1. Sh. Javaid Sarfraz, J.--The appellants, Mohsin and Ameer Ali alongwith co-accused, seven in numbers (since acquitted), were tried by the learned Special Judge, Anti Terrorism Court No, IV, Lahore, who vide judgment dated 15.5.2006, convicted them under Section 7(a) of the Anti- Terrorism Act, 1997 read with Section 302 PPC, on three counts for having committing the murder of Ghulam Hassan, Rehrnat Ali and Allah Ditta, and sentenced to death, on three counts. They were also ordered to pay a sum of Rs, 1,00,000/- on each count as compensation to the legal heirs of the deceased and in default in the payment of compensation to further undergo R.I for a further one year. Feeling aggrieved the appellants have filed the instant appeal.
2. Briefly the facts of the case, as per contents of the FIR Ex. PD, are that on 23.5.1997, the complainant Sanata son of Mukha alongwith his son Ghulam Hassan, Rehmat Ali son of Aslam, Allah Ditta (all three deceased), Bashir Ahmed, Baig and 35/40 male and female were going back to their village on tractor trolley and wagon. Hence after offering Fateha of Peer Manzoor Hussain Shah at Gogera. At about 5.30 p.m. when they reached near a garden after crossing village Thatha Kanderka a jeep bearing Registration No, 7910/BR emerged. The jeep was being driven by Ahmad Ali son of Modee and inside the jeep were sitting accused Mohsin alias Mehra armed with rifle, Ameer with gun .12 bore double barrel, Abbas with .30 bore pistol, accused Munir Ahmad (since P.O.) armed with .222 bore rifle, reached there and stopped them. Meanwhile, the accused Shameer, Shama, Hakim Ali and four unknown persons armed with fire-arm weapons, who were ambushed, also came out from the garden and started firing. Thereafter the accused caught hold of complainant Bashir Ahmad, Baig, Ghulam Hassan, Rehmat Ali and Allah Ditta, on gun point and took them while dragging to their house situated at Khoo Beni Wala in the Haveli of Ali Sher whereas Ahmad Ali accused fled away from the scene of the occurrence on his jeep. The accused Ameer, Munir son of Sadiq and Mohsin son of Muhammad. Ali done to death the complainant's son Ghulam Hassan, Allah Ditta and Rehmat Ali by firing at them with their fire-arms weapons in the courtyard of Ali Sher son of Samand. The complainant, Bashir and PW-3, Baig/ entreated to forgive them in the name of God Almighty upon which they were left by the accused. The motive behind the occurrence was that on 29.9.1996 over a dispute of land, two persons of Mohsin accused side murdered and their case was registered at Police Station Chochak in which Sultan Sikandar etc. were challaned. Out of grudge of that incident of killing the accused in furtherance of their common intention and at the instigation and abetment of Dost Muhammad son of Muhammad Ali have committed the Qatl-e-Amd of Ghulam Hassan, Rehmat Ali and Allah Ditta.
2. 3.After registration of the case, formal investigation was conducted. During investigation, Dost Muhammad, Liaquat, Ameer Ali, Hakim Ali, Abbas and Shama were placed in Column No, 2 of the challan. The learned trial Court seized with the matter summoned all the accused including the accused, who were placed in Column No, 2 of the challan, to face trial, framed formal charge against them to which they pleaded not guilty and claimed trial.
3. 4.The prosecution examined as many as 17 PWs in all.
4. 5.PW-1, Muhammad Aslam, escorted the dead bodies of Ghulam Hassan, Allah Ditta and Rehmat Ali, for post-mortem examination.
5. 6.PW-2, Sanata, is the complainant of the case, who deposed in line of the FIR Ex. PD.
6. 7.PW-3, Muhammad Baig is also an eye-witness of the occurrence. Both the PWs to the ocular account deposed that the accused Mohsin, Ameer and Munir (P.O.) had fired at the deceased persons.
7. 8.PW-4, Ghulam Rasool, ASI, had taken into possession jeep Ex. P11 through recovery memo Ex. PH.
8. 9.PW-5, Muhammad Aslam, constable had took three sealed parcels for onward transmission to the office of Chemical Examiner.
9. 10.PW-6, Dr. Hussain, conducted the post-mortem examination an the dead bodies of deceased Allah Ditta, Rehmat Ali and Ghulam Hassan and after post-mortem examination prepared their post-mortem reports Ex. PI, Ex. PJand Ex. PK.
10. 11.PW-7, Saeed Nasir Hussain draftsma n had prepared draft site plan on Ex. PL and Ex. PL/1 on the basis of rough site-plan.
11. 12.PW-8, Muhammad Yasin, ASI, got recorded his statement to the effect that Muhammad Sharif, SI, has died on 29.7.1999.
12. 13.PW-9, Muhammad Ishaq Jehangir, SP, Narowal, deposed that he partially investigated the case and declared that the accused Abbas, Shama, Liaquat, Hakim Ali, Dost Muhammad and Ameer were not found to be present on the spot at the time of occurrence. He also stated that Mohsin Shammer Ahmad Ali and Ahmad Ali were challenged as accused in this case.
13. 14.PW-10, Muhammad Rafiq, S.I, deposed that on 28.8.97, he alongwith Zafatullah SI and other police officials arrested accused persons Mohsin, Shameer and Ahmad Ali from Adda Sheikhupura and a pistol P-12 was got recovered from accused Shameer and the same was taken into possession vide recovery Ex. PM. He also stated that at the satne place and time, Zafarullah Inspector took into possession rifle P13 from the person of Mohsin accused, which was taken into possession vide recovery memo Ex. PN, which was signed by him and attested by Muhammad Aslam, Constable No, 737.
14. 15.PW-11, Muhammad Aslam, Constable, is another witness of recovery of weapon (carbine) P-12 recovered from Shameer accused and rifle P-13 recovered from Mohsin. accused.
15. 16.PW-12, Mushtaq Ahmad, Constable, was given the parcels containing blood stained earth for safe custody and for sending the same to the concerned quarters.
16. 17.PW-13, Zulfiqar, had identified the dead bodies of the deceased persons.
17. 18.PW-14, Shah Muhammad, was present when the Investigating, Officer took into possession the last worn clothes of the deceased persons.
18. 19.PW-15, Abdullah, deposed that about two years and 9/10 months ago, he along with Dost Muhammad PW, were going from their village to Moza Jowaya Khichi, to obtain some money from Gulzar and when they reached near the house of Shama accused, they saw Mohsin, Ameer, Munir, Sadiq, Abbas, Shameer, Hakam Ali, Liaqat Ali and Dost Muhammad, outside the house of abovesaid Shama, where they heard Dost Muhammad accused saying to other accused persons that Ghulam Hussain, Allah Ditta and Rehmat were pursuing the case of Sultan Sikandar etc., therefore, they should murder them and he will get them spared from the case at any rate.
19. 20.PW-16, Dost Muhammad s/o Sohawa, deposed the same words as stated by PW-15.
20. 21.PW-17, Zafar Ullah Khan, DSP, deposed that on 12.6.1997 he was posted as SDHO, PS Gogera Saddar, District Okara, and investigated was entrusted to him for investigation. He came to the opinion that Abbas accused was innocent. He also stated that on 28.8.97, he arrested Mohsin, Shameer and Ahmad Ali accused and at the time of arrest, a rifle P-13 was got recovered from Mohsin accused alongwith five live bullets with a magazine P-16/1-5 and 10 live bullets P-17/1-10 were also recovered from his pocket, which were taken into possession vide recovery memo Ex. PN.
21. 22.In a statement under Section 342 Cr.P.C. the accused/appellant, Mohsin alias Mosa, in answer to question "why this case you", he replied "It is a false case" and in answer to question "why the PWs deposed against you", he replied: "It is a false case. PWs have made false statements on account of enmity with us and due to relationship with the deceased. It was an un-witnessed occurrence which took place after sunset when it was dark. FIR was lodged after due deliberation, consultation in collusion with local police. I am PW in alleged motive case and due to this reason I have been falsely involved in this case. I was not present on the spot at the time of occurrence. I am innocent."
22. He neither opted to appear as his own witness under Section 340(2) Cr.P.C. not to produce any defence evidence.
23. 23.In his statement under Section 342 Cr.P.C., the accused/appellant Ameer, in answer to question "Why this case against you and why the PWs deposed against you", he replied: "It is a false case. PWs have deposited falsely due to the relationship with deceased persons and enmity with us. It was an un-witnessed occurrence, which took place after sunset when it was dark.
24. FIR was lodged after due deliberation and consultation in collusion with the local police. I was not present at the spot. I was in Thata Ghulamka in connection with purchase of a buffalo. I was found innocent during the investigation."
25. However, he neither opted to appear as his own witness under Section 340(2) Cr.P.C. nor to produce any defence evidence.
26. 24.The learned Special Judge, Anti-Terrorism Court No, W, Lahore, vide judgment dated 19.10.2004, while acquitting the accused namely Ahmad Ali, Shameer, Dost Muhammad, Liaquat Ali, Hakam Ali, Abbas and Shama, except Munir Ahmad (since P.0), convicted the accused/appellants, Mohsin and Ameer and sentenced them to death on three counts. There were also ordered to pay a sum of Rs, 1,00,000/- on each count as compensation to the legal heirs of the deceased and in default to further undergo R.I: for .a further one year. Aggrieved of the said judgment, they preferred an appeal bearing Criminal Appeal No, 1694/2004. Vide judgment dated 15.11.2005, a learned Division Bench of this Court set aide the said judgment and remitted the matter to the learned trial Court for do-novo proceedings against the present appellants.
27. 25.After the remand of the case, the learned trial Judge framed fresh charge against the accused/appellants, to which they pleaded not guilty and claimed trial.
28. 26.The prosecutor and the accused were allowed to recall or re-summon any witness with reference to such alteration/addition of charge. The learned Public Prosecutor made statement that he did not want to recall or re-summons any of the prosecution witnesses recorded earlier prior to the alteration of the charge. The accused/appellants also made statements that they did not want to cross-examine any prosecution witnesses afresh and also did not want to produce any defence evidence nor they appear on oath as required under Section 340(2) Cr.P.C. in their defence after the alteration of charge.
29. 27.After conclusion of the trial learned trial Court convicted the present appellant under Section 7-A of the Anti-Terrorism Act, 1997 read with Section 302 PPC, on three counts, for having committed murder of on three counts for having committing the murder of Ghulam Hassan, Rehmat Ali and Allah Ditta, and sentenced to death, on three counts. They were also ordered to pay a sum of Rs, 1,00,000/- on each count as compensation to the legal heirs of the deceased and in default in the payment of compensation to further undergo R.I for a further one year.
30. 28.Arguments heard. Record perused.
31. 29.At the very outset it has been noticed that the appellants have been charged under Section 302 PPC while the conviction has been made on both the offences i,e, Section 7-A of the Anti- Terrorism Act, 1997 and Section 302 PPC. Both the offences are altogether separate offences.
32. Separate sentences are to be recorded in both these offence., Reliance is placed on Muhammad Amin vs. The State (2002 SCMR 1017) wherein it has been held:- "Learned counsel for the petitioner has contended that after awarding the capital punishment under Section 302(b), PPC, there was no justification for awarding sentence of death under Section 7 of the Anti-Terrorism Act, 1997, and argued that the death penalty under two statutes for the same offence was not legal and would amount to double punishment for the same offence which is not legal. The offence of "terrorism" as defined under Section 6 of the Anti-Terrorism Act, 1997, is an independent offence which is punishable under Section 7 of the said Act, therefore, separate sentence both under Section 302(b), PPC and under Section 7 of the Anti-Terrorism Act, 1997 for committing such offences was quite legal."
33. The above view was also followed by this Court in Muhammad Ali and others v. The State and others (PLD 2004 Lahore 554).
30. In this case, Charge under Section 7 of the ibid Act has not been framed. The learned trial Court while framing the charge under Section 302 PPC has convicted the appellant under Section 7(a) of the ibid Act read with Section 302 PPC and sentenced him to death with fine. It is a fit case for remanding to the learned trial Court to frame proper charges.
34. 31.For what has been discussed above, the case is remanded to the learned trial Court for re-trial after framing proper charges. This exercise shall be completed within three months and during this period the appellant shall be treated as an under trial prisoner.
35. 32.In the light of above, Reference No, 24-T/2006 is replied in Negative and the death sentenced is Not Confirmed.