PLJ 2022 Cr.C. (Note) 139
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.
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.
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
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