PLJ 2022 Cr.C. (Note) 139
[Lahore High Court, Multan Bench]
Present:
Asjad Javaid Ghural and Ali Zia Bajwa, JJ.
MUHAMMAD
MUJAHID--Appellant
versus
STATE
and another--Respondents
Crl.
Appeal No. 79 of 2020 heard on 6.9.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss.
336-B/34--Anti-Terrorism Act, (XXVII of 1997), S. 7--Corrosive substance as
defined in Section 336-A PPC--Boiling oil was thrown over the
body--Compromise--Appellant took up the hot cauldron and poured oil over the
complainant, which burnt his body--Bluster and burn on right side of head,
chest, abdomen, leg etc--Patient have 26% burnt on the body--During the
pendency of the instant appeal, Crl. Misc. was filed under the provisions of
Section 345, Cr.P.C. seeking permission to affect compromise between the
parties--Trial Court recorded statement of the complainant/victim wherein he
stated that he had entered into compromise with the appellant voluntarily out
of his own free will and without any pressure of undue influence and had no
objection on the acquittal of the appellant in his case--The conviction and
sentence recorded against the appellant under the provisions of Sections 324,
336, 337-L(2), PPC, being compoundable, is set aside--As per prosecution
version in the instant case allegedly boiling oil was thrown over the body of
the complainant/victim which does not come within the definition of corrosive
substance--Injury was caused by edible boiling oil, which itself cannot cause
harm to human body--Even simple water, if boiled, can cause injury to human
body but it cannot be termed as corrosive substance as defined in section 336-A
PPC--The appellant is hereby acquitted of the charges. [Para 2, 4, 11, 12, 13, 15 & 16] A, B,
C,
D, E, F, G, H, I
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S.
7--Terrorism--Corrosive substance as defined in Section 336-A, PPC--Boiling oil
was thrown over the body--Occurrence took place as a consequence of altercation
over shifting of stall, whereas, to determine the act of terrorism, nexus has
to be shown between the act alone and the objective or design by which the
offence was committed in order to formulate an opinion whether or not such an
act could be termed terrorism--The case in hand having taken place on account
of personal grudge, the same does not attract the provisions of Section 7 of
the Act, 1997--Appeal allowed.
[Para
] H & I
Mr. Muhammad Usman Sharif Khosa, Advocate for Appellant.
Ch. Muhammad Ali Shohab, Deputy Prosecutor General for State.
Mr. Muhammad Qadir Asif Toor, Advocate for Complainant.
Date of hearing: 6.9.2021.
Judgment
Ali Zia Bajwa, J.--Muhammad
Mujahid son of Iqbal, caste Kumhar, resident of Choti Zarian, Tehsil and
District Dera Ghazi Khan, appellant, along with Muhammad Khalid and Siraj (both
since acquitted) were involved in case FIR No. 186/2019, dated 21.05.2019,
offence under Sections 336-B & 34, PPC, registered with Police Station Choti,
District Dera Ghazi Khan. Later on Section 336-B, PPC and Section 7 of the
Anti-Terrorism Act, 1997 were added in the case. They were tried by learned Judge,
Anti-Terrorism Court Dera Ghazi Khan under the aforementioned offences. Learned
trial Court seized with the matter in terms of judgment dated 10.02.2020
convicted and sentenced the appellant in the following terms:
Ø
Under Section 336-B, PPC, sentenced to undergo
fourteen years R.I. with fine of Rs. 10,00,000/- and in case of default in
payment thereof, to further undergo S.I. for six months.
Ø
Under Section 336, PPC, sentenced to undergo
R.I. for seven years with Arsh amount of Rs. 1,00,000/- and till its payment,
he was ordered to be kept in jail.
Ø
Under Section 337-L(2), PPC, sentenced to
undergo R.I. for two years with Rs. 50,000/- as daman and till its payment, he
was ordered to be kept in jail.
Ø
Under Section 324, PPC, sentenced to undergo
R.I. for seven years with Arsh amount of Rs. 1,00,000/- till payment whereof,
he was ordered to be kept in jail.
Ø
Under Section 7 of the Anti-Terrorism Act, 1997,
sentenced to undergo R.I. for ten years with fine of Rs. 2,00,000/- and in case
of default in payment thereof, to further undergo S.I. for six months.
Ø
All the sentences inflicted upon the appellant
were directed to run concurrently and benefit of Section 382-B, Cr.P.C. was
also extended in his favour.
Co-accused Muhammad Khalid and Siraj
were acquitted. The appellant has assailed his conviction and sentence through
filing the instant appeal.
2. The prosecution story
as portrayed in the FIR (Exh.PA) lodged on the complaint of Habib Ahmed
complainant is that he used to earn his livelihood through selling ‘samosas/pakoras’
on a stall within the area of Choti Zareen, Chowk Kumharan. On 21.05.2019 at
3:00 p.m. the complainant went to his stall, placed cauldron/karahi on stove,
lit the fire and infused the edible oil in the cauldron. In the meanwhile,
friend of the complainant namely Ghulam Raza son of Allah Wassaya also reached
there. When the oil started heating up, all of a sudden Mujahid (appellant)
along with Khalid and Siraj (both since acquitted) reached there and directed
the complainant to take away the stove. On his refusal, the accused got
infuriated, thereafter the appellant took up the hot cauldron and poured oil
over the complainant, which burnt his body. The drops of boiling oil also burnt
the shoulder and chest of Ghulam Raza. On the hue and cry raised by the
complainant, many persons attracted to the spot and on their intervention the
accused persons while extending threats left the place of occurrence.
3. In order to report the matter to police, the complainant
along with Ghulam Raza went to Police Station, however, on way at Kalma Chowk
he met with Kaleem Ullah, S.I. (PW-4) before whom he made his statement, which
was reduced into writing and the same was transmitted to Police Station for
registration of formal FIR. After preparing injury statements of both the
injured, they were sent to RHC Choti for their medical examination. After
registration of the case, the Investigating Officer visited the place of occurrence
and prepared rough site-plan of the place of occurrence (Exh.PH). He took into
possession cauldron (P-1), stove (P-2) and Cylinder (P-3) vide recovery memo.
Exh.PB from the place of occurrence.
On 24.05.2019, Investigating Officer arrested the appellant and
recorded his version. Subsequently provisions of Section 7 of the
Anti-Terrorism Act, 1997, were added and the investigation was entrusted to Ch.
Ali Muhammad, Inspector (PW-5). During the course of investigation he further
added provisions of Sections 336/337-L (1), PPC. The Investigating Officer
recorded statements of the prosecution witnesses under Section 161, Cr.P.C.
During the course of investigation having found the appellant guilty, he
submitted report under Section 173, Cr.P.C. while placing his name in Column No.
3.
4. After submission of challan, learned trial Court formally
charge sheeted the accused to which they pleaded not guilty and claimed trial. Prosecution
in order to establish its case produced as many as nine (9) prosecution
witnesses.
Muhammad Habib (PW-6) is complainant of the case while Muhammad
Sabir (PW-7) is the other witness of ocular account. On presentation of
complaint, Wazir Ahmed, ASI (PW-1) jotted down the formal FIR (Exh.PA). Kaleem
Ullah, S.I. (PW-4) and Ali Muhammad, Inspector (PW-5) are Investigating
Officers of the case. Dr. Muhammad Ibraheem, Medical Officer (PW-3) medically
examined Muhammad Habib injured victim and observed as under:
"1. Bluster and burn on right side of head,
face, neck, front of right side, back of right side of chest, front of right
abdomen, back of right side of abdomen, right side of groin and external
genetilia and whole of the right leg. Injury No. 1 is KUO for surgeon opinion
and burn center opinion for damage and thickness of the burn. The injury was
KOU.”
After surgeon’s observations, the
doctor rendered the following final opinion:
“Patient was referred
to burn center Nishtar Hospital Multan according to his discharge slip of burn
center, the patient having 26% burnt on the body with full thickness and skin
of the body is permanently destroyed and patient is still in condition of pain
and cannot carry in routine activities. The patient is in life threatening and
dangerous to live condition. So the injuries are 337-L(1)and under Section 336.”
5. On closure of prosecution evidence, the appellant and
co-accused were examined under Section 342, Cr.P.C.; wherein they refuted the
allegations levelled against them in the prosecution evidence. They neither
opted to adduce evidence in their defence nor did they appear as witnesses in
their own defense as provided under Section 340(2), Cr.P.C.
6. After hearing the arguments advanced by the learned counsel
appearing on behalf of both the parties, the learned trial Court, while
evaluating the evidence available on record, convicted the appellant in the
afore-stated terms. Through the impugned judgment co-accused Khalid and Siraj
were acquitted of the charges.
7. At the outset learned counsel for the appellant while
advancing his arguments contended that the impugned judgment has been passed without
adverting to real facts and circumstances of the case and the evidence adduced
during the course of trial. Learned counsel vehemently contended that from the
facts and circumstances of the case provisions of the Anti-Terrorism Act, 1997,
are not attracted. While referring the opinion rendered by the doctor after
medically examining the complainant/victim, learned counsel argued that only
offences under Sections 336, 337-L(l), PPC, are attracted to the case and
ingredients of Section 336-B, PPC are squarely missing in the instant case. It
was vehemently argued that except Section 336-B, PPC, and Section 7
Anti-Terrorism Act of 1997, rest of the offences against the appellant are compoundable
while the complainant has entered into compromise with the appellant and in
this regard he also made statement before the learned trial Court. In these
circumstances learned counsel for the appellant stated that conviction recorded
against the appellant is not sustainable in the eyes of law and prayed for his
clean acquittal of the charges.
8. On the other hand learned Deputy Prosecutor General opposed the
contentions raised on behalf of the appellant mainly on the ground that as the
appellant has been convicted under the provisions of Section 336-B, PPC, and
Section 7 of the Anti-Terrorism Act, 1997, which are non-compoundable,
therefore, he cannot be benefited out of the compromise with the complainant/victim.
9. Arguments advanced from both sides have been heard and record
available on file perused.
10. According to prosecution version on 21.05.2019 at 3:00
p.m., when the complainant was present at Choti Zareen, Chowk Kumharan at his
stall of ‘pakoras/samosas’ and had poured oil in cauldron/karahi on stove, the
present appellant along with other accused approached there and after some
altercation, the appellant took the hot cauldron filled with edible oil and
poured that oil over the complainant, which burnt his body while drops of
boiling ghee also burnt the shoulder and chest of Ghulam Raza, who did not
appear during the course of trial proceedings. After trial the appellant was
convicted under the provisions of Sections 324, 336, 336-B, 337-L(2), PPC, and
Section 7 of the Anti-Terrorism Act, 1997.
11. During the pendency of the instant appeal, Crl. Misc. No. 118/2021
was filed under the provisions of Section 345, Cr.P.C. seeking permission to
affect compromise between the parties and vide order dated 26.01.2021
the same was transmitted to learned Judge, Anti-Terrorism Court, Dera Ghazi
Khan to evaluate the genuineness of the compromise. The learned trial Court
recorded statement of the complainant/victim wherein he stated that he had
entered into compromise with the appellant voluntarily out of his own free will
and without any pressure of undue influence and had no objection on the
acquittal of the appellant in this case. The learned trial Court vide report
dated 13.02.2021 endorsed the statement of the complaint/victim made before it.
Hence, in view of compromise arrived at between the parties, the conviction and
sentence recorded against the appellant under the provisions of Sections 324,
336, 337-L(2), PPC, being compoundable, is set aside.
12. Now adverting to conviction recorded by the learned trial Court
Under Section 336-B PPC and Section 7 of the Anti-Terrorism Act, 1997, we have
minutely gone through oral and documentary evidence available on file. As per
prosecution version in the instant case allegedly boiling oil was thrown over
the body of the complainant/ victim which does not come within the definition
of corrosive substance as enshrined in Section 336-A, PPC, provisions of which
are reproduced as under for ready reference:
“336-A. Hurt caused by corrosive substance:
Whoever with the intention
or knowingly causes or attempts to cause hurt by means of a corrosive substance
which is deleterious to human body when it is swallowed, inhaled, comes into
contact or received into human body or otherwise shall be said to cause hurt by
corrosive substance.
Explanation:- In
this sub-section, unless the context otherwise requires, “corrosive substance”
means a substance which may destroy, cause hurt, deface or dismember any organ
of the human body and includes every kind of acid, poison, explosive or
explosive substance, heating substance, noxious thing, arsenic or any other
chemical which has a corroding effect and which is deleterious to human body.”
13. “Corrosive substances” is a substances which by chemical
action will cause severe damage when in contact with living tissue or in
the case of leakage will materially damage or even destroy other goods or the
means of transport. They may also cause other hazards.[1]
Corrosive substance means any substance, which itself can cause injury to
living tissues by (sic) without additional element or external factors. In
the present case injury was caused by edible boiling oil, which itself cannot
cause harm to human body. For that reason even simple water, if boiled, can
cause injury to human body but it cannot be termed as corrosive substance as
defined in Section 336-A PPC Therefore sentence awarded under Section 336-B,
PPC in this case by trial Court is not sustainable in the eyes of law.
14. Even otherwise the doctor while rendering final opinion had
stated that only provisions of Sections 337-L(1) and 336, PPC, are attracted in
this case. Hence, in our humble view provisions of Section 336-A, PPC,
punishable under Section 336-B, PPC, are squarely missing in the case in hand.
15. As far as the question of applicability of the provisions
of Section 7 of the Act, 1997, in the instant case is concerned, admittedly the
occurrence took place as a consequence of altercation over shifting of stall, whereas
to determine the act of terrorism, nexus has to be shown between the act done
and the objective or design by which the offence was committed in order to
formulate an opinion whether or not such an act could be termed 'Terrorism', which
has been defined in Section 6 ATA, 1997. If facts of the instant case are
scrutinized on the touchstone of the above mentioned provisions of law, it is
abundantly clear that the occurrence being result of personal vendetta,
therefore, in absence of nexus of the act with the terrorism as defined in
Section 6 of the Act, 1997, it cannot be held that the act of the appellants
had transmitted a wave of terror or fright or horror among the general public.
Guidance in this regard is sought from the ratio decidendi of august Supreme
Court of Pakistan in Ghulam Hussain's Case[2]
where after analyzing the entire body of case law on the applicability of Section
7 ATA, 1997, it was held in Para No. 16 as under:
“16. For what has
been discussed above it is concluded and within the meanings of Section 6 of
the Anti-Terrorism Act, 1997 the action must fall in sub-section (2) of Section
6 of the said Act and the use or threat of such action must be designed to
achieve any of the objectives specified in clause (b) of sub-section (1) of
Section 6 of that Act or the use or threat of such action must be to achieve
any of the purposes mentioned in clause (c) of sub-section (1) of Section 6 of
that Act. It is clarified that any action constituting an offence, howsoever
grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed
as terrorism if it is not committed with the design or purpose specified or
mentioned in clauses (b) or (c) of sub-section (1) of Section 6 of the said
Act. It is further clarified that the actions specified in sub-section (2) of
Section 6 of that Act do not qualify to be labeled or characterized as
terrorism if such actions are taken in furtherance of personal enmity or
private vendetta."
16. While examining the case in hand on the guidelines of the superior
Courts of the country provided in various verdicts, we are constrained to
observe that the case in hand having taken place on account of personal grudge,
the same does not attract the provisions of Section 7 of the Act, 1997.
Therefore, the conviction/sentence, recorded by the learned trial Court under
the provisions of Section 7 of the Act, being not sustainable is hereby set
aside.
17. In sequel to what has been discussed above, the instant
appeal is allowed as a consequence whereof, conviction and
sentenced recorded in the judgment dated 10.02.2020 passed by learned Judge,
Anti-Terrorism Court, Dera Ghazi Khan are set aside. The appellant is hereby
acquitted of the charges under Sections 336-B, 336, 337-L2, 324, PPC, and
Section 7 of the Anti-Terrorism Act, 1997, and directed to be released
forthwith, if not required in any other case.
(A.A.K.) Appeal allowed