MANZOOR AHMAD MALIK, J. Ahsan Shahzad (appellant) faced trial before the learned Judge Anti Terrorism Court No, 1, Faisalabad in case FIR No, 899/201 1 dated 29.09.2010 offence under Sections 302, 324 and 34 PPC read with Section 7 of the Anti Terrorism Act, 1997 registered at Police Station Civil Lines, Faisalabad. After regular trial, he was convicted and sentenced as under:- "32..epitomizing my discussion, I convict the accused Ahsan Shahzad U/S 302(b) of PPC and sentence him to death and will also pay compensation U/S 544-a of Cr.PC. in the sum of Rs, 1,000,000-and in the case of default to undergo SI for 6 months. He is also sentence (sic) U/S 7 (a) of the Anti-T errorism Act, 1997 and sentence (sic) to death and will also pay fine in the sum of'Rs, 1,00,000/- and in defiult thereof, to under go SI for 1 year. Thus is totality sentence of death will be on two counts. He be hanged by the -neck till he be dead. He is also convicted U/S 337-H2 of PPC and sentenced to 2 years R.I. with the fine of Rs, 20,00 W- and in default thereof, to undergo SI for 2 months. He is also convicted U/S 7 (b) of the Anti-T errorism Act, 1997 and sentenced to 5 years R.I with fine in the sum of Rs, 20,000/-in default thereof to under (sic) SI for 6 months."
2. Aggrieved of his conviction and sentence, the appellant preferred Crl. Appeal No, 363-J of 2011 whereas the learned trial court transmitted CSR No, 39-T of 2011 for confirmation or otherwise of the sentence of death awarded to the appellant. Both the matters were taken up together by a learned Division Bench of the Lahore High Court and through the impugned judgment dated 03.12.2014, conviction of the appellant under Section 302(b) PPC and Section 7(a) of Anti Terrorism Act, 1997 awarded by the learned trial court was maintained, however , his sentences were altered from death to the imprisonment for life. The compensation awarded by the learned trial court and sentence in default thereof was also maintained and upheld. All the sentences were ordered to run concurrently with benefit of Section 382-B, Code of Criminal Procedure. Convictions and sentences of the appellant under Section 337-H(ii) PPC and Section 7(b) of the Anti Terrorism Act, 1997 were set aside. With these Modifications in the convictions-and. sentences of the appellant, his. appeal was dismissed: Capital sentence reference was answered in the negative and the sentences of death were not confirmed. Feeling dissatisfied of the verdict, of the learned appellate court, Ahsan Shahzad (convict) filed Jail Petition No, 462 of 2014 whereas Malik Zafar Iqbal complainant filed Crl. Petition No, 25-L of 2015. Both these petitions came up for hearing before this Court on 03.12.2017. when leave was granted in Jail Petition No, 262 of 2014 filed by the convict whereas Crl.
Petition No, 25-h. of 2015 filed by the complainant ,was ordered to be heard alongwith criminal appeal arising out of the jail petition.
3. Precisely , the prosecution story , as set out in the FIR (Exh.P AR) chalked out on the statement (Exh, PA) complainant, is that on 29.09.2010, he alongwith Muhammad Aslam (PW.12) and Malik Irtaza Ijaz (PW since given up) were present in .the office of Amjad Rashid who was Office Superintendent TMA Office Madina Town Faisalabad. At about 01.15 p.m. Ahsan Shahzad (appellant) armed with a pistol alongwith three unknown culprits entered into the office and raised a lalkhara that they would teach a lesson for marking absence of the appellant and ordered inquiries against him. In the meanwhile, Ahsan Shahzad (appellant) fired through his pistol which hit Amjad Rashid on the from of chest at left side, who fell from the chair . After Amjad Rashid had fallen, the appellant fired another shot at him but missed the target. The culprits made good their escape while making aerial firing.
Amjad Rashid in injured condition was escorded to the Civil Hospital who succumbed. to the injuries in the way
4. We have heard learned counsel for the parties their able assistance have also gone through -the available record.
5. The occurrence in this case took place on 29.09..2010 at 0115 p.m.., whereas it was reported to the Police on the same afternoon at 01:45 p.m. i,e, just half an hour of its happening on the basis whereof formal FIR was chalked out at 02:00 --.p.m. Even post mortem examination on the dead body was conducted on the same day at 04:35 p.m. i,e, within 3 1/2 hours of the occurrence. These circumstances, when taken into consideration collectively , establish presence of the witnesses of ocular account at the spot and rule out any chances of consultations or deliberations for false implication of the appellant in this case.
6. Ocular account in this case was furnished by Zafar Rasheed (PW.11), Muhammad Aslam (PW.12) and Sardar Naseer Ahmad (PW.13). Conviction and sentence of the appellant recorded under Section 337-H(ii) PPC and Section 7(b) of the Anti Terrorism Court, 1997 for making ineffective firing at Sardar Naseer Ahmad (PW) was set aside by the learned appellate court for valid reasons. Therefore, no Zafar Rasheed (PW.11) AND Muhammad Aslam (PW.12) are relevant for the disposal of these matters. Zafar Rasheed complainant is the brother of he deceased whereas Muhammad Aslam was the retired official of he same department where the deceased was employed at the time of his death. Both these witnesses are residents of the same city where the occurrence took place. It was brought on record through the cross examination of these witnesses that they had visited the office of the deceased in connection with some important work. Therefore, we hold that the witnesses were present at the time and place of occurrence and had witnessed the crime.
7. Ocular account is fully supported by the medical evidence furnished by Dr. Saeed Akbar Tariq (PW 6) who conducted post mortem examination on the dead body of Amjad Rashid (deceased) and observed an entry wound on the front of chest above the left nipple,
8. Motive behind the occurrence , recovery of a pistol allegedly at the pointation of the appellant and positive report of Forensic Science Laboratory were not believed by the learned appellate court for valid reasons recorded in paras 18 and 19 of the impugned judgment. Upon our own independent reappraisal of the material available on record, the said findings are borne out from the record and not open to any exce ption. Likewise evidence of the abscondence of the appellant was not put to him while examining him under Section 342, Code of Criminal Procedure, therefore, same cannot be used against him for maintaining his conviction and sentence on a capital charge.
9. Epitome of the above discussion is that the prosecution has successfully brought home guilt of the appellant to hilt so far as the murder of Amjad Rashid (deceased), therefore, this appeal to the extent of conviction and sentence of imprisonment for life altered by the learned appellate court for qatl-i-amd of Amjad Rashid (deceased) has no force.
10. We have, however , observed that conviction and sentence of the appellant recorded by the learned trial court under Section 7(a) of the Anti Terrorism Act, 1997 cannot sustain because the prosecution alleged a specific motive in the FIR as well as before the learned trial court. Although according to the verdict of the learned Lahore High Court the said motive was not proved but the fact remains that the prosecution pressed hared that the murder . of Amjad Rashid was committed because of personal vendetta. Moreover , it was committed because of personal vendetta. Moreover , it was brought on record through the cross examination of complainant that the provisions of Anti Terrorism Act, 1997 were added in this case after a considerable delay . Considering the overall circumstances of the case, we are of the view that provis ions of Anti Terrorism Act, 1997 are not attracted in this case particularly when only deceased was the target. Accordingly conviction and sentence of the appellant under Section 7(a) of the Anti Terrorism Act, 1997 is set aside and he is acquitted of the aforesaid charge. Sentence of imprisonment for life under section 302(b) PPC, the amount of compensation and the sentence in default thereof as altered/upheld by the learned appellate court for qatl-i-amd of Amjad Rashid (deceased) are maintained Benefit of Section 382-B, Code of Criminal Procedure shall be available to the appellant.
11. There was a single firearm injury on the person of the deceased. As discus sed in para 8 of this judgment, Motive behind the occurrence and recove ry of a pistol at the pointation of the appellant were not believed by the learned appellate court for valid reasons and since we have already acquitted Ahsan Rashid (respondent No, 1) of the charge under Section 7(a) of the Anti Terrorism Act, 1997. there remains no question for enhancement of his sentence. Therefore, there is no merit in Crl. Petition No, 25-L of 2015, which is dismissed and leave to appeal is refused.