2004 PLP 152 (MLD)

P.W.2 Mr. Arshad Mehmood Mashir of the recovery, and arrest.

03. P.W.3 Inspector Irshad Ahmed Sohail Investigating Officer.

5. The respondents in their statements recorded under section 342, Cr.P.C. denied all the allegations of the prosecution. They claimed that they were arrested before the alleged incident and recovery. They produced newspaper cutting and documents in support of their claim. The respondents neither examined themselves on oath nor led any evidence in their defence.

6. After considering the material available on the record the learned trial Judge acquitted the respondents under the impugned judgment.

7. The State through Advocate‑General Sindh has filed the present appeal to challenge the impugned judgment.

8. We have heard the Additional Advocate‑General Sindh and perused the record of this case very carefully. The learned A.A.‑G. has stated that all the witnesses have supported the prosecution case and audio cassettes and books have been secured from the possession of the respondents; that the said material contained sounds and writing which are threatening, abusive and insulting to the Shia sect, therefore, the case has been proved against the respondents and hence he requested for setting aside the impugned judgment.

9. We have given due consideration to the arguments. The witnesses have deposed that some audio‑cassettes and. books were secured from the possession of the respondents: The perusal of section 8(d) of Act, 1997, shows that mere possession of audio‑cassettes and books is not enough to constitute the offence but if the said material was being carried with intent to display or publish by the said persons or by any other person and thereby they intended to stir up sectarian hatred or which was likely to stir up sectarian hatred then only section 8(d) or Act. 1997 would come into play. For convenience sake section 8(d) of Act, 1997, is reproduced hereunder:‑‑ "

8. Prohibition of acts intended or likely to stir up sectarian hatred:‑‑‑A person who‑‑‑ (a)

(b)

(c)

(d) has in his possession written material or a recording or visual images or sounds which are threatening, abusive or insulting with a view to their being displaced or published by himself or another, shall be guilty of an offence if" (i) he intends thereby to stir up sectarian hatred; or (ii) having regard to‑all the circumstances, sectarian hatred is likely to be stirred up thereby. "

10. A perusal of this section reveals that a double intention has beer provided in this offence to attract the ingredients of provisions. The first intention is that the person from whose possession the material is secured intended to display or published the same and secondly the said display and publication was made with intent to stir up sectarian hatred or which was likely to do so. In the present case the prosecution have only shown that certain audio‑cassettes and books were secured but the required two intentions as provided under section 8(d) of Act, 1997, have not been proved as no evidence has been led by the prosecution nor such inference can be drawn from the evidence brought on the record by the prosecution. Thus, the main ingredients of section 8(d) of the Act, 1997 have not been proved in this case.

11. The learned trial Judge has rightly held that ingredients of the said section are not attracted in the circumstances of the present case. There is no illegality or irregularity in the impugned judgment, therefore, it does not require any interference.

12. By our short order dated 29‑4‑2003, we had dismissed the Special ATA Appeal No. 85 of 2002, in limine and above are the reasons for the same. H.B.T./S‑336/K Appeal dismissed.