ABDUL SAMI KHAN, J.---Through the captioned appeals under section 410, Cr.P.C. read with section 25 of Anti-Terrorism Act, 1997 Muhammad Ijaz and Muhammad Fayyaz appellants have called in question the judgment dated 20.08.2013 handed down by the learned Judge, Anti-Terrorism Court- II, Gujranwala through which the appellants were convicted for an offence under section 148, P.P.O and they were sentenced to undergo rigorous imprisonment for 1 year each. They were further convicted for an offence under section 324, P.P.C. read with section 149, P.P.C. and were sentenced to undergo rigorous imprisonment for 5 years each on two counts along with fine of Rs. 50,000/- each on two counts or in default of payment of fine to further undergo simple imprisonment for six months each on two counts. The appellants were further convicted under section 7(c) of Anti- Terrorism Act, 1997 and they were sentenced to undergo rigorous imprisonment for 10 years each on two counts along with fine of Rs. 20,000/- each on two counts or in default of payment of fine to further undergo simple imprisonment for six months each on two counts. It was ordered by the learned trial court that all the sentences passed against the appellants shall run concurrently and the benefit of section 382-B, Cr.P.C. was extended in their favour. The appellants have filed the instant appeals against their convictions and sentences before this Court. We propose to decide both these appeals through this single judgment.
2. The prosecution story unfastened from the FIR is that the complainant is resident of Loianwala and is a labourer by profession. About three months prior to the instant occurrence his real brother Khalid was murdered by Amjad, etc. against whom a criminal case was registered at Police Station Aroop. After one of the above said occurrence his cousin Ibrar was also done to death by the accused and a criminal case in that regard was registered at Police Station Cantt. Gujranwala. It is stated that the accused wanted to take their lives as well because the complainant is witness and complainant of above mentioned criminal cases. On 21.10.2009 at about 5.00 pm the complainant and his cousin Iftikhar were coming towards Phatak to their house on motorcycle when they reached main bazar all of a sudden Ijaz, Fayyaz, Amjad, Tariq alias Tarqi, Asif and Manzoor along with 3/4 unknown persons, all armed with firearms, ambushed them on the way who have fired on them with their respective weapons to kill them. The complainant and his cousin after receiving firearm injuries fell down on the ground. The accused to create panic have made indiscriminate firing at the spot due to which 8/10 persons also fell down after receiving firearm injuries. The occurrence has been committed on the asking of Naveed, Constable, Qaiser Sindhu, Afzal Sindhu, Arshad and Shahid Zafar. It has been mentioned in the FIR that the passersby who have received injuries are Ameer Hamza, Tufaila Bibi, Ismail, Abdul Ghafoor, Ayesha Bibi, Iqra Bibi and Azam Asif.
The occurrence was also witnessed by Shafqat Hussain, Kafayat Hussain and Muhammad Mansha beside the complainant and his cousin. Upon application moved by the complainant formal FIR No. 644/09, dated 21.10.2009 was registered at Police Station Aroop, District Gujranwala in respect of offences under sections 324/ 337-H(2)/148/149/109, P.P.C. read with section .7 of Anti-Terrorism Act, 1997.
3.To substantiate its version before the learned trial court, the prosecution produced as many as eleven prosecution witnesses before the learned trial court. The ocular account was furnished by Nasir Hussain, complainant/injured victim (PW7) and Iftikhar, injured victim (PW8). Shabbir Hussain, Inspector (PW9) and Muhammad Shafi, SI (PW10) are the investigating officers of the instant case who have stated about various steps taken by them during the investigation of this case. The medical evidence has been furnished by Dr. Abid Hussain, Medical Officer, District Headquarter Hospital, Gujranwala (PW1) who had medically examined both the injured eye-witnesses.
Muhammad Ali, C-1397 has furnished evidence of recovery. Rest of the evidence adduced by the prosecution is more or less formal in nature.
4.The appellants in their statement recorded under section 342, Cr.P.C. professed their innocence and they have not opted to appear under section 340(2), Cr.P.C. on oath in their defence to disproof allegations leveled against them by the prosecution. They, however, produced documentary evidence in their defence.
5.At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellants as mentioned in paragraph No.1 of this judgment. Hence, this appeal before this Court.
6.Learned counsel for the appellants contends that he does not press the convictions and sentences of the appellants if their sentences are reduced to that which they have already undergone. He, however, forcefully argued that provisions of Anti-Terrorism Act, 1997 are not attracted in this case because on plane reading of the FIR it depicts that the occurrence has taken place in the background of pitched enmity between the parties. On the other hand learned District Public Prosecutor submits that the prosecution has proved the guilt of the appellants to the hilt by producing cogent evidence, including statements of injured victim.
7.We have heard the learned counsel for the parties at length, have given our anxious consideration to their arguments and have also scanned the record with their able assistance.
8. The occurrence in this case has taken place on 21.10.2009 at 5.00 pm and the same was reported to the police through an application moved by the complainant (Ex. PA/3) at about 8.00 pm upon which FIR has been registered at Police Station Aroop, District Gujranwala on the same day at 8.25 pm, i.e. within a short span of three hours and twenty five minutes. Although there is delay of three hours and minute in registration of FIR but the fact remains that eleven persons received injuries during the occurrence and time must have been consumed to shift the injured victims to hospital, hence the delay of three hours and twenty-five minutes is not fatal to the case of prosecution because the prime consideration for the complainant at that time was to save the life of injured victims rather to report the crime in Police Station. Thus, the chance of consultations and deliberations is ruled out of considerations.
9.The ocular account in this case has been furnished by Nasir Hussain, complainant/injured victim (PW7) and Iftikhar, injured victim (PW8). Admittedly the occurrence in this case has taken place in a broad daylight wherein the appellants were duly named in the FIR and specific role of inflicting firearm injuries on the person of above mentioned injured eyewitnesses as well as 8/10 passerby.
A plain reading of FIR shows that the incident has occurred between the parties pursuant to previous pitched enmity and real brother of the complainant as well as his cousin were already murdered by the appellants' party regarding which separate criminal cases were already registered at different police stations.
10. To prove the ocular account both the eye-witnesses mentioned above had explained time, date, place of occurrence, inasmuch as each and every segment of the occurrence in a straightforward and clear-cut manner during their statements adduced before the learned trial court in addition to that they had also explained the mode and manner of taking place the occurrence. Although they had to endure a lengthy cross-examination by the defence wherein the learned counsel for the defence had asked multiple questions to shatter their credibility yet all of them remained consistence on all material points and remained stick to their stances that the appellants along with their co-accused fired at the spot and caused injuries to both the injured eye-witnesses inasmuch as 8/10 other persons who were present in bazar. During their evidence they had sufficiently proved their presence at the place of occurrence at relevant time and witnessing the occurrence vis--vis identifying the appellants at the spot. Both the eyewitnesses have shown their natural conduct at the place of occurrence and they have brought the true story in the same manner as they have witnessed at the spot. As the parties were previously interlocked into B criminal litigation and known to each other, therefore, there was no chance of mistaken identity.
11.During the course of arguments learned counsel for the appellants laid great emphasis on the point that the complainant party had already committed murders of six persons from appellants side, thus, they were interested witnesses and according to the story of the prosecution mentioned in the FIR 8/10 passersby have also received injuries but none of them have been brought in the witness-box by the prosecution to adduce evidence which fact clearly shows that no independent witness has been produced by the prosecution to prove the case against the appellants. We, however, remained unable to appreciate this submission of the learned counsel for the appellants because no one dared to poke his nose into the affairs of hardened desperate criminals to avoid from enmity with them. As regards the evidence of interest witnesses, suffice it to observe that it is now well settled principle of law that the fact of relationship of the witnesses with the complainant or with the deceased would not be sufficient to smash the evidence adduced by such witnesses.
Such PWs can be believed if intrinsic worth of their testimony inspires confidence of the court and the same leads to an inference that the witnesses were present at the scene of the crime at relevant time and they have seen the occurrence. Reliance is placed on the case of Muhammad Ahmad and another v. The State and others (1997 SCMR 89). Even otherwise the rule requiring independent corroboration of testimony of interested witnesses is a rule of prudence which is not to be applied rigidly in each case. There can be cases like the present one where implicit reliance can be placed on the testimony of an interested witness if it otherwise inspiring confidence of the Court.
12.Apart from what has been discussed above, the ocular account has been furnished by two injured victims who have sustained firearms injuries on their persons during the incident, thus, token of receipt of injuries on their persons sufficiently proved their presence at the spot and this fact also established reliability of their evidence adduced before the learned trial court. Their Medico-legal Certificates are available with the prosecution to provide support to the ocular account and the motive set up by the prosecution has been proved through documentary evidence. If the recoveries are not proved that does not mean that the E whole penitentiary structure built by the prosecution against the appellants is false and frivolous and liable to be discarded. Non-proving of recoveries does not have any vital effect on the prosecution story when otherwise the same has been proved by ocular account, supported by medical evidence and corroborated by motive inasmuch as the . absconscion of the appellants immediately after the occurrence. We may observe here that the guilty conscious of the appellants constrained them to remain fugitive from law for a considerable period otherwise trial of the co-convict Tariq was in progress and it was not possible that the appellants would not have knowledge of instant criminal case lodged against them.
13.In the circumstances mentioned above, the learned counsel for the appellants was well justified in not challenging convictions of the appellants and his prayer for reduction of quantum of sentence is absolutely in apt with the facts and circumstances of this case to the effect that the period of incarceration of the appellants should be reduced to that which they have already undergone in respect of offences under sections 324/148/149, P. P. C .
14. As far as contention of learned counsel for the appellants that provisions of Anti-Terrorism Act, 1997 are not attracted in this case, it has been observed by us that according to the contents of the FIR the complainant has himself mentioned a pitched criminal enmity between him and the appellants in pursuance of which the instant occurrence has taken place. He himself had produced copies of FIRs lodged G at Police Station Aroop, Gujranwala and Cantt. Gujranwala in this regard. There is another important fact that nobody from the public, including the injured victims/ passerby have ever appeared before the learned trial court to adduce evidence against the appellants which clearly shows that the prosecution fails to prove that the act of the appellants was against public at large. In the backdrop of such circumstances taking guideline from the verdict delivered by the Hon'ble Supreme Court of Pakistan in the case of Ahmad Jan v. Nasrullah and others (2012 SCMR 59) we are confident in our view that the intention of the assailants was not to create sense of fear or insecurity among the public at large or to advance any sectarian object rather in pursuance of their personal vendetta they have committed the alleged occurrence. We have also observed that admittedly the murder in issue had been committed in furtherance of a private revenge and, thus, the definition of terrorism contained in. section 6 of the Anti-Terrorism Act, 1997 is not attracted in this case and a reference in this respect may be made to the cases of Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199), Mohabbat Ali and another v. The State and another (2007 SCMR 142), Tariq Mahmood v. The State and others (2008 SCMR 1631), Bashir Ahmad v. Muhammad Siddique and others (PLD 2009 SC 11) and Ahmed Jan v. Nasrullah and others (2012 SCMR 59).
15. For what has been discussed above, the prosecution has proved the case against the appellants beyond any reasonable doubt through confidence inspiring evidence in shape of ocular account (furnished by injured victims), medical evidence and motive. It is observed here that the criminal case in hand had been originated in the year 2009, the appellants had been convicted and sentenced by the learned trial court in the years 2013 which fact shows that they have not only suffered the rigors of investigation but have also faced the agony of protracted trial. These appeals are also languishing before this Court since 09.09.2013, thus, the appellants have already underwent much mental distort. The appellants were arrested in connection with this case on 29.12.2010 and since then they are behind the bars. Thus., keeping in view such circumstances we are of the view that the period which the appellants have already undergone must serve the interest of justice well. Thus, we reduced the sentences of the appellants in respect of offences under sections 324/148/ 149, P.P.C. to that extent which they have already undergone, i.e. six years without remission. However, their conviction to the extent of fine and in lieu of fine to further undergo simple imprisonment for six months each on two counts in respect of above offences shall remain intact as awarded by the learned trial court.
16. Now adverting to the sentence passed by the learned trial court against the appellants under section 7(c) of Anti-Terrorism Act, 1997. In view of our discussion made in paragraph No. 14 the sentence passed by the learned trial court against the appellants under section 7(c) of Anti- Terrorism Act, 1997 is hereby set aside. The appellants shall be released from the jail forthwith if they paid amount of fine or undergo sentence in lieu of fine as mentioned in the impugned judgment dated 20.08.2013 passed by learned Judge, Anti-Terrorism Court-II, Gujranwala. The length of imprisonment in lieu of fine shall be calculated from the day of the pronouncement of judgment by this Court, i.e. 14.12.2016.<u> Criminal Appeal No. 284J of 2015 and Criminal Appeal No.1303 of 2013 are hereby dismissed </u>with the modification made in the sentences of the appellants.