' CH. EJAZ YOUSAF, J.--- These appeals by way of leave are directed against the judgment dated 10-1-2001 passed by a Division Bench of the Lahore High Court, Rawalpindi Bench. Criminal Appeal No,103 of 2003 has been filed by convicts Muhammad Yaqoob and Abdul Qayyum against their convictions/sentences whereas Criminal Appeal No,104 of 2003 has been preferred by Jamil Ahmed, complainant, for enhancement of the sentences of the aforenamed convicts and also against acquittal of respondents, namely, Haji Ghulam Rasool and Ahmed Hassan alias Nasir Mehmood. As common questions of law and facts are involved in these appeals, therefore, we propose to dispose of the same through this common judgment.
2. Facts of the case, in brief are that on 27-3-1999 report was lodged by one Jamil Ahmed s/o Ch. Muhammad Akram with Police Station Kalar Syedan, District Rawalpindi, wherein it was alleged that some time ago Muhammad Yagoob son of Manga had made an attempt to abduct Khalil Ahmed, brother of the complainant, on account of a dispute over a passage. However, he was got released from the clutches of Muhammad Yaqoob by the person present at the place of occurrence.
Resultantly a case, under sections 365/511, P.P.C., was registered against Muhammad Yaqoob at Police Station Kalar Syedan, in pursuance whereof investigation was carried out by a DSP who visited the place of occurrence himself. Parties appeared before the said DSP and made statements. However, after his departure, when the complainant, in the company of Muhammad Ishaq, Muhammad Jamil, Javed Akhtar, Zia-ulHaq and Muhammad Ishtiaq son of Muhammad Akhtar, was proceeding towards Samoote Bazaar, suddenly Muhammad Yaqoob, Abdul Qayyum and Ghulam Rasool sons of Manga Khan armed with Kalashnikov appeared in a red colour Pajero and started firing indiscriminately after raising `Lalkara' that they would teach a lesson to the complainant party for making statements against Muhammad Yaqoob before the D.S.P.. As a result of firing Muhammad Ashfaq, Jamil and Muhammad Sharif died instantly whereas, Javed Akhtar sustained injuries. On the stated allegation, F.I.R. Bearing No,65 of 99 under sections 302/324/109 read with section 34, P.P.C. Was registered at the said Police Station and investigation was carried out in pursuance thereof. On completion of investigation, the accused persons were challaned to the Court for trial under sections 324, 302, 34 read with section 120(b) P.P.C. And S.7 of the A.T.A., 1997. Charge was accordingly framed against the accused persons to whom they pleaded not guilty and claimed trial. At the trial, the prosecution, in order to prove the charge and substantiate the allegations levelled against the accused persons produced sixteen witnesses in all whereafter, the accused persons were examined under section 324, Cr.P.C. In their above statements all the accused persons took the stand that they were involved in the case falsely on account of enmity and political rivalry. Abdul Qayyum and Ahmad Hassan also appeared as their own witnesses in terms of section 340(2), Cr . P . C .
3. After hearing arguments of learned counsel for the parties, the learned trial Court convicted the appellants vide judgment dated 12-8-2000 and sentenced them to the punishments as under:-- (1)Under section 302(b)/34, P.P.C.Imprisonment for life each on three counts with fine of Rs.200,000 each on three counts. Fine if recovered was ordered to be paid to legal heirs of deceased in equal shares under section 544-A, Cr.P.C. In case of default in payment of fine to further undergo 1 year's R.I. each on three counts.
(2)Under section 324/34, P.P.C.10 years R.I. with fine of Rs.50,000 each payable to Javed Akhtar injured P-W as compensation and in case of default in payment of fine to further undergo R.I. for 6 months, each.
(3)Under section 337- A(i)P.P.C.2 years, R.I. each for causing injuries to Javed Akhtar, P-W.
(4)Under Section 7 of A.T.A.
1997Imprisonment for life each with fine of Rs.100,000 each and in case of default in the payment of fine to further undergo R.I. for 1 year each.Sentences under section 302/34, P.P.C. read with section? of A.T.A. 1997 were directed to run concurrently.Sentences under section 324/34, P.P.C. and 337-A (i)
P.P.C. were ordered to run consecutively.Benefit of section 382-B, Cr.P.C. was refused.
' The above judgment was assailed by the accused persons before the High Court by way of an appeal which was partially allowed. Sentences recorded against appellants Muhammad Yaqoob and Abdul Qayyum were maintained, however, accused persons, namely, Haji Rasool and Ahmed Hassan alias Nasir Mehmood were acquitted of the charges, hence these appeals by leave of this Court.
4. Khawaja Sultan Ahmad, learned counsel for the appellants, has contended; that since, at the time of occurrence i,e, in the year, 1999 right of appeal was not available to the complainant, therefore, Criminal Appeal No,104 of 2003 filed for enhancement of sentences of the appellants and also against acquittal of the accused persons, namely, Ahmad Hassan and Ghulam Rasool is not maintainable; that both Muhammad Yaqoob and Abdul Qayyum have been wrongly convicted for the offence; that since firing was attributed to all the accused persons and it was not established on record as to who was responsible for causing fatal injuries to the deceased persons therefore, it was not a standard case of capital punishment; that Ghulam Rasool and Ahmad Hassan alias Nasir Mehmood were rightly acquitted of the charge by both the Courts below as prosecution had miserably failed to prove the charges against them. Further benefit of section 382-B, Cr.P.C. Was unjustifiably withheld in their cases.
5. Sardar Muhammad Latif Khan Khosa, learned counsel for the complainant, on the other hand, while controverting the contentions raised by the learned counsel for the appellants, has submitted that since at the time of occurrence only sentence prescribed for the offence under section 7, A.T.A., 1997 was the sentence of death, therefore, both the Courts below have gone wrong in law by not inflicting the same. He maintained that since sufficient ocular as well as corroboratory evidence was available on record to connect the accused persons with commission of the offence, therefore, acquittal of the respondents in Criminal Appeal No,104 of 2003 was not justified.
6. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case, with their assistance, minutely.
7. As to the first contention raised by the learned counsel for the appellants that since at the time of occurrence right of appeal was not available to the complainant, and therefore, Criminal Appeal No,104 of 2003 filed for enhancement of the sentences of the appellants and also against acquittal of co-accused persons, namely, Ghulam Rasool and Ahmad Hassan alias Nasir Mehmood, was not maintainable, it may be mentioned here that occurrence, in the instant case, took place on 27-3- 1999, whereas right of appeal to a victim or legal heir of victim aggrieved from the order of acquittal passed by the Anti-Terrorism Court was provided through subsection 4-A of section 25 of the Anti-Terrorism Act, 1997, inserted by Act X of 2004, dated 30-11-2004. It is an admitted position that prior thereto right of appeal against acquittal was not available to a victim or his legal heirs as at that point of time it could have only been challenged by the persons specified in subsection 4 of section 25 of the A.T.A., 1997. No radical change was, therefore, introduced in the Anti-Terrorism Act, 1997, as by Act X of 2004 right of appeal, already available earlier, though to the State only, was simply extended to the victim or legal heirs of deceased and rightly so because pursuant to promulgation of Qisas and Diyat Ordinance, 1991, (Later on substituted by Act II of 1997) whereby drastic changes were brought in Chapter XVI of the Pakistan Penal Code and right of appeal was extended to the legal heirs of the victim, as well as the injured persons, vide section 417(2-A) of the Criminal Procedure Code, because under the Islamic law the right to prosecute or otherwise the offenders primarily vests in the legal heir of the deceased or the victim himself, as the case may be.
The amendment so brought in the AT Act vide subsection 4-A, being purely procedural in nature, thus had to govern the pending cases/proceedings as well, because it had not taken away any right vesting in the accused.
8. It would be worthwhile to mention here that almost identical proposition came up for consideration before this Court in the case of Aftabuddin Qureshi and another v. Mst. Rachel Joseph and another PLD 2001 SC 482. In that case, the petitioners were prosecuted for an offence committed on 6-1-1992. After the trial, they were convicted by Judicial Magistrate and sentenced to undergo different sentences. Judgment of conviction was assailed in appeal before the Court of Sessions and by judgment dated 9-5-1998 they were acquitted by the learned Sessions Judge.
Respondent impugned the judgment of acquittal by way of appeal under section 417(2-A), Cr.P.C.
Before the Sindh High Court in which a preliminary objection was taken to the extent that since incident had taken place on 6-1-1992, the accused persons were sent up for trial on 10-5-1992 and right of appeal to a person aggrieved by an order of acquittal was provided in 1994 by way of 2nd Amendment Act (Act No,XX) of 1994, whereby section 2-A was inserted in section 417, Cr.P.C., therefore, the appeal was not maintainable. It was contended on behalf of the accused persons that right of appeal provided to a person aggrieved from an order of acquittal, by virtue of the above amendment, would not operate retrospectively and thus, pending proceedings stood saved from the operation of the newly-inserted subsection. After thorough consideration the contention was repelled and it was held that the amendment in question being essentially of procedural character would operate retrospectively and affect all pending cases as neither any right of accused person was taken away, nor the ends of justice were defeated by retrospective application of the provision. It was further held that even if the amended provision was applied prospectively, case of the accused was fully covered by it because acquittal of accused by Sessions Judge had taken place long after the right accrued to the aggrieved person and since there was no substantive right vesting in the petitioners which would have been adversely affected by' the amendment in law making a provision for a right of appeal at the instance of an aggrieved person, therefore, the contention was devoid of force. In the above judgment while relying on the case of Muhammad Afzal v. Karachi Electric Supply Corporation 1999 SCM R 92, it was further held that matters relating to remedy, mode of trial, manner of taking evidence, being all matters pertaining to procedure, would be effective retrospectively.
' Further in the case of Adnan Afzal v. Sher Afzal PLD 1969 SC 187, it was laid down by a full Bench of this Court that the general principle with regard to interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Limited v. Irving 1905 AC 369 that if the matter in question be a matter of procedure only, the provisions would apply retrospectively. The contention, therefore, is devoid of force.
9. As to the next contention that both the appellants, namely, Muhammad Yaqoob and Abdul Qayyum were wrongly convicted for the offence, it may be mentioned here that in the instant case prosecution evidence rests on the ocular evidence, account whereof at the trial was furnished by P-W-10 Muhammad Jamil, complainant, P-W-11 Javed Akhtar, the injured eyewitness and P-W-12 Zia-ul-Haq (not believed by the trial Court), the evidence of recoveries, including the Kalashnikov at the instance of accused persons Muhammad Yaqoob and Abdul Qayyum, the empties recovered from the place of occurrence, the medical evidence and other circumstantial evidence.
Though as per Ballistic Expert's report, empties secured from the place of occurrence were proved to be fired from the kalashnikovs recovered from the possession of both the afore-named accused persons yet, the learned Judges in the High Court having found that transmission of empties to, the laboratory having not been proved in accordance with law, as the person who had allegedly taken the same to the laboratory was not produced, disbelieved the same. However, learned Judges in the High Court were of the opinion that since statement of eyewitnesses were consistent and corroborative inter se on all material points therefore, it could not have been discarded notwithstanding the fact that there was some doubt about the distance regarding the place of occurrence and the positions of the deceased persons as blackening was found around the injuries sustained by the deceased persons. Since in the case in hand neither the occurrence was denied nor presence of both the eye-witnesses at the place of occurrence was challenged, nor the manner in which the occurrence took place, was, at the trial, disputed rather it was impliedly admitted, for B instance it was suggested to P.W.10 Jamil Ahmed that Tahir and Khalil had fired on him as well as the deceased, meaning thereby that the presence of said eyewitness was admitted, lead to the conclusion that occurrence in the instant case has taken place in the matter as suggested by the prosecution.
10. Though learned counsel for the appellants has not specifically challenged convictions of the appellants under section 7 of the Anti-Terrorism Act, 1997 and occurrence in the case allegedly took place in Samoote Bazaar, opposite U.B.L. Branch, wherein three persons were done to death and another sustained grievous injuries yet, in the absence of any stipulation in the F.I.R. To the effect that the incident had struck C terror or panic in the public and in the absence of any evidence to the effect that the incident had created sense of fear or insecurity in the public or any section of public or community or any sect, it could not have been contended that section 7 of the Anti-Terrorism Act, 1997 was attracted in the instant case. It would be pertinent to mention here that in order to bring a particular act within the ambit of section 7, it is to be seen as to whether the said act had created sense of fear or insecurity in D public or in any section of public or community or any sect, or the occurrence was simply the result of previous enmity or personal vendetta.
' Since in the instant case it has been established that motive behind the incident was previously strained relations between the parties and an iota of evidence has not been brought on record to show that object was not to kill the deceased but also to strike terror or create sense of fear or insecurity in the general public or community or any sect thereof, therefore, in our view section 7 of the Anti-Terrorism Act was not attracted. In the case of Tariq Mahmood v. The State 2008 SCM R 1631, the occurrence had allegedly taken place in a Bazaar which was heavily populated and it was claimed that due to firing there was stampede in the traversers yet, since it was found that there was no evidence that the act of respondents/accused struck terror amongst the masses and the place of occurrence was not a busy populated area rather it took place on a service road, therefore, the provisions of Anti-Terrorism Act were not attracted. In the case of Muhammad Idrees and others v. The State 2008 SCM R 1544, occurrence took place on the bank of canal. It was not established on record that the act done by the accused persons had created sense of fear or insecurity in public, therefore, it was held that section 7 of the Anti-Terrorism Act was not attracted.
In the case of Mohabbat Ali v. The State 2007 SCM R 142, the alleged incident took place because of previous enmity and private vendetta inside the fields of sugarcane and banana, about 14/15 miles away from main road, it was held that intention of the accused was not at all to create sense of fear or insecurity or to destabilize public at large or to advance any sectarian cause and design or purpose of offence as contemplated by provisions of section 6 of Anti-Terrorism Act, 1997 was not attracted. In the case of Fazal Dad v. Col. (Retd.) Ghulam Muhammad. Malik PLD 2007 SC 571, since nothing was brought on record to show that the occurrence created terror, panic or sense of insecurity among people by securing possession land in question by the accused persons, therefore, the case did not qualify to be a terrorist act within the contemplation of section 6 of the Anti-Terrorism Act or its schedule. Convictions and sentences recorded against the appellants under section 7 of the Anti-Terrorism Act, are, therefore, set aside.
11. As regards the quantum of sentence though the learned trial Judge has not inflicted normal penalty for murder on the appellants on the ground that since all the three appellants were real brothers F therefore, he did not want to inflict capital punishment on them, yet, we are afraid the reason being absurd simply and extraneous to the established principles governing the administration of criminal justice, can neither be recognized nor approved. Relationship inter se of the accused persons can hardly be a consideration for imposition of lesser penalty and it can also not be regarded as a mitigating circumstance by any stretch of imagination. However, despite that, we are not inclined to H enhance the sentence inflicted on the appellants because as per record, in the instant case, firing was attributed to all the accused persons and it too, has come on record that the injuries caused by the accused persons, collectively culminated in death of the deceased persons, therefore, we, feel that ends of justice would be met with if sentences inflicted on the H appellants are maintained as awarded by the trial Court particularly in view of the fact that the occurrence took place way back in 1999 and the accused persons have already undergone the agony of a protracted trial. In this view we are fortified by the observations made in the case of Muhammad Idrees, etc. v. The State 2008 SCM R 1544.
12. Upshot of the above discussion is that Criminal Appeal No,103 of 2003 is partly allowed.
Convictions and sentences recorded against appellants Muhammad Yaqoob and Abdul Qayyum under section 7 of the Anti-Terrorism Act, 1997 are set aside and they are acquitted of the charges thereunder. However, rest of the convictions and sentences recorded against them under sections 302(b)/34, 324/34 and 337-A(i), P.P.C. By the learned trial Court are maintained and the sentences recorded thereunder shall run consecutively as ordered by the learned trial Court. Benefit of section 382-B, Cr.P.C., is, however, extended to the appellants. Sequel to above, Criminal Appeal No,104 of 2003 filed by the complainant for enhancement of sentences and against acquittal is dismissed.