2022 PLP 1046 (MLD)

Through this Revision Petition filed under Section 435, Cr.P.C. read with all other enabling provisions of law, following prayer has been made :- "PRAYER Under the circumstances expounded above it is, most respectfully prayed that the criminal revision petition in hand may very kindly be accepted and the impugned order dated 22.03.2022 passed by learned Trial Court of ATC Gujranwala, Camp at Central Jail, Kot Lakhpat, Lahore may very kindly be set aside, and court may very kindly be directed to delete S. 7 of ATA, amend the charge regarding 7 ATA and new amended charge may kindly be framed, record the statements in the presence of counsel of the accused which is in the best interest of justice, fair play and equity. It is further prayed that whole proceedings conducted by the court may kindly be declared as null and void because the whole proceeding was conducted in hasty manner without giving the opportunity of fair trial while ignoring the norms of justice in the absence of accused Counsel. Any other relief which this Honourable Court may deem fit and appropriate may also be awarded which is in the interest of justice." Necessary facts are that briefly as per first information report (copy whereof is annexed with this petition), on receiving intimation via wireless control that people are making protest at Rajko factory Noul Mor, Armghan Maqsat (Sub-Inspector/Station House Officer of Police Station: Ugoki, Sialkot/complainant) along with other police officials reached there, road was blocked, vehicles of passerbyes were stuck in traffic, commotion (ہنگامہ) was continued in the factory, 800/900 persons armed with sticks (ڈنڈے) were found busy in committing commotion, a person namely Diyawadanage Don Nandasri Priyantha was dragged in dead condition (حالت مردہ) and brought on Wazirabad Road; Armghan Maqsat (complainant) tried to stop, however, aforementioned persons put the dead body on road and burnt the same, fear and guards spread in viewers, slogans were raised by said persons that since he outraged their religious feelings, therefore has been sent to hell; destruction of a car was also found in the factory; on the allegation of religious insult/disgrace , employees of the factory and on their calling unknown persons of nearby vicinity murdered aforementioned Diyawadanage Don Nandasri Priyantha and then disgraced his dead body. On the written complaint sent by complainant, case was registered vide FIR No.1412/2021 dated: 03.12.2021 under Sections: 302, 297, 201, 427, 431, 147, 149, P.P.C. read with Sections 7 and 11-WW of Anti-Terrorism Act, 1997 at the Police Station Ugoki, District: Sialkot. After thorough investigation, aforementioned allegations were established and prosecution submitted challan report prepared under Section 173, Cr.P.C. in the court under aforementioned offences (copy of the challan report is also annexed with this petition). Learned trial court framed charge on 12.03.2022, which is hereby reproduced:- "CHARGE SHEET 1, Natasha Naseem Sipra, Judge, Anti Terrorism Court, Gujranwala Division, Gujranwala, do hereby charge you the above named accused as under: FIRSTLY That on 03.12.2021, at about 11.28 A.M, in the area of Noul More, Rajko Factory, within territorial limits of Police Station Uggoki, District Sialkot, you above named accused persons along with your co-accused persons (since juveniles being tried separately) equipped and armed with dandas, sotas, brick, concrete stone, scissors and some of you were empty Qatl-e-amd of Diyawadanage Don Nandasri Priyantha and you all above named accused persons being the member of the said assembly committed offence of rioting punishable under section 148 read with section 149, P.P.C., which is within the cognizance of this Court. SECONDLY That on the same date, time and place, you above mentioned accused persons along with your co-accused persons (since juveniles being tried separately) equipped with dandas, sotas, brick, concrete stone, scissors and some of you were empty handed in prosecution of common object of unlawful assembly committed Qatl-i-amd of Diyawadanage Don Nandasri Priyantha. Thus you all accused persons have committed an offence punishable under section 302(b), P.P.C. read with section 149, P.P.C., which is within the cognizance of this court. THIRDLY That on the same date, time and place, you above mentioned accused persons along with your co-accused persons (since juveniles being tried separately) equipped with dandas, sotas, brick, concrete stone, scissors and some of you were empty handed in prosecution of common object of unlawful assembly committed mischief by dragging dead body of Diyawadanage Don Nandasri Priyantha on Wazirabad Road, which rendered a public road impassable for travelling. Thus you all accused persons have committed an offence punishable under section 431, P.P.C. read with section 149, P.P.C., which is within the cognizance of this court. FOURTHLY That on the same date, time and place, you above mentioned, accused persons along with your co-accused persons (since juveniles being scissors and some of you were empty handed in prosecution of common object of unlawful assembly dragged the body of Diyawadanage Don Nandasri Priyantha on Wazirabad Road and then set it on fire. Thus you all accused persons offered indignity to the corpus of Diyawadanage Don Nandasri Priyantha thereby you all accused persons have committed an offence punishable under section 297, P.P.C. read with section 149, P.P.C., which is within the cognizance of this court. FIFTHLY That on the same date, time and place, you above mentioned accused persons along with your co-accused persons (since juveniles being tried separately) equipped with dandas, sotas, brick, concrete stone, scissors and some of you were empty handed in prosecution of common object of unlawful assembly set on fire dead body of Diyawadanage Don Nandasri Priyantha, thus you above named accused persons knowingly and having reason to believe caused disappearance of the evidence with the intent to screen out the offenders from legal punishment, thereby you all above named accused persons have committed an offence punishable under section 201, P.P.C. read with section 149, P.P.C., which is within the cognizance of this court. SIXTHLY That on the same date, time and place, you above mentioned accused persons along with your co-accused persons (since juveniles being tried separately) equipped with dandas, sotas, brick, concrete stone, scissors and some of you were empty handed in prosecution of common object of unlawful assembly after making preparation for causing death of Diyawadanage Don Nandasri Priyantha, committed mischief by damaging the car bearing registration No.LED-11/5337 Toyota Corolla which was persons have committed an offence punishable under section 440, P.P.C. read with section 149, P.P.C., which is within the cognizance of this court. SEVENTHLY That on the same date, time and place, you above named accused persons along with your co-accused persons (since juveniles being tried separately) equipped with dandas, sotas, brick, concrete stone, scissors and some of you were empty handed in prosecution of common object of unlawful assembly blocked the road at Wazirabad and police directed you above named accused persons to disperse but you accused voluntarily obstructed the police personals from discharging their lawful duties. Thus you all above named accused persons disobeyed the orders passed by the police officials which is an offence punishable under section 186, P.P.C., which is within the cognizance of this court. EIGHTHLY That on the same date, time and place, you above mentioned accused persons along with your co-accused persons (since juveniles being tried separately) equipped with dandas, sotas, brick, concrete stone, scissors and some of you were empty handed in prosecution of common object of unlawful assembly took law in your hands on the basis of suspicion of outraging the religious feelings, inflicted punishment by committing Qatl e-amd of Diyawadanage Don Nandasri. Thus you all above named accused persons have committed an offence of lynching punishable under section 11-WW of Anti-Terrorism Act, 1997, which is within the cognizance of this court. NINETHLY That on the same date, time and place, you above mentioned accused persons along with your co-accused persons (since juveniles being tried separately) equipped with dandas, sotas, brick, concrete stone, object of unlawful assembly assembly committed Qatl-e-amd and then set the dead body of Diyawadanage Don Nandasri Priyantha on fire, due to which sense of fear, terror, insecurity and panic was created and spread in the general public. Thus you all above named accused persons have committed an offence punishable under section 7 read with 21-1 of Anti-Terrorism Act, 1997, which is within the cognizance of this court. And, I hereby direct you the above named accused persons to be tried by this Court on the above said charges. R.O & A.C. 12.03.2022" Learned trial court started recording statements of witnesses. Tamoor Ahmad (petitioner/accused) filed application before learned trial court for amending the charge to the extent of Section: 7 of Anti-Terrorism Act, 1997 with the following prayer:- "Under the circumstances mentioned above, the application in hand may graciously be accepted and the charge may kindly be amended to the extent of S. 7 of ATA so that the evidence may kindly be recorded as per allegation alleged in FIR and the defence may be produced to secure the ends of justice. Any other relief which this Honourable Court may deem fit and appropriate may also be awarded." Aforementioned application was dismissed by learned trial court vide order dated: 22.03.2022 impugned herein, relevant portions of the order are hereby reproduced:- "This order will dispose off an application filed by Mr. Hafiz Israr ul Haq, learned defence counsel on behalf of accused Taimoor wherein he made request for deletion of offence under section 7 of ATA, from charge sheet as offence under section 7 of ATA, 1997 is not made out from the contents of FIR and other material available on record. .

3. As per contents of FIR, accused persons created sense of fear and insecurity in the society by disgracing human corpse and thereafter setting on fire the dead body of deceased on road. It will be determined after recording of evidence whether the purpose of the accused persons was to create sense of fear or insecurity in the society or sense of fear or insecurity in the society was created due to the act of accused persons. In my view it is not proper stage to amend charge and delete offence under section 7 of ATA, 1997 from the charge sheet. It is not necessary that every offence which is mentioned in charge sheet, must be proved against the accused persons. It is dependent upon the evidence which is recorded in a particular case that which offence is proved against accused and which is not proved. If any offence mentioned in charge sheet is not proved against accused then he will be acquitted from said offence. Section 227 Cr.P.C., gives ample powers to court to alter or add to any charge at any time before pronouncement of judgment. If court comes to the conclusion after recording of evidence that any particular offence mentioned in charge sheet is not made out then the court has power to amend the charge even after recording of complete evidence. Moreover, court has the power to acquit accused in any offence mentioned in charge sheet if the same has not been proved against the accused. From the facts and circumstances of the instant case, it prima facie appears that offence under section 7 of ATA, 1997 has been made out, so accused persons are charge sheeted under said provision. If after recording of evidence court will come to the conclusion that said offence is not made out then accused persons will be acquitted from said offence. With these observations, instant application is dismissed." Feeling aggrieved by aforementioned order, petitioner has filed instant revision petition.

2. Learned counsel for the petitioner while confining his arguments to the extent of challenging framing of charge under Section: 7 of Anti-Terrorism Act, 1997 submitted that material was not available on the record for framing charge under Section: 7 of the Act ibid, therefore, impugned order is not sustainable, rather liable to be set aside.

3. Arguments heard. Record perused.

4. Charge has been defined under Section: 4(1)(c) of Cr.P.C., which is hereby reproduced:- "Charge". "Charge includes any head of charge when the charge contains more heads than one." Charge shall state the offence with which the accused is charged and the "law and section of law" against which the offence is said to have been committed shall be mentioned in the charge, in this regard Section 221(1) & (4), Cr.P.C. can be referred and hereby reproduced:- "

221. Charge to state offence. (1) Every charge under this code shall state the offence with which the accused is charged. .. (4) The law and section of law against which the offence is said to have been committed shall be mentioned in the charge." Charge is framed by learned trial court after perusing the police report or complaint, all other documents and statements filed by the prosecution, Section 265-D of Cr.P.C. can be advantageously referred in this regard, which is hereby reproduced:- "265-D. When charge is to be framed. If, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceedings with the trial of the accused it shall frame in writing a charge against the accused" The whole object of framing charge is to enable the accused to know that what is precise accusation against him and concentrate his attention on the case that he has to meet i.e. to ensure that the accused had sufficient notice of the nature of accusation with which he was charged and secondly to make the Court concerned conscious regarding the real points in issue. Although charge must contain facts which are essential factors of the offence in question, however, no yardstick can be fixed qua the particulars which should be mentioned in the charge as it depends upon facts/circumstances of each case. Prime consideration which is of vital importance/mandatory with respect to charge is that accused must not be misled in his defence by omission/error in the charge. If contents of charge are not misleading the accused in his defence then there is no defect of material nature in the charge; in other words, if nature of accusation has been incorporated in the charge with relevant provision of law applicable in categorical manner eliminating possibility of any confusion or prejudice then such charge cannot be termed as defective. If particulars of the offence are not mentioned in the charge and accused is convicted for said offence then it can be said that such omission caused prejudice to the accused in his defence but if particulars and provision of law are mentioned in the charge and subsequently same is not proved during trial then accused certainly gets the benefit of acquittal and practically speaking no prejudice is caused to the accused i.e. in simple words, framing of charge does not mean conviction and if it is not proved then of course, it results into acquittal and accused does not suffer from any prejudice. Admittedly, it is categorically mentioned in the first information report of this case that occurrence was committed by 800/900 persons, same was comprising of murder of a person on the allegation of religious insult, then bringing his dead body on road, burning it, blocking the road, stopping complainant/police official when he tried to stop burning of the dead body in view of public at large, disgracing of dead body and creating sense of insecurity and fear in the public and said allegation stood established during investigation, therefore, charge has been rightly framed under Section: 7 of Anti-Terrorism Act, 1997. Now learned trial court would not be ready to hand down a conclusive finding at a premature stage that Section: 7 of the Anti-Terrorism Act, 1997 was not made out because evidence was still being recorded. Learned counsel for the petitioner could not refer any omission or misleading fact/defect in the charge which can be termed as causing prejudice to the accused or otherwise is against the law/facts of the case. At the cost of repetition, it is being mentioned that undeniably this is not a case where occurrence took place in some abandoned area/jungle i.e. away from public view or in a room of some house i.e. not visible to public similarly occurrence in this case was not result of personal vendetta/enmity rather in this case, occurrence comprises of burning the dead body by accused at the public road after blocking the same in view of public at large on the pretext that he outraged their religious feelings which resulted striking of terror, creating of sense of fear and insecurity in the people, therefore, facts of this case are distinguishable from the facts of the case of "Mohabbat Ali and another v. The State and another" (2007 SCMR 142); relevant portions from said case law are hereby reproduced:- "

8. In order to determine as to whether an offence would fall within the ambit of section 6 of the Act, it would be essential to have a glance over the allegations made in the FIR, record of the case and surrounding circumstances. It is also necessary to examine that the ingredients of alleged offence has any nexus with the object of the case as contemplated under sections 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said Act is to be seen. It is also to be seen as to whether the said Act has created a sense of fear and insecurity in the public or any section of the public or community or in any sect. Examining the case in hand on the above touchstone, it is manifest on the face of it that the alleged offence took place because of previous enmity and private vendetta. The incident admittedly took place inside the fields of sugarcane and Banana cultivated in jungle about 14/15 miles away from the main road. Motive as defined in the FIR is also to be given a specific attention which indicates that there was a personal enmity between the parties over the land and murder case of Haries of complainant.

9. From the entire resume, it is manifest on record that intention of the petitioner was not at all to create sense of insecurity or in destabilize the public-at-large or to advance any sectarian cause. Thus, we are of the view that the design or purpose of the offence as contemplated by the provisions of section 6 of the Act is not attracted. Reference can be made to the case of this Court reported as Bashir Ahmad v. Naveed Iqbal PLD 2001 SC 521 whereby sprinkling of spirit on the person of victim was made within the boundary walls of the house of appellant which was not a public place and accordingly the element of a striking terror or creating sense of fear and insecurity in the people or any section of the people was found missing, therefore, the order of transferring the case to the Court of learned Sessions Judge passed by the High Court was upheld." It goes without saying that learned trial court, however, after recording of evidence would definitely decide that either charge under Section: 7 of Anti-Terrorism Act, 1997 has been proved or not and if said charge is not proved then accused would get acquittal, therefore, no prejudice has been caused to him.

5. In view of what has been discussed above, it has been noticed that impugned order has been passed while keeping in view settled principles of law on the subject as well as facts of the case, therefore same needs no interference. Resultantly, this revision petition is without merits and is hereby dismissed in limine. SA/T-13/L Petition dismissed.