' SYED IFTIKHAR HUSSAIN SHAH, J.---This judgment will dispose of Criminal Appeal No,14, A.T.A. Of 2008 filed by Ghulam Fareed convict/appellant, who was convicted and sentenced by the learned Judge Anti-Terrorism Court-II, Multan vide judgment dated 12-4-2008 as under:-- Under section 302-B, P.P.C.
' Death.
Under section 7(a) of Anti-Terrorism Act, 1997.
' Death.
Under section 324, P.P.C.
' Rigorous imprisonment for ten years and to pay the fine of Rs,50,000 in default whereof to further undergo simple imprisonment for 4-months.
Under section 337-A(ii , P.P.C.
' Imprisonment for five years as Ta'zir to pay Arsh of an amount of Rs,15,000.
Under section 337-F(iii), P.P.C.
' Imprisonment for three years as Ta'zir and to pay the Daman of an amount of Rs,200,000.
' The amount of Arsh and Daman so imposed shall be payable to Allah Ditta, the value of Diyat was fixed as Rs,300.000 and in case of non-payment of said amount of Arsh and Daman, he shall be kept in jail until the same is satisfied.
Under section 7(c) of Anti Terrorism Act, 1997.
' Rigorous imprisonment for 7-years and to pay fine of Rs,50,000 in default thereof, to further undergo simple imprisonment for 3-months.
For Causing Bodily Injury to Shafique and Allah Ditto P.W.
' To pay compensation of Rs,300,000 payable to the legal heirs of Shafique deceased and also to pay compensation of Rs,200,000 payable to Allah Ditta P.W. The said amount will be recoverable under section 544-A, Cr.P.C. As arrears of land revenue.
' All the aforesaid sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
Criminal Appeal No,31-ATA of 2008 against the acquittal of the respondents, Capital Sentence Reference No,2 of 2008 for confirmation or otherwise of death sentence of appellant Ghulam Forced through this judgment.
2. Succinctly, the facts of the case as mentioned in F.I.R. Exh.PH/1 registered on the complaint Exh.PH of Sardar Abdul Ghafoor, are that he along with his brothers Abdul Aziz, Muhammad Akram and Aslam are living in village Basti Ameerabad in the adjacent houses and they tie their cattle on the land lying vacant adjacent to their residential houses where electric bulb remains on for the safety of the animals. In the night between 8/9-8-2007, at about 12-00 midnight his nephew namely Muhammad Shafique son of Abdul Aziz and their employee Allah Ditta were sleeping near the cattle for their protection when Allah Ditta raised hue and cry. On hearing so. Muhammad Shafique woke up and saw Ghulam Fareed son of Ahmad Bux having plastic gallon in his hand containing acid pouring acid on Allah Ditta. Umar Hayat co-accused was also having plastic gallon containing acid, was pouring the same on Muhammad Shafique. On hue and cry of Allah Ditto and Muhammad Shafique injured, the complainant and his brother Akram attracted to the place of occurrence and saw the occurrence. Wazir Ahmad son of Ahmad armed with Sota was also present there along with two unknown persons having muffled their faces and armed with deadly weapons and on seeing the P.Ws., they fled away from the spot. The gallon in the hand of accused Ghulam Farid containing acid fell down and he ran away while remaining accused ran away along with their respective weapons and acid. Muhammad Shafique and Allah Ditta were seriously injured and were shifted to T.H.Q. Hospital Jalalpur Peerwala.
' Motive behind the occurrence was that the accused had suspicion that Mst. Kaneez Mai, sister of Ghulam Pureed. Wazeer Ahmad and wife of Umar Hayat was having illicit relations with Muhammad Akram P.W., which was totally false. Umar. Hayat was residing in Saudi Arabia and used to come Pakistan for sometime.
3. After the submission of challan, the appellant along with Wazeer Ahmad, Ghulam Shabbir alias Shabba and Munawar Hussain alias Shakir was charged under section 302/324, P.P.C. And section 7 of the Anti-Terrorism Act, 1997 to which he pleaded not guilty and claimed trial. The prosecution, in order to substantiate the charge, examined as many as 11-witnesses.
4. Dr. Asim Shafi P.W.2, Javed Iqbal No, 519/HC P.W.3, Dr. Muhammad Arshad P.W.5, Muhammad Tufail No,2294/C P.W.9 and Muhammad Sajjad P.W.11 are more or less formal witnesses. Dr. Altaf Gohar P. W.1 conducted medico-legal as well as post mortem examination on the dead body of Muhammad Shafique deceased and medical examination of Allah Ditta P.W. Abdul Ghafoor P.W.4, Allah Ditta P.W.6, Abdul Aziz P.W.7 and Azeem Bux P.W.8 are the eyewitnesses of the occurrence.
Muhammad Ashraf SI, P.W.10 conducted the investigation of this case. Muhammad Yaqoob SI, who was given up by the prosecution being unnecessary, appeared as C.W.1.
5. Dr. Altaf Gohar P. W.1 conducted the medico-legal examination as well as post mortem examination on the dead body of deceased Muhammad Shafique and also medico-legal examination of injured Allah Ditta. On medical examination of Muhammad Shafique deceased he observed the following injuries:- "INJURIES ' No, 1 . A chemical burn on forehead both side of face, nose, both eyes and orbital region, all round the neck measuring 20 cm x 15 cm.
' No,2. A chemical burn on right scapular region, 10 x 10 cm.
' No,3. A chemical burn on right shoulder region 7 x 7 cm.
' No,4. A chemical burn on left scapular region 15 cm x 12 cm including left shoulder region.
' No,5. A chemical burn on right upper and lower arm all around measuring 36 cm x 25 cm.
' No,6. A chemical burn on left upper and lower arm 35 cm x 22 cm.
' No,7. A chemical burn on the dorsum of left and right hands 10 cm x 10 cm each.
' No,8. A chemical burn on the right and left chest anterioro 20 cm x 35 cm.
' No,9. A chemical burn on the whole abdomen area about 45 cm x 30 cm.
' No,10. A chemical burn on right thigh with knee joint 32 x 24 cm.
' No,11. A chemical burn on right leg and right foot 27 x 19 cm.
' No,12. A chemical burn on left thigh anteriour and posterior surface including knee joint 37 cm x 27 cm.
' No,13. A chemical burn on the left leg including left foot 25 cm x 20 cm, blood pressure was 110/70 pulse 88/pm, temperature 99/F.
' Thereafter, on the death of said Muhammad Shafique, he conducted post mortem examination and observed following injuries:- "INJURIES ' No,1 . A septic wound 22 x 15 on the forehead.
' No,2. A septic wound on right scapular region, 10 x 10 cm.
' No,3. A septic wound 7 x 7 on the left scapular region.
' No,4. A septic wound 15 cm x 12 cm on the left scapular region.
' No,5. A septic wound on right upper and lower arm 30 cm x 25 cm.
' No,6. A septic wound 33 x 22 cm on left upper and lower arm.
' No,7. A burn septic wound 10 x 10 each on the dorsum of left and right hand.
' No,8. A septic wound, anterior of the chest measuring 40 x 35 cm.
' No,9. A septic wound 32 x 24 cm on the right thigh on right knee joint.
' No,10. A septic wound 25 x 20 cm on the left leg and foot. Posterior and Anterior surface.
OPINION In his opinion, the cause of death in this case was bacteremia and septicemia, shock, due to burnt, which was ' 35%. All injuries were ante mortem and sufficient to cause death in ordinary course of nature.
' Probable time between injury and death was 62 to 63 days, and between death and post mortem 6 hours."
' He also conduction the medico-legal of Allah Ditta injured and observed the following injures:- "INJURIES No,1 . A chemical burn on the lower and upper lip area all around 7 x 7 cm.
' No,2. A chemical burn on the left chest anterior 20 x 7 cm.
' No,3. A chemical burn right chest. Anterior 25 x 7 cm.
' No,4. A chemical burn all, around the right forearm and hand 20 x 15 cm.
' No,5. A chemical burn on the right thigh, anterior with right knee joint 20 x 12 cm ' No,6. A chemical burn on the right thigh with posterior 19 x 12 cm.
' No,
7. A chemical burn on the left thigh anterior, and posterior with left knee joint 40 cm x 20 cm.
' No,8. A chemical burn on anterior and posterior surface of right leg with dorsum on right foot 40 x 15 cm.
' No,9. A chemical burn on the anterior and posterior of left leg with a dorsum of left foot, 43 x 7 cm.
' No,10. A chemical burn on genital region including penis 5 x 5 cm. B.P. 100/70, pulse 72/pm, temperature 99/F. All the injuries were kept under observation, all were by chemical. Probable duration of the injuries 4 hours.
6. After closing of the prosecution evidence all the accused were examined under section 342, Cr.P.C. The incriminating evidence produced by the prosecutions was put them, which they termed as incorrect, to question as to why this case was registered and why the P.Ws. Have deposed against them, appellant Ghulam deposed as under:-- "Fakhar Baloch, Advocate is my relative, his son contested last election. I did not support him during the election. I supported his opponent candidate and on the day of polling case F.I.R.
No,269 of 2005 dated 18-8-2005 was aiso registered against Fakhar Baloch Advocate and his agent Muhammad Iqbal and due to this rivalry, I have been falsely involved."
7. The appellant opted not to appear on oath as a witness under section 340(2), Cr.P.C., however he produced copy of F.I.R. No,269 of 2005, Police Station Saddar Jalalpur as Mark-B.
8. Learned trial Court, after hearing the learned counsel for the parties and going through the evidence on record, convicted the appellant and sentenced him supra. However, learned trial Court acquitted accused Wazeer Ahmad, Ghulam Shabir alias Shabba and Munawar alias Shakir by giving them benefit of doubt. The accused Umar Hayat was declared as proclaimed offender.
9. Learned counsel for the appellant has contended that it was an unidentified occurrence which took place at the dark in the night; that the accused persons were not known to the complainant or the P.Ws. As is evident from the statement of Muhammad Akram, one of the alleged eyewitnesses of the occurrence Exh.DA, who was given up by the prosecution being unnecessary; that the appellant had allegedly poured acid on Allah Ditta injured P.W. And had not committed any overt act towards deceased of this case namely Muhammad Shafique; that no common intention was alleged or proved against the appellant and individual roles have been attributed to the appellant and his co-accused Umar Hayat (since P.O.), therefore, he has wrongly been convicted under section 302(b), P.P.C.; that the F.I.R. Was lodged with an inordinate delay after due deliberation and consultation; that the learned trial Court has wrongly relied upon the statement of MuhammadShafique deceased recorded under section 161, Cr.P.C. As his dying declaration, which was recorded in the absence of doctor and after two days of the occurrence and the deceased died after two months of the recording of said statement; that the motive as alleged in the F.I.R. Has neither been proved by the complainant party nor it was relied upon by the learned trial Court; that there are material contradictions in the statements of the P.Ws. Who are closely related to the deceased and the learned trial Court has wrongly placed reliance thereon; that the offences allegedly committed by the appellant were not triable by the Anti-Terrorism Court as it was neither scheduled offence nor it created any sense of fear or insecurity among the inhabitants of the locality rather it was triable by the ordinary Court and the challan has wrongly been submitted before the learned Anti-Terrorism Court; that the case of the prosecution is full of doubts, therefore, the appellant is liable to be acquitted. Relies on cases titled "Muhammad Yousaf v. The State (2002 PCr.LJ 576 Lahore]", "Noor Muhammad v. The State 1983 PCr.LJ 164, "Manzoor Ullah v. The State 2002 MLD 85 (Lahore)", "Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550 [Supreme Appellate Court])".
10. On the other hand, learned DPG assisted by the learned counsel for the complainant has contended that the occurrence of this case took place at 12:00 midnight and the matter was reported to the police immediately on the same night at 1:00; that the injured Allah Ditto P.W.6 and the eye-witnesses Abdul Ghafoor P.W.4 and Abdul Aziz P.W.7 have fully implicated the appellant in the commission of offences and they corroborated each other on all the material aspects of the case; that the statement of deceased- Exh.PR is also in consonance with the post mart= examination report; that it is proved on record from the medical evidence as well as the statements of the P.Ws. That the eyes of both the injured persons were not effected by the acid; that both the parties are closely related to each and are living in the adjacent house and at the time of occurrence, the electric bulb was on, as such the question of non-identification of the culprits does not arise; that the P.Ws. And the deceased of this case had no ill-will or previous enmity with the assailants to falsely implicate them in this case; that the prosecution has successfully proved its case beyond any shadow of doubt through independent, cogent and 'confidence-inspiring evidence. Relies on cases titled "Mirza Shaukat Baiq v, Shahid Jamil (PLD 2005 SC 530)", "Majeed v. The State (2010 SCMR 55) Supreme Court of Pakistan])", "Shah Daraz Khan v.
Muhammad Jabbar and another (2010 MLD 1848 [Peshawar])", "Shaukat Ali v. State (PLD 2007 SC 538 [Appellate Jurisdiction])", "Ahmed Hussain alias Ami and others v. The State and others (PLD 2008 Supreme Court 110)", "Gul Muhammad alias Gullu v. The State (PLD 1987 Lahore 196)", "Muhammad Yousaf v. The State (2002 PCr.LJ 576 [Lahore])", "Afzaal Ahmed v. The State (2003 SCMR 73 [Supreme Court of Pakistani)", Ahmad Hussain alias Ami and others v. The State (PLD 2008 SC 110 [Supreme Court of Pakistani)"..
11. Learned counsel for the complainant/appellant Criminal Appeal No,31 of 2008 has contended that all the respondents namely Wazir Ahmad, Ghulam Shabbir alias Shabba and Munawar Hussain, while armed with deadly weapons along with their co-accused and in furtherance of their common object, attacked upon the complainant party and their co-accused poured acid on the Muhammad Shafique deceased as well as the Allah Ditta, injured P.W. Which created panic, insecurity, and fear to the public at large; that the learned trial Court acquitted the co-accused of the appellant, who actively participated in the occurrence; that the prosecution has successfully proved its case against all the culprits beyond any shadow of doubt, therefore, they are also liable to be convicted.
12. We have heard the learned counsel for the appellants, learned DPG for the State assisted by the learned counsel for the complainant and have also gone through the record.
13. The F.I.R. Exh.PH/1 of this case was registered on the complaint Exh.PH of Abdul Ghafoor P.W.4 on 9-8-2007 at 2-15 a.m. The occurrence of this case took place took place in the night between 8/98- 2007 at about 12-00 midnight. Muhammad Shafique nephew of the complainant and their servant namely Allah Ditta P.W.6 were sleeping outside the house near the cattle shed and light was on, Allah Ditta P.W.6 cried and on hearing hue and cry Muhammad Shafique deceased woke up and saw Ghulam Fareed appellant having gallon containing acid in his hands, pouring acid on Allah Ditta. Umar Hayat co-accused, who was also having plastic gallon containing acid in his hand, poured the acid on Muhammad Shafique deceased. On hue and cry raised by Muhammad Shafique and Allah Ditto injured, the complainant, his brothers Abdul Aziz and Muhammad Akram attracted to the place of occurrence and saw the occurrence. Wazir Ahmad armed with Sota along with two unknown person having muffled their faces armed with firearms were also standing there.
14. The complainant Abdul Ghafoor appeared as P.W.4 has fully corroborated the contents of the complaint Exh.PH and F.I.R. Exh.PH/1. He has categorically stated that after hearing noise of screaming of Allah Ditta he along with his brothers Muhammad Akram and Abdul Aziz attracted to the place of occurrence where Allah Ditta and his nephew Muhammad Shafique were sleeping and they themselves saw Ghulam Fareed appellant pouring acid upon Allah Ditta and his co-accused Umar Hayat (since P.O.) pouring acid on Muhammad Shafique deceased. Abdul Aziz P.W.7 has fully corroborated the complainant. Allah Ditta, injured appeared as P.W.6 and deposed that he along with Muhammad Shafique deceased was sleeping outside the cattle shed of the complainant when in the mid-night he felt that he had been set at fire. He raised hue and cry and saw the appellant throwing acid on him and co-accused Umar Hayat (since P.O.), was pouring acid on Muhammad Shafique deceased.
15. There is no denial of the fact that the aforesaid injured was a servant of the complainant party and was sleeping at the cattle shed. No suggestion was put to him that he had got any ill will or animosity to falsely implicate the appellant and his co-accused Umar Hayat (since P.O.). He was only suggested that he deposed so being tortured by his master/P.Ws.
16. Learned counsel for the appellant has assailed the testimony of Abdul Ghafoor P.W.4 and Abdul Aziz P.W.7 being closely related to Muhammad Shafique deceased being real paternal uncle and father respectively and the statement of Allah Ditta P.W. Being their servant and interested one.
Their testimony has, also been assailed on the ground, that it was a dark night occurrence and identity of the appellant and his co-accused was not possible and the given up eye-witness Muhammad Akram had got recorded his statement Exh.DA before the police wherein he stated that unknown persons had thrown acid on his nephew Muhammad Shafique and his servant Allah Ditta. Learned counsel has also alleged that on the injury statements Exh.PA and Exh.PC, it has been mentioned by the Investigating Officer Muhammad Sajjad SI/P.W.11 as The State through Muhammad Shafique and The State through Allah Ditta respectively, which clearly indicates that at the time of preparation of injury statements, the case was not registered.
17. It is by now well-settled that mere relationship of the witnesses is not a ground itself to discredit their testimony. It has been held by the Hon'ble Supreme Court in case of Khizer Hayat v. The State (2011 5CMR 429) as under:-- "The statement of the witness on account of being interested witness can only be discarded if it is proved that an interested witness has ulterior motive on account of enmity or any other consideration. Essentially this proposition has been considered in number of cases and this Court had declined to give weight to it, in absence of any reason leading to show that for some ulterior motive or on account of enmity the statement has been falsely given. There is no rule of law that statement of interested witness cannot be taken into consideration without corroboration and even uncorroborated version can be relied upon if supported by the surrounding circumstances."
' The statements of both the eye witnesses and the injured P.W. Are confidence-inspiring and we have got no option but to rely upon the same.
18. So far as the stateme of one of the eye-witnesses namely Muhammad Akram made before Muhammad Sajjad P.W.11, the alleged Investigating Officer is concerned, it was alleged by the said P. W.11 that he recorded this statement in hospital. The said statement Exh.DA; which is mere a photocopy does not bear the signatures of this alleged ' investigator. We have gone through the police file with the assistance of the learned counsel for the parties as well as the learned DPG and have not found any such statement therein. It was not found ever incorporated in any case diary.
Furthermore, the aforesaid alleged investigator has not written any case diary of this case.
Muhammad Akram had been shown as an eye-witness of the occurrence in the F.I.R. Abdul Ghafoor P.W.4 and Abdul Aziz P.W.7 have admitted in their cross-examination that the aforesaid Muhammad Akram remained present at the spot and had not gone to hospital where allegedly his statement was recorded. The aforesaid alleged deposition was recorded by the said alleged investigator in hospital. Even Allah Ditta injured while appearing as P.W.6 has categorically stated that they were shifted from the place of occurrence by Azeem Bux and Rizwan alias Jani on a jeep to hospital and-he has not stated that Akram was accompanying him. The aforesaid Exh.DA, in the light of eye-witnesses Abdul Ghafoor P.W.4 and Abdul Aziz P.W.7 appears to be a forged document especially when the primary evidence of the same is not available either on the police file or on the judicial record. Furthermore, the aforesaid Muhammad Akram was given up by the prosecution being unnecessary and the defence could easily make an application before the learned trial Court for summoning him in order to establish the authenticity of the said statement Exh.DA.. So the said statement cannot be relied upon and the case law produced by the learned counsel for the appellant in this respect is not directly applicable to the facts and circumstances- of this case.
19. It is also an admitted fact that both the parties are related to each other and they are residing in the same area, so the question of mistaken identity does not arise at all
20. Learned counsel for the appellant has also raised an objection regarding the admissibility of the statement of Muhammad Shafique deceased Exh.DR, which has been treated by the learned trial Court as his dying declaration on the ground that it was riot recorded in the presence of the doctor and it was recorded after two days of the occurrence and its authenticity is not beyond doubt. The Hon'ble Supreme Court has given the guiding principles for relying on the dying declaration in case titled "Farmanullah v. Qadeem Khan (2001 SCMR 1474)", which has been further relied upon in case titled "Majeed v. The State (2010 SCMR 55 [Supreme Court of Pakistan])", which are as under:--- "(i) There is no specified forum before whom such declaration is required to be made.
(ii) There is no bar that it cannot be made before a private person.
(iii) There is no legal requirement that the declaration must be read over or it must be signed by its maker.
(iv) It should be influenced free.
' In order to prove such declaration the person by whom it was recorded should be examined.
(vi) Such declaration becomes substantive evidence when it is proved that it was made by the deceased.
(vii) Corroboration of a dying declaration is not a rule of law, but requirement of prudence.
(viii) Such declaration when proved by cogent evidence can be made a base for conviction."
' In this case, Muhammad Ashraf SI/P.W.10 has fully proved that he recorded the statements of Muhammad Shafique deceased Exh. PR and Allah Ditto injured P.W. And also testified its recording by deposing that their statements were made in the presence of doctor and the said portion of his statement remained uncross-examined by the defence.
21. The occurrence of this case had taken place on 9-8-2007. Muhammad Ashraf ST/P.W 10 visited Nishtar Hospital Multan on 10-8-2007 for recording the statement of Muhammad Shafique deceased. He first of all made an application Exh.PG to Dr. Asim Shall P.W.2 for seeking permission to record the statement of Muhammad Shafique deceased and Allah Ditta P.W. And the said doctor (P.W.2) vide its report Exh.PG/1 observed that both the injured were well-oriented and fit for statement. The said I.O. Deposed that he recorded the statements of Allah Ditta P.W. And Muhammad Shafique deceased, who died later on 9-7-2010. Allah Ditta injured P.W.6 deposed that his statement was recorded by the police officer after three days of the occurrence in the presence of the doctor. He has not been cross-examined on this point, so we have got no option but to believe that the statements of the injured persons were recorded in the presence of the doctor.
22. It has been held by the. Hon'ble Supreme Court in case titled "Sabir and others v. The State and others (2001 SCMR 94 [Supreme Court of Pakistan]) " that the non-attestation of the . Report of the occurrence made by the deceased in injured condition in hospital either by the medical officer or any other person will not render the same to be false. Hence, the learned trial Court has rightly relied upon the statement of Muhammad Shafique as his dying declaration.
23. Learned counsel for the appellant has further contended that the alleged occurrence was an outcome of the personal enmity. The occurrence has allegedly taken place outside the house of the. Complainant at cattle shed which is not a public place and no fear or sense of insecurity prevailed in the locality. So, the provisions of sections 6 and 7 of the Anti-Terrorism Act, 1997 were not applicable to the facts and circumstances of the present case. On the other hand, learned counsel for the complainant has alleged that the alleged occurrence has created the sense of fear and insecurity in the public and the case has rightly been decided by the learued Anti-Terrorism Court. Reliance has been placed on case titled "Ahmed Hussain alias Ami and others v. The State and others (PLD 2008 SC 110)".
24. From the bare reading of the F.I.R. It is apparent that the occurrence was an outcome of a personal enmity. The accused had the suspicion that Muhammad Akram, paternal uncle of Muhammad Shafique deceased, had got illicit relations with the sister of Ghulam Fareed and Wazir Ahmad and sister of Umar Hayat (since P.O.). The alleged motive behind the occurrence is admittedly suspicion by the co-accused that Muhammad Akram, paternal uncle of Muhammad Shafique deceased and employer of Allah Ditta injured, had illicit relations with the wife of co- accused Umar Hayat (since P.O.). Therefore, we are of the considered view that the application section 6 of the Anti-Terrorism Act, 1997 which primarily requires the spread of sense of insecurity and fear in the common mind is lacking in the present case. The occurrence neither reflects any act of terrorism nor it was sectarian matter and the occurrence was a result of previous enmity between the parties. Reliance in this case can be safely placed on "Shabbir Ahmad v. Muhammad Siddique (PLD 2009 SC 11)". Learned trial Court has wrongly convicted the appellant under sections 7-a and 7-c of the Anti-Terrorism Act, 1997.
25. Another objection of the learned counsel for the appellant is that the occurrence is the result of individual act of the appellant and his co-accused Umar Hayat (since P.O.) and they have got no common intention. The P.Ws./eye-witnesses of the occurrence and the injured P.W. Allah Ditta have categorically deposed that Ghulam Fareed and co-accused Umar Hayat (since P.O.) while carrying acid came along with their co-accused came at the spot together, and in furtherance of their common intention poured acid on Allah Ditta injured as well as Muhammad Shafique deceased. As discussed above, their evidence is confidence-inspiring. The appellant along with his co-accused had emerged at the scene of occurrence while having acid and they poured the same in furtherance of their common intention on Muhammad Shafique deceased and Allah Ditta P.W. Common intention is an intention to commit the crime committed and each accused person can be convicted for that crime who participates in the said crime in furtherance of the common intention.
26. It is also contended by the learned counsel for the appellant that all the co-accused have been acquitted by the learned trial Court, therefore, the appellant is also entitled to the same benefit of doubt. It is well-settled law by now that the principle of "falsus in uno falsus in omnibus" has no universal application and grain has to be sifted from the chaff to ensure justice. In this regard we refer an observation of the Hon'ble Supreme Court in the judgment reported as "Khadim Hussain v.
The State (2010 SCMR 1090)", in the following words:-- "In fact a futile exercise appears to have been made to press into service the doctrine of "falsus in uno falsus in omnibus (false in one thing, false in all), which is admittedly not applicable in prevalent system of criminal administration of justice and more so there is no rule having universally applicable that where some accused were not found guilty the other accused would ipso facto stand acquitted because the Court has to sift the grain from chaff. Samano v. State 1973 SCMR 162. There is no cavil to the proposition that the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this county without reservations and cannot be accepted as one of universal applications. In the last analysis, as stated in some of the eminent judicial decisions, the grain has to be sifted from the Chaff in each case, in the light of its own peculiar circumstances Riaz Hussain v. The State (2001 SCMR 177)"
27. The prosecution has fully established the guilt of the appellant coming at the spot along with his co-accused Umar Hay at and pouring acid on Muhammad Shafique deceased and Allah Ditto injured P.W. Resulting in his death. The appellant threw the acid on various parts of the body of Allah Ditta resulting in the burning of his vita parts including the genital region along with penis. So, the learned trial Court has rightly convicted him.
28. So as far as the quantum of sentence is concerned, we have noted that it was not a case of capital punishment and there are certain extenuating circumstances in favour of Ghulam Fareed appellant. He had not thrown acid or caused any injury to Muhammad Shafique deceased. It is well-recognized principle by now that the accused is entitled to the benefit of doubt as extenuating circumstances while deciding the quantum of sentence. Reliance can be placed on cases titled "Mir Muhammad alias Mir v. The State (2009 SCMR 1188)", "Ansar Ahmad Khan Barki v. The State and another (1993 SCMR 1660)" and "Sharafat Ali Khan v. The State (2010 SCMR 1205)".
29. Resultantly, appeal in hand (Criminal Appeal No, 4-ATA of 2008), filed by Ghulam Forced appellant is dismissed. However, the sentence awarded to the appellant under section 302(b)/34, P.P.C., is altered from death to imprisonment for life with the benefit of section 382-B, Cr.P.C. The conviction and sentence under sections 7(a) and 7(c) of the Anti-Terrorism Act, 1997 are hereby set aside and the remaining sentences are maintained. All the aforesaid sentences shall run concurrently.
30. While arguing Criminal Appeal No,31-ATA of 2008, filed by the father of Muhammad Shafique deceased, learned counsel for the appellant has contended respondents namely Wazir Ahmad armed with club, Ghulam Shabbir and Munawar Hussain both armed with fire arms along with their co-accused came at the place of occurrence and their co-accused poured acid on Allah Ditta P.W.
And Muhammad Shafique deceased. It is further argued that sufficient incriminating evidence was available against the respondents but the learned trial Court has acquitted them arbitrarily while they were the nominated accused of the promptly lodged F.I.R. We have gone through the statements of all the P. Ws. No overt ,act in the commission of alleged occurrence has been attributed to them by any of the P. Ws. Even the injured P.W. Allah Ditta while appearing as P.W.6 has deposed nothing against the respondents. The appellant while appearing as P.W.7 has simply deposed that Wazir respondent was having club (Lathi) and other two unknown persons having muffled their faces were present while armed with fire-arms, who fled away on seeing them.
31. A minute and thorough perusal of the impugned judgment reveals that the learned trial Court passed well-reasoned judgment while acquitting the respondents-accused. It is well-settled principle of criminal dispensation of justice that when an accused is acquitted from a case after a protracted trial, double presumption of innocence is attached to him. This is in line with the law laid down by the Apex Court reported in Iftikhar Hussain and others v. The State (2004 SCMR 1185) as under:-- "It is well-settled law of criminal administration of justice that when an accused is acquitted of the charge, he enjoys double presumption of innocence in his favour and Courts seized with acquittal appeal under section 417, Cr.P.C. Are obliged to be very careful in dislodging such presumption.
Undoubtedly, two views are always possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplicity of litigation, it is always insisted that the Court should follow the recognized principles for interference in the acquittal judgment as held in the case of Ghulam Sikandar and another v. Mumraiz Khan and others (PLD 1985 SC 11) that the appellate Court seized with the acquittal appeal under section 417, Cr.P.C. Is competent to interfere in the order challenged before it provided it has been established that the trial Court has disregarded the material evidence or misread. Such evidence or received such evidence illegally."
32. In the case of "Haji Amanullah v. Munir Ahmad and others (2010 SCMR 222)", the Hon'ble Supreme Court of Pakistan, at page 226 has been pleased to observe as under:-- "It is well-settled by now that in an appeal, the Court would not interfere with acquittal merely because reappraisal of the evidence, it comes to the conclusion different from that of the Court acquitting the accused provided both conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
33. In view of the above discussion, learned counsel for the appellant has failed to point out any illegality or material irregularity committed by the learned trial Court in the impugned judgment, which is well-reasoned, cogent and confidence-inspiring and based on the evidence available on record, therefore, the same is liable to be maintained. Resultantly, Criminal Appeal No,31-ATA of 2008 is without any merit, the same also stands dismissed.
' The Death sentence awarded to appellant Ghulam Fareed is NOT confirmed and Capital Sentence Reference No, 2 of 2008 is answered in NEGATIVE.