Javed Iqbal, J.--Criminal Appeal Nos, 396 to 399 of 2003 (filed by convicts hereinafter referred to as appellants) and Criminal Appeal No, 400 of 2003 (filed by the widow of the deceased, hereinafter referred to as complainant party), by leave of the Court, are directed against the Judgment of the Lahore High Court, Lahore dated 4.3.2003, whereby conviction and sentences of death awarded to Sharafat Ali and Shahzad appellants and imprisonment for life to the other appellants namely, Zahid Imran, Muhammad Afzal, Shahid Ali, Muhammad Anwar and Sajid Masih under Sections 302/149 PPC and under Section 7-A of the Anti. Terrorism Act, 1997 (hereinafter referred to as the Act 1997") were set-aside and instead all of them were convicted under Section 316 PPC and sentenced to pay Diyat amounting to Rs, 2,70,493,53/- jointly and severally. They were also sentenced to 14 years R.I. as Tazir. In Criminal Appeal. No, 400 of 2003, the complainant party has challenged the order of setting-aside of conviction under Sections 302/149 PPC and 7-A of the Act, 1997 and modification of/reduction in sentences of the appellants passed by the High Court.
2. All these appeals are proposed to be disposed of by this Single Judgment as they have arisen out of the common judgment and involved identical question of law and facts.
3. The leave to appeal was granted by this Court by means of order dated 12.11.2003 which is reproduced herein below to appreciate the legal and factual aspects of the controversy:-- "The above cited petitions for leave to appeal are directed against the common judgment dated 4.3.2003 whereby the learned Division Bench of the Lahore High Court setting aside the conviction and sentences of the appellants-convicts on the charges under Sections 302/149 Pakistan Penal Code read with Section 7-A of the Act 1997, converted the same under Section 316 Pakistan Penal Code, and thus, convicted and sentenced them to pay `Diyat' amounting to Rs, 2,70,493,53 jointly and severally. Besides, each of them was also sentenced to undergo RI for 14 years as `Tazir whereas the benefit of Section 382-B Criminal Procedure Code was declined.
2. Vide judgment of the trial Court dated 11.6.2002 both Shehzad alias Shera alias Tooti and Sharafat Ali were convicted and sentenced to death for the murder of Professor Abdul Latif on the charge under Section 7,A of the Act 1997 read with Section 302/149 Pakistan Penal Code with fine Rs, 2 lacs.
Their co-accused namely, Sajid Masih, Muhammad Afzal, Shahid Ali, Muhammad Anwar and Zahid Imran were awarded life imprisonment each with fine of Rs, 1 lac each on the said charges. Under Section 148 Pakistan Penal Code, each of the co-accused was sentenced to undergo RI for three years plus fine of Rs, 10,000/- or in default thereof, to further suffer R.I. for six months.
3. Resume of the prosecution case as disclosed by Ishtiaq Ahmed complainant PW-11 is that on 19.4.2000 he alongwith his colleague Muhammad Siddique while deployed to supervise BA's Examination had come across Professor Abdul Latif and Khalid Hassan PW, when deceased had apprised them that during the morning paper, Shehzad while taking his BA's examination was found using unfair means, for which the deceased had admonished him, and while leaving the examination center, the accused named above had threatened Professor Abdul Latif of dire consequences and that of his murder. Subsequently, it is alleged that appellant and his six co- accused armed with irons grips and clubs had launched the attack causing multiple injuries on various parts of the body of the deceased culminating in his instantaneous death. It is stated that PWs had apprehended Zahid Imran, Muhammad Afzal and Shahid Ali at the spot, while remaining accused managed to escape from the scene of crime.
4. We have heard the learned counsel for the appellant as well as the complainant at length.
Perusal of the judgment impugned reveals that learned Judges of the High Court came to the conclusion that involvement of the appellants in the commission of crime stood established by ocular account furnished by the independent witnesses, motive, medical evidence and the recovery of weapons of offence viz. iron grips and clubs and while converting the sentences of the appellants, the learned Judges took into consideration the medical evidence, whereby, deceased had sustained as many as nine injuries consisting of contusion, abrasions and swelling and the cause of death was described as neurogenic shock due to multiple injuries; the lungs of the deceased were found to be congested and he had breathed his last on account of external violence caused by he accused during the attack. It was further observed that no lethal weapon was used in the commission of crime and the sole intention of the accused appeared to have given beating to deceased Professor who had allegedly exchanged hot words with Shehzad alias Shera alias Tooti, and thus the learned Judges came to the conclusion that conviction of the appellants under Sections 302/149 Pakistan Penal Code and under Section 7-A of the Act 1997 was totally unjustifiable as the appellants had no intention to kill the deceased.
5. In addition to the aforesaid petitions, widow of the deceased Professor has also filed a separate petition seeking enhancement of sentences of the appellants.
6. Considering the case from all angles and for the safe administration of criminal justice in this case, we are of the view that the entire case requires reconsideration to ascertain as to whether judgment of the High Court is sustainable in the eye of law and whether the case falls within the ambit of Section 7-A of the Act 1997 and also to consider the quantum of sentence awarded in this case, therefore, we grant leave to appeal to the appellants as well as to the widow of the deceased Professor.
Leave to appeal granted in all these petitions in the terms indicated ibid."
4. The case of the prosecution as revealed from the statement of Ishtiaq Ahmed PW.11 complainant recorded in the Court is as under: "Professor Abdul Lateef deceased was my chachazad. The, deceased was Professor at Municipal Govt. Degree College, Faisalabad. He was posted as Deputy Superintendent, Examination for conducting examination of B.A. at Government College Center Gojra. On 19.4.2000 I alongwith Muhammad Siddique S/0 Umar Din PW at about 5.45 p.m. met Prof: Abdul Lateef come outside the Gate of Government College, Gojra. Prof. Abdul Lateef was accompanied by Khalid Hussain PW at that time. At that time Prof: Abdul Lateef told us that in the morning paper, Shahzad alias Toti alias Shera accused was found by him while copying in the Examination Hall and he further told that he forbade Shahzad accused who went away while threatening of dire consequences and his murder.
He further told us that Shahzad accused said that his father was the President of Gojra Bar Association and he will deal with him. During this time A Suzuki Car No, 209/FDP came there, 4 boys came out of that Car aforesaid.-- The four boys are present in Court today, came there, in Suzuki Car; they de-boarded from said Suzuki car. They started conversation, with pointing towards Abdul Lateef deceased. Later on, their names were disclosed as Shehzad Akhtar alias Shera alias Toti, Muhammad Anwar, Sharafat Ali, Sajjad Masih, who was driving said car, (today all present in Court). On seeing this, we started walking towards Lan Adda Gojra, when we reached post Office Chowk, it was about 6:10 p.m. Prof. Abdul Lateef was a few paces ahead from us. At that time, suddenly the same Suzuki car mentioned above emerged there. Shehzad and Sharafat accused were armed with iron fist (ahni mukka), Sajid, Anwar accused were armed with dandas. Meanwhile, a motorcycle Honda 125 No, 5730 on which 3 boys were riding. They also stopped their motorcycle near the accused already present. Shehzad accused also joined the other accused. The accused who came there on motorcycle are also today present in Court. At that time, Shahzad alias Toti raised lalkara that "Deputy Supdt. should be taught lesson not to give me permission for cheating in the examination."
On thus, Shahzad accused first gave iron fist blow to Prof. Abdul Lateef, which hit him on the head.
Sharafat also gave iron fist blow to Prof. Abdul Lateef, which hit him on the front side of the neck.
Shehzad again gave iron fist blow to said Prof, which hit him on his chest, on left side. Thereafter, Anwar, Sajid, Zahid Imran, Shahid Ali, Muhammad Afzal, started beating Prof. Abdul Lateef, with sticks and dandas and Prof. Abdul Lateef fell down. All the seven accused then gave him kicks and fist dandas blows, who was already lying, which hit the deceased on various parts of body.
I, Siddique, and Khalid Hussain PWs intervened, and caught hold of Zahid Imran, Muhammad Afzal, Shahid Ali at the spot. I caught Muhammad Afzal accused. Khalid PW caught hold Zahid Imran accused, and Muhammad Siddique apprehended Shahid Ali accused. Many people gathered at the spot at that time. All these 3 accused, who were apprehended, threw their dandas somewhere there. Sharafat, Anwar, Sajid, and Shahzad succeeded to run away in the car and the motorcycle.
Prof. Abdul Lateef succumbed to the injuries at the spot.
The motive for the occurrence was that Prof. Abdul Lateef, who was on official duty, had not allowed to the accused for cheating in the examination hall, to Shahzad accused, and thereafter all the accused committed the intentional murder of Prof. Abdul Lateef, to struck terror. The police arrived at the spot. I narrated whole the occurrence to the police, which was reduced into writing vide complaint Ex. P.F. I also signed the same, as token of its correctness. We also handed over three accused mentioned above to the police.
5. In this case, the prosecution has examined 15 witnesses while the appellants in all examined 11 witnesses in their defence. The material witnesses of the prosecution are, Ishtiaq Ahmed PW.11 and Khalid Hussain PW.12, the eye-witnesses; Dr. Muhammad Ashgar, Senior Medical Officer PW.1 who conducted the post-mortem examination on the dead body of the deceased, Rai Nasar Ahmed Professor Government College Faislabad, Superintendent (Examinations-B.A.) PW.2, Mansoor Hussain Superintendent Government Science College, B.A. Examinations Faisalabad, PW.3 and Muhammad Akram Shah S.I. who investigated the case. The other witnesses are mostly formal or recovery memos witnesses vide which the Investigation Officer had recovered the various articles belonging to the deceased and also the weapons of offence, the Motorcar, the Motorcycle at the instance/disclosure of the appellants.
6. Ishtiaq Ahmed PW.11 has given the ocular account in his statement recorded in the Court which is quite in-line with the report lodged by him. Khalid Hussain PW. 12, the other eye-witness has supported the complainant in all material points and corroborated his version.
7. Dr. Muhammad Asghar PW. 1 has conducted the post-mortem examination on the dead body on 11.4.2000 at 11:30 p.m. and found the following injuries on the person of the deceased, observing as under:-- "1. A redish blue contuse 8 cm x 3 cm on front and upper part of left side of chest, below clavicle.
2. A redish blue contuse 6 cm x 4 cm on front of neck, just near Manubrium Sterni.
3 A redish blue contuse 16 cm x 15 cm on back and upper part of both sides of chest including upper part of thoracic spino.
4. A redish blue contuse 5 cm x 3 cm on back of left scapula of left chest.
5. Multiple redish contusions in on area of 9 cm x 6 cm on back and lower part of left side of chest..
6. An abrasion .5 cm x .3 cm on outer part of palmer side of left hand base of thumb.
7. An abrasion .5 cm x .2 cm on left cheek.
8. A redish blue contusion 4 cm x 2 cm on inner and lower part of left fore-arm.
9. A swelling 5 cm x 4 cm on left parietal region left side of head." and described the cause of death neurogenic shock due to multiple injuries with blunt weapon. The probable duration of injury and death was immediate while between death and post-mortem was about 5 to 6 hours. Rai Nasar Ahmed PW.2 Superintendent (Examination B.A) who also corroborated the version of the prosecution with regard to the exchange of some hot words between the deceased and appellants Shahzad in the examination hall, as on search of the appellants Shehzad by the deceased with regard to the copying material possessed by him, and which was also recovered from him, the appellant felt ill for that action of the deceased, left the question paper, answer sheet, payment having the copying material written on it and went out of the examination hall while grumbling.
8. Learned counsel for the appellants have argued that the two witnesses who are closely related to the deceased, are chance witnesses as they did not belong to the said vicinity and also having no job of their own to visit the area or to be present on the spot; that all the recoveries so effected at the disclosure of the appellants have been planted and have not been proved by examining independent witnesses for the recoveries so effected and though the appellants have been nominated in the FIR by names, yet they were not known to the eye-witnesses previously and this effort on the part of the prosecution by mentioning the names of the appellants in the FIR is a planned one made by the Investigating Officer at the behest of Akhtar Ali Police Inspector, Previous SHO of the said Police Station who was the father-in-law of the deceased and who was inimically disposed of towards the father of the Shehzad appellants as some complaints have been made by the latter against the former i,e, the Police Inspector and thus challenging the evidence of the prosecution as not trust-worthy and not reliable to be believed qua the offences of capital punishment.
9. On the other hand learned counsel for the complainant party, while challenging the judgment of the High Court whereby the convictions under Section 7-A of the Act 1997 and 302 PPC were set- aside/converted to an offence under Section 316 PPC respectively and reduced the sentence from death to Diyat and 14 years imprisonment, has submitted that the prosecution has been able to prove guilt of the appellants and the trial Court has rightly convicted and sentenced them. He was supported by the state counsel.
10.We have gone through the entire record of the case, i,e, Judgment of the High Court, and the trial Court, evidence of the prosecution and that of the defence and examined the record in the light of the submissions made by the learned counsel for the parties.
11. The ocular version which was given by the two eye-witnesses is consistent and straight-forward, may be with some minor contradictions, which may be due to lapse of time. The reasons of their visit at the place, where the deceased was deputed in the examination hall has been explained by the two witnesses and the narration of the circumstances particularly the apprehending of the three appellants on the spot by them fully lends support to their version indicating their presence on the spot. Their version finds corroboration from the Medical evidence and also from the other circumstantial evidence i,e, the recoveries of the iron grips/iron club and Dandas at the instance of the appellants. The reasons of nominating the appellants in the FIR have also been fully explained as to how they came to know about the names of the appellants and more so their identification by PW's at the time of examination in the Court. They have pointed out the appellants present in the Court to be the one who were responsible for the assault on the deceased. Regarding the recoveries of various weapons affected, a credible evidence has been led by the prosecution and there exists no reasons to disbelieve such evidence. Efforts were made to dislodge the prosecution evidence by producing the evidence in defence with different pleas showing some between the Police Officials and father of the appellants Shehzad and also the absence of some of the appellants on the spot but the said evidence is not of a such standard sufficient to create dent in the evidence of the prosecution.
12.The evidence qua the guilt of the appellants have also been believed by the two Courts below i,e, the trial Court and First Appellate Court i,e, High Court, we also agree with both the Courts on the point of 'holding the appellant's guilty. However, the two Courts differ with regard to the sentences and the sections applicable in the case. As the trial Court found them guilty under Sections 302-b PPC and 7-A Act, 1997 and sentenced the appellants as mentioned in Para No, 1 above while the High Court held them guilty under Section 316 PPC and sentenced them accordingly.
13.Since both the parties i,e, the complainant party and the appellants have challenged the judgment of the High Court, the former has impugned the setting-aside of convictions and sentences under Sections 302/149 PPC and 7-A of the Act, 1997, while the later impugned their convictions and sentences under Section 316 PPC, this aspect (alterations in the sections of law and sentences after holding them guilty), require consideration.
14. Let we make it clear at the out set and as mentioned above that we agree with the conclusion of learned trial and First Appellate Courts that the prosecution has proved the guilty to the hilt by producing cogent and concrete evidence but we have serious reservations qua the application of Section 316 PPC, factum of sentence and applicability of Sections 6 and 7 of the Act 1997. As pointed earlier the prosecution has established its case beyond shadow of doubt. In this regard the statements of Ishtiaq Ahmad (P.W.11) and Khalid Hussain (P.W.12) can be referred. They were eye witnesses and it transpired from an in depth scrutiny of their statements that they have fully supported the prosecution case. They remained firm during the test of cross-examination and in spite of various searching questions, lengthy and an exhaustive cross-examination, nothing beneficial rendering any help to the case of appellants could be elicited. They had no rancor, enmity or ill-will against the appellants and hence the question of their false involvement does not arise specially when three accused were apprehended at the spot. Their version also finds support from the medical evidence, motive, factum of recovery and abscontion. Being worthy of credence and confidence inspiring, their evidence has rightly been appreciated and believed by the learned trial Court determination whereof has been upheld by the appellate Court under different sections of Penal Code. Ishtiaq Ahmad (P.W.11) and Khalid Hussain (P.W.12), by no stretch of imagination, can be declared as chance witnesses, as pressed time and again by Mr. Muhammad Latif Khan Khosa, learned Sr. ASC on behalf of appellants, because they have rendered a plausible justification for their presence at the place of occurrence. In this regard we are fortified by the dictum as laid down in the following authorities:--
(i) Muhammad Ilyas v. State (2002 SCMR 350);
(ii) Amanullah v. State (2002 SCMR 1557);
(iii) Allah Ditta v. Ghulam Shabbir (1994 SCMR 1253);
(iv) Shahzada v. Hamidullah (1968 P.Cr.L.J. 176);
(v) Fakku Mia v. State (1969 P.Cr.L.J. 1193);
(vi) Muhammad Rafique v. State (2004 SCMR 755);
(vii) Sikandar v. State (PLD 1963 SC 17);
(viii) Mst. Dur Naz v. Yousuf (2005 SCMR 1906);
(ix) Muhammad Zaman v. Muhammad Afzaal (2005 SCMR 1679);
(x) Muhammad Ahmad v. State (1997 SCMR 89);
(xi) Safeer Hussain v. Muhammad Jehangir (1996 SCMR 951);
(xii) Liaquat Hussain v. Falak Sher (2003 SCMR 611).
15. Now we intend to proceed with the question which requires determination as to whether conviction could have been awarded under Section 302(b) PPC and Section 7-A of the Act 1997 or the offence falls within the ambit of Section 316 PPC (Qatl Shibh-i-Amad) as concluded by the learned High Court. After having gone through the entire evidence including medical evidence, number of injuries, nature of injuries, seat of injuries and the crime weapons (iron fist and clubs) we are of the considered view that the provisions as contained in Section 316 PPC cannot be made applicable in this case, which are reproduced herein below for ready reference:-- "S. 316. Punishment for Qatl Shibh-i-Amd. Whoever commits Qatl Shibh-i-Amd shall be liable to Diyat and may also be punished with imprisonment of either description for a term which may extend to twenty five years as Tazir."
16. The language as employed in Section 316 PPC is free from any ambiguity and provides that in case of Qatl Shibh-i-Amd, the offender shall be liable to Diyat and may also be punished for imprisonment which may extend to twenty five years as Tazir, but here at this juncture the question which requires serious consideration would be as to whether Qatl-i-amd was committed or Qatl Shibh-i-Amd, which is defined as follows:-- "S. 315. Qatl Shibh-i-amd.--Whoever, with intent to cause harm to the body or mind of any person, causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit qatl shibh-i-amd. Illustration A in order to cause hurt strikes Z with a stick or stone which in the ordinary course of nature is not likely to cause death. Z dies as a result of such hurt. A shall be guilty of qatl shibh-i-amd.
17. The import and significance of an illustration appended to a section has been ignored by the learned Division Bench of High Court. "An illustration to a statutory provision merely illustrates a principle and ex hypothesi it cannot be exhaustive. It is illustrative of the true scope and ambit of a. section. It must be read subject to the relevant provision in the section itself. Illustrations merely illustrate a principle and what the Court should try and do is to deduce the principle which underlies the illustrations. An illustration is a simple statement of facts to which the section itself has got to be applied. It only exemplifies the law as enacted in a statute. It is not to be readily assumed that an illustration to a section is repugnant to it and rejected. Illustrations are only aids to understanding the real scope of an enactment. If the text is clear, and the illustration beyond it, the illustration cannot extend or limit the scope of the text. In all other cases, the illustration is explanatory-of the section. It may be rejected on the ground of its absolute repugnancy to the section itself. Being part of the statute, and not standing on the same footing as marginal notes, they go a great way to explain the intention of the Legislature. Beasley, J., in Ramalinga Mudaliar v.
Muthuswa mi Ayyar, after referring to Ariffin's case and Balla Mall's case expressed: I do not take either judgment to mean that under every Constance an illustration must be taken as part of the statute. All that in my view is meant is that a Court should not lightly disregard the illustrations merely because they do not seem to be in accord with generally accepted ideas as to the law in other places." Their Lordships of the Privy council again in Sopher v. Administrator General, Bengal, ruled that the "Section must, of course, be read and construed in connection with the illustrations to be found in the Act. (AIR 1944 PC 67, 69, see also Anirudha v. Administrator-General of Bengal, AIR 1949 PC 244, 250.) Ashrafalli v. Mohammedalli, AIR 1947 Bom: 122. 130, per Chagla, C.J., (Interpretation of Statutes by N.S. Bindra, revised by Dr. Tahir Mahmood, 7th Edition 1984).
"Illustrations appended to an Act of the Legislature are part of the enactment. They can, therefore, be legitimately used and are of value in construction of the sections. (1980 CLC 433) Reference to illustrations attached to any section would help in understanding true import/meanings of words used in such section as also scope thereof. (1996 CLC 1932). They may provide guidelines for interpretation of such provisions but cannot be accepted as the law itself. (1966 CLC 1331). An illustration appended to a section, should be deemed part of it, unless it is in conflict with the section itself. (PLD 1959 Lah. 429). However, it cannot curtail or expand the ambit of the section. (PLD 1957 S.C. (Ind) 18). Nor it can modify the language of the enactment.. (PLD 1959 Dacca 131)"
(Emphasis provided) (Canon of Construction & Interpretation of Statutes by M. Mahmood).
"Illustrations appended to an Act are part of the enactment and can legitimately be used for construction of Sections, unless it conflicts with the section. Where statutory examples are given it is the duty of the Court to accept their guidance. Unless this is unavoidable, they should not be rejected on the ground that they are repugnant to the operative provisions of the Act. That is, it is the duty of the Court to accept if that can be done, illustrations given under the section as being of value in the construction of the text and it would require a special case to warrant their ejection on the ground of repugnancy with the section. (Emphasis provided) But it cannot be laid down that under every circumstance an illustration must be taken as part of the Statute. Even if it is held that illustrations are no part of the section they have been expressed by the legislature as helpful in the working and application of the statute and their usefulness in that respect should not be impaired.
Similar views have been laid down by the Judicial Committee of the Privy Council in Mahmood Syedal Ariffin v. Yeah Ovi Gark." (Understanding Statutes - Canon of Construction by S.M. Zafar).
18. Before interpreting the provisions as contemplated in Section 315 PPC we may mention here that illustration to Section 315 PPC is also an integral and inseparable part of Section 315 PPC. It is abundant clear from the illustration that where a hurt is caused by means of strikes with a stick or a stone which is not sufficient in the ordinary course of nature to cause death but such strikes when resulted in death the offender shall be guilty of Qatl Shibh-i-Amd but on the contrary in this case the iron fist and clubs were used which cannot be equated with that of stone and stick rather the iron fist and clubs have its own characteristic and its strikes with force on vital parts of body such as head and neck can easily cause death. Admittedly the iron fist and clubs are not lethal weapons as Kalashinkov and pistol but result of this blows could be more serious and dangerous as compared to that of an ordinary stick and stone. It is worth mentioning that in the illustration, words "stick" has been used, gravity whereof is admittedly less than a club (clang and danda). It has been observed that the significance and import of illustration to Section 315 PPC has been ignored without any rhyme and reason. It is well settled by now that "illustrations attached to a section of any Act are deemed to be part of the Act itself, therefore, reference to illustrations attached to any section of any Act would help in understanding the true import/meanings of words used in such section as also scope thereof." Naveed Aziz v. Rauf Ali Syed (1996 CLC 1932). The import and significance of illustration was examined in case of Shaukat v. State (PLD 1982 FSC 179) and it was held as under:-- "9. As regards the legal significance of such illustrations, it is well-settled now that illustrations appended to a section are to be taken as part of that section AIR 1918 PC 249 unless they are found inconsistent with that section. The main purpose of illustrations is to show how the principle already enunciated or contained in that section of the enactment, is to be applied or how the, particular facts of the case supposed by that illustration come under that principle. Thus an illustration to a section of a statute plays an important role for the interpretation and application of that section and to gather the true intention of the legislature in framing that particular section. An illustration serves as a sort of key to unlock the mind of the draftsman regarding the true intention in framing that particular section."
19.We have no hesitation in our minds to hold that the illustration appended to this section besides an integral part of the section can be called in said to interpret the intention of the legislature. In this regard reference can be made to the case of Ghulam Rasul v. Crown (PLD 1951 Federal Court 62).
20.We have also examined the medical evidence furnished by Dr. Muhammad Asghar (P.W.1) by whom post-mortem of the deceased was conducted and following injuries were noted:- "1. A reddish blue contuse 8 cm x 3 cm on front and upper part of left side of chest, below clavicle.
2. A reddish blue contuse 6 cm x 4 cm on front of neck just near Manubrium Sterni.
3. A reddish blue contuse 16 cm x 15 cm on back and upper part of both sides of chest including upper part of thorasic spine.
4. A reddish blue contuse 5 cm x 3 cm on back of left scapula of left chest.
5. Multiple reddish contusions in an area of 9 cm x 6 cm on back and lower part of left side of chest.
6. An abrasion .5 cm x .3 cm on outer part of palmer side of left and hand near base of thumb.
7. An abrasion .5 cm x .2 cm on left cheek.
8. A reddish blue contusion 4 cm x 2 cm on inner and lower part of left fore-arm.
9. A swelling 5 cm x 4 cm on left parietal region (left side of head).
Scal. Skull and Vertebrae.
Scalp was congested at site of injury No,
9. Skull and vertebrae were healthy.
Membranes and brain were healthy.
THORAX.
Right lung was congested. A piece of lung was sent to Chemical Examiner, Punjab, Lahore for histopathology. Left lung was found congested. A piece of lung was sent to Chemical Examiner, Punjab, Lahore for histophatology.
Paricardium and heart, both chambers (Right and left ventricle) of heart were full of blood. The whole heart was sent to Chemical Examiner for histopathology. All other viscera of thorax were healthy.
ABDOMEN.
Stomach was healthy and contained about 150 cc of semi-digested food material. Small intestine was healthy and contained semi-digested food material. Large intestine was healthy and contained focal matter. Bladder was healthy and contained about 200 cc of urine. All other organs were healthy.
On dissection muscles, bones and joints, no fracture was seen as well as no dislocation was seen."
21. Dr. Muhammad Asghar (P.W.1) has opined that all the injuries were anti-mortem caused by blunt weapon and the provisional cause of death was neurogenic shock due to multiple injuries.
This provisional cause of death was confirmed by Dr. Muhammad Asghar (P.W.1) as under:-- "I have seen the "report from Bacteriologist' Punjab Lahore (Objected to by the Learned Defence Counsel about the inadmissibility (Ex. PD) of report of Bacteriologist); Ex. PD and on the basis of the said report I gave the final opinion about the cause of death as there is no evidence of old and rent myocardial infarction from report, so my final opinion is that the cause of death was due to neurogenic shock due to multiple injuries. My final opinion is PB/1, which is in my hand and signed by me."
22.Dr. Muhammad Asghar (P.W.1) was subjected to lengthy cross-examination and while answering one the questions he made it abundant clear that vascular congestion could only be caused by inflammable and in this particular case it was due to shock. He further removed all the doubts while answering one of the questions as under:-- "I do not agree with the suggestion that the deceased suffered from prominent vascular congestion, septal wall cedema with collection of R.B.Cs and inflammatory cells due to disease before the seat of injuries. It is not necessary that the presence of the above in the lungs of the deceased may have contributed to the neurogenic shock and I cannot say if it could contribute to the neurogenic shock."
23. There is no denying the fact that the cause of death was neurogenic shock which was the result of multiple injuries. There could be no second opinion that the death was caused due to the external violence and multiple injuries caused by iron fist and clubs which were admittedly not stone and stick as is indicative of the recovery memos, details whereof are as under:--
(i) Iron fist (P-11) (Exh. PM)
(ii) Danda like bat (P-12) (Exh. PN)
(iii) Iron fist (P-19) (Exh. PR)
(iv) Danda (P-27) (Exh. PT)
(v) Sota (P-28) (Exh. PU)
(vi) Danda (P-29) (Exh. PV)
(vii) Danda (P-29) (Exh. PV/1)
(viii) Sota (P-30) (Exh. PW); which can be equated to that of blunt weapons. It is not necessary that where lethal weapon and fire-arm is not used the offence would fall within the ambit of Section 315 PPC. The mandatory pre- requisite for the invocation of Section 315 would be the use of stone and stick which were never used by the appellants and hence the question of their conviction under Section 316 PPC does not arise. The illustration to Section 315 PPC has either not been appreciated in its true perspective or it escaped the notice of learned Division Bench of High Court. Besides that the words with intent to cause harm" have not at all been kept in view rather factum of intention which finds a specific mention in the said section, has been dealt with in a casual manner by the learned Division Bench of High Court. What was the real intention of the appellant, could well be understood from medical evidence as discussed herein above. The view that the appellants had no intention to kill is utterly devoid of merit. The well entrenched principle of criminal administration of justice "that to constitute a crime the act must be accompanied by a criminal intent or by such negligence or in difference of duty or to consequence as is regarded by the law as equivalent to criminal-intent. We are conscious of the fact that intention is not capable of positive proof and it can only be implied from overt act and no hard and fast rules can be formulated to know the intention which must always be gathered from the circumstances of the case, and the matter which is primarily to be considered is the consequences which flow from an act because a man is usually presumed to intend the consequences of his own act," has been ignored. (Mewa Khan v. The State PLD 1995 Quetta 108).
24.We may point out that "by 'intention' is meant the expectation of the consequence in question.
'It was a universal principle, that when a man is charged with doing an act, of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing of the act.' Intention does not imply or assume the existence of some previous design or fore- thought. It means an actual intention, the existing intention of the moment, and is proved by, or inferred from, the acts of the accused and the circumstances of the case." (1887) P.R. No, 62 of 1887).
25. In so far as common intention is concerned it is a question of fact which can be ascertained on the basis of the acts and conduct of the accused, the ferocity of the attack, the weapons used, the number and seat of injuries, the number of blows coupled with the element of prior concert of mind. In this regard reference can be made to (B.N. Srikantiah & others v. The State of Mysore 1959 SCR 496). Intention or knowledge of accused can further be ascertained from the nature of the injuries inflicted and the medical evidence as furnished by Dr. Muhammad Asghar (P.W.1) who made it abundant clear that the cumulative effects of the injuries resulted in neurologic shock which caused the death of Prof. Abdul Latif. We are conscious of the fact that the existence of intention is not to be inferred unless death follows as a natural and probable consequence from the act. The 'intention' or 'knowledge' with which, an act which caused death was committed is not constructive or a presumption of law, but a matter of fact to be examined in each case and proof of collateral facts to explain the motives and designs of the accused would be admissible which has come on record and have rightly been taken into consideration by the learned trial Court.
There is no cavil to the proposition that "the connection between the 'act' and the death caused thereby must be direct and distinct; and though not immediate it must not be too remote. If the nature of the connection between the act and the death is in itself obscure, or if it is obscured by the action of concurrent causes, or if the connection is broken by the intervention of the subsequent causes, or if the interval of time between the death and the act too long, the above condition is not fulfilled. It is indispensable that the death should be clearly connected with the act of violence, 'riot merely by a chain of causes and effects, but by such direct influence as is calculated to produce the effect without the intervention of any considerable change of circumstances." (1864) W.R. (Gap. No,) (Cr.)
31. The external violence caused "neurologic shock" as a result whereof Prof. Abdul Lateef died instantaneously.
26. It may not be out of place to mention here that "certain factors will have to be considered, such as for instance the number of blows, the nature of those blows and the parts of the body on which those blows have been inflicted." (1944) (O.W.N. 342). The infliction of blows and seat of injuries also indicates "as to the intention to be presumed". (1927 5 Ran. 817, 1938 O.W.N. 184, 39 Cr.L.J. 979). The question as to how the factum of intention or knowledge could be proved the settled criterion seems to be that "it may be asked how can the existence of the requisite intention or knowledge be proved, seeing that these are internal and invisible acts of the mind? They can be ascertained only from external and visible acts. Observation and experience enable us to judge of the connection between men's conduct and their intentions. We know that a sane man does not usually commit certain acts heedlessly or unintentionally and generally we have no difficulty in inferring from his conduct what was his real intention upon any given occasion." (M. & M. 230, 231). The case has been examined on the touchstone of the criterion as mentioned above and after gone through the entire evidence, eye account furnished by Ishtiaq Ahmad (P.W.11) and Khalid Hussain (P.W.12), medical evidence, infliction of various blows on vital parts of the deceased, weapon used and seat of injuries, we are of the considered opinion that it was a Qatl-i-amd and no other sentence could be awarded except death. It is well established by now that "the normal sentence for a person found guilty under this section is the sentence of death and the lesser punishment cannot be awarded unless there are extenuating circumstances which, though they are not sufficient to bring the case under any of the exceptions to this section, could be taken into account as mitigating circumstances to award lesser of the two sentences. While awarding sentence for an offence under this section the conduct of the murderer, the nature of the temptation to which he yielded, the manner in which the crime was committed are some of the considerations which will weigh with the Court. But the. Code provides no exception for young persons on the ground that they are young." (1960 ALJ 499). Where "the accused had no personal motive and committed the murder in order to oblige his friend is concerned, is not a sufficient ground for awarding lesser sentence of imprisonment for life." (1950) 52 PLR 73). Besides that "youth alone in every case is not such an extenuating circumstance as would justify the imposition of the lesser penalty." ((1928) 2g Cr.L.J.
540, 35 Cr.L.J. 455, 1933 AIR (L) 305). A Court is wrong where he fails to sentence accused persons to death when they have deserved that punishment, and there should be no extenuating considerations. "Judges are sworn to administer the law not as they wish it to be, but as they find it."
(1932 11 Pat. 807).
27.The learned Division Bench of Lahore High Court has erred while converting Section 302 PPC with that of Section 316 PPC by ignoring the evidence which has come on record. It is well entrenched principle of criminal administration of justice that "the question of sentence demands the utmost care on the part of the Courts dealing with the life and the liberties of the people. The sentence must be weighed in golden scales as it were properly balanced, to punish the offender in proportion to the character and extent of his guilt, to be deterrent for him and for the rest of the society, without being unnecessarily harsh or needlessly indulgent. All the circumstances surrounding the guilt must be carefully borne in mind and in determining the kind and quantum of sentence to be awarded the overriding consideration must be that it should be fair and even on humane standards, to produce the correct results in a given case, to be a solacing polliative for the party that has been wronged and an effective punishment for the one that has done the wrong."
(PLD 1967 Pesh. 119). "In case of murder, when the facts are clear, the onus is upon the accused to show the circumstances which would bring to offence within the category of those offences which capital sentence should not be imposed. The law indicates the gravity of the offence by the maximum penalty and the Courts have to judge whether the act committed falls short of the maximum degree of gravity and if so, to what extent. Therefore unless extenuating circumstances can be found a murderer must be sentenced to death. If the Court is satisfied that there are mitigating circumstances, only then it would be justified in imposing the lesser of the two sentences provided by law. In other words, the nature of the proof has nothing to do with the character of the punishment." (AIR 1957 SC 614).
28.The appellants were found guilty of deliberate and premeditated murder and hence the only sentence which could be awarded is that of death as there are no extenuating and mitigating circumstances to alter the same with that of any other sentence. The learned Division Bench of Lahore High Court has not given any cogent reasoning for conversion of sentence and ignored that "where the offence deserves a higher penalty any reluctance to pass death sentence should be deprecated. The leniency in the matter of sentence where it is not deserved is a serious dereliction of duty on the part of the Court to whom the State has entrusted the duty of doing justice between man and man. Therefore, the Court will not be justified in not inflicting extreme sentence on grounds which are purely matters of grace and clemency." (AIR 1935 Rang. 504).
29.In the light of what has been stated herein above we are of the considered view that it was an unmerciful thrashing in a brutal manner given by iron fist and clubs which resulted in the death of Prof. Abdul Lateef. If the manner of attack by the assailant is out of all proportion to the offence given, that circumstances must be taken into consideration for deciding whether undue advantage has been taken. In the case in hand, as discussed herein above, the appellants have acted in a very unusual and barbaric manner which cannot be ignored. It was by all means Qatl-i- Amd which aspect of the matter has rightly been dilated upon and decided by the learned trial Court. The death was due to neurogenic shock which developed as a result of the injuries sustained by Prof. Abdul Lateef and inflicted by the appellants. In the absence of such injuries the question of neurogenic shock would have not arisen. The appellants have given serious blows on the head of the deceased with iron fist and clubs and they intended or knew themselves to be likely to smash the skull of the victum and they must be taken to have known that they were likely to cause the death of victum and were therefore, guilty of Qatl-i-Amd. "When the disease which actually causes death is meningitis, peritonitis, teatanus, pneumonia, etc., and it is the natural and probable result of the injury which the person inflicting the injury has caused, the person who inflicts the injury must be held responsible for the disease arising from the injury." (1936) 39 Cr.L.J.
217). It is to be noted that "the law looks as regard intention to the natural result of a man's act and not to the condition of his mind. From a legal point of view a person intends whatever he gives others reasonable grounds for supposing that he does intend. Where a man strikes lathi blows on the head of the deceased mercilessly and practically kills him on the spot, he is guilty of murder."
(1392) 9. 0.W.N. 350, 33 Cr.L.J. 537).
30. In sequel to above mentioned discussion, we are of the considered view that the multiple blows inflicted by the appellants and various injuries received by the deceased are indicative of the gravity of the force which .was used. No doubt the weapon used were not one that would of necessity cause fatal injury, but the force used was so great as to show that the appellants intended to cause injury sufficient in the ordinary course of nature to cause death and that they are guilty of Qatl-i-Amd. There can be no doubt that a person delivered a violent blow with a fist blow or danda on vulnerable part of the body of the deceased such as head must be deemed to have intended to cause such bodily injury as they knew was likely to cause the death of the person whom the blows were inflicted.
31. We have also adverted to the question as to whether conviction could have been awarded under Section 7-A of the Act 1997 or otherwise? This aspect of the case has not been examined seriously and no sound reasoning whatsoever has been given by the learned Division Bench of Lahore High Court that as to why the provisions as contained in Section 7-A of the Act 1997 would not be applicable. The observation of learned Division Bench of Lahore High Court "that the deceased was not beaten to death because he was public servant. He was caused injuries only because he had exchanged some hot words with Shahzad alias Shera. Conviction of the appellants under Section 7-A of the Act 1997 was also unjustified" is absolutely incorrect and is a result of sheer misreading and non-reading of evidence. It is to be noted that specific motive has been assigned in FIR duly proved by the evidence furnished by Rai Nazir Ahmad (P.W.2) duly supported by Manzoor Hussain (P.W.3). Appellant namely Shahzad was got apprehended red handed while copying and using unfair means and such apprehension by late Prof. Abdul Lateef was not his personal act but it was a part of his official duty as he was performing as Deputy Superintendent in the examination hall to conduct the BA examination. The accused became annoyed and nourished grudge which culminated into the death of Prof. Abdul Lateef who admittedly was on duty and conducting BA examination and did not allow Shahzad to use unfair means and copying who left the examination center by extending serious threats to Prof. Abdul Lateef and in the evening the fateful occurrence occurred as a result whereof Prof. Abdul Lateef was done to death by all the accused persons having common intention and prior concert of mind.
The act of accused persons created fear, sensation, panic and insecurity in the teaching class as a whole. It is to be noted that the charge was framed on 6.6.2000 when Section 6 of the Act 1997 was intact and substituted by Ordinance XXXIX of 2001 whereas the alleged offence was committed on 19.4.2000 and the said substitution was not with retrospective effect as the said Ordinance was promulgated on 14.8.2001. We have carefully examined the provisions of Section 6 of the Act 1997 which are reproduced herein below for ready reference:-- "6. Terrorism.--(1) In this Act, 'terrorism' means the use or threat of action where:
(a) the action falls within the meaning of sub-section (2), and
(b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or. insecurity in society; or
(c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause.
(2) An "action" shall fall within the meaning of sub-section (1), if it:
(a) involves the doing of anything that causes death;
(b) involves grievous violence against a person or grievous bodily injury or harm to a person;
(c) involves grievous damage to property;
(d) involves the doing of anything that is likely to cause death or endangers a person's life;
(e) involves kidnapping for ransom, hostage, taking or hijacking;
(o) incites hatred and contempt on religious sectarian or ethnic basis to stir up violence or cause internal disturbance;
(g) involves stoning, brick-batting or any other form of mischief to spread panic;
(h) involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worship;
(i) creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life;
(j) involves the burning of vehicles or any other serious form of arson;
(k) involves extortion of money ("bhatta") or property;
(1) is designed to seriously interfere with or seriously disrupt a communications system or public uility service; (m)involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; or
(n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant.
(3) The use or threat of use of any action falling within sub-section (2), which involves the use of fire-arms, explosives or any other weapon, is terrorism, whether or not sub-section 1 (c) is satisfied.
(4) In this section "action" includes an act or a series of acts.
(5) In this Act, terrorism includes any act done for the benefit of a proscribed organization.
(6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism.
(7) In this Act, a "terrorist" means:
(a) a person who has committed an offence of terrorism under this Act, and is or has been concerned in the commission, preparation or instigation of acts of terrorism;
(b) a person who is or has been, whether before or after the coming into force of this Act, concerned in the commission, preparation or instigation of acts of terrorism, shall also be included in the meaning given in clause (a) above."
32.The language as employed in the section is unambiguous, plain and simple which hardly requires any scholarly interpretation and is capable enough to meet all kinds of terrorism. It is an exhaustive section and does not revolve around the word "designed to" as used in Section 6(1)(b) of the Act or mens rea but the key word, in our opinion, is "action" on the basis whereof it can be adjudged as to whether the alleged offence falls within the scope of Section 6 of the Act or otherwise? After having gone through the provisions as contained in Section 6 of the Act we are of the firm opinion that "terrorism" means the use or threat of "action" where the "action" falls within the meaning of sub-section (2) of Section 6 of the Act and creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life shall amount to terrorism as enumerated in Section 6 of the Act.
33.We must not ignore the dictum as laid down in Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445) which reads as follows:-- "We may point out that this Court is not oblivious of the factum that the law and order situation has been considerably deteriorated and new types of terrorism have emerged due to tremedous progress made in the field of technology. This Court in more than one cases has held that the approach of the Court while considering criminal matters should be dynamic and it should take into consideration the surrounding situation obtaining in the country and should not lightly set aside a conviction on technical grounds if the Court's conscience is satisfied that factually the convict was guilty of the offence. In this regard reference may be made to the following observations of one of us (Ajmal Mian, CJ) in the following two cases:--
(i) State through Advocate-General, Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1); "2. Before touching upon the merits of the case, I may observe that there cannot be two opinion that the duty of the Court is to administer the laws as are operative in the country and if such laws fail to achieve the desired result, then it is the duty of the Legislature to make necessary amendments therein. However, at the same time, it is also a well-settled proposition of law that while applying a particular law, the Court should take into consideration the object for which it has been enacted. The interpretation of the law should be placed in a manner which may advance the object and suppress the mischief for which the law in question might have been enacted and not to construe in a manner which may defeat the object of the law."
34.There is no cavil to the proposition that "intention" plays a dominant role in determining the act of terrorism but there is no yardstick on the basis of which it could be defined precisely and with exactitude. "By intention is meant the expectation of the consequence in question. It was an universal principle, that when a man is charged with doing an act, of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing of the act. Intention does not imply or assume the existence of some previous design or fore- thought. It means an actual intention, the existing intention of the moment, and is proved by , or inferred from, the acts of the accused and the circumstances of the case." ((1887) P.R. 62 of 1887). It is well settled by now that "criminal intention simply means the purpose or design of doing an act forbidden by the Criminal Law without just cause or excuse. An act is intentional if it exists in idea before it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied. The word "intent" does not mean the ultimate aim and object. Nor is it used a synonym for motive." (34 PCr.LJ. 1055 Ramsukh). It hardly needs any explanation that intention cannot be proved by direct evidence which is rarely available and therefore, it has to be inferred from surrounding circumstances." (PC) AIR 1918 P.C. 354 Consul Confizon v. H.M. Prosecutor General, PLD 1959 Lah. 495, PLD 1958 Lah. 395, PLD 1963 Kar. 188 Taj Muhammad, PLD 1961 Lah. 221 Rahmat Ullah, PLD 1965 SC 640 Jane Alam. The presumption of law is that a man intends the natural and inevitable consequences of his own act and thus it is not necessary to consider his state of mind at the time of committing the offence for the purposes of determining whether he intended to commit to or otherwise. Where a criminal act is designed to create a sense of fear or insecurity in the mind of the general pubic that can only be adjudged by keeping in view the impact of the alleged offence and manner of the commission of alleged offence. There is absolutely no doubt in our mind that the Act was brought into force for the prevention and, elimination of terrorism, sectarian violence and for expeditious dispensation of justice in the heinous offences as stipulated in the Act itself. It is, however, to be noted here at this juncture that so far as the concept of "terrorism" is concerned there is no substantial change between the Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) and the Anti-Terrorism Act (XXVII of 1997) except a few minor changes having no bearing on the meaning and scope of terrorism. We have also surveyed the case law on the subject to know what exactly the "terrorism" is.
35. In case titled Muhammad Farooq v. Ibrar (PLD 2004 SC 917) a similar proposition was examined and it was held as under:- "The very object to promulgate Anti-Terrorism Act, 1997 was to control the acts of terrorism, sectarian violence and other heinous offences as defined in Section 6 of the Act and their speedy trials. To bring an offence within the ambit of the Act, it is essential to examine that the said offence should have nexus with the object of the Act and the offences covered by its Sections 6, 7 an 8. On bare perusal of sub-clauses (b), (d), (h) and (i) of sub-section (1) of Section 6 of the Act, it is abundantly clear that the offence which creates a sense of a fear or insecurity in society, causes death or endangers a person's life, involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worships, falls within its ambit."
(Emphasis provided).
36. An identical question was examined in case reported as Province of Sindh v. Ghulam Hussain (2002 SCMR 908) wherein it was held as under:-- "9. Learned counsel for the petitioner relied upon the rule laid down in the case of Mehram All and others v. Federation of Pakistan and others (PLD 1998 SC 1445) and in particular the observations made at page 1493 of the report which are reproduced below to contend that merely because an army officer was killed would not itself be sufficient to attract the provisions of the Anti-Terrorism Act:-- "It was urged by Mr. Gilani, learned counsel for some of the petitioners, that a perusal of the amended Schedule indicates that if the victim of a murder case under Section 302, P.P.C. is a member of police, armed forces or civil armed forces or a public servant, the accused of such a case is triable under A.T.A. even if the murder had taken place on account of personal enmity and had nothing to do with the discharge of his official functions/duties. Whereas Ch. Muhammad Farooq, learned Attorney-General, has submitted that in order to terrorise the public servants so that they may not discharge their functions/duties efficiently and effectively, the terrorist started killing public servants, for example, the Commissioner of Sargodha, a Secretary of the Provincial Government in Lahore, Superintendent of Police, Gujranwala, and the Managing Director, K.E.S.C., Karachi, were brutally murdered. According to him, the above acts of terrorism were intended and designed to create panic amongst the public servants. It will suffice to observe that if a Government servant or any other employee of the Government functionaries is murdered because he belongs to the above service and that there was no enmity or plausible reason for commission of the above offence such a killing is an act of terrorism within the ambit of the Act and can lawfully be included in the Schedule, but if the murder is committed solely on account of personal enmity such a murder will have no nexus with the above provisions of the Act and will not be triable under the Act. However, this is a matter to be decided by the Special Court under Section 23 of the Act, Special Court has been empowered to transfer a case to a regular Court if after taking cognizance of an offence, it is of the opinion that the offence is not a scheduled offence.
10. These observations have been made in relation to inclusion of offence of murder of civil servants, etc., in the schedule as a separate entity and do not in any manner have the effect of excluding from their applicability the other, provisions of the Act such-like Section 6(b) (ibid) which if otherwise is applicable in the case of murder, may be of army man or a public servant as ordinary person on the touchstone of criteria i,e,, the same had the tendency or the effect of likely to create terror or feeling of insecurity."
37. A similar situation was also dealt with by this Court in case titled Zia Ullah v. Special Judge (2002 SCMR 1225) wherein it was concluded as under: "3. We have heard at length the learned counsel on behalf of the parties and have carefully examined the entire record. Let us mention here at the outset that the impugned order cannot be termed as speaking one but on the contrary it is perfunctory and appears to have been passed in a cursory manner by ignoring the objects and reasons for the enactment of the Anti-Terrorism Act, 1997. The alleged murder was committed in a wanton, reckless and brutal manner and resultantly learned Advocate who was in his robe was done to death in Court vicinity. The gravity of the offence could not be diminished or minimized merely on the ground that alleged murder was not committed exactly within the Court premises as pressed time and again by the learned counsel for the respondents. It is to be noted that one Assistant sub-Inspector of Police was seriously injured by means of fire-arms. We are not having the slightest doubt while holding that the alleged occurrence must have caused fear, panic and wave of sensation and thus the matter squarely falls within the ambit and jurisdiction of Special Court. The contents of F.I.R. have neither been read properly nor understood in its true perspective which" resulted in serious miscarriage of justice on the one hand and protracted the trial on the other without any fault of the affected party. It is worth mentioning that the statements of about six witnesses have been recorded and thereafter invocation of Constitutional jurisdiction by filing writ petition by the respondents demonstrates propensity to get the trial prolonged for the reasons best known to them. It is not conceivable that on the one hand the prevailing judicial system is blamed for inordinate delay but when a serious attempt is made for the expeditious disposal of the case the affected parties tried their best to create numerous hurdles under the garb of law to get it delayed. The case in hand can be cited as a classic example for such trend. The learned Sessions Judge is Presiding Officer of the Special Court constituted under the Anti-Terrorism Act, 1997 and his judgment can be assailed before High Court and ultimately this Court, hence the question of any prejudice does not arise. In our considered view no bar whatsoever has been imposed under the Anti-Terrorism Act, 1997 that such cases could not have been tried by the Special Court. Mr. Hameed Ullah, Advocate was on his way to sub-Divisional Court Chiniot to enter appearance in a murder case and Akbar Khan, Assistant sub-Inspector of Police was going to get his statement recorded in a criminal case got registered under Sections 302, 324, 148 and 149 P.P.C. It is an admitted feature of the case that indiscriminate firing was made which caused the fateful occurrence and created sensation and wave of panic which amounts to sense of insecurity not only amongst a section of public but community of Advocates as well. We have given a careful consideration to the relevant provisions of the Anti- Terrorism Act, 1997 and we are of the view that if the accumulative effect of the provisions as contained in Sections 6(i)(b), 6(2)(a)(m) and (n) is examined the only irresistible conclusion would be that the alleged occurrence falls within the ambit of Section 6 of Anti-Terrorism Act, 1997."
38.The provisions as contained in Sections 6, 12 and 23 were examined by this Court in case titled Najam-un-Nisa v. Judge, Special Court (2003 SCMR 1323) and the operative portion of the said judgment is reproduced herein below for ready reference: "3. The venue of the commission of a crime; the time of occurrence, the motive which had led to the commission of a crime and the fact whether the said crime had or had not been witnessed by the publicat-large are not the only factors determining the issue whether a case did or did not fall within the parameters of the ATA of 1997. The crucial question is whether the said crime had or had not the effect of striking terror or creating a sense of fear and insecurity in the people or any section of the people. Needless to mention here that a crime of the kind in hand committed even in a remote corner does not remain unnoticed in the area in which is committed or even in the country on account of the print and electronic media. Seven persons being butchered in a house at night is not the kind of occurrence which would not create terror and horror in the people or any section of the people."
39.The provisions as contained in Section 6 of the Act were also dilated upon and examined by this Court in case Muhammad Mushtaq v. Muhammad Ashiq (PLD 2002 SC 841) wherein it was held as under: "7. It would thus appear that ordinary crimes are not to be dealt with under the Act. A physical harm to the victim is not the sole criterion to determine the question of terrorism. What is to be seen is the psychological effect produced by the violent action or with the potential of producing such an effect on the society as a whole or a section thereof. There may be a death or injury caused in the process. Thus where a criminal act is designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquility of the society, the same may be treated to be a terrorist act. There may be just a few killings, random or targeted, resorted to with single mindedness of purpose. But nevertheless the impact of the same may be to terrorise thousands of people by creating a panic or fear in their minds.
8. In the present case, we, prima facie, find that the occurrence took place during the peak hours of the day on the busy Court Road near the District Courts, Lahore, wherein four persons while on their way to attend the Court were allegedly murdered by the use of kalashnikovs. The cumulative fall- out of the occurrence as to the time, place and manner of the act created a sense of the fear and insecurity in society. The case was, therefore, triable by the Anti-Terrorism Court established under the said Act in view of its peculiar facts and circumstances as also the law and order situation prevailing in the country. In the case Ziaullah (supra) a similar view as taken by this Court in somewhat similar circumstances."
40. The judicial consensus seems to be that striking of terror is sine qua non for the application of the provisions as contained in Section 6 of the Act 1997 which cannot be determined without examining the nature, gravity and heinousness of the alleged offence, contents of the FIR, its cumulative effects on the society and a class of persons and the evidence which has come on record. There could be no second opinion that where the action of an accused person results in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in a particular vicinity it amounts to terror and such an action squarely falls within the ambit of Section 6 of the Act 1997.
41.As mentioned herein above the murder of Prof. Abdul Lateef was not the result of personal enmity but Prof. Abdul Lateef was murdered as he had not allowed the appellant Shahzad to use unfair means in the examination hall which was his official duty. The manner in which the murder of late Prof. Abdul Lateef was committed created sensation and terror in the entire teaching class. As mentioned herein above the murder was not the result of personal enmity and committed with due deliberatioh, premeditation, common intention and prior concert of mind. It was a brutal murder committed by "hooligans" as the word "student" cannot be used for them because the offence was committed in a barbaric and brutal manner and Prof. Abdul Lateef was done to death merely for the reason that he had not allowed the appellants to use unfair means. This fact was not something personal but it was purely an official act and under the garb of "personal enmity" as pressed time and again the question of any leniency does not arise. This brutal murder was an act of terrorism and the sentence of death has rightly been awarded under Section 7-A of the Act 1997.
42. The nutshell of the above-mentioned discussion is that Criminal Appeals Nos, 396, 397, 398 and 399 of 2003 are hereby dismissed and Criminal Appeal Bearing No, 400 of 2003 is accepted. The impugned judgment is set aside. The judgment of learned trial Court shall remain intact whereby Sharafat Ali and Shehzad alias Shera alias Toti were convicted under Section 7-A of the Act 1997 read with Section 302 and 149 PPC for committing the murder of Prof. Abdul Lateef and were sentenced to death with fine of Rs, 2,00,000/- each and in case of default further to suffer R.I. for one year to each of the accused and Zahid Imran, Muhammad Afzal, Shahid Ali, Muhammad Anwar and Sajid Masih were convicted and sentenced for imprisonment for life and with fine of Rs, 1,00,000/- each under the above-mentioned section and in default whereof to undergo R.I. for one year to each of them. The above named appellants were also convicted and sentenced under Section 148 PPC to suffer three years R.I. and fine of Rs, 10,000/- each and in default whereof to undergo R.I. for six months with benefit of Section 382-B Cr.P.C., if any will be available to accused and all the sentences will run concurrently.