Benefit of section 382-B, Cr.P.C. Was given to him. The conviction was passed in the case F.I.R. No,425, dated 11-8-2000, registered at Police Station Westridge, Rawalpindi, under sections 381-A/411, P.P.C. And 7-B, A.T.A.
2. Squadron Leader Arif Iqbal had parked his car on 10-8-2000 outside the Zakria Mosque in Westridge, Rawalpindi, and had' himself gone to the mosque. When he returned from the mosque after hearing the Biaan, he found that his car bearing No,IDH/1911, Toyota Corolla, Model 1976, Engine No,3K-4904991, Chassis No,KE-36-715823, was not in the parking yard. The Chowkidars informed him that his car which had a punctured tyre, was seen being pushed by a tall person with a beard, who may have taken it. He lodged the F.I.R. Accordingly.
3. Exh.P.B., recovery memo., reflects that the car had been recovered at the instance of the appellant on the next date i,e, 12-8-2000. Exh.P.G. The site plan, further reflects that it was recovered not far away from the Zakria Mosque.
4. Squadron Leader Arif Iqbal (P.W.1) appeared to support his case as given by him in the F.1.R. He went on to, say that during the entire night he could not trace his car. That in the morning, a colleague of his Squadron Leader Ata informed him that his car was noted present in a shop for repairing punctures, and it was recovered by the police and handed over to him on Superdari.
During the cross-examination, he stated that the car was parked for repair of the puncture adjacent to the police station and was having its original number plate. He made no mention of the accused/appellant.
5. Nazar Hussain, Sub-Inspector, Police Station Westridge (P.W.5) stated that on 1-8-2000 he had received the complaint about the theft of the car from the complainant (Exh.P.A.) and registered the F.I.R. Exh.P.A./1. He prepared the site plan, Exh.P.G. That on 12-8-2000 he arrested the appellant having received information about his presence in a market called as Jawwad Market when he was found standing and the stolen vehicle Exh.P.1 which was parked by him in the shop of a tyre vulcaniser. That he tried to slip away but was arrested. That he tried to escape again and this resulted in a scuffle when a constable and A.S.-I. Muhammad Ameen and the appellant sustained injuries. They were medically examined. That it was at the pointation of the appellant that the car was recovered and the key was recovered from his personal search. He recorded the statements and after investigation, submitted the challan.
6. During his cross-examination, he stated, that he did not join Chowkidars of the mosque in the investigation, who had seen the appellant taking away the car. That he did not ask the Chowkidars to identify him. He also did not join the owner of the tyre repair shop. He admitted that the Police Station Westridge was about 200/250 metres from the place of recovery of the car and Jawwad Market was at a distance of about 300 metres from Police Station Westridge. That he left the police station at about 5 p.m. In search of the car. He admitted that he did not call the complainant for identification of the car in the police station the same day. That at the relevant time, the fourth tyre of the car was being repaired. He stated that he had not drawn the sketch of the key recovered from the appellant and was not in the knowledge whether the key recovered was of the car, and denied the suggestion that the appellant who was living in a Madrissa had been arrested on suspicion and had been tortured.
7. Dr. Muhammad Ashraf had exafflined Sher Afzal, Constable and Muhammad Ameen, A.S.-I. With minor injuries as well as the appellant,.' which means that there had been some fight between the appellant and the others at the relevant time.
8. Whereas, Sher Afzal (P.W:2) and Muhammad Ameen, A.S.-I. (P.W.3) are the recovery witnesses who had attested the recovery memo. Exh. P.0 .
9. In his statement under section 342, Cr:P.C. The appellant on the question as to why the case was made against him, stated:-- "I am Hafiz-e-Qur'an and was teaching in Dar-ul-Aloom, Hanifia. Gulberg, Lahore and came to Qari Nazir Ahmad of Madrissa Rehmania, Westridge, Rawalpindi. The police in the night. Between 11/12- 8-2000. Detained me without any lawful justification. On my protest they gave me severe beating in the night and the next day i,e, on 12-8-2000 1 was falsely involved in the instant case. The police let off the actual culprit who was arrested, as per the complainant, on 11-8-2000 from whom the vehicle was recovered. Admittedly nothing' was recovered from my possession nor anybody identified me at anytime during the entire investigation. Even the owner of the tyre vulcanizing shop was also not joined in the investigation, from whose shop allegedly the car was recovered. All the witnesses are police officials and no independent witness despite availability, was joined in the proceedings."
10. So, we find that not only the car was recovered the same day but it was recovered from a spot close by the place of occurrence and the police station. It is strange that when the car was spotted and the appellant apprehended, the complainant Squadron Leader was not called for identifying his car or for being a witness of its recovery. It is also strange that the owner of the shop where the car was standing far repair at the relevant time, had also not been- joined during the investigation.
The Chowkidars, who may have identified someone pushing the car of the complainant, were also not joined in the investigation for identifying the appellant. The Sub-Inspector was not' sure whether the key recovered from the pocket of the appellant was a key of the car. Such a recovery was being 'made without induction of public witnesses in a market close to the police station. At least the owner of the shop was available and could not have refused to attest the recovery memo.
Under the circumstances of this case'.
11. The first legal question which emerges is whether an offence has been made under section 7-A of the Anti-Terrorism Act, 1997, calling for punishment under section 7-B. Section 7-A reads as follows:-- "7-A. Creation of civil commotion.--- Civil commotion means creation of internal disturbances in violation of law, commencement or continuation of illegal strikes, go-slows, lockouts, vehicles snatching or lifting, damage to or destruction of State or private property, random firing to create panic, charging Bhatha acts of criminal trespass (illegal Qabza)."
' The answer is in the negative as the car had not been lifted or snatched.
12. The next question would be whether an offence under sections 381-A/411, P.P.C. Is made out in this connection, the prosecution case is ridden with doubts and the story of the prosecution is unbelievable. Unfortunately, the trial Court did not appraise the evidence properly keeping in view all the circumstances. It also did not appreciate that no offence was patently made out under section 7 of the Anti Terrorism Act, 1997. The judgment, therefore, is set aside and the appeal is accepted. The appellant who is in jail, be released forthwith if not required in any other case.