2003 P Cr (PLP)

8. Both the respondents neither examined themselves on oath nor led any evidence in their defence.

9. Pre‑admission notices were issued to the respondents, which could not be served upon them, therefore, bailable warrants and subsequently non‑bailable warrants for their arrest were issued which were also returned unexecuted. The appeal was admitted on 15‑5‑2002. Again non‑bailable warrants were issued to respondents, which were served upon respondent No.2, who was brought before the Court and was remanded to judicial custody with a direction to furnish surety in the sum of Rs.50,

000. Thereafter, non‑bailable warrants were repeatedly issued against the respondent No. 1 but the same could not be served upon him, therefore, on 15‑10‑2002 the case of the respondent No. 1 was separated, from the case of the respondent No.2 and thereafter the arguments were heard in respect of appeal against the respondent No.2.

10. The learned A.A.‑G. has stated that all the eye‑witnesses have fully supported the prosecution case in respect of charging Bhatta by the respondents, who were apprehended at the spot. He has further argued that the observation of the learned trial Court that attempt for an offence of charging Bhatta is not covered by Act, 1997, is not correct as the same is covered by Item No.4 of schedule of offences appended to the Act, 1997. He has further argued that the witnesses have also supported the charge of 13‑D of Ordinance, 1965, against the respondent No. 1, therefore, he has prayed for conviction of the respondent No.2.

11. On the other hand, the respondent No.2 has stated that he has been involved in this case due to enmity with P.W. Kafeel Ahmed and respondent No. 1 over the affairs of installation of stall at Jumma Bazar. He has further stated that he had gone to the shop with respondent No. 1, as he was his friend, in connection with the sample of garments and when he came out from the shop to bring sample of garments from the taxi, he received injuries from the hands of police without any cause or reason and that in order to justify their action the police had prepared this false case.

12. We have gone through the evidence of the prosecution witnesses with the help of learned A.A.‑C. and find that the prosecution has examined three eye‑witnesses, viz. complainant Javed Akhtar, P.W. Arif Siddiqui and P. W. Kafeel Ahmed. They have fully supported the prosecution case in respect of charging Bhatta and have given the same details of incident as disclosed in the F.I.R. which facts are given in the earlier part of .the judgment. The witnesses were subjected to the cross- examination but nothing has come on record to discredit their evidence. The respondent No.2 in his statement, recorded under section 342, Cr.P.C., has admitted his presence at the scene of the incident. He has admitted receipt of injuries on his person from the hands of police but took the plea that the respondent No.1 had dispute with P.W. Kafeel Ahmed and they went there to show the sample of garments. In this connection it is pointed out that in the statement recorded under section 342, Cr.P.C. of respondent No.1, it has been admitted that the dispute with regard to the installation of stall at Jumma Bazar was amicably settled by one Kalia Munna and thereafter the respondent No.2 went to the shop of P.W. Kafeel Ahmed. This admission by itself shows that whatever the dispute between the respondent No.1 and P.W. Kafeel Ahmed was amicably settled between them and in pursuance of that settlement the relationship between them became cordial, therefore, the respondents went to the scene of incident in respect of the sample of garments, as alleged, as such the stand taken by the respondent No.2 has been falsified.

13. The learned trial Court Judge has also believed the statements of the eye‑witnesses on the point of charging Bhatta but came to the conclusion that as Bhatta was not paid to the respondents, therefore, an attempt was made to charge Bhatta and that the said attempt of charging Bhatta was not covered by section 6(d) of Act, 1997, as such the learned Judge had acquitted the respondents. It appears that the trial Court had not considered the other provisions and schedule of offences appended to the Act, 1997 while arriving at the above mentioned conclusion.

14. A perusal of section 6 shows that definition of "Terrorism act" has been given in it and under clause (d), charging of Bhatta has been included within the definition of Terrorism Act. The act of charging Bhatta, as defined under section 6(d) of Act, 1997, has been made punishable under section 7(iii) of Act, 1997, under which the punishment way extend to seven years and with fine. As such the charging of Bhatta, tall defined under section 6(d) is an offence which is punishable under Act, 1997, Item No.1 of schedule of offences appended to Act, 1997, shows that any offence punishable under the Act, 1997 is a scheduled offence. The said item reads as under:‑ "any offence punishable under this Act."

15. Under Item No.4 of the said Schedule any attempt or conspiracy to commit or any abetment of any of the offences mentioned, in Items Nos.1 to 3 have also been made as scheduled offences. The said item reads as follows:‑‑ "Any attempt or conspiracy to commit or any abetment of any of the aforesaid offences."

16. If all the above provisions are read together then it will be clear that the attempt of charging Bhatta is a scheduled offence which is triable by the Anti‑Terrorism Courts.

17. After scrutinizing the evidence available on the record, we are of the considered view that the prosecution has proved that the respondent No.2 had gone to the shop of the complainant to collect Bhatta, which they had demanded earlier, but due to the intervention of police the respondent No.2 could not succeed, but was apprehended at the spot after receiving fire‑arm injuries from the hands of police. Thus, the prosecution have proved their case to the above extent against the respondent No.2 beyond any shadow of doubt.

18. As regards the charge under sections 386/324/353/34, P.P.C. is concerned we have examined‑the evidence of the prosecution witnesses Nos. 1 to 7 and have also given our due consideration to the reasoning of the trial Court and find that the trial Court had assigned cogent reasons in disbelieving the evidence on the above point and appreciated the evidence in accordance with the settled principles of criminal administration of justice, therefore, we do not find any reason to interfere with the said findings.

19. After considering the material available on the record, we are of the considered view that the respondent No.2 has committed the offence as defined fined under section 6(d), punishable under section 7(iii) of the Act, read with Items Nos.1 and 4 of Schedule of Offences appended to the Act, 1997. As an attempt has been made to commit the offence of charging Bhatta, therefore, the respondent No.2 is sentenced to suffer R.I. for 3 years and to pay fine of Rs.20,000 (twenty thousand). In case of non‑payment of fine the respondent No.2 is directed to undergo R.I. for six months more. Benefit of section 382‑B, Cr.P.C. is extended to the respondent No.2.

20. The appeal against the respondent No.2 Abdul Rehman is partly allowed to the above extent.

21. As the appeal against respondent No. 1 Azeem Shakir is pending, therefore, non‑bailable warrants of his arrest be issued. Adjourned. N.H.Q./S‑262/K Appeal partly allowed.