1. ' RAJA JALAL-UD-DIN, C.J.---This criminal appeal has been preferred under section 410, Cr.P.C. Read with section 25 of Anti-Terrorism Act 1997 against the judgment/order of learned Judge ATC No,1 Gilgit dated 27-4-2009 charged under section 302/324/34, P.P.C. Read with section 6/7, A.T.A. 1997 vide F.I.R. No,408 of 2005 and under section 13, A.O. Vide F.I.Rs, Nos.420 of 2005 and 421 of 2005 of Police Station City Gilgit, whereby the convicts/appellants Nos.1 and 2 have been convicted and sentenced to death under section 302(b), P.P.C. Read with section 6/7, A.T.A. With a fine or Rs,3,00,000 under section 544-A and likewise appellant No, 3 has been convicted under section 302(b) read with section 6/2, A.T.A. And awarded life imprisonment with Rs,3,00,000 fine under section 544-A, Cr.P.C. And in default of payment to further under go one year's rigorous imprisonment and further all the appellants have been convicted under section 324/34, P.P.C. Read with. Section 6/7, A.T.A. 1997 and sentenced to 10 years' R.I. With Rs,1,00,000 fine each under section 544, Cr.P.C. And in default to undergo six months' R.I. Appellants Nos.1 and 2 have also been convicted under section 13, A.O. And awarded 7 years' R.I. With benefit of section 382-B, Cr.P.C.
2. ' The facts of the case are the outcome of the F.I.R. Lodged on the complaint of one Hajat Ali who is the member of Union Council of village Bargo who states that a number of people of the said village on a Datsun were travelling to Gilgit on 13-8-2005. At about 7 a.m. When the vehicle reached Harpoon Hanzal, certain terrorists opened indiscriminate firing by automatic rifles resulting in the death of one Shahzada Khan who expired at the spot and four others received gunshot injuries. The F.I.R. Lodger also stated that the occurrence may be a result of the Shia-Sunni tension/clashes and secondly that he did not name any assailants but stated that the heirs of the deceased and the injured will give the details of the case.
3. ' The F.I.R. Lodger being a respectable representative of village Bargo lodged the F.I.R. On the information received and set the investigation in motion. After chalking of the F.I.R. Initial proceedings were carried out regarding the handing and taking of the dead body. The I.P. Ali Haider proceeded to the spot of occurrence and carried out the formalities of the blood-stained earth, the site plan as well as the most important recovery Exh.P.C-1 where by seven empty shells and one live cartridge was recovered in the presence of witnesses. Statements of eyewitnesses were recorded whereby the three convicts/appellants were nominated as the assailants and were attributed indiscriminate fire by a Kalashnikov, repeater and a five shot gun. Two convicts/appellants were arrested on 25-8-2005 and the recoveries of a Kalashnikov from Ehsanullah and a five shot gun from Rehmat Amin was made and recovery memos prepared. The third convict/appellant Sher Nawaz Khan was arrested later on. The Challan of the case was put up for trial wherein the three convicts/appellants were charged for the stated offences which they denied.
4. ' Counsel for the convicts/appellants pleads that the evidence against the convicts/appellants has been procured with mala fide intentions and that the occurrence is unseen as evident from the statement of the F.I.R. Lodger who should have been informed about the names of the assailants as he was a responsible person and as he had met the occupants of the vehicle. The same were not disclosed to him rather nobody had any information regarding the names of the assailants. The present convicts/appellants have been nominated after a period of three days after the occurrence by witnesses who should have informed the authorities about the names of he persons for the commission of the offence well with in a reasonable time.
5. ' Counsel for the convicts/appellants pointed out that the site plan should have disclosed the position of the three convicts/appellants from where they had opened the fire shots and also the site plan does not disclose the names of the witnesses on whose pointation the inspection was conducted. He further pleaded that till the site inspection by the I.O. There was no evidence regarding the names of the assailants. The counsel also argues that the recoveries of the weapons of offence are also fabricated and the sending of the weapons of offence to the Forensic Laboratory after a fatal delay cannot be used in evidence against the convicts/appellants. The other material point agitated is that none of the injured persons of the Datsun have specifically deposed against the convicts but the evidence against them are from witnesses who have neither received any gunshot injuries and their presence at the spot of occurrence becomes extremely doubtful. Counsel for the convicts/appellants referred 1989 SCMR 2056, 1992 SCMR 2088, 2009 PCr.LJ 940 (Lahore), PLD 1988 Karachi 521, 1993 SCMR 550, 2001 SCMR 424,SC, 1986 PCr.LJ 637 Karachi; 1974 PCr.LJ 400 Karachi, PLD 1964 SC 26, 2007 SCMR 162 SC, 2000 SCMR 1758 SC, 1993 SCMR 2377 SC and PLD 1964 (W.P) Karachi 356 in favour of his arguments and prayed that the convicts/appellants may be acquitted from the charges levelled against them.
6. ' On the other hand the Dy.A.G. Representing the State assisted by private counsel for the complainant Mr. Amjad Hussain Advocate states that the prosecution case rests on solid foundation as the witnesses and the F.I.R. Lodger have stated natural facts without any ambiguity or mala fide intentions. The F.I.R. Has been lodged promptly, which discloses the names of the deceased, the injured as well as the occupants of the vehicle who are natural witnesses. Site plan has been prepared promptly and the recoveries of the empty shells without any delay makes out a strong case against the convicts/appellants. The cause of death has been proved by the medical evidence wherein the doctor has confirmed that death and injuries were result of fire shots. The motive alleged is also proved. The opinion of the Ballistic Expert is also a strong piece of evidence against the convicts/appellants. The statements of the P.Ws. Have not been shattered and no solid motive for false implication has been put forwarded. Hence the case against the convicts is proved without any doubt and their conviction may be maintained. They referred PLD 2003 SC 350, 1994 MLD 164 Lahore, 1989 PCr.LJ 43 Lahore, Penal Code (XLV of 1860) and 2000 PCr.LJ 47 Lahore.
7. ' We have given thorough thought to the arguments of the counsel for the parties and the laws cited are also perused. Perusal of the statement of Dr. Wajahat Hussain who has examined the injured as well as conducted the postmortem has not recovered any bullets or pellets whereby it can be concluded that the type of the fire-arm used. He has only calculated that all the injuries and the death of the deceased was a result of fire. Shots. No bullets or pellets have been recovered from the vehicle which had been hit several times. From this we conclude that the fire shots received by the deceased and injured were from a high velocity fire arm and not from a low velocity gun such as a Repeater, which is a shot gun for hunting birds in which high velocity calibre bullets are not used and only led pallets are used which cannot normally penetrate the human body and there are chances of the recovery of the same from either the human body or the vehicle which was affected. There is also possibility of the recovery of pellets from the ground or spot where the same may have founded. The recovery of the bullets of high calibre is impossible to recover which can penetrate the human body or vehicle and ricochet to long distance. From this observation we find that may be one high powered automatic fire-arm could do the damage as stated in the prosecution case. The most important piece of evidence which has impressed us is the recovery of seven empty shells of 7.62 MM bore. The said empty shells of the 7.62 MM bore are matching with the Kalashnikov recovered from the convict Ehsanullah. No empty shells of any other caliber rifle, shot gun or repeater were found from the spot of occurrence. If fire shots were opened from any other calibre then it was but natural that the same could have been recovered from the site. Secondly there seems no probability of concealing any empties from the spot as the points from which the fire shots were opened is at quite a distance from the main road and cannot be termed as a busy thorough fare used by the people and the chance of the removal of the same could be possible. We feel that the spot inspection was conducted well in time which gave no time to the prosecution to plant empties of any other caliber and also sealed the chance of inclusion of any other innocent person as accused. The benefit of doubt can be extended to the two convicts Rehmat Amin and Sher Nawaz Khan as the opening of fire shots by Rehmat Amin and Sher Nawaz Khan is a far-fetched probability and their involvement may be a result of the sectarian hatred whereby the, maximum amount of persons of the other sect can be put to task. The conclusion reached by us based on the site plan and the recovery of the empty shells of the Kalashnikov found positive by the Ballistic Expert leaves no doubt that the fatal fire shots were opened by the convict Ehsanullah. We have perused the statement of the convict Ehsanullah recorded under sections 340 and 342, Cr.P.C. Wherein it is seen that an uncle of the convict had previously been murdered as a result of sectarian tensions existing at village Bargo and a motive can be gathered that the convict had a motive for the commission of the offence to avenge his uncle. One 7.62 MM bore bolt action rifle recovered from convict Sher Nadir which was sent for examination to the Fire-arms Expert as elaborated in Exh.P.A. Dated 7-3-2009 at (Para-III) was found negative and as such not proved against the said convict. The prosecution pleads that a very valuable information which can be used as evidence against the convicts/appellants is that on the query of the defence counsel, the P.W. Had identified the convicts/appellants in Court. Such identification in Court brings the case to a stage where no further evidence is required for the conviction of the convicts/appellants. Much importance cannot be placed on such identification because firstly that they are co-villagers and known to each other and secondly that the regular bringing of the convicts/appellants to the Court and coming face to face repeatedly can acclimatize the witnesses with the convicts/appellants and naming them cannot be considered as a very valuable piece of evidence. So the reliance placed on such identification by the trial Court cannot be used against the convicts.
8. ' Furthermore the learned counsel for convicts/appellants forcefully argued with reference to case- law reported in 2000 SCMR 1758 (1771) that the age of the appellant No,1 has been mentioned 18 years in his statement recorded under section 340/342, Cr.P.C., thus he was a minor when the alleged offence was committed. He therefore, can not be convicted under section 302(1), P.P.C.
9. Rather he is liable to be punished with in the concept of sections 306 and 308 of P.P.C. If found guilty. On the other hand learned counsel appearing on behalf of complainant referred PLD 2004 (Lahore) 779 wherein it has been held that a minor offender involved in the crimes of ATA can exclusively be tried under the provision of special Act e.g. Anti-Terrorism Act.
10. 1997.
11. We have considered the arguments and also gone through the case laws referred by the learned counsel for the parties to overcome the legal point. No doubt ATA is a special law provided for the offences committed under the special provision of section 6 of ATA. This special law overrides the provision of general law, as the offence of murder has been provided in the schedule of the special law wherein the offence is punishable with death. No indemnity or concession for any offender being minor in age has got no right, therefore, we overrule the pleas raised by the counsel for the convicts/appellants.
12. ' The crux of the above discussion is that in the light of the statements of the P.Ws., the recoveries, the motive and the other circumstances of the case, we feel that the prosecution has proved the facts of the murder of Shahzada Khan and the injuries sustained by four other persons. The prosecution has proved its case to the hilt against convict/appellant No,1 Ehsanullah, the criminal case under section 13, A.O. Is also proved against the convict/appellant Ehsanullah, therefore, his conviction and sentence is upheld. The murder reference made by the trial Court to the extent of convict/appellant Ehsanullah is answered in affirmative. The benefit of doubt is extended to convicts/appellants Nos.2 and 3 Rahmat Amin and Sher Nawaz Khan and their conviction/sentence is set aside. They may be released forthwith if not required in any other criminal case. The murder reference submitted by the Judge Anti-Terrorism Court under section 25 of the ATA read with section 374, Cr.P.C. To the extent of appellants Nos.2 and 3 is answered in, negative.
13. ' Appeal stands disposed of accordingly.