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Petitioner: Fayyaz Ahmad, etc VS Respondent: The State, etc
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Amjad Rafiq Title: Fayyaz Ahmad, etc vs The State, etc Case No.: Criminal Appeal No.654/2022 Date of Judgment:2023-02-23 Reported As: 2023 LHC 1106 Result: Appeal Allowed
JUDGMENT
JUDGMENT MUHAMMAD AMJAD RAFIQ, J:- Fayyaz Ahmad Bhulka and Muhammad Shahzad along with 130 co- accused faced trial before Anti-Terrorism Court, Bahawalpur in case FIR No.191 dated 03.07.2012 under sections 302/ 353/ 224/225/ 295-B/324/ 435/ 436/ 395/148/149/ 458/ 186/427/ 201/ 337- A(2)/ 337-F(i) / 342 PPC read with section 7 Anti-Terrorism Act, 1997 registered at police station Chanigoth, District Bahawalpur and on conclusion of trial vide judgment dated 31.03.2022 along with twenty two co-accused, the present accused/appellants were convicted and sentenced as under:- i) Rigorous imprisonment for three years each with a fine of Rs.50,000/- each under section 148 PPC, in case of default to further undergo three months SI; ii) Imprisonment for life each under section 302(b)/149 PPC, also to pay Rs.300,000/- each as compensation under section 544-A Cr.P.C., in case of non-payment of compensation each one to further undergo six months SI; iii) Imprisonment for life each under section 7 (a) of the Anti-Terrorism Act, 1997, also to pay Rs.200,000/- each as fine, in case of non payment of compensation each one to further undergo six months SI; iv) Rigorous imprisonment for two years each under section 337 A(i)/149 with further orders to pay daman to the tune of Rs.50,000/- each PPC to injured Naveed Mumtaz DSP for causing Injury No.1; v) Rigorous imprisonment for one year each under section 337-F(i)/149 PPC with further orders to pay daman to the tune of Rs.50,000/- each to injured Naveed Mumtaz DSP for causing Injury No.2; vi) Rigorous imprisonment for one year each under section 337-F(i)/149 PPC with further orders to pay daman to the tune of Rs.50,000/- each to injured Rizwan 934/C for causing Injury No.1 and 2;
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vii) Rigorous imprisonment for two years each under section 337 A(i)/149 PPC with further orders to pay daman to the tune of Rs.50,000/- each to injured Khan Muhammad SI for causing Injury No.1; viii) Rigorous imprisonment for one year each under section 447-F(i)/149 PPC with further orders to pay daman to the tune of Rs.50,000/- each to injured Muhammad Kashif 134/C for causing Injury No.1; ix) Rigorous imprisonment for two years each under section 353/149 PPC with fine of Rs.50,000/- each, in case of default to further undergo three months SI; x) Rigorous imprisonment for five years each alongwith fine of Rs.50,000/- each under section 7(h) of the Anti-Terrorism Act, 1997, in case of non-payment to further undergo three months SI; xi) Rigorous imprisonment for one year each with fine of Rs.50,000/- each under sections 342/149 PPC, in case of default to further undergo one month SI; xii) Rigorous imprisonment for two years each with fine of Rs.50,000/- each under sections 427/149 PPC, in case of default to further undergo one month SI; xiii) Rigorous imprisonment for ten years each with fine of Rs.100,000/- each under sections 449/149 PPC, in case of default to further undergo one year SI; xiv) Rigorous imprisonment for ten years each with fine of Rs.100,000/- each under sections 436/149 PPC, in case of default to further undergo one year SI; xv) Rigorous imprisonment for two years each with fine of Rs.50,000/- each under sections 225/149 PPC, in case of default to further undergo three months SI; xvi) Rigorous imprisonment for ten years each with fine of Rs.100,000/- each under sections 7(d) of the Anti-Terrorism Act, 1997, in case of default to further undergo one year SI. The convicts were further ordered to pay Rs.200,000/- each to Baqa Muhammad under section 544-A Cr.P.C, and in default to further undergo six months simple imprisonment each. They were also ordered to pay a compensation of Rs.100,000/- each under section 544-A Cr.P.C. to Ghulam Mohy-ud-Din Inspector and in case of non-payment to undergo six months simple imprisonment each. All the sentences were ordered to run concurrently and benefit of section 382- B Cr.P.C. was extended. 2. Briefly the facts of case, as mentioned in the F.I.R. (Exh.PP), lodged by Ghulam Mohy-ud-Din Inspector (P.W-7), are that:- On 03.7.2012 while posted as S.H.O at Police Station Chanigoth was present at Police Station with other police officials. Due to the facts and circumstances of case F.IR No.190/2012 registered u/s 295-B P.P.C, people were provoked and were raising slogans that accused of burning of Holy Quran should also be burnt at the place where he had burnt the Holy Quran. On hearing announcements in the Masajid, he informed high-ups through phone and wireless and called for further police contingent whereupon Naveed Mumtaz DSP/SDPO along with police contingent variously armed while boarded on official vehicle also reached at Police Station. While taking safety measures, armed police officials were deputed on all four corners of roof top of Police Station, other police officials were deputed on the inner side of main gate of Police Station and gate was closed. Police officials were also made alert while providing them teargas equipment. There was a huge mob in shape of unlawful assembly while raising slogans that the person of committing burning of Holy Our'an be handed over to them and they would cause his murder by burning him at the same place. SDPO and S.H.O tried to get understand the public. Notables of the City Mehr Muhammad Siddique, Malik Khadim Kulyar, Khalid Gujjar, Sharif, Khuda Bakhsh and Ulema Karam Mufti Zubair, Mufti Abdul Hadi, Mufti Saeed Ahmad, Maulana Abdul Shakoor Farooqi and Nazar Hussain Saeedi also came there. After negotiations, the notables and Ulema Karam tried to convince the miscreants who had circled the Police Station and Saeed Khan Pathan, Muhammad Asghar son of Muhammad Nawaz caste Arain, Muhammad Adil son of Shair Muhammad Mohajer, Ejaz Ahmad son of Aslam Khan, Muhammad Ehsan, Muhammad, Rao Shair Muhammad, Abdul Ghaffar son of
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Abdul Sattar Arain, Zulfiqar Ali, Shabbir Muhammad Tariq son of Muhammad Shafi, Rao Khalid Mehmood Naib Nazim, Rafique Ahmad Panwar, Rasheed Ahmad Panwar, Maqsood Ahmad Arain, Muhammad Azam Panwar, Muhammad Akhtar sweet maker, Tariq Hotelwala, Muhammad Asif son of Habib Ahmad Rajput, Altaf Boharr, Faysal son of Idrees sweet maker, Fayyaz Ahmad Bhulka, Munir Ahmad son of Bashir Ahmad caste Panwar, Muhammad Shehzad son of Muhammad Hafeez, Muzammil Mohajer, Saeed alias Kalu Mohajer, Muhammad Chand son of Jam Fazal, Muhammad Asif son of Arif (cycle works) were leading the mob and other accused persons 2000/2500 in number, amongst those some were armed with weapons, some had bricks after breaking wall of Police Station, some were having cans of petrol and kerosene oil in their hands, were raising slogans. Ulema tried to pacify the accused persons (but failed) and went away. Meanwhile, Maulana Abdul Latif, Saeed wali Masjid started announcements on speakers of Masajid to provoke/instigate the public to gather (at Police Station). After departure of notables and Ulema Karam, said accused persons assaulted upon police and building of Police Station by bricks. They besieged them (police) in Police Station. Some of accused carrying fire arms started straight firing upon police and at the building of Police Station whereupon they (Police) made shelling of teargases in their self defence and to disperse the mob and also made aerial firing. Said accused persons with consultation and in prosecution of common object also burnt the official vehicles of DSP/SDPO No.2207 and official vehicles No.1431/BRL, 6723/BRK, vehicle of Elite Uch Sharif No.6385/BRM which were parked outside the Police Station. They also stole the wireless sets, walky- talky sets, four bullet-proof helmets, two mobile phones & wallets of officials by breaking the door pane of said official vehicles. Accused persons forcibly entered into the official quarter of Baqa Muhammad Wireless operator and looted his house-hold articles, dowry articles & gold ornaments of his daughters and also set on fire the remaining material of the house and also martyred the Holy Qur'an in the quarter by setting fire. Thereafter accused persons entered into his (S.H.O) official quarter, took away valuable/house-hold articles and broke the remaining articles. Accused persons then started pelting bricks upon police officials deputed on roof top and inside Police Station. They broke main gate of Police Station by throwing bricks and then set on fire it with petrol. When police tried to put off fire, accused persons started severe pelting upon police, entered into Police Station by making straight firing and pelting. They broke the lock up of Police Station, took out said unknown accused person who had burnt Holy Qur'an, tried to set on fire the record of Police Station. The police tried to rescue the unknown accused but they made straight firing and pelting, due to which Naveed Mumtaz SDPO, Munir A.S.I reader SDPO, Azhar Ali 861/HC Elite Ahmadpur East, Khan Muhammad A.S.I, Muhammad Kashif 134/C driver, Ejaz 1367/C and Zulfiqar Ali PQR sustained serious injuries. Injured were shifted to Hospital after preparation of their injury statements. Other police officials saved their lives by taking shelters. Police also made aerial firing to rescue the unknown accused but accused persons forcibly boarded unknown accused of burning of Holy Qur'an on motorcycle, murdered him in the way, took him to Chanigoth Chakar and set him on fire where Muhammad Amin 609/C and Ghulam Sajjad 1209/C were present in plain clothes and they saw the occurrence. Meanwhile he (S.H.O) with other police contingent also reached there, tried to disperse accused persons and to rescue the unknown accused of burning Holy Qur'an, but till that time accused persons had already burnt him by putting tyres and dry woods on fire. He put off fire and shifted burnt dead body of said unknown prisoner to Ahmadpur East for postmortem examination under the escort of Ghulam Farid SI and Muhammad Amin 609/C., FIR was registered at 10.30 p.m. at police station. 3. The investigation of this case was conducted by nine police officers and finally a report under section 173 Cr.P.C., was submitted and accused persons were charge sheeted, to which they pleaded not guilty and claimed to be tried, whereupon, the prosecution produced twenty-six witnesses, which include Shahad Gull 404/C (PW-1) a formal witness from police, Dr. Muhammad
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Ajmal Bhatti (PW-2) who medically examined the injured namely Munir Ahmad, Khan Muhammad SI, Muhammad Iqbal SI, Naveed Mumtaz DSP, Muhammad Rizwan/C, Shoaib Akhtar 772/C, Zulfiqar Ali PQR, Muhammad Kashif 134/C, Azhar Ali/HC and Ejaz Ahmad 1367/C, Naveed Mumtaz DSP is injured/eye witness; Dr. Muhammad Arif Ghouri (PW-4) conducted postmortem of dead body of unknown deceased; Muhammad Rizwan 934/C (PW-5), Muhammad Kashif 134/C (PW-6) are injured eye witnesses; Ghulam Mohy-ud-Din Inspector (PW-7) is the complainant; Baqa Muhammad 2032/C (PW-8) is also an injured eye witness; Muhammad Arif 985/HC (PW-9) also had witnessed the occurrence; Muhammad Amin 609/C (PW-10) and Ghulam Sajjad (PW-11) are the witnesses of dragging of unknown person by the accused and setting said person on fire; Khan Muhammad SI (PW-12) is eye witness and also witness of certain recoveries; Muhammad Akram Saqib 2439/HC (PW-13) is another formal witness; Sajid Hussain 1645/C (PW-14) is witness of recovery; Ghulam Farid SI (PW-15) had initiated the investigation in this case; Muhammad Nawaz Inspector (PW-16) apart from an eye witness, also conducted investigation of the case; Ghulam Haider 837/C (PW-17) is witness of recovery; Muhammad Arif Patwari (PW-18) is formal witness; Irshad Haider Bukhari Inspector (PW-19), Ejaz Hussain Inspector/Member JIT (PW-20), Muhammad Ikram Inspector (PW-21), Sarfraz Hussain Tarrar Inspector (PW-22), Ghulam Dastigir DSP (PW-23), Waseem Aslam Inspector (PW-24), Syed Hamid Hussain Inspector (PW-25) and Muhammad Iqbal Inspector (PW-26) had investigated the case. The prosecution tendered documents Exh.PA to Exh.PKK in evidence and closed its case. The accused when examined under section 342 Cr.P.C. they pleaded innocence and none from them opted to appear as their own witnesses on oath under section 340(2) Cr.P.C. however, they produced documents Ex.DA to Ex.DJJ, whereas, accused Muhammad Tufail also produced Dr. Abdul Rauf (DW-1) in his defence and the trial ended in the terms as detailed in the opening paragraph of this judgment. 4. Learned counsel for the appellants states that offence of rioting require a precise intention of the participants to commit an intended offence and mob psychology is driven by heat and passion without any pre-concert, therefore, very root of formation of unlawful assembly is weak and it also had no support of proper identification of the appellants while committing such offence. Learned DPG though controverted the arguments but could not deny the fact that on the basis of similar evidence number of accused have been acquitted by the learned trial court as well as by this court. 5. Heard. Record perused. The contention of the appellants' counsel is required to be thrashed in order to see the fact-statement of offence of rioting as well as the nature of evidence required to prove such offence. 6. An offence is a statement of facts embodied in a section of law which are to be proved as required through the definition given in such section of law. We know 'riot' is a disturbance of the peace by several persons, assembled and acting with a common intent in exercising a lawful or unlawful enterprise in a violent and turbulent manner. Bifurcating such definition into segments will show that disturbance of peace, like obstruction of roads, damage to property or injuries to persons, is to be proved by the evidence of illegal acts at the site, and that too by several persons, and if it was a lawful act then violent or turbulent manner shall be proved; both situations require that a pre-concert is to be proved for attracting common intent, or the circumstances which united the people to act with common intent at spur of the moment. Riot, rout, and unlawful Assembly are related offences, yet they are separate and distinct. A 'rout' differs from a 'riot', in which the persons involved do not actually execute their purpose but merely move toward it. The degree of execution that converts rout into riot is often difficult to determine. Pakistan Penal Code, 1860 (PPC) also identifies the offence of rioting as given in section 146 which is as under;
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146. Rioting; Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. Above section of law reflects that when force or violence will be used by an unlawful assembly with the intent mentioned therein then it would become an offence of rioting. In order to attract the offence of rioting, it is necessary to see the formation of unlawful assembly which is dealt u/s 141 of PPC as under; 141. Unlawful assembly; An assembly of five or more persons is designated an "unlawful assembly" if the common object of the persons composing that assembly is:- First: To overawe by criminal force, or show of criminal force, the Federal or any Provincial Government or Legislature, or any public servant in the exercise of the lawful power of such public servant; or Second: To resist the execution of any law, or of any legal process, or Third: To commit any mischief or criminal trespass, or other offence; or Fourth: By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth: By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation: An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. Above section clearly requires what sort of actions are to be proved for alleging that the offence has been committed. 7. Similarly in different laws, during the rioting certain other offences are also committed, requirement for proving such offences can be judged keeping in view the definition given in that law. e.g. offence of 'lynching' (Section 11-WW) under Anti-terrorism Act, 1997, Sabotage (section-20) under Maintenance of Public Order Ordinance, 1960, offences under Anti-National activities etc. Lynching is an extrajudicial killing by a group. It is most often used to characterize informal public executions by a mob in order to punish an alleged transgressor, punish a convicted transgressor, or intimidate people. It can also be an extreme form of informal group social control, and it is often conducted with the display of a public spectacle (often in the form of a hanging) for maximum intimidation. Instances of lynchings and similar mob violence can be found in every society. Therefore, it can be said that lynching is a form of violence in which a mob, under the pretext of administering justice without trial, executes a presumed offender, often after inflicting torture and corporal mutilation. The term 'lynch law' refers to a self-constituted court that imposes sentence on a person without due process of law. Both terms are derived from the name of Charles Lynch (1736-96), a Virginia planter and justice of the peace who, during the American Revolution, headed an irregular court formed to punish loyalists. Historically, the Vehmic courts of medieval Germany imposed some punishments that involved lynching, as did the Halifax gibbet law (execution of those guilty of theft valued over a specific amount) and Cowper justice (trial after execution) in the border districts of England. Resembling these cases were the Santa Hermandad constabulary in medieval Spain and pogroms directed against Jews in Russia and Poland, although in these cases there was support from legally constituted authorities. The important thing about racial lynching and blasphemy is that they are forms of democratic violence and designed to assert majority dominance over the victims. Although the act of lynching
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itself is illegal, it has wide social acceptability and is framed in terms of vigilante justice. Vigilante justice has been practiced in many countries under unsettled conditions whenever informally organized groups have attempted to supplement or replace legal procedure or to fill the void where institutional justice did not yet exist. 8. Riot can be of two types, planned and unplanned, both require handling in different ways. Planned riot in terms of democratic violence pursuant to a political decision or in the form of social terrorism resorted to ventilate vengeance against blasphemous attempt, or a political decision or against a grave injustice. Such riot precedes a protest before it actually materialized therefore, more or less is in the form of informed decision to be tackled with care and caution for its proper prevention or at least management to lessen the miseries. Unplanned riots committed usually in a short socket which are difficult to prevent usually broke out at spur of the moment like in a factory, hospital, educational institution, in a village or during preventing a street crime and many other. To prove the individual offence during a rioting is one of the difficult tasks. Some private riots are also in place in our crime strategies, it is when more than five persons attack other party for commission of any offence and said riot is retaliated with the same force; such situation requires identification of parties as aggressor or aggressed upon so as to give premium, for exercising right of self defence, to diminish or vanish the criminal liability. Lawyers and prosecutors say that the problems posed by riotous crime begin with the difficulty in determining, with the specificity and corroboration required for prosecution, who did what. Even when evidence is developed detailing an individual's participation amid the chaos of a mob, it can be much harder to fit his actions to the closely defined categories and degrees of criminal culpability than if he had committed a crime alone or as part of an extensively planned group action. Concepts like "state of mind" and "acting in concert," often keys in determining guilt and challenging enough to apply in orderly episodes, are even tougher in a tumultuous context. In those situations, things happen so fast and human perceptions are so imprecise that it's difficult to assign blame in a manner which permits a prosecutor to prove a case beyond a reasonable doubt; on the defense side, there is a valid fear that prosecutors will charge people with minor participation in a serious event and because the judges sometimes are so outraged at the event, they will sweep those people into the guilty category. Burdens arise for prosecutors because "the criminal law focuses on intent to commit a crime, and when a mob acts, in essence it becomes a beast with an intent of its own that is hard to attribute to any individual members. Basic problem is that the law evolved with the notion that crimes were committed by individuals or with the notion of conspiracy liability, and one can't really say that about people acting together in a mob. It's extremely hard to prove acting-in-concert in a mob situation. It means having a state of mind similar to or compatible with another person's that aims toward a criminal goal, and the actions must indicate there was this agreement, even a tacit one. In order to prevent mob violence though police in their training centers teach the officers /trainees different subjects such as mob psychology, handling of vulnerable groups, negotiation skills, stress management and so on. In terms of field training, they are taught modern arrest techniques that need minimal use of force, use of anti-riot equipment, mob dispersal methods, first aid and evacuation procedures. We know even such trainings and modern equipment are not enough to control violent mobs. What is needed is the building of people's trust in police and the country's criminal justice system. The people take law in their hands because they think the culprits will go unpunished. The mobs are encouraged by the fact that hardly anybody involved in acts of collective violence is punished, and it is the perception that the bigger the number of people involved the safer they are from the law. 9. It is essential that by now a focus be made to collect evidence that could help to prove the offence of rioting; to achieve this end, it is necessary to see what requirements are in place in
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law/rules to prove an offence of rioting. A course has been suggested in High Court Rules & Orders; relevant formation is reproduced as under; Chapter 4: trial in riot cases High Court Rules & Orders Volume-III 1. Careful handling required.-- Riots resulting in serious injuries or even death are of frequent occurrence in this Province, and cases relating to such riots require very careful handling. A large number of persons is generally involved and the evidence is often entirely of a partisan character. There is, moreover, great danger of innocent persons being implicated along with the guilty, owing to the tendency of the parties in such cases to try to implicate falsely as many of their enemies as they can. 2. Court's duty to ascertain the true version.--The parties generally give widely divergent versions of the riot and in such cases the Police usually prosecute members of both the parties and place the divergent versions and the evidence in support thereof before the Court. It is for the Court to ascertain in such cases which of the two versions is correct and the Court cannot shirk this duty on the ground that the Police did not ascertain which of the stories was true. 3. Right of self-defence.--When both parties deliberately engage in a fight no question of the right of self-defence arises. But, otherwise, the question as to which of the parties was the aggressor and which was acting in self-defence becomes of vital importance and the Court must do its best to arrive at a finding thereon for the party acting in self-defence cannot be held to be guilty of any offence unless the right of private defence is exceeded (see sections 96-106, Pakistan Penal Code.) 4. Separate trials when both parties are prosecuted.-When both parties to a riot are prosecuted, the two cases must be tried…
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