FAZLUR REHMAN KHAN, J.--- The learned Anti-Terrorism Court, Hazara Division at Abbottabad, by judgment/order dated 2-10-2003, has convicted the appellant in case F.I.R. No,307 dated 17-6-2003 of Police Station Mirpur under section 302/324, P.P.0 read with section 7 of the Anti-Terrorism Act, 1997 (hereinafter referred to as the Act) and sentenced to death under section 302(b), P.P.0 read with section 7 of the Act and to pay a fine of Rs,1,00,000 or in default thereof to undergo further two years. R.I. For committing Qatl-1-Amd of Dr. Farooq Hilal and also ordered to pay Rs,3,00,000 as compensation under section 544-A, Cr.P.C., to the legal heirs of deceased Dr. Farooq Hilal or in default, thereof to undergo 6 months imprisonment and at the same time, it was ordered that the compensation will be recoverable as land revenue. The appellant has been further convicted under section 324, P.P.0 read with section 7 of the Act to undergo 10 years R.I and also to pay a fine of Rs,50,000, payable to P.W. Dr. Farmanullah (complainant) as compensation or in default thereof, to undergo 6 months imprisonment. All the sentences of imprisonments have been ordered to run concurrently with benefit of section 382-B, Cr.P.C. Now through the present appeal, the convict- appellant has challenged his conviction and sentences. On the other hand, the learned Special Judge has made a Reference to this Court under section 374, Cr.P.0 for the confirmation of the death sentence of the appellant.
2. The prosecution case, in brief, as alleged in the "Murasila" (Exh.P.A/1) lodged at the instance of the complainant Dr.Farmanullah (PW.2) at the Emergency Ward of Ayub Medical Complex, Abbottabad, where the dead body of the deceased Dr. Farooq Hilal was also lying, reported on 17- 6-2003 at 23-45 hours, is that on the day of occurrence, he alongwith Dr.Farooq Hilal deceased and Dr. Tawaf Gui (P.W.3) were walking on road inside the Hospital premises when in the meantime a car passed by them towards the Girls' Hostel with such a fast speed that they could hardly save themselves otherwise they would have been crushed to death. After a little while i,e, at about 11.10 hours, the said car bearing No,3699 in grey colour returned, on which, Dr. Farooq Hilal deceased signaled it to stop. When the car stopped, Dr. Farooq Hilal made a complaint to driver of the car as to how and in what manner, he was driving the car as the same would have smashed them, on which, the driver of the car came out and told Dr. Farooq Hilal that his name is Sardar Moazzam and if they would have been done to death what they could have done to him. On this reply of the driver of the car, some altercation started between him and Dr. Farooq Hilal, on which, the former took out a pistol from the fold of his Shalwar, fired a shot at the latter with the intention of killing him. With the fire shot of the driver of the car Dr. Farooq Hilal received injury in front on his stomach, who fell to the ground. The driver of the car fired another shot with which he (the complainant) received injuries in front of the right leg, whereafter the driver of the car boarded the car and ran away from the spot. The companions of complainant then took him and the deceased to the Emergency Ward of the Hospital, where complainant lodged the report Exh.PA/1 to Shah Jehan Khan S.I. (P.W.13), wherein the complainant charged Sardar Moazzam s/o Sardar Bahader resident of Mirpur by name. It was stated that motive for the offence was the altercation and nothing else.
3. On the day of occurrence, Shah Jehan Khan, S.I. (PW.13) was present in Police Station Mirpur, when at about 23.15 hours, Moharrir of the Police Station informed him that he had received a telephonic call from Rab Nawaz Khan (DSP/UT) (PW-5) that some one fired at a doctor in the premises of Ayub Medical College and fled away in a car having registration No,3699.. Accordingly, on receipt of this information, he alongwith S.H.O. Shah Nazar and other police staff/contingent immediately left for the College. When they reached the Causalty Ward of the Hospital, they learnt that Sardar Moazzam Advocate, after having injured two doctors 'has fled away in his car, on which S.H.O. Shah Nazar went back but P.W. Shah Jehan, S.-I. Went inside the. Casualty Ward. The latter saw many persons inside the Casualty Ward. At that time Dr. Farooq Hilal was under Oxygen and soon thereafter, he was informed that he expired: PW Dr. Farmanullah was also in the same ward.
PW Shah Jehan Khan S.I., therefore, recorded his report in the form of "Murasila" Exh.PA/1. He then prepared the injury sheet of the complainant and inquest report of the deceased and sent the "Murasila" Exh.PA/1 to the Police Station for registration of the case. He then went to the spot alongwith PWs Dr. Farmanullah and Dr. Tawaf Gul and inspected the same. From the spot, he took into possession blood stained pebbles and one empty of .32 bore (Exh.P-5) vide recovery memo.
Exh.P.W.6/1 in presence of the marginal witnesses. He then went back to the Casualty Ward alongwith PWs Dr. .Farmanullah and Dr. Tawaf Gul. He recorded the statement of PW Dr. Tawaf Gul under section 161 Cr.P.0 and went back to the spot. Oa the site he prepared the site plan Exh.PB at the instance of the P.Ws. Dr. Farmanullah and Dr. Tawaf Gul. He again went to the Casualty Ward and recorded the statements of Dr. Shakeel, Dr. Rehman and Dr. Abdul Haseeb under section 161, Cr.P.C. After sometime P.W. Rab Nawaz Khan D.S.P. Also arrived at the spot and P.W. Shah Jehan Khan S.I., recorded his statement under section 161, Cr.P.C. On 18-6-2003, Shaukat Mehmood F.0 (P.W.7) brought to him the post-mortem report of the deceased Exh.PM and medical report of P.W.
Dr.Farmanullah Exh.PM/1, blood stained clothes of the deceased and of the injured (P.9 to P.13) from the doctor, which he took into possession and sealed the same into parcel vide recovery memo.
Exh.PW.10/1 in the presence of the marginal witnesses. On 16-9-2003, he took into possession a bulb P.6 from the spot. On 22-6-2003, he sent the garments of the deceased and of the injured to the Forensic Seience Laboratory for repoit/opinion. He also sent the empty shell recovered from the spot to the Arms Expert for opinion. Since during the investigation, Sardar Moazzam Advocate had made two calls to the Police Station, on account of which, his mobile number was detected through CLI of the Police Station, this fact was entered in the daily diary by the Moharrir of the Police Station and he had also informed the High-ups of the Department. As such, on 23-6-2003, PW Shah Jehan Khan, S.I. Went to the office of Pak Telecommunication, Abbottabad, and obtained a print of the bill and telephone calls consisting of 12 pages P.7 of Mobile No,0303-7382999, which he took into possession vide recovery memo. Exh.PW.9/1 in presence of the marginal witnesses. On perusal of the print, he found that from the above Mobile, one call was made to telephone No,3815122 and on inquiry from PTCL it transpired that this telephone number is in the name of PW Mst. Farhat Naz (since abandoned), who according to the staff of the College was living in Room No,9 of the Hostel.
On 26-6-2003, on prior information, PW Shah Jehan Khan S.I. Laid a picket at the end of territorial jurisdiction of Police Station Mirpur and on arrival of the appellant, his car was stopped and after verifying the particulars of the driver that he is Sadar Moazzam, the latter showed him an order of District & Sessions Judge, Batagram, granting him transit bail. However, P.W. Shah Jehan Khan, S.I.
Found that order was with respect to offences under section 302/324, P.P.0 and did not include sections 6/7 of the Act. He, therefore, arrested him under sections 6/7 of the Act. At that time, he also recovered a Mobile phone Exh.P.8 from the accused which he took into possession vide recovery memo. Exh.PW.9/2 in presence of the marginal witnesses. On inquiry from him, it transpired that the said Mobile Carries No,067032380257204521, bearing registration No,0303- 7383999 was in the name of Sardar Moazzam. On 27-6-2003, PW Shah Jehan Khan S.I., obtained four days custody of the accused. During the investigation, on 28-6-2003, the accused disclosed that he could lead the police to the recovery of the car which he was driving at the time of occurrence. Accordingly, P.W. Shah Jehan Khan S.I. Alongwith other police officials brought the accused in police custody from Police Station Havelian. On the way, near Ayub Medical College , P.W. Shah Jehan Khan S.I. Took with them Dr. Ajmal. Khan (P.W.4) and Dr. Syed Masoom Shah to witness the recovery of the car. The accused, while in hand cuffs, led the police party to Street No,7 Mansoor Town, where the motor car was parked in a vacant plot and the accused pointed out that this was the car which he used in the commission of the offence. The car Exh.P.2 was taken into possession. On search of the car PW Shah Jehan Khan S.I. Recovered one plate, having on it, No,P.369 (P4) from the Diggi of the car and challan ticket No,143945 (P-5) from the dash board of the car. The car, plate number and challan were taken into possession vide recovery memo.
Exh.PW.4/1 in the presence of marginal witnesses. He prepared the site plan Exh.PW. 13/8 of the site from where the car was recovered. The car was taken to the Police Station, where again from the search of the car, an empty shell of .32 bore (P1) from underneath the driver seat was recovered, which was taken into possession vide recovery memo. Exh.PW.1/2. On 29-6-2003, during the interrogation, the accused disclosed that he could lead the police to the recovery of weapon of offence. Accordingly, in handcuffs he led the police party to his residential house in Musa Zia Colony, where from the corner of a dog-room he took out .32 bore pistol bearing No,561280 (P.14) and said that this was the pistol which he used in the commission of the offence. Accordingly, P.W.
Shah Jehan Khan S.I took the same into possession in presence of the marginal witnesses vide recovery memo. Exh.PW.11/1. This witness then prepared the site plan of the house Exh.PW-13/1 from where the .Pistol was recovered. On recovery of the pistol, section 13 of the Arms Ordinance was added to the challan. He then sent the pistol to the Arms Expert for opinion. On his written application dated 29-6-2003, he obtained report Exh.PW.6/3 from the Highways Authority with regard to the challan recovered from the dash board of the car. He also obtained report Exh.PW.3/10 from Sub-Engineer (Electrical) Ayub Medical College that the street lights between Gate No,1 to Gate No,3 of the College were in working condition on 17-6-2003 at night. On 1-7-2003, he produced Mst. Farhat Naz before the Court for recording her statement, under section 164, Cr.P.C. After receipt of the report of the FSL Exh.PZ, placed the same on file. After completion of investigation, he handed over the case file to the SHO for submission of complete challan against the accused in Court.
4. The appellant was charged under sections 302/324 P.P.0 read with section 7 of the Act, to which he pleaded not guilty and claimed trial.
5. In support. Of its case, the prosecution examined as many as 13 witnesses, out of whom, as already stated, P.Ws. Shah Jehan Khan, S.-I. Has conducted the investigation while P.Ws. Dr. Farmanullah and Dr.Tawaf Gul had furnished an eye account of the occurrence, whereas Dr.Ajmal Khan Afridi (P W.4) is a marginal witness to the recovery memo. Exh.PW.4/1 by virtue of which, P.W.
Shah Jehan Khan S.I., took into possession the motor car No,B-3699, number plate of the car and challan receipt whereas rest are the formal witnesses. Both P.Ws. Dr. Farmanullah and Dr. Tawaf Gul in the their statements before the Court fully supported the version given in the F.I.R.
6. While conducting post-mortem examination on the dead body of deceased Dr. Farooq Hilal on 17-6-2003 at 11.30 hours, Dr. Imran Farooq (PW-8) found the following:- "EXTERNAL EXAMINATION; No mark of ligature on neck. Trachestomy wound noted over C1-C2 Cartilage level. A young man's body lying supinc on the P.M Table with slight P.M. Lividity developed. But no rigor mortis noted.
Patient was wearing blue colour Shalwar Kameez and under garments (Which' were bloodstained and given to Police with initials). Wounds:
(1) Wound of entry: In the left lumber region 5 ml. In Dia with blackening around wound. Having inverted margins.
(2) Wound of exit: On the right buttock inner aspect with inverted margins.
INTERNAL EXAMINATION: There was no abnormality detected in scalp, skull and vertebrae as well Membrains-Brain, Spinal Cord, Walls ribs and cartilages NAD, plurae NAD. Larynx and trachea NAD, right lung, NAD, left lung NAD, Pericardium and heart NAD, Blood vessels NAD. Examination of abdomen and intestines revealed that walls were damaged in the line of entry wound No,
1. Peritonium was damaged (Ruptured), in the line of entry wound plus three and half litres of blood sucked out from peritoneal cavity. Mouth pharynx and oesoghagus NAD, Diaphragm ruptured on left side. Stomach and its contents contained semi-digested food. Pancreas-NAD, small intestine and their contents-NAD.
Large intestine and their contents ruptured descending colon with feacal matel coming out. Liver- NAD, Spleen ruptured; Kidneys lower pole of left kidney ruptured but right kidney normal. Bladder ruptured with blood in its cavity. Organs of general external and internal-NAD, Blood vessels middle blood vessels of abdomen were ruptured. Examination of muscles and joints and bones revealed corresponding muscular damaged to the wounds No,1 and 2 but the remaining aspect had no abnormality. In may opinion, the cause of death of this victim was massive intra abdominal haemorrhage, secondary to the damage of the major blood vessels of abdomen i,e,, damage to the bifurcation of abdominal aorta and left and right iliac arteries and also due to damage to the spleen. Probable time that elapsed between injury and death was within half hour and between death and P.M. About 7 and a half hours. However, this time not mentioned in the P.M report. I have seen the P.M. Report and the pictorial which consisting of 6 sheets which are in my hand writing and correctly bears my signature. The P.M. Report is Exh.PM including pictorials. I had also endorsed the inquest report and the injury sheet."
7. Similarly, on the same day at about 11.30 he medically examined the complainant and found the following:- "(1) Graze wound on the right upper leg (interior aspect) with charring around the wound. 2" in length, half inch in depth. I advised X-Ray right leg AP view and lateral view. The injury was caused by fire arm. However, nature of the injuries was left to be ascertained after X-ray report and the surgical opinion.
I have seen the injuries report today in the Court within my hand writing and correctly bears my signature and is. Exh.PM/1. After the PM Examination and examination of Dr. Farmanullah I handed over the PM report in -respect of deceased Farooq Hilal alongwith inquest report and injury sheet to the same police official who brought the dead body of the deceased to him. I also handed over the. MLR of Dr. Farrnanullah Khan to the said police official. I had also handed over the blood stained clothes- of Dr. Farmanullah to the said FC. Subject to defence counsel this is a leading question which could not be asked. Order 17-7-2003: Reserved."
8. On conclusion of the prosecution evidence, the accused was examined under section 342, Cr.P.0 but he denied the charges levelled against him. However, he neither volunteered to examine himself under section 340(2), Cr.P.0 as his own witness nor volunteered to produce any evidence in his defence.
9. On appraisal of the evidence on record and hearing the learned counsel for the parties, the learned trial Judge found the appellant guilty. Accordingly, he was convicted and sentenced as aforesaid.
10. We have heard Dr. Khalid Ranjha, Advocate assisted by Abdullah Jan Mirza, Khawaja Muhammad Khan and Mr. Saeed Akhtar Khan Advocates, the learned counsel for the appellant, Mr. Jehanzeb Rahim, the learned Advocate General, NWFP and Mr. Mushtaq Ali Tahirkheli, Advocate, learned counsel for the complainant, and have also perused the record.
11. A preliminary objection was taken by Dr. Khalid Ranjha, Advocate, the learned counsel for the appellant that the learned Anti-Terrorism Court, Hazara at Abbottabad had no jurisdiction to try the appellant. He contended that in order to attract the prevalent provisions of section 6 of Act, it is a motivation, object, design or purpose or in other words mens rea behind the act to commit a terrorist act and not the act or actus reus itself but in the present case, the alleged act on the part of the appellant is entirely based on his personal motivation/vendetta, having no nexus with a terrorist act, as such, the trial of the appellant was without jurisdiction. In support of his arguments, he placed reliance on:
(1) PLD 1998 Supreme Court 1445,
(2) An unreported judgment dated 14-1-2000 of the Hon'ble Lahore High Court in W.P.
No,15843/2003.
(3) PLD 2003 Lahore 267.
(4) PLD 2003 Supreme Court 396
(5) 2004 PCr.LJ 210 and
(6) 2002 YLR 203. Out of the foregoing authorities, the learned counsel for the appellant mainly placed reliance on the judgment at S.No,2 above, hereinafter called as the "referred Judgment".
12. On the other hand, the learned Advocate-General, N.-W.F.P. Assisted by Mr. Mushtaq Ali Tahirkheli, Advocate, the learned counsel for the complainant contended that in the present case, the offences with which the appellant is charged, were not only heinous in nature but had also actually created fear and insecurity in the society. He argued that it is not only the act itself but the consequential effect creating fear and insecurity in the society which attracts the provisions of section 6 of the Act. In support of his arguments, he placed reliance on (1) 2002 SCMR 908 and (2)
PLD 2003 SC 224, 396 and 704. He pointed out that the referred judgment is mainly based on the cases reported in PLD 1998 SC 1445, PLD 2000 SC 111 and PLD 2001 S.0 521, but the referred judgment is not only misreading of these judgments but the case reported in 2004 PCr.LJ 210 is by his Lordship the same author and the case reported in 2002 YLR 203 is distinguishable.
13. After going through the authorities cited at the bar from both sides and the record, we find that the arguments of the learned Advocate General are not without force. It would be appropriate here to reproduce below the concluding para-22 of the referred judgment:- "22. Judged on the basis of the requirements of the amended provisions of section 6 of the Anti- terrorism Act, 1997 and examined on the touchstone of the principle. Of nexus propounded by the largest Bench of the Hon'ble Supreme Court of Pakistan in the case of Mehram Ali and others v.
Federation of Pakistan and other (PLD 1998 SC 1445), reiterated by an equally large Bench of it in the case of Jamat-I-Islami Pakistan through Syed Munawar Hassan, Secretary-General v.
Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affaris (PLD 2000 SC 111 and applied by it in the case of Ch. Bashir Ahmad. V. Naveed Iqbal and 7 others (PLD 2001 SC 521) the case in hand, despite the brutality displayed by the culprits and the consequent horror, shock, fear and insecurity' likely to be created by the savagery perpetrated by the offenders, has not appeared to us to be a case of terrorism as the motive for the alleged offences was nothing but personal enmity and private vendetta and the motivation on the part of the accused party was not to overawe or intimidate the Government, etc. Or to destabilize the society at large or to advance any sectarian cause, etc. The intention of the accused party did not depict or manifest any 'design' or 'purpose' as contemplated by the provisions of section 6(1)(b) or (c) or the Anti-Terrorism Act, 1997 and, thus, the actus reus attributed to it was not accompanied by the necessary mens rea so as to brand its action as terrorism triable exclusively by a Special Court constituted under the Anti- Terrorism Act, 1997. The stand taken before us by the learned Assistant Advocate-General appearing for the State also proceeds on the same lines and if for these very reasons that the State has chosen not to oppose this petition. This writ petition is, therefore, allowed, the impugned order passed by the learned Judge, Anti-Terrorism Court-II, Gujranwala on 4-10-2003 is declared to be without lawful authority and of no legal effect and the same is set aside, the application filed by the petitioner before the said Court under section 23 of the Anti-Terrorism Act, 1997 is accepted and the petitioner's case is declared to be triable by a Court of ordinary jurisdiction. The learned Judge, Anti-Terrorism Court-II Gujranwala is directed to transmit the record of the petitioner's case to the learned District & Sessions Judge, Gujranwala forthwith for further proceedings in the matter. There shall be no order as to costs."
14. The perusal of para-22 of the referred judgment, as reproduced above, would show that this judgment is mainly based on (1) PLD 1998 SC 1445, (2) PLD 2000 SC 111, and (3) PLD 2001 SC 521. In the case reported in PLD 1998 SC 1445 at page 1492 of the report, it was observed:- "However, it may be observed that the offences mentioned in the schedule should have no nexus with the object of the Act and the offences covered by sections 6,7 and 8 thereof. It may be stated that section 6 defines terrorist acts, section 7 provides punishment for such acts and section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clauses (a) to (d) thereof.
If an offence included in the Schedule has no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires "
15. The above authority was reiterated in the case reported in PLD 2000 Supreme Court 111 and was also applied in the case reported in PLD 2001 Supreme Court 521. The facts of latter case were that the accused were charged for sprinkling spirit on the daughter of the complainant in consequence of which she died. On submission of the challan in the Special Court, the accused applied under section 23 of the Act for transfer; of the case to the ordinary jurisdiction of competent Court which was accepted. However, the order of the Special Court was challenged through a writ petition and the Lahore High Court rejected the same and on leave to appeal the Hon'ble Supreme Court of Pakistan refused to interfere with the order of the High Court. However, it was observed by their Lordships:- "8. A person would commit a terrorist ac;#if in order. To, or if the effect of his actions will be to strike terror or create a sense of fear and insecurity in the people, or any section of the people....' In the instant case as the facts of the case reveal, the alleged sprinkling of the spirit on the person of the victim was within the boundary walls of the appellant's house. It was not in public and, therefore, the element of striking terror or creating sense of fear and insecurity in the people, or any section of the people is not made discernible in the F.I.R and for that matter on the record of the case as a whole. Similarly the perusal of the Schedule to the Act also indicates that the element of striking terror or creation of sense of fear and insecurity in the people or any section of the people by doing an actor thing by using bombs, dynamite or other explosive or inflammable substances etc. Is a sine qua non for the attraction of the provisions of section 6 of and the Schedule to the Act (Underlining is provided by us for emphasis).
8-A. In the instant case no doubt the offence committed was certainly most heinous in nature but it does not mean that it does qualify to be a terrorist act within the contemplation of section 6 or the Schedule to the Act. In this context, we can do no better than refer to the observation of this Court in the case of Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 at page 1492: - "However, it may be observed that the offences mentioned in the Schedule should have nexus with the object of the Act and the offences covered by sections 6, 7 and 8 thereof. It may be stated that section 6 defines terrorist acts, section 7 provides punishment for such acts, and section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clauses (a) to (d) thereof. If an offence included in the Schedule has no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires."
16. In the case reported in 2002 SCMR 908, their Lordships in para7 held:- "7. From a bare reading of section 6 (b) of the Act it is manifest that it is not necessary that the offence as alleged had in fact, caused terror as the requirement of the said provision of law could be adequately satisfied if the same was likely to strike terror or sense of fear and insecurity in the people."
17. Similarly, in PLD 2003 SC 224, their Lordships at pages 226 and 227 observed:- "A reading of the above provision of the Act demonstrates that it is not necessary that the commission of murder must have created panic and terror among the people. The Courts have only to see whether the terrorist act was such which would have the tendency to create sense of fear, or insecurity in the minds of the people or any section of society. We have to see the psychological impact created upon the minds of the people. It is also not necessary that the said act must have taken place within the view of general public so as to bring it within the encompass of the Act. Even an act having taken place in a barbaric and gruesome manner, if it had created fear and insecurity, would certainly come within the purview of the Act. Reference in this regard is made to the case of Mst.Raheela Nasreen v. The State and another 2002 SCMR 908 wherein the husband was killed by a Batman in connivance with his wife inside the house. However, the case was tried by the Special Court constituted under the Act as this act of the Batman, being a trusted person employed by an army officer though committed inside the house, was likely to strike terror leading to the feelings of insecurity among the army officers in spite of the fact that they had not seen the incident."
18. In the case reported in PLD 2003 Supreme Court 396 in para-13 of the report their Lordships held:- "13. In general terms a fright, dread or an apprehension in the mind of a person induced by an horrible act of a person or causing fear and terror to the people is terrorism and if an act done by a person which is a source of terror in any section of people, which may cause damage to life or property of an individual, is a terrorist act and is an offence as defined in section 6 of A.T.A., 1997 and punishable under section 7 of the said Act. The act of abduction of the deceased and Dr. Javed Umer from an open place on gun point and subsequent murder of Dr. Muhammad Aslam for the reason that patient could not get desired result by the treatment given by him, would create unrest, panic and terror against the doctors who are discharging very sacred duty in the medical field."
19. In the case reported in PLD 2003 Supreme Court 704 in para-37 of the report their Lordship observed:- "37. Condition precedent for applicability of ATA is that the offences mentioned in the Schedule should have nexus with the objects mentioned in sections 6, 7 and 8 of the ATA. If sense of fear, insecurity in the people at large or any section of the people or disturbance of harmony amongst different sections of the people is created, above quoted subsection will be attracted. Even if by act of terrorism actual terror is not caused, yet, above quoted subsection (b) will be applicable if it was likely to do any harm contemplated in said subsection. It is the cumulative effect of all the attending circumstances which provide tangible guidelines to determine the applicability or otherwise of said subsection. It is noted that about 300/400 people gathered at the house of the complainant and they would have destroyed the house of the appellant, if the police would not have intervened. Lawyer community was also annoyed over the murder of a member of their community and had passed a resolution in this regard. Under the circumstances, the case was rightly assigned to Anti Terrorism Court for trial."
20. From the foregoing authorities cited from both sides, it is clear that in order to attract the provisions of section 6 of the Act, it is not necessary that the offence, as alleged, had in fact caused. Terror or insecurity in the society but it would be adequately satisfied if the case was likely to strike terror or sense of fear and insecurity in the society. The ratio dicidendi in all the cases is, therefore, one and the same. It is pointed out here that the case reported in 2004 PCr.LJ 210 was authored by his Lordship the same Hon'ble Judge who delivered the "referred judgment", whereas, the case reported in 2002 YLR 203,is distinguishable, for the reason that in this case an Assistant Sub-Inspector of Police serving at Karachi was murdered on account of personal reason and in that context their Lordships of a full Bench of the Hob' le Sindh High Court held that if a public servant has been done to death for a reason other than his official duties, then the case would not fall within the ambit of Anti-Terrorism Court.
21. We are not unmindful of the legal proposition that the foregoing authorities were delivered at such times by their Lordships of the Hon'ble Supreme Court of Pakistan when the definition of a "terrorist act" with Schedule thereto contained in the original Act or the definition of a "terrorist act" as amended by the Anti-Terrorism (Second Amendment) Ordinance, 1999 (Ordinance No,XIII of 1999) were in force. However, we are of the considered view that the law laid down there that in order to attract the provisions of section 6 of the Act, it is not necessary that the offences as alleged, had in fact caused terror or insecurity in the society, but it would be adequately satisfied if the case was likely to strike terror or sense of fear and insecurity in the society, still holds the field under the new definition of "act of terrorism" or "terrorism" as substituted by the Anti-Terrorism (Amendment) Ordinance 2001 (Ordinance No,XXXIX of 2001), obviously for the reason that the Preamble of the Act remains the same from its very inception and for the reason that the phrase, "or create a sense of fear or insecurity in society" appearing in section 6(1)(b) of the Act. This interpretation of ours clearly seeks support from the observations of their Lordships of the Hon'ble Supreme Court of Pakistan in the case reported in 2002 SCMR 908, wherein it has been observed that, "from a bare reading of section 6(b) of the Act, it is manifest that it is not necessary that the offences alleged had in fact, caused terror as the requirement of the said provision of law could be adequately satisfied if the same was., likely to strike terror or sense of fear and insecurity in the society." This view seeks further support from the observations of their Lordships contained in para- 37, as reproduced above, in the case reported in PLD 2003 SC 704. Even the above view also seeks support from the cases highlighted/discussed in para-15 of the "referred judgment", namely:-
(1) PLD 2000 Supreme Court 169.
(2) PLD 2002 Supreme Court 841.
(3) 2002 SCMR, 1017, 1225, 1325 & 1934. We could hardly, therefore with due deference and utmost respect, find ourselves in agreement with the conclusion arrived at by their Lordships of the "referred judgment" and humbly differ with the same.
22. Now coming to the facts of the present case, keeping in view foregoing legal position and the manner in which the murder of the deceased was committed for merely making a complaint against negligent/rash driving of the appellant, the place a prestigious Medical Institute like Ayub Medical College, where the occurrence took place, followed by immediate agitations of both the students and teachers of the College, resulting in ransacking and burning of the house of the appellant and also followed by general strike in the locality blocking "Shahrah-eKarakurram" for several hours, we are of the considered view that it is not only a case of heinous offences and had the potentials of but had actually created fear and insecurity in the society, as such, the case of the appellant falls within the purview of the jurisdiction of the Anti Terrorism Court. Accordingly, the preliminary objection of the learned counsel for the appellant to the jurisdiction of the learned trial Court is -rejected.
23. Now coming to the merits of the case, we find that while convicting the appellant, the learned trial Court has placed reliance on ocular testimony of P.Ws. Dr. Farmanullah and Dr. Tawaf Gul, medical evidence on record, consisting of the medico-legal report of the deceased and injury sheet of P.W. Dr. Farmanullah, the recovery of blood stained pebbles, one empty of .32 bore pistol, one bulb from the spot, one empty of the same bore from the car No,B-3699, challan from the dash board of the Car and plate No,B-3699 from the "Diggi" of the Car, .32 bore pistol at the pointation of the appellant from the Dog Room of his house, Mobile set having connection No,0303-7382999, and computer print in respect of the same mobile.
24. In support of the appeal, the learned counsel for the appellant contended that immediately after the occurrence, Rab Nawaz, D.S.P. (P.W.5) gave information of the occurrence to the Moharrir of Police Station Mirpur, which was reduced into writing in daily diary vide Mad No,39 dated 17-6- 2003 Exh.P/1, wherein nobody was charged for the offences. As such this was the actual F.I.R and the subsequent F.I.R. Exh.PA, could not be given any credit. However, we could not find ourself in agreement with the arguments of the learned counsel for the appellant, obviously for the reasons that the report contained in Mad No,39 dated 17-6-2003 was merely in the shape of information to the high-ups of the police department about the occurrence and for the purpose of 'Naka Bandi' in order to arrest the accused and to avoid deterioration of law and order situation. Our considered view is that the actual F.I.R is Exh.PA which has been lodged with promptitude by P.W.2 Dr. Farmanullah charging the accused therein by name with his parentage.
25. It was further contended that in F.I.R though the accused has been named but neither his parentage nor his residence been given and no proper identification parade of the assailant has taken place, as such, mere mentioning the name of the accused would not be sufficient to identify the accused. It was further contended that in the absence of the parentage and residence of the appellant, somebody could with malafide intention have mentioned the name of the appellant in the F.I.R. However, we are not impressed by this argument, for the reason that though no identification parade of the accused has been conducted but in the last para. Of the F.I.R the accused has been named as Sardar Moazzam son of Sardar Bahader Khan. Moreover, in his examination-inchief, PTV Dr. Far.Manullah has clearly stated that, "As the car stopped, I saw it being driven by Sardar Moazzam, Advocate. Dr. Farooq Hilal said to Sardar Moazzam that why he was driving the car in the complex area in such a way that you were going to crush us. On this, Sardar Moazzam came out of the car and said to Dr. Farooq that you are perfectly fine. Dr. Farooq replied that if we have not gone to one side, you would have crushed us.
Sardar Moazzam addressing Dr.Farooq Hilal, said you do not know me, I am Sardar Moazzam, Advocate and I would show you what I can do. On this Sardar Moazzam, Advocate took out pistol and fired a shot at Farooq Hilal. I went forward to protect Dr. Farooq and he fired a bullet at me." But this statement of P.W. Dr. Farmanullah goes unchallenged in the cross-examination meaning thereby that the identification of the accused has rightly been taken to be the appellant.
26. It was next contended by the learned counsel for the appellant that the injury sheet of P.W. Dr. Farmanullah shows that he sustained a graze wound on his right upper leg which appears to be either self-inflicted or at least caused by some blunt weapon which gave rise to the suspicion that he was not present on the spot. However, this argument is also without force, for the reason that Dr. Imran Farooq (PW-8) in his statement has clearly mentioned the injury to have been caused by firearm. Even we examined the questioned clothes of the injured in Court at the time of arguments and found that the `Shalwar' of injured Dr. Farmanullah had corresponding firing cut-marks on the same. Moreover, in his examination-in-chief P.W.3 Dr. Tawaf Gul has clearly stated that on the day and time of occurrence he alongwith Dr. Farooq Hilal, Dr. Farmanullah and Dr. Syed Shakil-ur- Rehman were walking on the road in front of Ayub Medical College, in the Complex premises and this statement of Dr. Tawaf Gul has not been challenged by way of cross-examination. We, therefore reject this argument.
27. It is further contended that the empty recovered from the spot was sent to Forensic Science Laboratory alongwith the pistol therefore, no credit could be given to the report of the Fire-arm Expert and in support, he placed reliance on AIR 1944 Lahore 206 at page 208. However, this argument is also without force, for the reason that after its recovery, the empty was immediately sent to the Forensic Science Laboratory and the same was returned with the remarks that it shall be kept in the safe custody of the "Malkhana" of the Police Station and on recovery of the weapon of offence, the same be sent again alongwith weapon for examination. Perusal of the record shows that the empty was kept sealed in the Police Station and on recovery of the weapon of offence, the two were sent to the Fire Arm Expert, whose report is Exh.PZ/1 and the same is in positive. We, therefore, could hardly find ourselves in agreement with this argument of the learned counsel for the appellant and reject the same.
28. It was further contended that the Car No,B-3699 was recovered from a deserted place and also in recovery of the same, no respectable from the locality was associated in order to witness the recovery. The recoveries were, therefore, made in violation of the mandatory provisions of section 103, Cr.P.C, as such, the recovery of the car, the recovery of the challan from the dash board of the car and the alleged number plate recovered from the "Diggi" of the car, could not be given any credit. However, this arguments is also without force. By going through the record, we find that while taking the appellant to the spot PW Shah Jehan S.I., had made all his efforts in order to associate any respectable from the locality to witness the recovery but no body volunteered to do so and having no other alternate, PW Dr. Ajmal in the company of the appellant was taken to the spot, in whose presence the recovery of the car was made. We have carefully gone through the statement of Dr. Ajmal and have found nothing which would cast doubt over his veracity.
29. It was argued that it is in evidence that immediately after the occurrence a procession consisting of the students and teachers of the College was taken out and the house of the appellant was ransacked/burnt, therefore, no question of recovery of weapon of offence from a ransacked/burnt or vacant house would arise. However, there is no evidence on record showing that after ransacking/burning of the house of the appellant, the same remained unwatched or it was totally destroyed. Moreover, in his statement before the Court recorded under section 342 Cr.P.C, the appellant has totally denied the factum of ransacking/burning of his house. Accordingly we also reject this argument.
30. It was further contended that the mobile print Exh.P.7 has not been proved in accordance with law of evidence, as such, this piece of evidence cannot be taken into consideration. This argument is also. Without force, for the reason that it is a public document within the meaning of Article 85 of the Qanun-e-Shahadad, 1984 and there is no need to call or summon any witness in support of its proof and the same is straightaway admissible under Article'87 of the Order.
31. It was also argued that the authors of the challan Exh.PW.6/4 and report Exh.PW.6/5 have not been examined in Court in support of their proof, therefore, these two documents also could not be taken into consideration. However, this argument is also without force, for the same reason as given above with respect to the mobile print.
32. It was further argued that site plan Exh.PW.13/8 was prepared without calling the Patwari/Girdawar Halqa in accordance with rule .13 Chapter XXV of the Police Rules, as such, this piece of evidence is inadmissible. This argument is also without force, firstly for the reason that the site plan is not a substantive piece of evidence and if there be any contradiction between the ocular evidence on record and the site plan and if the ocular evidence is found to be straightforward, trustworthy and inspires confidence, the site plan could be ignored and secondly, in our view summoning of the Patwari or Girdawar Halqa would be only necessary where the jurisdiction of a Police Station is doubtful in order to determine the same, but in the present case, there is no doubt about the jurisdiction of Police Station Mirpur. Accordingly we reject this argument.
33. It was further argued that it is in the evidence that at the time of occurrence, the deceased was at a distance of three paces away from the assailant but the medical evidence on record shows that there were presence of charring marks on the body of the deceased, therefore, there is contradiction in ocular version and the medical evidence on record. We are at a loss to agree with the learned counsel for the appellant because the assailant had obviously to stretch his hand for making fire on the victim. When the distance covered by the stretching of the arm is reduced from the given distance of three paces, then the possibility of the presence of the charring marks cannot be ruled out. Moreover, it cannot be expected of a witness to give with a scientific exactitude the distance between the assailant and the victim in such odd times.
34. It was also argued that the bulb recovered from the spot has not been examined through an Electrician to ascertain as to whether the same was live or fused at the time of occurrence.
However, in view of the other sufficient evidence on record, we do not find any force in this argument.
35. By going through the F.I.R, the ocular version of the PWs Dr.Farmanullah and Dr. Tawaf Gul, the medical evidence on record coupled with the recovery of one empty of .32 bore from' the spot and one from underneath the driver's seat of the car, which matches with the weapon of offence, the fire-arm Expert's report on the file, the recovery E of the car at the pointation of the accused and the weapon of offence at the pointation of the appellant, the print of the mobile and the recovery of the challan from the dash board of the car and plate number from the "diggi" of the car, other sufficient evidence on record, we are of the considered view that the prosecution has fully succeeded in establishing its case against the appellant.
36. In the instant case although the learned counsel for the appellant has put great emphasis on the point that somebody else instead of the appellant, after commiting the offence had mentioned the name of Sardar Moazzam out of enmity and that it was not Sardar Moazzam who has committed the offence. We observe that the matter did not end merely with the F.I.R. Subsequent evidence collected by the, prosecution in the form of ocular account of the P.Ws. Dr. Farmanullah and Dr. Tawaf Gul, the medical evidence, recovery of weapon of offence, the empties, recovery of car, mobile print, challan from the dash board of the car and number plate from the "Diggi" of the car, undoubtedly create a nexus of the appellant with the commission of the offence. Moreover, the eyewitnesses are totally independent and do not have any enmity with the appellant. They are also natural witnesses because both the witnesses were residing in the AMC as students of PALB (U.K.
Course). Although they were thoroughly cross-examined but their testimony remained unshattered and we have no reason to reject their testimony which found sufficient support from other circumstancial evidence on record. The prosecution, therefore, has fully succeeded in establishing its case against the appellant, as such, the learned trial Court had rightly convicted him.
37. In the end, it was submitted by the learned counsel for the appellant that the appellant being a senior advocate belonging to a noble profession and the occurrence has taken place abruptly, he deserves leniency in the punishment. However, we are not impressed by these submissions, for the reason that these submissions cannot be taken into consideration as mitigating circumstances.
38. For the reasons stated above, the appeal of the appellant fails and is hereby dismissed, and while answering the Murder Reference in affirmative, we confirm his conviction and death sentence alongwith the other sentences.