2001 P Cr (PLP)

This judgment proposes to dispose of Criminal Appeal No.170/T of 2000 filed by Ashiq Hussain and others against their conviction and sentence awarded to them by the Special Court established under Anti‑Terrorism Act, 1997, alongwith the connected Criminal Revision bearing No.59 of 2000 which has been filed by Zawar Hussain for the enhancement of compensation and the sentence awarded to the appellants.

2. The appellants namely Ashiq Hussain, Sheikh Muhammad Asghar, Abdul Rehman, Muhammad Inayatullah, Sarfraz, Mazhar Hussain, Mian Muhammad, Muhammad Nawaz, Haq Nawaz, Ameer Sultan, Muhammad Saeed, Naeem Ahmad, Muhammad Sohail Altaf, Muhammad Siddique, Ameer Sultan, Niaz Ahmad, Shah Muhammad, Anwarul Haq, Riaz Hussain, Abdul Rehman, Atta Muhammad; Imtiaz Hussain and Amjad Farooq, belonged to Ahl‑e‑Sunnat Wal‑Jamaat, whereas the complainant party belonged to Shia Sect. There were religious differences between the Shia and Sunni Sect in the town and the parties were under religious litigation. The appellants were charged for commission of offences under sections 295/436/ 427/295‑A, P.P.C. and sections 324/457/380, P.P.C. read with sections 147/149, P.P.C. for taking active part in the alleged occurrence taken place in the village Jhatla on 7‑11‑1996 in the area of Police Station Saddar Tallagang in consequence to the announcement made in the Village mosques that Muhammad Yousaf, head of Ahl‑e‑Sunnat Wal‑Jamaat, was murdered at Tallagang. The appellants at about 10 p.m. on 7‑11‑1996 while forming an unlawful assembly with the common object in the company of large number of people gathered in Masjid Usman in Village Jhatla in the area of Police Station Saddar Tallagang and proceeded towards Imam Kot, the place of worship of Shia Sect in the village, and put on fire the vehicles parked in the courtyard. The procession while entering into Imam Bargah and the adjoining rooms set it on fire and damaged the property and burnt Zari, Alam, Jhoola, Holy Qur'an, Nahjul Balagha and Tohfa‑tul‑Imam. The house of Nazar Hussain, Matwali of Imam kot was also set on fire. The appellants and their companions then proceeded towards Aamer Medical Store owned by Syed Shabbir Hussain Shah and while breaking open the doors of Medical Store damaged the property and the medicines were looted. Thereafter, Fayyaz Hussain son of Mukhtar Haider was attacked and the Baithak of his house with household articles was set on fire. Similarly, the house of Malik Muhammad Khan was also set on fire as a result of which a jeep parked in the courtyard of the house was damaged. The accused while attacking on Zawar Hussain, the first informant, set on fire the Baithak of his house as a result of which the furniture and other household articles lying therein were burnt. It is stated that Syed Shabbir Hussain Shah, Asad Hussain Shah and Altaf Hussain Shah, in addition to the Malik Zawar Hussain, the first informant, witnessed the occurrence. The matter was reported to the police by Malik Zawar Hussain through a complaint Exh.P.A. on the basis of which a case vide F.I.R. Exh.P.A./2 was registered at Police Station Saddar Tallagang.

3. The appellants were challenged to face the trial before r Special Court constituted , under Anti‑Terrorism Act, 199 7 , for the abovesaid charges. The learned trial Judge vide judgment, dated 22‑4‑2000 convicted and sentenced the appellants as under:‑‑ (i) Under section 147, P,P.C. Two years' R.I. with a fine of Rs.5,000 each. (ii) Under sections 295/149, P.P.C. Two years' R.I. with a fine of Rs.5,000 each. (iii) Under sections 436/149, P.P.C. Imprisonment for life with a fine of Rs.50,000 each. (iv) Under section 427, P.P.C. Two years' R.I. with a fine of Rs.10,000 each. (v) Under sections 324/149, P.P.C. Ten years' R.I. with a fine of Rs.10,000 each. (vi) Under sections 457/149, P.P.C. Fourteen years' R.I. each. (vii) Under section

380. P.P.C. Seven years' R.I. with a fine of Rs.5,000 each. The appellants were also directed to undergo S.I. for six months each on each account in case of default in payment of fine. However, the different sentences were ordered to run concurrently with benefit of section 382‑B, Cr.P.C. 4.The prosecution in support of the abovementioned charges, produced two eye‑witnesses namely Malik Zawar Hussain, the first informant and Shabbir Hussain Shah who having fully supported the story of the F.I.R. deposed that the appellants while actively participating in the properties and the vehicles on fire and caused damage to the moable and immovable properties. In addition, the prosecution I Meherban Hussain, Gul Hassan, S.‑I., Police Station Hassan Abdaal and Sarfraz Khan. A S.‑I. who, on the basis of complaint Exh.P.A., recorded the formal F.I.R. Exh.P.A./2 at Police Station. The eye‑witnesses while repeating the prosecution story contained in re F.I.R. narrated the facts in detail in their statements at the trial. They have specifically named all the appellants as participants of the occurrence in the company of 300/400 persons of the area. The witnesses have not made any describable addition or omission in their statements in conflict of the story of F.I.R. except that three accused namely Sohail, Asghar and Sofi Riaz Hussain were carrying the tins of Kerosene Oil which was used for setting the properties on fire. Sarfraz Khan, A.S.‑I. P.W.5 the then Moharrir of the police station recorded the F.I.R. Exh.P.A./2 on the; basis of the complaint Exh.P.A. Gul Hussain Shah, S.‑I. P.W.4 arrested the appellants and effected the recoveries of the damaged vehicles and the furniture including the household articles and took the same into possession. through separate memos., which were exhibited in his statement at the trial. He recorded the statements of the witnesses and submitted the final report.

4. The accused in their statements under section 342, Cr.P.C. having denied the charge pleaded innocence. However, in answer to the question that "Why they were made as accused and why the P.Ws. deposed against them", the answers made by all the accused was similar to that of Ashiq Hussain as under:‑‑ "I have been implicated in this case falsely with mala fide intention, ulterior motives and with enmity. I belong to Sunni Sect. I was not present in the village Jhatla at that time when the alleged occurrence took place. In fact, one Sh. Muhammad Yousaf was murdered in Tallagang and on hearing of this news, I proceeded to Tallagang alongwith others. An F.I.R. No.73 of 1996, dated 11‑7‑1996 was lodged against Fayyaz Haider and Altaf Shah also. Fayyaz Haider is close relative of P.W.1 Malik Zawar Hussain. He is the son of his sister and is also his Damad whereas Altaf Hussain Shah accused in the said murder case is brother of P.W.2 Shabbir Hussain Shah. Both the accused belong to Shia Sect. After coming to know the involvement of Fayyaz Haider and Altaf Hussain Shah as accused nominated in the murder case of Sh. Yousaf, in order to make a counter‑blast against the opposite party, fabricated this false case. All the P.Ws. are interested witnesses and are also related to each other. The Investigating Officer Gul Hussain P.W.4 is also Shia. The investigation has been made partially and dishonestly. Nothing was recovered nor it was taken into possession by the Investigating Officer nor it was produced before the trial Court. A fictitious scrap was produced only on 11‑12‑1999 which was not identified by the Investigating Officer. Moreover, one fictitious tractor was produced only to show fake recovery. All the P. Ws. are inimical towards Sunni of Village Jhatla and previously an F.I.R. No.71, dated 27‑6‑1995 Police Station, Tallagang, Saddar was registered and the accused. in this case were nominated from the abovesaid F.I.R., they took the names of the accused from the said F.I.R. and nominated them in this case. Moreover, one Malik Muhammad Khan who belongs to Ehl‑e‑Sunnat Wal‑Jamat, his house and the jeep were burnt. It shows that a Drama was played by the complainant (Shia). Moreover, the murder of Sheikh Yousaf took place on 9‑35 p.m. on 11‑7‑1996 and the occurrence as stated by the P.Ws. at 10‑00 p.m. after the occurrence of murder of Sheikh Yousaf. All the persons were present at Tallagang. This counter‑blast case was made by them only to make the case balance. This case is false, frivolous and untrue as fabricated one."

5. The challan in the present case was submitted before the Special Court in February, 1997, whereas the charge against the appellants was framed on 4‑10‑1999. The learned trial Judge having found the appellants guilty of the charge convicted and sentenced them as detailed above.

6. Learned counsel for the appellants has raised the following contentions:‑‑ (a) That the case was not triable by the Special Court established under Anti‑Terrorism Act, 1997, and while placing reliance on Mehram Ali's case PLD 1998 SC 1445 and Mst. Azeeba Kausar v. Zafar Iqbal and 2 others 2001 PCr.LJ 255 contended that none of the offences except section 295‑A, P.P.C. was included in the schedule to the Anti‑Terrorism Act, 1997, therefore, the Special Court was not competent to take cognizance of the matter. (b) That the bare perusal of the F.I.R. would show that section 295‑A, P.P.C. was not attracted and the charge was wrongly framed under the said provisions of law and for that reasons the trial Court subsequently held that no offence under section 295‑A, P.P.C. was committed.. (c) That the incident happened before the promulgation of Anti Terrorism Act, 1997, and the same having no nexus with section 6 of the Anti‑Terrorism Act, 1997, was not triable on the strength of said section by the Special Court. (d) That without framing the charge under section 8 or 9 of the Anti Terrorism Act, 1997, for commission of an offence punishable under said sections, the learned trial Judge could not assume the jurisdiction for the offences not included in the schedule to the Anti Terrorism Act, 1997. (e) That occurrence took place at 10‑00 p.m. and there was no evidence that the light was available either in the Imam Bargah or in the surrounding areas to establish the identity of the appellants. (f) That as per prosecution story in addition to the appellants, about three to four hundred persons of the area participated in the alleged occurrence and both groups having acquaintance with each other none‑else except the appellants was named as accused. (g) That the enmity of the appellants with the complainant party due to the murder of Sheikh Muhammad Yousaf on religious differences is an admitted fact, therefore, the possibility of their false implication would not be ruled out. (h) That it is not known that who out of 3/4 hundred persons put the properties in question on fire and further except the allegation that the appellants were participants of the procession, no specific role was attributed to an accused to hold him individually or all the accused collectively responsible for commission of the offence. (i) That the presence of the eye‑witnesses who claimed to have gone to Imam Bargah for offering Isha prayers was doubtful as the occurrence took place much after the Isha prayer's time and the witnesses have not given any explanation that for what purpose they remained present in the mosque located within the premises of Imam Bargah after Isha prayer. (j) That the vehicles produced before the Court were not found burnt in the statement of Shabbir Hussain Shah P.W.2 whereas Gul Hussain Shah, S.‑I. P.W.3 in his statement stated that he did not remove the burnt articles which were in the form of scrap, This contradiction would show that either any vehicle nor any property was set on fire or damaged as alleged. (k) That there was not an iota of evidence to sustain the conviction and sentence under sections 324/149, P.P.C. (l) That the Imam Bargah being not a private property, the appellants were wrongly convicted under sections 457/149, P.P.C. Similarly there was no allegation of commission of any offence under section 380, P.P.C. therefore, the conviction and sentence under the said section was also not sustainable. (m) There was a crowd of 3/4 hundred persons in the form of procession and the participants of the occurrence would not have common object to commit an offence under section 147, P.P.C. and mere identification of the appellants in the crowd would not be sufficient to fix their liability as accused unless it would have established that each accused as a member of unlawful assembly had the common object or intention or knowledge to commit such an offence. (n) That the sentence under sections 295/149, P.P.C. is not sustainable for the simple reason that the offence being not triable by the Special Court the sentence and conviction was coram non judice. (o) That there is no evidence except the oral statements of two eye witnesses in support of the charge under sections 436/427/149, P.P.C., therefore, the uncorroborated oral testimony of interested and inimical witnesses would not be enough to sustain the conviction. Lastly learned counsel argued the it is not mentioned in the F.I.R. that the eye‑witnesses were present at the spot and if they were present what was the reason of not lodging the report of the occurrence which took place at 10‑00 p.m. in the night till 2‑30 p.m. in the morning. The learned counsel added that carrying of kerosene oil by three accused was also not mentioned in the F.I.R. and further none of the appellants was assigned any specific role except the general allegation of causing the damage and setting the property on fire; therefore, the conviction and sentence was bad in law.

7. Learned counsel for the complainant, on the other hand, has raised the following contention:‑‑ (a) That Shia offered Isha prayer at about 9‑00 p.m., therefore, the presence of the eye‑witnesses in the mosque after Isha prayer was not questionable. (b) That the eye‑witnesses are the residents of the locality where the occurrence took place, therefore, they were natural witnesses and they had no personal enmity or grudge against the appellants to falsely implicate them in the occurrence. (c) That it is an admitted fact that Muhammad Yousaf, head of Ahl‑e -Sunnat Wal‑Jamaat was murdered on the said date and the persons of Shia Sect were nominated as accused in the murder case, therefore, the retaliation of the complainant party due to murder of Sheikh Muhammad Yousaf was natural and in consequence thereto the accused being prominent persons of their Jamaat while actively leading the procession were identifiable. (d) That it is a matter of common sense that in the Imam Bargah and the mosque where the witnesses were present, light would be available as Jhatila is a big village and no question was put to either of the witness that either the village was not electrified or the light was not available in Imam Bargah or in the mosque at the relevant time, therefore, the identification of the appellants was beyond doubt. (e) That notwithstanding the discrepancies, if any, in the statements of the witnesses regarding the. recovery of the damaged/burnt vehicles from the spot and other articles, it is an admitted fact that the appellants were members of the crowd and being active participants of the procession set on fire the vehicles and the properties and thus, would be saddled with the liability of commission of offence under sections 436/427/295/457/147/148/149, P.P.C. Learned counsel, however, conceded that there was no specific evidence to prove the charge under sections 324 and 380/149, P.P.C. The learned counsel has contended that the Imam Bargah is a place of worship of Shia Sect and the appellants while trespassing into the, premises of Imam Bargah committed an offence under section 457, P.P.C. He added that despite acquittal of the appellants under section 295‑A, P.P.C., the jurisdiction of the trial Court would not be effected. The learned counsel submitted that notwithstanding the subsequent acquittal of the accused under section 295‑A, P.P.C., the conviction and sentence of the appellants for the remaining charges was not challengeable on the ground that since they were acquitted from the charge under section 295‑A, P.P.C., therefore, the trial Court lacked jurisdiction.

8. Learned counsel for the parties in support of their respective contentions has placed reliance on the following case‑law:‑‑ (1) PLD 1959 (W.P.) Lah. 883, (2) PLD 1965 SC 681, (3) 1970 SCMR 840, (4) PLD 1977 SC 413, (5) 1984 SCMR 930 and (6) PLD 1985 SC

11. The case‑law referred by the complainant's counsel. (1) PLD 1980 SC 317, (2) NLR 1981 Criminal 14, (3) 1994 SCMR 717 and (4) PLD 1998 SC 1445.

9. Learned State Counsel while adopting the arguments advanced by the learned counsel for the complainant has supported the conviction and sentence commission of non‑schedule offence. The acquittal of the appellants under section 295‑A, P.P.C. could be challenged by way of an appeal and non filing of such an‑ appeal by the State would neither render the trial illegal or without jurisdiction or suggested that an offence under section 295‑A, P.P.C. without having nexus with section 6 of the Anti‑Terrorism Act, 1997, was not triable by the Special Court as a schedule offence and that the trial of non‑schedule offence by the Special Court with schedule offence would be without jurisdiction in case of ultimate acquittal from the schedule offence. The ultimate result would neither effect the jurisdiction of‑the Court nor render the conviction or acquittal as illegal. I, therefore, hold that the Special Court established under Anti‑Terrorism Act, 1997, was competent to try the appellants for the offence with which they were charged.

14. There is no cavil to the proposition that no person can be awarded punishment other than the punishment provided under the law at the time of commission of an offence but. an enactment of procedural law may take retrospective 'effect, if the substantive rights are not disturbed and thus, the Statute relating to the substantive rights cannot operate retrospectively as such whereas the procedural changes in law can be made applicable to the pending cases.

15. Coming to the facts of the case, the occurrence in the present case is found to have taken place in the Imam Kot, which is a place of worship of Shia Sect. Malik Zawar Hussain and Shabbir Hussain Shah have claimed their presence in the mosque inside the Imam Kot. Malik Zawar Hussain being first informant claimed that the appellants being the active participants of procession set on fire the houses and the vehicles parked in the courtyard of Imam Bargah. This witness has categorically stated that the appellants set on fire the Medical Store of Shabbir Hussain Shah, the house of Malik Fayyaz Haider, Malik Muhammad Khan and also the Baithak of his house. The witness further stated that the appellants while setting on fire the household articles lying in the houses of the abovesaid persons damaged their properties and that Shabbir Hussain Shah and Altaf Hussain Shah were also victims of the occurrence. The witness while repeating the story of the F.I.R. in his statement at the trial has fully supported the prosecution. The defence despite lengthy cross‑examination has not been able to bring on record anything material to suggest that either the eye‑witnesses were not present inside the premises of Imam Bargah or that the properties and the vehicles as stated by the first informant were not set on fire and damaged. Learned counsel for‑ the appellants on the basis of minor discrepancies and the contradictions in the statements of the witnesses has challenged the truthfulness of ocular account but he has not been able to point out any plausible doubt in the ocular account of the prosecution case. Shabbir Hussain P.W.2 while claiming his presence at the spot has corroborated Malik Zawar Hussain P.W.1 on each material point. This witness has deposed that in addition to his house, the houses of the above named persons belonging to Shia Sect were also damaged.

16. The occurrence in the present case took place about 10‑00' p.m. and the S.H.O. while reaching at the spot with the police party shortly after the occurrence recorded the statement (Exh.P.A.) of Zawar Hussain. The time consumed by the police in recording the statement of the complainant at 2‑30 a.m. would be natural in the given circumstances, therefore, the delay of about four hours would have no adverse effect on the prosecution story. The eye‑witnesses have categorically stated that 300/400 persons participated in the procession but they could only identify the appellants and, therefore, the contention of the learned counsel that without determining the liability of all the participants of the occurrence individually, the conviction and the sentence of the appellants was bad in law, is without force. It is an admitted fact that about two hours before the said occurrence, it was announced in the mosques of the village that Muhammad Yousaf, head of the Suni Sect in the village was murdered and the complainant party of the present case was held responsible for committing the murder of Muhammad Yousaf due to sectarian reasons and religious differences and consequently, it was natural for the sympathizers of Muhammad Yousaf out of respect and religious attachment to show resentment against their opponents. There was no other motive for committing the murder of Muhammad Yousaf except the Religious differences and in consequence thereto, the present occurrence took place in which the people belonging to Sunni Sect in retaliation attacked on the Imam Bargah of Shia Sect. Thus, the contention of the learned counsel that out of the crowd of 300/400 persons the appellants were made scapegoat due to previous enmity would have no substance and the appellants who were identified as active participants of the occurrence and who allegedly played the role of setting on fire the properties of complainant party could not plead to be innocent participants of the procession.

17. The Investigating Officer having taken into possession the burnt articles from inside the Imam Bargah and the house of the persons belonging to Shia Sect has supported the prosecution version that as a result of attack the vehicles were burnt and properties were damaged, therefore, the contention of the learned counsel that the vehicles were found in running condition and were not damaged or burnt as alleged and that the offence with which the appellants were charged, convicted and sentenced would not be made out, was also without force. The essential ingredients to constitute an offence under sections 436/427, P.P.C. would be the destruction of the property irrespective of the fact that it belonged to a witness or to a stranger. The damage and destruction of property as a result of sectarian dispute is established and that the recovery of the property and its production in the Court in evidence would only be material for corroboration to the story described by the eye‑witnesses and would not as such an independent evidence in proof of commission of such an offence. In the present case, in addition to the allegation of burning the vehicles and furniture, it was also brought on record that the houses were put on fire and even if the recoveries of the burnt vehicles is excluded from consideration, the statements of the eye‑witnesses to the effect that the houses were burnt and the household articles lying therein were damaged would sufficient to establish the commission of an offence. The allegation of attacking on the Imam Bargah and setting. on fire the premises was proved by the eye‑witness beyond doubt and further the agitation of people belonging to Sunni Sect on coming to know of the murder of Muhammad Yousaf on that day while taking out the procession was not denied. Thus, notwithstanding the proof of recovery of the burnt vehicles, the evidence of the eye‑witnesses to the effect that the properties were put on fire and were damaged would seek sufficient corroboration from the attending circumstances.

18. The review of the evidence would leave no doubt to believe that the occurrence took place in the manner as suggested by the prosecution, therefore, the essential question for determination would be that what offence was committed by the appellants. The learned counsel representing the complainant has frankly conceded that the conviction and sentence under sections 324/380/149, P.P.C. was not supported by any evidence and consequently the conviction and sentence of the appellants under sections 324/380/149, P.P.C. is set aside.

19. There is direct evidence in support of the charge under sections 295/149, 436/149 and 427/149, P.P.C. and, therefore, the commission of said offences by the appellants is proved beyond doubt.

20. There is sufficient evidence on record that the appellants entered into Imam Bargah and caused damaged to the properties during the night time, but there is no evidence that Imam Bargab being a place of worship of Shia Sect entry to it would be restricted to a limited class of Shia or that only the people of Shia Sect would have right of entry in the said place of worship and a person not belonging to that Sect would have no right to enter into Imam Bargah and that entry of such person in Imam Bargah would amount to trespass. There is also no evidence that the entry of any other person except a member of Shia Sect in the Imam Bargah was prohibited, therefore, the conviction and sentence under section 457, P.P.C. would be doubtful.

21. The next question for consideration relates to the quantum of sentence. Admittedly the occurrence was the result of murder of Muhammad Yousaf, head of Ahl‑e‑Sunnat Wal‑Jamaat, therefore, the appellants belonging to the said Jamaat being sentimental while participating to the procession set on fire the buildings and vehicles and also caused damage to the movable and immovable properties belonging to the Shia Sect, therefore, the element of pre‑planning to cause damage in the given situation to the properties of Shia Sect would not be a common object of the participants of the procession. It appears that in the process of agitation, the appellants developed the object of attacking on Imam Bargah and in consequence thereto set on fire the buildings, vehicles and caused damaged to the properties. Thus, all the participants of the procession would not a% such have common object to commit an offence but due to the instigation of the appellants who were active in the procession against the Shia Sect because of the religious differences with common object committed the offence of setting on fire the properties and causing of damage to movable and immovable properties of their religious opponents. Therefore, notwithstanding the assignment of specific role to an individual accused, the appellants while jointly showing their resentment with the common object of taking out procession were collectively responsible for the commission of the offences under sections 436/149, 427/149 and 295, P.P.C. read with section 147, P.P.C. Since the fateful occurrence took place in retaliation and the circumstances under which the occurrence happened would be a source of mitigation for taking a lenient view in the matter of sentence. In my view the sentence of life imprisonment awarded to the appellants under sections 436/149, P.P.C. being excessive should be reduced to ten years' R.I. each with a fine of Rs.25,000 each instead of Rs.50,000 each. Order accordingly. The sentences under sections 147, 427/149 and 295/149, P.P.C. would need no interference and is maintained accordingly. However, all the sentences shall run concurrently and the appellants shall be entitled to the benefit of section 382‑B, Cr.P.C.

22. With the above modification in the conviction and sentence; this appeal is dismissed.

23. For the foregoing reasons, the criminal revision filed by Zawar Hussain Shah complainant for the enhancement of the sentence of the appellants is also dismissed. N.H.Q./A‑250/L Order accordingly.