2005 PLP 490 (YLR)

16. All the witnesses, who appeared before the learned trial Court to support the prosecution case, were disinterested, trustworthy having no animus against the present respondents, their statements are confidence‑inspiring and this Court see no reason to discard those statements.

17. It is settled by now that the Court has to see the quality of evidence and not the quantity. Evidence in the form of statements of two eye‑witnesses i.e. Sheraz Ahmad Ansari and Muhammad Irshad i.e. P.W.2 and P.W.3 is coming from an unimpeachable source having its intrinsic value. Further more that their evidence is corroborated by Abdul Ghaffar P. W .4 who is a witness of "Wajtakkar" and this Court finds no reason to disbelieve him as well. Irshad P.W. has furnished eye‑witness account of both the occurrences while Sheraz Ahmad Ansari R.W. has given eye‑witness account of the first part of the occurrence. Therefore, the case in hand is not only proved through ocular account but the same is also corroborated through other evidence as well i.e. evidence of recoveries of large quantity of crime empties, weapons of offence, marks of bullets at the place of occurrence and on different articles lying there coupled with the opinion of police regarding guilt of the respondents.

18. As far as delay in lodging the F.I.R. is concerned that was fully explained in the F.I.R. and even in such like circum stances its late recording is not fatal to the prosecution case. "In Salar Khan's case (1986 PCr.LJ 1482), a learned Division Bench of Azad Jammu and Kashmir relying on 1978 SCMR 135, PLD 1978 SC 41, and 1979 SCMR 230 expressed the view that delay in F.I.R. per se was not fatal to prosecution although it could have such effect in some particular circumstances. The view taken in Tahir Hussain's case (1992 PCr.LJ 478) was that if the evidence inspires confidence, the delay in registration of the case becomes a secondary factor and does not materially affect the veracity of the prosecution". It was so held at page 239 by a Full Bench of the Sindh High Court Karachi reported in Mian Muhammad Nawaz Sharif and others v. The State and others (PLD 2002 Karachi 152). Even otherwise, it is a matter of common knowledge that the police, in such like incidents, hesitate to register cases in consequence whereof the aggrieved persons have to approach the higher police officials or the Courts of law for the said purpose. Therefore, if some delay has occurred in the registration of the present case then the same is not fatal to the prosecution and the contention of the learned counsel for the respondents, in this regard, is repelled.

19. After having adjudged the case from every angle, having scrutinized the case with the help of the learned counsel for the parties and having sifted the grain from the chaff, this Court is of the considered view that it is a laboured judgment which is reflective of not only non‑reading and misreading of evidence brought on record but the same cannot stand the test of judicial scrutiny as the same is fanciful, artificial and against the weight of record. Normally, this Court and the apex Court of the Country refrain from interfering with the judgments of acquittals but when it is proved from the record that the judgment of acquittal is artificial, shocking and ridiculous disclosing glaring misreading and indicating grave miscarriage of justice of showing perfunctory, wholly artificial or shocking conclusions which no reasonable person would perceive, then the same can legitimately be interfered with. By and large same principles are applicable to adjudication of a matter by High Court in exercise of powers under section 417, Cr.P.C. or section 25(4) read with section 32 of the Anti‑Terrorism Act, 1997 rather the Superior Courts are duty bound to do complete justice. The impugned judgment in. the case in hand is a such one wherein grave injustice has been done with the complainant because the golden principle of criminal jurisprudence is very much lacking in this case according to which justice should not only be done but it should manifestly be seen to have been done. These are Courts of law and while sitting in the appellate jurisdiction it is the duty of the Court to sift grain from the chaff. In the present case the complainant who purchased 20 acres of land where he established a Dairy Farm to earn his livelihood and an Eye‑Centre for the welfare of the area was attacked upon by the respondents and act of the respondents was so desperate and hardened and is reflective of their cruel minds that in furtherance of their common object they indiscriminatory fired more than five hundred shots having caused heavy loss to the said Dairy Farm and Eye‑Centre. In other words it was a lesson for the others not to resist their unlawful and criminal acts. Suchlike acts/offences should not go unattended because if the same left un-punished then nobody would dare to resist the criminal acts of such‑like persons. The result would be that nobody would adopt the profession of their choice to earn his livelihood and shall not feel secure and safe. The act of the respondents have resulted into terror, insecurity and fear in the vicinity. Therefore, this Court is of the view that it is a fit case in which this Court should interfere with the judgment of acquittal so that justice should prevail in the society and the people should gain confidence in the Courts.

20. It would also not be out of place to mention here that vide order, dated 4‑6‑2003 passed in W.P. No. 3921 of 2003 (Sheraz Ahmad Ansari v. Ch. Ghulam Rasool, Judge Anti‑Terrorism Court No.IV, Lahore etc.), a learned Division Bench of this Court consisting of their Lordships Raja Muhammad Sabir and Bashir A. Mujahid, JJ., (as they then were), while quoting a judgment of the august Supreme Court of Pakistan reported in State through Advocate‑General, N.‑W.F.P. Peshawar v. Muhammad Shafiq (PLD 2003 SC 224), while setting aside the order passed on the application of the accused whereby case was transferred to the ordinary Court, the case was ordered to be tried by the Court constituted under the Anti‑Terrorism Act, 1997 and although the charged was framed under sections 455/ 395/148/149/109, P. P. C. read with sections 7(B)(i) of the Anti‑Terrorism Act, 1997 but the finding of the learned Special Court is contrary to the said view.

21. For a just decision of the case it is imperative to quote clause (b) to subsection (1) of section 6 and sub‑clauses (b) and (i) to section 7 of the Anti‑Terrorism Act, 1997 which mandate as under:‑‑ "(6) Terrorism (1). In this Act, "Terrorism" means the use or threat of action where:‑‑ (a) ......... (b) the use of threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or the public or community or sect or create a sense of fear or insecurity in society". (Underlining is mine) "(7) Punishment for acts of terrorism.‑‑‑Whoever commits an act of terrorism under section 6, whereby:‑‑ (a) ......... (b) He does anything likely to cause death or endanger life, but death or hurt is not caused, shall be punishable, on conviction, with imprisonment of either description for a term which shall not less than five years but may extend to fourteen years and with fine; (c) .. (d) . (e) .. (f) (g) (h) (i) Any other act of terrorism not falling under clauses (a) to (h) above or under any other provision of this Act, shall be punishable, on conviction to imprisonment or not less than six months and not more than five years or with fine or with both." (Underlining is mine)"

22. In view of the above analysis of the case, this Court is of the considered view that the so far as case of respondent Baba Said Muhammad is concerned, he was made accused of abetment only, therefore, he is acquitted from the case as the provision of section 109, P.P.C. is not attracted in the facts and circumstances of the case.

23. So far as the other all acquitted accused/respondents are concerned, the prosecution has proved case against them that they, in furtherance of their common object and having formed unlawful assembly, have committed the offences punishable under sections 7(b), 324/ 149, 148 and 455 P.P.C. this Court holds so. Although there is a mention of section 324, P.P.C. in the F.I.R. but it is missing from the charge framed against the accused persons. As it has already been held that the respondents/acquitted accused are also guilty of the offence under section 324, P.P.C., therefore, they are also being punished under the said provision of law which is fully attracted in peculiar facts and, circumstances of this case. In this regard, this Court is fortified with a famous judgment of the august Supreme Court reported in Zulfiquar Ali Bhuttoo v. The State (PLD 1979 Supreme Court 53), wherein the apex Court of the Country in the judicial hierarchy, at page 355 and in para. 826 of the judgment, observed as under:‑‑ "

826. The survey of the cases shows that the law, as embodied in sections 236 and 237 of the Criminal Procedure Code and read together, appears to be that if on the facts alleged it was doubtful which of several offences the proved facts will constitute, and on the facts eventually proved, of which the accused may be taken to have notice during the recording of evidence at the trial an offence other than the one charged has been committed, then he may be convicted of this other offence, even though he was not charged with it. Their Lordships of the Privy Council have indeed put it simply and shortly by saying that a man magi be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made". (emphasis supplied) Resultantly, Crl. Appeal No. 210 of 2004 (filed by the State) against the acquittal of the respondents is allowed, the impugned judgment of acquittal, dated 24‑1‑2004 passed by the learned. Special Judge Anti‑Terrorism No. III, Lahore is set aside. So far as W.P. No. 2144 of 2004 filed by the complainant is concerned, since the main appeal filed by the State is being disposed of through this judgment, the above writ petition is disposed of having become infructuous. The respondents, except Baba Said Muhammad, are convicted and sentenced as under:‑‑ (1) Under section 7(b) of the Anti Terrorism Act, 1997.‑‑‑to five years R.I. each with a fine of Rs.20,000 each in default whereof to undergo six months' R.I. each. (2) Under sections 324/149. P.P.C.‑‑ to undergo five years' R.I. with a fine of Rs.20,000 each in default whereof to further undergo six months' R.I‑ each. (4) Under section 455, P.P.C.‑‑‑to undergo five years' R.I. with a fine of Rs.20,000 each in default whereof to further undergo six months' R.I. each. (5) Under section

395. P.P.C.‑‑‑As far as charge under this section is concerned, I am of the affirmed view that the same is not made out against the respondents because no recovery of looted articles was effected from them. (6) Under section

109. P.P.C.‑‑As the offence of abetment has not been proved against the respondents, therefore, they are also acquitted of the same. The respondents, who are now convicts, shall be taken into custody by the concerned authorities to serve out the above sentence which shall run concurrently coupled with benefit of section 382‑B, Cr.P.C. Appeal allowed accordingly. H.B.T./S‑264/L