' ABDUL SAMI KHAN, J.---This judgment shall dispose of Criminal Appeal No.264/2007 (Muhammad Rafiq and others v. State) and Writ Petition No.2914 of 2007 (Muhammad Arsnad v. Muhammad Rafiq and others) as both have arisen out of common judgment and involved identical question of law and fact.
2. Muhammad Rafique, Karim Baksh and Fateh Muhammad appellants have challenged their conviction and sentences recorded by the learned Special Judge Anti-Terrorism Sargodha vide judgment dated 9-2-2007 in case F.I.R. No.154/2006 dated 14-12-2006 for offence under sections 324/334/34, P.P.C. Read with section 7, Anti-Terrorism Act, 1997 registered at Police Station Naushera District Khushab whereby the appellants were convicted and sentenced as under:-- "All three accused are convicted under sections 324/34, P.P.C. For attempting to commit the Qatl- e-amd of Mian Muhammad and sentenced to undergo ten years' R.I. Each with a fine of Rs.20,000.00 (twenty thousand) each. In default of payment of fine they will further undergo two years' S.I. Each.
(ii) All three accused are also convicted under sections 334/34, P.P.C. For causing Illaf-I-Udw (nose) of Mian Muhammad. As proof of Qisas is not available so all three are sentenced to pay an amount of Rs.300000.00 (three lacs subject to their share of Rs.One lac each) to Mian Muhammad i.e. Arsh and equivalent to amount of Diyat as specified in section 337(Q), P.P.C. In addition to that all three accused will also undergo ten years' R.I. Each as Ta'zir.
(iii) All three accused are also convicted under sections 334/34, P.P.C. For causing Itlaf-I-Udw (lip) of Mian Muhammad. As proof of Qisas is not available so all three are sentenced to pay an amount of SRs.150000.00 (one lac and fifty thousand subject to their share of Rs.50000 each) to Mian Muhammad i.e. Arsh and equivalent to 1/2 share of amount of Diyat as specified in section 337-R, P.P.C. In addition to that all three accused will also undergo ten years' R.I. Each as Ta'zir.
(iv) All three accused are convicted under sections 324/34, P.P.C. For attempting to commit the Qatl-e-amd of Dost Muhammad and sentenced to undergo ten years' R.I. Each with a fine of Rs.20000.00 (twenty thousand) each. In default of payment of fine they will further undergo two years' S.I. Each.
(v) All three accused are also convicted under sections 334/34, P.P.C. For causing Itlaf-I-Udw
(nose) of Dost Muhammad. As proof of Qisas is not available so all three are sentenced to pay an amount of Rs.300000.00 (three lacs subject to their share of Rs.One Lac each) to Dost Muhammad i.e. Arsh and equivalent to amount of Diyat as specified in section 337(Q), P.P.C. In addition to that all three accused will also undergo ten years' R.I. Each as Ta'zir.
(vi) All three accused are also convicted under sections 334/34, P.P.C. For causing Itlaf-i-Udw (lip) of Dost Muhammad. As proof of Qisas is not available so all three are sentenced to pay an amount of Rs.150000.00 (one Lac and fifty thousand subject to their share of Rs.Fifty thousand each) to Dost Muhammad i.e. Arsh and equivalent to 1/2 share of amount of Diyat as specified in section 337-R, P.P.C. In addition to that all three accused will also undergo ten years' R.I. Each as Ta'zir.
(vii) All three accused are convicted under sections 7(c) of the Anti-Terrorism Act 1997 read with section 34, P.P.C. For committing an act of terrorism and sentenced to undergo imprisonment for life each and to pay Rs.50,000.00 (fifty thousand) each as fine, in default of payment of which they will further undergo three years' S.I. Each. Sentences of all accused shall run concurrently. Benefit of section 382-B, Cr.P.C. Shall be available to all three accused.
' Till the payment of Arsh all accused will remain in Jail."
3. Briefly, facts of the case as narrated by the complainant Muhammad Arshad (P.W.9) by submitting an application (Exh.P.A) are as under:-- "That on 13-12-2006 at about 12.30 noon I along with my cousin Mian Muhammad (P.W.7) and Dost Muhammad (P.W.8) sons of Ghulam Muhammad were busy in sowing the wheat in agricultural land at a distance of about 1.5 kilometers towards north west from Mouza Dhadhar. I was ploughing the land with my Tractor whereas my cousins were spreading fertilizers in the land. In the meanwhile Karim Baksh armed with rifle, Muhammad Rafique armed with pistol both sons of Lal Khan and Fateh Muhammad son of Mian Ahmad equipped with .12 bore gun came there on a FIAT Tractor being driven by Karim Baksh. They came down from the Tractor and started to proceed towards them so finding them there also stopped my Tractor, came down from it and started to move towards Mian Muhammad and Dost Muhammad my cousins. At that occasion Karim Baksh made straight fire with his rifle on me but I saved my life by taking shelter of Tractor. At the same time Karim Baksh raised lalkara that today is the time to take revenge for honour from Dost Muhammad and Mian Muhammad and to make them a sign of admonition. I due to fear did not go ahead and then Muhammad Rafique with his pistol made straight fire on Dost Muhammad whereas Fateh Muhammad with his gun made fire on Mian Muhammad and both remained ineffective. Fateh Muhammad raised lalkara that if any attempt was made to move, they will kill them and due to fear my cousins sat on the ground. All three accused came forward. Karim Baksh and Fateh Muhammad caught hold my cousins Mian Muhammad and then Muhammad Rafique brought out a knife from his pocket and cut nose and his upper lip. Then Muhammad Rafiq and Fateh Muhammad caught hold Dost Muhammad and Karim Baksh brought out a knife from his pocket who chopped off his nose and upper lip. While taking in their hands the cut noses and lips, Karim Baksh and Muhammad Rafique raised lalkara to tell the sons that if they had courage, they should take back the chopped off parts of their bodies and by saying so accused while raising weapons in their hands had escaped towards their house by sitting on the same Tractor. Motive behind the occurrence is that six months earlier an allegation was levelled against Muhammad Ishaq son of Dost Muhammad (P.W.8) with regard to illicit relations with daughter of Muhammad Rafiq accused. Sher Muhammad (given up P.W.) who was bringing there fertilizers and myself had witnessed this occurrence."
4. After registration of the case, Akhtar Hussain, Sub-Inspector, (P. W.10) started investigation, visited the place of occurrence, inspected the spot, prepared the site plan of place of occurrence without scale (Exh.PJ). He also recorded the statements of P.Ws. Under section 161, Code of Criminal Procedure. He arrested the accused, recovered crime weapons from them and after completing the formalities submitted report' under section 173, Code of Criminal Procedure.
5. Formal charge was framed against the appellants on 1-2-2007, to which he pleaded not guilty and claimed trial. In order to prove its case the prosecution examined ten witnesses in all.
5(sic.) After conclusion of the trial, the statement of the appellants was recorded under section 342, Cr.P.C. However, the appellants have not recorded their statements on oath as required under section 340(2), Cr.P.C. Nor produced any defence evidence. In reply to a question why this case against you, the appellant Muhammad Rafiq stated as under:-- "We have been falsely involved in this case with which we have no concern whatsoever. Atta Muhammad son of Dost Muhammad my cousin had divorced Mst. Naik Bakht sister of Dost Muhammad and Mian Muhammad (P.Ws.) because of which they were having enmity with us. Both injured were having many other enemies. On the day of occurrence they were sleeping in graveyard under the trees when some unknown assailants chopped off their noses and lips.
Neither Arshad nor Sher Muhammad (P.Ws.) were present there. Peoples present at Shrine had informed both of them at their Dera. After this occurrence they came at the spot. Till the next day they were unaware about assailants whereas both injured were not in a position to speak. Because of enmity and finding it a golden chance after concoction I and my co-accused have been falsely involved in this case."
' Fateh Muhammad and Karim Baksh accused/appellants have also adopted the same version as of Muhammad Rafique accused/appellant.
6. The learned trial Court convicted the accused/appellants, as stated above; hence, this appeal.
Muhammad Arshad appellant has also filed Writ Petition No.2914 of 2007 for awarding maximum amount of compensation to the victims/injured P.Ws.
7. Learned counsel for the appellants, in support of this appeal, contends that as per F.I.R.
Occurrence in this case took place on 13-12-2006 at 12.30 noon and the F.I.R. Was got registered on 14-12-2006 at 12.20 midnight, after unexplained delay of 12 hours, therefore, the chances of consultation and deliberation cannot be ruled out; contends that allegation of firing levelled by the complainant in this case is not proved as no empty was taken into possession by the Investigating 'Officer from the spot and neither tractor behind which the complainant took shelter hit by any bullet nor the tractor was taken into possession by the Investigating Officer during investigation; contends that the prosecution has failed to prove the place of occurrence as the Investigating Officer has not secured blood stained earth from the place of occurrence as alleged by the prosecution; submits that Mian Muhammad (P.W.7) and Dost Muhammad (P.W.8) were sleeping in the graveyard and were attacked by some unknown persons who have chopped off their noses and lips as both the injured P.Ws. Have got enmity with different peoples of the area; submits that Muhammad Arshad complainant (P.W.9) was not present at the place of occurrence and he has been called by the police after the occurrence and made him as complainant in order to strengthen, the prosecution case; that there are material contradictions in the statements of witnesses/injured P.Ws. And complainant; Karim Baksh appellant was not present at the place of occurrence, he has been roped in this case along with co-appellants by the complainant due to previous enmity as the appellants suspect illicit relations between son of Dost Muhammad and daughter of Muhammad Rafiq; there is an inordinate delay in recording of the statement of both the injured P.Ws. Recorded under section 161, Cr.P.C. Which has caused serious doubt upon the prosecution case and such delayed statement has got no value in the eyes of law; .12 bore gun P-3 allegedly recovered from Fateh Muhammad appellant through memo Exh.PG and revolver PI allegedly recovered from Muhammad Rafique appellant through memo Exh.PF and 12 bore gun recovered from Karim Baksh P4 through memo Exh.PH were never sent to the FSL as there is no report of FSL on the file of this case so such recoveries are of no help to the prosecution case; submits that regarding knife P2 allegedly recovered from Muhammad Rafique appellant, there is no report of serologist on the file and even otherwise it is unbelievable that the appellant would keep the knife with them in order to produce the same to the 1.0. To plant upon them; no knife allegedly used by Karim Baksh in the occurrence was recovered from him; the prosecution case is full of doubt and it is golden principle of criminal jurisprudence that the benefit of slightest doubt is given to the accused not as a matter of grace but as a matter of right; submits that the P.Ws. Have improved their statements in order to bring their statements in line with the medical evidence; submits that even according to prosecution's own case occurrence took place due to personal vendetta so the provisions of section 7, Anti-Terrorism Act, 1997 are absolutely not attracted in this case; the prosecution has failed to prove the factum of firing of accused/appellants at the place of occurrence so section 324 P.P.C. Are not attracted in this case; submits that all the P.Ws. Are highly interested, inimical towards the appellants and their testimony needs strong corroboration which is not coming from any quarter in this case. He lastly submits that as the prosecution has failed to prove its case beyond shadow of doubt against the appellants so they deserve acquittal.
8. On the other hand learned counsel for the complainant has submitted that the prosecution has successfully proved it's case against the appellants through confidence inspiring ocular account furnished by Mian Muhammad injured (P.W.7), Dost Muhammad injured (P.W.8) and Muhammad Arshad complainant (PW9); there is no delay in this case and if there is any, it is not fatal to the prosecution case as the injured were taken to hospital for medical treatment after the occurrence so the delay is well explained in this case; submits that all the P.Ws. Were consistent on each and every material point and the testimony of eye-witnesses is corroborated by the medical evidence furnished by Dr. Ghulam Nabi (P.W.2) and Dr. Riaz Hussain (P.W.3) and the recoveries from the appellants; submits that in order to humiliate the complainant side the appellants have chopped the noses and lips of heads of the family which is brutal act of the appellants; that opinion of the Slice regarding Karim Baksh appellant is not binding upon this court as the opinion has been found by the I.O. Without any material; submits that it is not believable that both the injured P.Ws. Kept on sleeping and some body cut their noses and lips; submits that the parties are living in the same vicinity, they are known to each other so, there is no chance of substitution in this case; delay in recording the statements of Injured P.Ws. Occurred as the doctor has opined that they were not fit for making statement when the Investigating Officer submitted application before the Doctor for recording statement of injured P.Ws.; submits that the prosecution has proved its case beyond any shadow of doubt through confidence inspiring eye-witness account, medical evidence and recoveries. As far as writ petition is concerned learned counsel contends that since the prosecution has proved its case through confidence inspiring evidence and statements of injured P.Ws.
Corroborated by the medical evidence furnished by Dr. Ghulam Nabi P.W.2 and Dr. Riaz Hussain P.W.3 was sufficient to award maximum compensation to the injured P.Ws., therefore, writ petition be allowed and maximum compensation be awarded to the respondents.
9. The learned DDPP has also adopted the same arguments as advanced by the learned counsel for complainant.
10. We have heard the arguments advanced by the learned counsel for the parties, learned DDPP and have also gone through the record with their able assistance.
11. All details of the incident such as names of the accused, their roles are fully mentioned in the F.I.R. The injuries attributed to the appellants are fully supported by the medical evidence furnished by Dr. Ghulam Nabi P.W.2 and Dr. Riaz Hussain P.W.3. Ocular account in this case was furnished by Mian Muhammad injured (P.W.7), Dost Muhammad injured (P.W.8) and Muhammad Arshad complainant (P.W.9). Mian Muhammad (P.W.7) and Dost Muhammad (P.W.8) are injured prosecution witnesses. No suggestion was put to them that they were not available at the place of occurrence or they have not received injuries during the occurrence. The appellants have taken a specific plea in their statement recorded under section 342, Cr.P.C. That they were sleeping under the trees and some unknown assailants chopped off their noses and lips. There is no denying of the fact that both the parties are resident of the same village and known to each other and the relations between the parties are strained due o the allegation of illicit relations of Muhammad Ishaq son of Dost Muhammad injured (P.W.8) with the daughter of Muhammad Rafique appellant.
It is day time occurrence so there is no chance of mistaken identity. We have scanned the whole evidence but there is nothing on record to substantiate the plea taken by the appellants in their statements recorded under section 342, Cr.P.C. And is not believable that some one cut nose and lip of a person and he remained unaware about the identity of assailants. We have no option but to hold that the appellants have miserably failed to substantiate the plea taken by them. The recovery of weapon of offence knife P-2 has been effected from Muhammad Rafique appellant.
Even otherwise the recovery is always considered to be corroborative piece of evidence. The appellants in furtherance of their common object while acting in desperate and gruesome manner have chopped of the nose and lips of the victim deserve no leniency. We are of the firm view that the prosecution has proved its case against the appellants beyond any shadow of doubt. The defence/appellants have miserably failed to create any dent or doubt in the prosecution case, therefore, we have no reason to take exception to the conviction of the accused/appellant under section 334/34, P.P.C. As judged by the learned trial Court. Consequently the conviction and sentence of the appellants under section 334/34, P.P.C. Is maintained and they were rightly convicted and sentenced by the trial Court.
12. As far as conviction of the appellants recorded under section 324/34, P.P.C. Is concerned, there is no allegation against the appellants that they have inflicted injuries on any other part of the injured P.Ws. And prosecution has failed to prove the factum of firing at the place of occurrence as no empty was recovered from the place of occurrence by the I.O. Further more the tractor behind which the complainant had taken shelter was neither hit by any bullet nor the same was taken into possession by the I.O. During investigation. The accused/appellants have chopped off noses and lips of Mian Muhammad injured (P.W.7) and Dost Muhammad injured (P.W.8) due to illicit relations of Muhammad Ishaq son of Dost Muhammad with the daughter of Muhammad. Rafique. The intention of the appellants was not to kill the deceased but the intention of the appellants was to make the victim a symbol of didacticism in the society, so, we are of the considered view that section 324/34, P.P.C. Are not attracted in this case. The conviction recorded against the accused/appellants in section 324/34, P.P.C. Is not legal and based on non-appreciation of evidence, therefore, we set aside the conviction and sentence recorded wider the said act i.e. 324/34, P.P.C.
13. As regards the charge under section 7(c) of Anti-Terrorism Act, 1997 is concerned as the occurrence is out come of personal vendetta i.e. Illicit relations of son of Dost Muhammad injured (P.W.7) with the daughter of Muhammad Rafique appellant and the P.Ws. Have not uttered even single word in their examination-in-chief with regard to striking.Of any panic, terror, fear or insecurity in the public or locality due to the alleged occurrence. No doubt act of appellants is desperate and brutal but mere brutal act would not constituted an offence under section 7, Anti- Terrorism Act, 1997. We are of the considered view that provisions of section 6, Anti-Terrorism Act, 1997 punishable under section 7 of Anti-Terrorism Act, 1997 are not attracted in the peculiar circumstances of this case and thus the charge under section 7(c), Anti-Terrorism Act, 1997 is not proved against the appellants, therefore, to this extent the judgment of the trial Court is set aside.
14. For what has been discussed above, we partially allow this appeal to the extent of conviction and sentence under section 324/34, P.P.C. And section 7(c), Anti-Terrorism Act, 1997 which are hereby set aside while maintaining the conviction and sentence under section 334/34, P.P.C. The sentence awarded to the appellants under section 334/34, P.P.C. Shall run concurrently with benefit of section 383-B, Cr.P.C.
15. As far as Writ Petition No.2914 of 2007 is concerned we are of the view that the trial Court is proper forum to decide the quantum of compensation to be awarded to the victim. Learned trial Court has given sufficient reasons in the impugned judgment for awarding compensation to the injured P.Ws. Resultantly, this writ petition having no force is hereby dismissed.