' MUHAMMAD AHSAN BHOON, J.--This judgment shall dispose of Criminal Appeal No,143-T of 2007 filed by the appellant Zulfiqar Ahmad and Criminal Appeal No,196-T of 2007 filed by Rizwan Abbas, appellant-accused against their conviction and sentence and Criminal Appeal No,287-T of 2007 filed by the complainant recording conviction and sentence against acquitted accused/respondents Nos.1 to 3 namely Irfan Abbas, Waqar Ahmad and Ghulam Ahmad, as all arise out of same judgment dated 21-5-2007 rendered by the learned Judge, Special Court Anti- Terrorism No,1, Rawalpindi Division and Islamabad Capital Territory at Rawalpindi, whereby he convicted the appellants/ accused namely Zulfiqar Ahmad and Ramzan Abbas under section 7(c)
Anti-Terrorism Act, 1997 324/34 and sentenced them to undergo R.I. For ten years each along with fine of Rs,50,000 each, and in default whereof to undergo R.I for six months while Waqar Ahmad, Irfan Abbas and Ghulam Ahmad were acquitted of the charge. Benefit of section 382-B, Cr.P.C. Was however, extended to the appellants/ accused in case F.I.R. No,249 dated 5-11-2005, offence under sections 324/ 148/149, P.P.C. And section ATA, 1997, Police Station, City Jhelum District Jhelum.
2. Precisely, the prosecution story as alleged in F.I.R. (Exh.PB/1) is that on 5-11-2005, Zafar Jalil, had got recorded, the statement Exh.PB, before the police, contending therein that he was residing in Kala Gujran and running property business there; that on 1-11-2005, a quarrel took place between him and Rizwan alias Jani etc, wherein he and his brother Imran Shaki and Qasim received injuries and were admitted in Civil Hospital, Jhelum, whereas, from the other side Waqar son of Ghulam Ahmad being injured, was also admitted in the said hospital and all the four, were admitted in the said ward; that on 5-11-2005, after noon time, Messrs Misba Adil, and Muhammad Javaid (P.Ws), came to the hospital, for seeing them, when at about 3-15 p.m. From the opposite side Messrs.
Rizwan alias Jani accused while armed with 30 bore pistol, Irfan Abbas accused with .30 bore pistol Ramzan Abbas alias Mithu empty handed, and zulfiqar accused along with two unknown persons, came in the Ward; that Waqar accused, who was admitted in the hospital, raised a lalkara that Zafar Jalil etc., should not be let alive, whereupon, Rizwan accused, with his pistol fired at him (Zafar Jalil), which hit Misbah Adil P.W. At his right leg, the second fire, made by Rizwan accused, hit at right hand of Imran Shakil P.W; that the fire shots made by Irfan Abbas accused, with his pistol hit Shahbaz and Abdul Rehman P.Ws.; that thereafter, the accused, made indiscriminate firing, which resulted into disturbance and terror in the ward, the police arrived there, whereupon the accused while firing fled away and that the motive was previous litigation between the parties.
3. After due investigation report under section 173, Cr.P.C. Was submitted against the present appellants-accused Zulfiqar Ahmad and Rizwan Abbas and their acquitted accused/respondents Nos.1 to 3 in Crl. Appeal No,287-T of 2007 in the learned trial Court. Charge was framed the appellants accused and their acquitted accused, who denied of'the charge, pleaded not guilty and claimed trial. To prove the charge the prosecution produced its evidence. The appellants-accused and respondents Nos.1 to 3 were examined under section 342, Cr.P.C. All the accused neither opted to appear as their own witnesses in disproof of the allegation levelled against them as required under section 340(2), Cr.P.C. Nor did they produce defence evidence except Irfan and Rizwan. Irfan and Rizwan produced Bilal Anwar D.W.1 and Saeed ur Rehman, D.W.2 in their defence and also produced certified and uncertified copies of Court proceedings, agreement and F.I.Rs, as Exh.DD to Exh.DG, mark A to mark H and Exh. DH. The learned trial Court after hearing the learned counsel for the parties passed the above said conviction and sentence, which is being assailed through these appeals.
4. We have heard the learned counsel for the parties and gone through the evidence and record available with their able assistance.
5. Firstly, we would like to see the applicability of section 7-C, ATA, 1997 in the instant case. After going through the record available, we find that occurrence took place in this case due to the reason that one day prior both the parties had a quarrel with each other and both the parties had received injuries in the occurrence of motive and were admitted in the hospital, and when they faced each other in the hospital the present occurrence took place and there is nothing on record that any passerby or any other person suffered any injury at the hands of the accused-appellant, A rather occurrence was the result of personal enmity between the parties. No empty was recovered from the spot, which could show that there was indiscriminate firing. So in this view of the matter, we are of the considered view that application of section 7-ATA, 1997 is not made out to the facts and circumstances of the present case, therefore, conviction and sentence recorded by the learned trial Court under section 7-C, ATA, 1997 is set aside.
6. We also find that as per F.I.R. Zulfiqar Ahmad, accused/appellant was not attributed any injury but alter on Misbah Adil and Imran shakeel, whose injuries, as per F.I.R. Were attributed to Rizwan Abbas appellant, one of those injury was attributed B to him during trial which is flouting on surface from perusal of evidence and the improvement was duly confronted to the prosecution witnesses by the defence and the injured P.Ws. Were unable to justify if the appellant Zulfiqar Ahmad had caused injury to Misbah Adil P.W.3 why his role was not given in the F.I.R. The above improved deposition of P.W.3 and P.W.4 in the trial shows that just to widen net for the purpose of conviction and sentence of maximum members of rival family the injuries attributed in the F.I.R. To Rizwan Abbas accused were divided and attributed to both the appellant, hence in our view the B prosecution has failed to prove its case beyond any shadow of doubt against Zulfiqar Ahmad appellant. In such a situation the Criminal Appeal No,143 of 2007 filed by Zulfiqar Ahmad appellant is allowed, the conviction and sentence awarded to him vide judgment dated 21-5-2007 is set aside and he is acquitted of the charge. He is in Jail. He be released forthwith it not required in any other case.
7. As far as Crl. Appeal No,196-T of 2007 filed by Rizwan Abbas, appellant is concerned, he was attributed role of causing injuries to both injured P.Ws. i.e, P.W.-3 and P.W.-4 and that the evidence of injured witnesses further corroborated by medical evidence, recoveries and the motive qua the quarrel between the parties one day prior to the occurrence, hence, we do not see any merit in this appeal. However, the injuries attributed to the appellant Rizwan Abbas by Misbah Adil P.W.-3 and Imran Shakeel P.W.-4 are within the purview of section 337-F (1), P.P.C. And 337-F (ii), P.P.C. For which maximum punishment is provided one year and five year respectively. The appellant is behind the bars for a period of about three years. The appellant has served out three years substantive portion of his sentence and he might have secured remissions entitling him to be released from Jail. In any case the appellant has served out major portion of his substantive sentence. We deem it appropriate to reduce his substantive sentence to that of already undergone by him. Criminal Appeal No,196-T of 2007 filed by Rizwan Abbas is dismissed with the above modification.
8. Crim. Appeal No, 287-T of 2007 having no substance is dismissed.