Asjad Javaid Ghural, J.--Through this criminal appeal under Section 25 of the Anti-T errorism Act, 1997 read with Section 410, Cr.P.C. appellant Muhammad Arif has challenged the wires of judgme nt dated 30.03.2017 passed by the learned Judge Anti-T errorism Court, Sargodha in case FIR No. 394 dated 29.12.2015, in respect of offence under Section 302, PPC and Section 7 of The Anti-T errorism Act, 1997, registered at Police Station, Piplan, District Mianwali, whereby he was convicted and sentenced as under: Under Section 302(b), PPC Death and to pay compensation of Rs. 5,00,0001- to the legal heirs of deceased under Section 544-A, Cr.P.C. and in default thereof to further undergo simple imprisonment for four months.
Under Section 7(a) of The Anti-T errorism Act, 1997 Death with fine of Rs. 3,00,0001- and in default thereof; to further undergo simple imprisonment for two months.
Under Section 353, PPC Rigorous imprisonment for two years with fine of Rs. 30,0001- and in default thereof to further undergo simple imprisonment for one month.
Under Section 7(h) of The Anti-T errorism Act 1997 Rigorous imprisonment for five years with fine of Rs. 50,000/-and in default thereof, to further undergo simple imprisonment for two months.
2. Capital Sentence Reference No. 4-T of 2017 sent up by the learned trial Court for confirmation or otherwise of death sentence of appellant Muhammad Arif, shall be decided through this common judgment.
3. The prosecution story unfolded in crime report (Ex.PT) registered on the complaint of Zafar Iqbal (PW-12) is that he and his brother Nadeem Iqbal were serving in WAPDA at Piplan. Nadeem Iqbal was serving as Line Superintendent. On 29.12.2015 he along with Tahir and Nasir Munir was present in the office of his brother Nadeem Iqbal on account of some personal affairs, who was performing his duties. At about 10:30 a.m. appellant Arif, who was also employee in the said office, armed with pistol came there and raised Lalkara to teach lesson to his brother for getting his salary stopped and also made a straight fire, which landed at the left side of his chest, who fell down. The motive behind the occurrence was that his brother had reported absence of the appellant to the higher authorities, upon which his salary was stopped. The injured was shifted to the Civil Hospital, Piplan in unconscious condition.
4. Hameed Ullah, SI (PW-17) visited the place of occurrence, took all necessary steps of initial investigation and recorded the statements of witnesses under Section 161, Cr.P.C. Nadeem Iqbal expired on 01.01.2016 and he added offence under Section 302, PPC. Muhammad Akram, SI (PW-14) got conducted post-mortem examination on the dead body of the deceased and recorded statements of the witnesses under Section 161, Cr.P.C. Zia Ullah Khan, Inspector (PW. 16) arrested, the appellant on 11.01.2016 who during investigation led to the recovery of a pistol .30-bore (P-7), three live bullets (P-8) and expired license (P-9). After completion of investigation, he got prepared report under Section 173, Cr .P.C.
5. Dr. Abid Khan (PW-15) conducted medico-legal examination of Malik Nadeem Iqbal, while in injured condition on the same day at about 10:45 a.m., and observed a lacerated wound measuring 1 x 1 cm at right upper chest, 4 cm from right nipple with bleeding profusely .
6. Dr. Muhammad Abu Bakhar (PW-7) held autopsy on the dead body of deceased Muhammad Nadeem Iqbal on 02.01.2016 at 06:20 a.m. and observed the aforementioned injury , which had damaged vital organs of chest and abdomen leading to hemorrhage, respiratory failure and shock. The said injury was ante mortem and sufficient to cause of death in ordinary course of nature. The probable duration between injury and death was 3 to 4 days whereas between death and post-mortem examination, it was 08 to 12 hours.
7. At the commencement of the trial, the learned trial Court had framed a charge against the appellant to which he pleaded not guilty and claimed to be tried.
8. The prosecution produced 17-witnesses besides the reports of Punjab Foren sic Science Agency (Ex.PJJ & Ex.PKK). The appellant in his statement recorded under Section 342, Cr.P.C. had denied and controverted all the allegations of fact leveled against him. He did not opt to make statement under Section 340(2), Cr.P.C. however , he tendered cell-phone record of the complainant (Ex.DA/1-6) in his defence.
9. Learned trial Court, upon conclusion of the trial, convicted and sentenced the appellant, as stated above vide impugned judgment dated 30.03.2017. Hence, this criminal appeal as well as the connected Capital Sentence Reference.
10. Learned counsel for the appellant submits that the appellant is quite innocent and he was falsely implicated in this case; that the witnesses of ocular account could not establish their presence at the venue of occurrence being chance witnesses; that occurrence had taken place inside WAPDA office Piplan but none of the employee of the said office was examined by the prosecution in support of its stance; that ocular account is in contradiction to the medical evidence qua the locale of injury; that the motive as set up by the prosecution has not been substantiated through any independent source of evidence; that there was no element of 'terror' as defined in the statute and as such the provisions of the Anti-T errorism Act, 1997 are not attracted; that the prosecution has failed to prove the charge against the appellant beyond shadow of reasonable doubt; that in alternate it is not a case of capital punishment.
11. Conversely , learned Deputy Prosecutor General appearing for the State assisted by the learned counsel for the complainant has opposed with vehemence while submitting that it was a broad-day light occurrence, which took place in the WAPDA office where the deceased and the appellant were posted; that presence of both the eye- witnesses being resident of the same locality is fully established; that both the eye-witnesses remained firm and consistent on all material particulars of the incident inter-se coupled with medical evidence; that the motive as set up by the prosecution is fully proved through oral as well as documentary evidence; that the pistol recovered at the instance of the appellant was found wedded with the crime empty secured from the place of occurrence and the report of the Ballistic Expert in this regard is positive one; that provisions of Anti-Terrorism Act, 1997 are fully attracted as the deceased was done to death while he was performing his official duties. At the end, a prayer has been made for dismissal of the appeal.
12. We have heard learned counsel for the appellant, learned Deputy Prosecution General appearing for the State assisted by the learned counsel for the complainant and perused the record.
13. This unfortunate incident had taken place on 29.12.2015 at 10.30 a.m. and it was reported to the police for the registration of case with sufficient promptitude at 11:40 a.m, and consequently the crime report was chalked out at the same time, which excludes every hypothesis of deliberation, fabrication and consultation prior to the registration of the case.
14. The mainstay of the prosecution case was on the testimony of ocular account furnished by. Zafar Iqbal .(PW - 12)/complainant/ brother and Muhammad Tahir (PW-13) paternal cousin of deceased Nadeem Iqbal. They while appearing in the dock of the Court room demonstrated in unison that on 29.12.20 15, they along with Nasir Munir went to the office of Nadeem Iqbal, who was serving as Line Superintendent in WAPDA Office, Piplan in connection with some private assignment. At about 10:30 a.m. when they were sitting in the office of Nadeem Iqbal, the appellant came there raised an alarm to teach a lesson to Nadeem Iqbal for getting his salary stopped and made a fire shot with his pistol, which landed at the right side of his chest and fled away at his motor-cycle. It was office time and many other employees were present, there. Both these eye-witnesses were subjected to the ordeal of lengthy cross-examination where they remained firm and consistent in all material particulars of the incident qua the date, time, place, mode and manner of the occurrence, kind of weapon used and the role played by the appellant for causing fire-arm injury at the chest of the deceased resulting into his death. In cross-examination, the defence could not extract any favourable material in negation of the prosecution version from their mouths despise best ef forts.
15. Learned counsel laid a lot of emphasis that in the crime report the complainant had specifically mentioned injury at the left side of the chest of the deceased but while appearing before the trial Court he changed his stance and made it to right side of the chest in order to equate his version with the medical evidence. We regret to disagree with this contention because the left side of the chest of the victim appears to be right side to the person standing in front of him face-to-face and vice versa. Even otherwise, both the eye-witnesses, in their depositions, have categorically deposed that the fire shot made by the appellant landed at the right chest of the deceased exactly in line with the medical evidence. The statements of said witnesses recorded under Sections 154 & 161, Cr.P.C. qua the injury at the left chest instead of right side were not confronted to them. It was open for the defence to confront the eye-witnesses with their previous statements qua the locale of injury attributed to the appellant. We do not think that the appellant being sole perpetrator could get any benefit on this score alone.
16. Both the eye-witnesses were residing in the same locality having their agricultural land near the WAPDA office within the distance of one kilometer . In order to establish presence of the eye-witnesses at the spot, in particular , the medico-legal certificate of the deceased, while in injured condition, is of pivotal importance showing that the deceased was shifted to the hospital by the complainant himself wherein his name with Identity Card number , address, phone number has been mentioned. It shows that the deceased while in injured condition, was taken to the hospital within fifteen minutes of the occurrence, which established presence of the eye-witnesses, in particular the complainant, at the place of occurrence. They have narrated true facts not only before the police but also before the trial Court. Their statements remained in line inter-se supported with the medical evidence. We have no hesitation to hold that the ocular account is straightforward, trustworthy and confidence inspiring.
17. Dr. Abid Khan (PW-15) on 29.12.2015 at about 10.45 a.m. conducted medico-legal examination of Malik Nadim Iqbal, while in injured condition, and observed a lacerated wound measuring 1 x 1 cm present on right side upper chest, 4 cm from right nipple with bleeding profusely . The nature of injury was fresh caused by fire-arm weapon.
Dr. Muhammad Abu Bakhar (PW-7) held autopsy on the dead body of deceased Muhammad Nadeem Iqbal on 02.01.2016 at OQ:20 a.m. and observed the aforesaid injury . The injury damaged vital organs of chest and abdomen leading to hemorrhage, respiratory failure and shock. It was sufficient to cause of death in ordinary course of nature. The probable duration between injury and death was 3 to 4 days whereas between death and post-mortem 8 to 12 hours. The number , seat and locale of injury , kind of weapon used and the duration between injury and death as well as death and post-mortem examination are exactly in consonance with the ocular account.
The medical evidence lends full support to the prosecution version.
18. The motive as set up by the prosecution was that the appellant used to remain absent from his duty and the deceased had reported the said matter to the higher officer resulting into the stoppage of his salary , which prompted the appellant to kill the deceased. In order to establish said motive the prosecution has produced documentary evidence Ex.PG to Ex.PO consisting of application to the Line Superintendent for absence of the appellant, copy of attendance register , show-cause notice, employment letter issued by the FESCO, letter issued by the SDO showing direction not to release salary to the appellant during the period of his absence and other departmental proceedings. Scanning of these documents makes it clear that the appellant used to remain absent from his duty and departmental proceedings in this regard were initiated against him, resulting into stoppage of his salary for the period of his absence but at the same time it alto clarify that these proceedings were initiated against the appellant four months prior to the alleged occurrence and in the intervening period the deceased and the appellant being employees of WAPDA remained posted at one station but no untoward incident had taken place.
What happened on that very date, which prompted the appellant to kill the deceased, has not been brought on record by either side, which remains a shrouded mystery . Learned counsel for the complainant has gracefully conceded that the prosecution has failed to establish motive part of the occurrence.
19. Ziaullah Khan, Inspector (PW-16) arrested the appellant on 11.01.2016 and during investigation he disclosed and led to the recovery of pistol .30-bore (P-7) from his residential house, which was sent into the office of Punjab Forensic Science Agency for matching with the crime empty already secured and submitted in the aforesaid office on 08.01.2016 i.e. prior to the arrest of the appellant and report in this regard has been received with positive result. Since the crime empty secured from the place of occurrence was transmitted into the office of Punjab Forensic Science Agency prior to the arrest of the appellant, which excluded the possibility of managing the crime empties. The recovery of weapon of of fence from the appellant provides full corroboration to the ocular account.
20. The occurrence has taken place in the WAPDA office where the deceased and the appellant being employee were posted. Whatever the reason may be between both of them, resulting into the murder of one of them, the act of the appellant was result of personal vendetta, which does not fall within the category specified under sub-section
(2) of Section 6 of the Anti-T errorism Act, 1997. In order to exercise the jurisdiction under the said act "design" or the "purpose" behind any action coupled the mens rea to constitute "terrorism" is sina qua non. It has been proved beyond shadow of reasonable doubt that it was an act of personal vendetta and, thus, the provisions of Anti- Terrorism Act, 1997 are not attracted in this case.
21. From this discussion, we have entertained no manner of doubt in our mind that the prosecution has been able to prove the charge to the extent of killing the deceased against the appellan t through cogent, reliable and confidence inspiring evidence. The eye-witnesses have well established their presence at the venue of occurrence.
The complainant himself shifted the deceased to the hospital in order to provide him first aid within 15-minutes of the occurrence as is evident from the medico-legal certificate of the deceased showing that the complainant was accompanying him. The medical evidence is in line with the ocular account. The pistol recovered at the instance of the appellant was found wedded with the crime empty secured from the place of occurrence by the Ballistic Expert.
It was an occurrence of personal vendetta which does not attract the provisions of Anti-T errorism Act, 1997. We have no legitimate exception to differ with the conclusion arrived at by the trial Court qua the conviction of the appellant in offences under Sections 302(b) & 353, PPC but so far the quantum of sentence is concerned, we have observed that firstly , the appellant was attributed single fire shot and the deceased was done to death after three days of the occurrence. Secondly , the prosecution could not establish motive part of the occurrence through independent source of evidence. Anyhow , it is longstanding settled principle of law by now that non-proving the motive part of the occurrence by the prosecution has bearing upon the question of quantum of 'sentence. Reliance is placed on case titled "Naveed alias Needu and others versus The State and others" (2014 SCMR 1464 ), "Haq Nawaz versus The State " (2018 SCMR 21) and in case titled "Nadeem Ramzan versus The State" (2018 SCMR 149 ). The relevant portion of the latest judgment is reproduced for ready reference: "It has been held by this Court in many cases that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on a capital charge....... "
22. Upshot of the above discussion is that the appeal in hand is partly allowed and the appellant is acquitted of the charge in offences under Sections 7(a) & 7(h) of the Anti-T errorism Act, 1997. This appeal, however stands dismissed by maintaining conviction of the appellant in offence. under Section 302(b), PPC, his sentence in the said offence is converted into one imprisonment for life. The amount of compensation and sentence in lieu thereof shall remain intact. The conviction and sentence under Section 353, PPC shall also remain intact. The benefit of Section 382-B, Cr .P.C. is extended to the appellant. All the sentences of imprisonment shall run concurrently .
23. Capital Sentence Reference No. 4-T of 2017 is answered in negative and death sentence of the appellant is.
NOT confirmed.