2016 PLP 122 (YLRN)

SHAHID HAMEED DAR, J.

Muhammad Irfan-appellant was held guilty under sections 336, 337-F(i), P.P.C. read with section 7(c) of the Anti-Terrorism Act, 1997 by the learned Judge, Anti-Terrorism Court, Faisalabad, vide judgment dated 4.4.2009 and sentenced as under:- i) Under section 336, P.P.C.: to undergo rigorous imprisonment for ten years on two counts for causing disfigurement of faces of Muhammad Asif (P.W.4) and Muhammad Irshad (P.W.5) with further direction to pay Arsh each to both the injured PWs. ii) Under section 337-F(i), P.P.C.: To undergo rigorous imprisonment for one year on two counts for causing injuries, Jurh Ghayr-Jaifah Damiyah, to Muhammad Asif (P.W.4) and Muhammad Irshad (P.W.5) with further direction to pay Rs.5000/- each to both the injured PWs as Daman. iii) Under section 7(c) of ATA, 1997: to undergo rigorous imprisonment for ten years each'with fine of Rs.10,000/- or in default thereof to undergo simple imprisonment for three months. All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was, however, extended to him.

2. The convict-appellant by filing the instant appeal has called in question the impugned judgment.

3. Precisely, the allegation against the appellant as per contents of the FIR (Exh.PD/2), registered at the instance of Muhammad Amjad- complainant (P.W.3), is that he left his shop situated in the chak at about 9.00 p.m., on 4.7.2007 and went to home to take meals, leaving behind his brothers Muhammad Asif (P.W.4) and Muhammad Irshad (P.W.5); when he reached near the girls school of his village, he heard hue and cry after him, whereon he turned back towards his shop and learnt that Muhammad Irfan (appellant) had sprinkled acid over his brothers and fled the scene; the occurrence was witnessed by Muhammad Taj, Muhammad Yaqoob and Muhammad Siddique, who sat on a cot nearby; his brothers being badly burnt were taken to District Headquarters Hospital, Toba Tek Singh for treatment; the medical officer after medically examining them issued medico-legal reports (Exh.PA and Exh.PB), respectively; the accused beseeched him for a pardon, but he did not agree to it; the motive behind the occurrence pertained to business rivalry between the parties and accused/appellant, for this reason, had extended threats of dire consequences to the complainant-party earlier as well; the complainant submitted an application (Exh.PD) before Iftikhar Ahmad, SI (P.W.6), at 7.00 p.m., on 7.7.2007, when he was present at Pull Nagra, which was despatched by him to the police station, on the basis whereof formal F.I.R. (Exh.PD/2) was drawn up by Imtiaz Hussain, ASI/DO at 7.25 p.m., the same day.

4. After registration of the case, Iftikhar Ahmad, SI (P.W.6), took over the investigation and immediately reached the venue of the crime, inspected it and prepared visual site plan (Exh.PE) thereof; he recorded statements of the prosecution witnesses under section 161, Cr.P.C. and searched for the accused; on 16.7.2007, he arrested the accused-appellant, who produced before him a plastic bottle of white colour (P 1), which he seized vide recovery memo Exh.PC, duly attested by Abdul Razzaq (P.W.2) and Hashmat PW (not produced); the injured PWs produced before him the snaps (P2/1-4), which he placed on the record; on 18.7.2007, he added offence under section 336, P.P.C.; on completion of investigation, he prepared challan under section 173, Cr.P.C. and submitted it before the Court for trial of the accused in accordance with law.

5. The appellant on indictment pleaded not guilty and claimed a trial. The prosecution, in order to prove its case, produced six witnesses, namely, Dr.Zia Aziz (P.W.1), Abdul Razzaq (P.W.2), Muhammad Amjad-complainant (P.W.3), Muhammad Asif, injured (P.W.4), Muhammad Irshad, injured (P.W.5) and Iftikhar Ahmad, SI/IO (P.W.6). Thereafter, the appellant was examined under section 342, Cr.P.C., whereby he professed his innocence in the matter and denied all the charges against him. He did not opt to depose under section 340(2), Cr.P.C. nor he adduced any evidence in defence. The contention adopted by him in reply to question as to why this case against him and why the PWs deposed against him, reads as under:- "It is a false case. I have been involved in this case falsely due to business rivalry as the complainant have to start the business in Chak No.292/GB. PWs are related with each other and belong to the same brother-hood. They have deposed against me with the connivance of the complainant. I am innocent." The appellant while answering the question "Will you say anything else in your defence" further added:- "I am innocent. Two days prior to this occurrence Khurram Shehzad, relative of Mehmood-ul -Haq, Naib Nazam and Kashif son of Faqir Muhammad had a qurrel with Muhammad Asif injured PW because Asif injured PW had joked Mst. Shehnaz, wife of Kashif. The said Naib Nazam had got this false case registered against me with the connivance of the complainant just to save his relative Khurram Shehzad. Actually the complainant party want to start a shop in Chak No.292/GB and they also want to close my shop already present in the said Chak No.292/GB." The learned trial Judge on conclusion of the trial held him guilty of the offences charged and sentenced him as mentioned hereinabove.

6. Learned counsel for the appellant has submitted that the offence against the appellant did not fall within the definition of an act of terrorism and his trial has been conducted by the Anti-Terrorism Court in an unlawful manner; the third schedule of the Anti-Terrorism Act, 1997 qua causing of bodily hurt by means of a corrosive substance was amended in year 2010, subsequently amended/revised in year 2012, whereas the case against the appellant was registered in year 2007 i.e. on 4.7.2007, and in such a situation the entire proceedings conducted by the trial court are gratuitous in nature; there exists no evidence on the record that the act of the appellant was designed to coerce and intimidate or overawe the government or public or a section of the public or community or a sect or create a sense of fear or insecurity in the society; the conviction and sentence of the appellant under section 7(c) of the Anti-Terrorism Act, 1997 may be set aside; so far as conviction and sentence of the accused/appellant for offence under sections 336 and 337-F(i), P.P.C. as recorded by the learned trial court is concerned, it may be reduced to the period already undergone by him, as he is behind the bars since 16.7.2007.

7. Learned counsel for the complainant, on the other hand, has argued that the appellant committed a heinous crime as he caused disfigurement of the faces of Muhammad Asif (P.W.4) and Muhammad Irshad (P.W.5) by throwing acid on them and his act being barbaric, spread dread and fear amongst the public at large; the trial of the accused/appellant has been conducted lawfully by the learned trial court and no illegality has been committed by it in this regard; the appellant has himself admitted to have committed the crime, hence, his appeal may be dismissed and conviction/sentence awarded to him by the learned trial court may be upheld.

8. Learned Deputy Prosecutor General Punjab submits that use of corrosive substance for causing bodily injuries by an accused was notified a scheduled offence, within the mischief of the Anti-Terrorism Act, 1997, in year 2010; the act of the accused, however, may be deemed an act of terrorism as it brought fear and freight to the public at large; the prosecution case overflows with the connecting evidence against the appellant and he has been rightly convicted/sentenced by the learned trial court, hence, his appeal may be dismissed.

9. After hearing learned counsel for the parties and perusing the record, it is observed that the learned counsel for the appellant did not look much worried about the conviction of the appellant for offences under sections 336 and 337-F(i), P.P.C. as recorded by the learned trial court, but he pleaded reduction in his sentence to the period, already served out by him as he had not been rewarded any remissions by the jail authorities for his pre-judgment and post-judgment incarceration, for having been convicted under section 7(c) of the Anti-Terrorism Act, 1997. The learned counsel, however, vociferously believed that the act of the accused, for having burnt faces of the victims (P.W.4 and P.W.5) did not constitute an act of terrorism as it had no nexus with the earlier part of section 6 of the Act (ibid). Mere brutality of an offence, in absence of the requirement of section 6 would not constitute an offence under section 7 of the said Act. It has been held time and again, where element of sense of fear or insecurity in public or a section of the public, is missing, the heinousness alone may not render a case triable under the Anti-Terrorism Act, 1997. The offences committed in the background of personal enmity or with the burning desire of settling private vendetta resulting in fear to many or a few certainly do not fall within the domain of Anti-Terrorism Act, 1997. Whether a particular act is an act of terrorism or not, the purpose, the motivation, the actus reus or mens rea are the determining factors to resolve the said riddle. The fear or insecurity in the society, as a fallout or un-designed consequences, is not by itself terrorism, unless the motive or the design or the mens rea pre-exist for creating such fear or insecurity in the society. It has been held time and again by the apex court as well as by this court that fear or insecurity must not be a byproduct, fallout or unintended consequence of a private crime and this is what to be understood, while determining, if a crime/offence committed, could be held an act of terrorism or not. The creation of fear and insecurity in the society is not itself terrorism unless it is coupled with the motive. It is essential that the offence committed must have a nexus with the object of the case as contemplated under sections 6, 7 and 8 of the Anti-Terrorism Act, 1997. The facts of the case as contained in the FIR (Exh.PD/2) precisely reveal that the accused-appellant committed the crime in the backdrop of a dispute between the parties over opening a shop in the village. The appellant in this particular context also extended threats of dire consequences to Muhammad Amjad-complainant (P.W.3) in the past. It has not been so contended by the complainant in the FIR that act of the accused spread terror, insecurity or diffidence in the vicinity or in the society or in a section of the society or present crime was committed to destabilize the public at large. The complainant (P.W.3), however, improved upon his previous statement by contending that "Due to sprinkling acid on my brothers, a sense of fear, terror and insecurity spread amongst the people and they confined themselves in their house." The attention of the P.W. was drawn to his previous statement, the written application (Exh.PD) for registration of the FIR, which did not contain the said fact. Muhammad Asif (P.W.4) did not utter any word, if occurrence committed by the accused was a source of spreading fear, terror, freight, sense of insecurity or destabilization amongst the people of locality. Similar is the tenor of the testimony of Muhammad Irshad injured (P.W.5). He also kept silent qua the mentioned fact. The injured P.Ws. Muhammad Asif and Muhammad Irshad stated in their testimonies that a large number of persons gathered at the place of occurrence, after the accused having done the wrong, ran away. So far as the ocular account tendered by Muhammad Amjad (P.W.3), Muhammad Asif (P.W.4) and Muhammad Irshad (P.W.5) is concerned, dissenting stance had been taken by them to the afore-noted and oft-repeated pre-requisites of an act of terrorism. The trial court does not appear to have taken regard to the nexus between the offence committed and the object of the case as envisaged by sections 6, 7 and 8 of the Act (ibid). The amendment in relation to the hurt caused by means of corrosive substance was introduced in year 2010 through a notification, which was omitted and replaced by notification No.So(Judl-I)10(1-36(1)/2010, dated 5th September 2012, hence, mere allegation that the accused used the acid for causing bodily injuries to Muhammad Asif (P.W.4) and Muhammad Irshad (P.W.5) would not give rise to an act of terrorism. Resultantly, the conviction/sentence recorded by the trial court against the appellant under section 7(c), Anti-Terrorism Act, 1997 is set aside and he is acquitted of the charge for the mentioned reasons.

10. Insofar as the conviction of the appellant under sections 336 and 337 F(i), P.P.C. is concerned, learned counsel for the appellant has decided not to challenge it and rightly so. The statements of the complainant (P.W.3), Muhammad Asif (P.W.4) and Muhammad Irshad (P.W.5) are well cohesive inter-se and they appear to have supported each other on every material aspect of the case. The occurrence took place in front of shop of the complainant, during the course of which the appellant caused multiple burns to the two brothers (P.W.4 and P.W.5), which fact is fully corroborated by the medical evidence, tendered by Dr. Zia Aziz (P.W.1), who medically examined both the injured witnesses on 4.7.2007 vide medico-legal report(s) Exh.PA, pictorial diagram Exh.PA/1 and Exh.PB, pictorial diagram Exh.PB/1 and declared a couple of their injuries as itlaf-i-salahiyyat-i-udw and rest of the injuries, he declared as shajjah-i-khafifah (337-A(i), P.P.C.) and jurh ghayr-jaifah damiyah (337-F(i), P.P.C.). The ocular account, in its present form, does not contain any material discrepancies or contradictions, which can be considered trustworthy and worth reliance by all means. The evidence of motive also looks believable, having come on the record through the witnesses concerned.

11. The testimonies of the prosecution witnesses in this case are coherent and supportive inter se. We find no inconsistencies or major discrepancies in the prosecution evidence, which appears to bear the stamp of credibility. There exists no reason to believe that the case against the appellant is false or concocted one. Each and every bit of the prosecution's case leads to an irresistible conclusion that the appellant was guilty of the offence charged. We are equally impressed like the trial court was, as to his guilt, having been proven to the hilt through unimpeachable prosecution evidence. The conviction of the appellant recorded by the learned trial court is unexceptionable, but sentence awarded to him in above terms requires a serious/critical thought, which we are inclined to resort to.

12. The appellant stood imprisoned in this case since 16.7.2007. As he had been awarded sentence under section 7(c) of the Anti-Terrorism Act, 1997, hence, his case was not found fit enough by the jail authorities for awarding any remissions to him. The trial court has extended to him the benefit of section 382-B, Cr.P.C. with the direction that his sentences shall run concurrently. In ordinary situation, the appellant may have been awarded remissions spanning over years, in a period of about six and a half years, which is the total period of his imprisonment. Therefore, the request made by the learned counsel for reducing the sentence of the appellant to the period already undergone, is acceded to. Accordingly, by maintaining his conviction under sections 336 and 337-F(i) P.P.C., we reduce his sentence from rigorous imprisonment for ten years to the period already undergone with the direction that the Superintendent Jail concerned would reckon with the remissions, the appellant is entitled to under the law, and credit the worked-out figure to his account. The sentence of Arsh under section 336, P.P.C. and payment of Daman, Rs.5,000/- each under section 337-F(i), P.P.C. by the appellant to both the injured P.Ws. as awarded by the learned trial court through the impugned judgment, however, shall remain intact.

13. This appeal stands partly allowed/dismissed, in mentioned terms. HBT/M-74/L Order accordingly.