Asjad Javaid Ghural, J.--Through Criminal Appeal No. 676 of 2010 in terms of Section 25 of the Anti-T errorism- Act, 1997 read with Section 410, Cr.P.C., appellants Muhammad Rafique and Muha mmad Asif have challenged the vires of judgment dated 08.03.2010 passed by the learned Judge, Anti-T errorism Court-II; Lahore in case. FIR No 157 dated 11.06.2008 in respect of offences under Sections 302, 324, 148 & 149. PPC and Section 7 of The Anti- Terrorism Act, 1997, registered at Police Station, Raja Jang, District Kasur whereby they were convicted and sentenced as under: Under Section 302(b).
149. PPC Death on four Courts each and to pay the compensation of Rs, 200,0001- .each to the legal heirs of each deceased under . Section 544-A, Cr.P.C. and in default thereof to further undergo simple imprisonment for six months each.
Under Section 7(a) of The Anti-T errorism Act. 1997 Death on four counts to each accused Under Section 324/14941PC Rigorous imprisonment for ten years each on three counts with the fine of Rs. 100,0 00/- each and in default thereof to further undergo simple imprisonment for two years on three counts.
They were further directed to pay Daman of R8. 50,0001- each on three counts for causing injuries to Munir Ahmad, Riaz and Arif. failing which they shall be kept in jail till Daman is paid
2. Capital Sentence Reference No. 21-T of 2010 sent up by the learned trial Court for confirmation or otherwise of death sentence of appellants Muhammad Rafique and Muhammad Asif and Criminal Appeal No. 855 of 2010 against the acquittal of Muhammad Ashraf/ Respondent No. 1 (herein after called the respondent) preferred by the complainant will be decided through this common judgment.
3. Succinctly , the facts of the case unfolded in the crime report (Ex.PR/1) registered on the complaint of Munir Ahmad (PW-12) are that he was contractor by profession. On 11.06.2008 at about 04.00 p.m. he alongwith Riaz (PW-12), Muhammad Arif (PW-13), Sana Ullah (deceased), Farmaish (deceased) and Yasin left Kasur for his village at Raja Jang in two cars, one being driven by Salamat Ali and the other by Muhammad Arshad. When they crossed Jaboo Mal, accused Muhammad Rafique armed with Kalashnikov , Mashkoor alias Bhoni armed with Kalashnikov , Muhammad Yaqoob, Muhammad Sarwar , Muhammad Yahya, Hubaib, Muhammad Ashraf alias Achar , Riaz, Javed, Muhammad Asif alongwith four unknown accused, while armed with fire-arm weapons, emerged there on a white Toyota car bearing registration No. 9376/LEF and three motorcycles without number plate and asked them to stop but they kept on moving their cars When they reached at bridge Rohi Nala, Rao Khanwala, all the accused started making indiscriminate firing upon them resulting into the spontaneo us death of Sanaullah, Salamat Ali, Farmaish Ali and Muhammad Arshad. The complainant and Muhammad Arif and Riaz received fire-arm injuries at the spot. This occurrence resulted into traffic jam for about one hour and also created the sense of terror and insecurity amongst the general public. One of the companions of the assailants having engraved Azam at his right arm, also died due to the firing of his companions. All the assailants succeeded to flee away on motorcycles while leaving their car at the spot.
Motive behind the occurrence was previous enmity between the complainant and Muhammad Rafique etc. 4, Muhammad Sadiq, SI (PW-14) visited the place of occurrence on the same day, took all necessary steps of initial investigation, escorted the dead bodies to the mortuary , secured 349-crime empties from the place of occurrence, took into possession three cars from the spot and recorded the statements of witnesses under Section 161, Cr .P,C.
Both the appellants were arrested by &mid Hussain Inspector , who handed over their custody to Nasser Ahmad, Inspector (PW-15), who interrogated them on 26.06.2008 and during investigation appellants Rafiq and Asif led to the recovery of respective Kalashnikovs (P-1 & P-3) with live bullets on 06.07.2008. He got declared the remaining accused being proclaimed offenders and after completion of investigation, prepared report under Section 173, Muhammad Sharif, SI (PW-16) arrested the acquitted accused namely , Muhammad Ashraf on 17.11.2008 and found him to be not involved in this case and consequently he prepared discharge report to his extent, which was declined by the learned Area Magistrate.
5. Dr. Zulfiqar Ahmad (PW-8) held autopsy on the dead body of deceased Sana Ullah, Farmaish Ali and Muhammad Arshad on 12.06.2008 and observed multiple fire-arm injuries on different parts' of their bodies which were subsequently found fatal to their lives. The probable time between injuries and death of all the deceased, was immediate whereas between death and post-mortem examination within 24-hours.
Dr. Muhammad Azam Khokhar (PW-9) conducted medico legal examination of injured Muhammad Arif, Haji Munir Ahmad and Muhammad Riaz Akhtar on 11.06.2008 at 5:30 a.m. and observed 11, 02 & 02 fire-arm injuries respectively on different parts of their bodies. He held autopsy on the dead of deceased Salamat on 12.06.2018 and observed 33 fire-arm injuries includi ng abrasion and exit wounds on different part of his body , which 'were found fatal to his life especially injuries to brain, heart, liver, lungs, spleen and kidneys etc. The probable time between injuries and death was immediate whereas between death and post-mortem examination within 24-hours.
On the same day at 6:00 p.m., he conducted autopsy on the dead body of an unknown person and found three injuries on his body . The cause of death was due to shock and excessive hemorrhage and injury to the vital organs like right kidney , bladder and abdominal vessels due to fire-arm injuries. The probable time between injuries and death was within one hour and between death and post-mortem examination within 1 1-hours.
6. At the commencement of the trial, the learned trial Court had framed a charge against the appellants and their co-accused Muhammad Ashraf to which they pleaded not guilty and claimed to be tried.
7. The prosecution examined 16-witnesses besides the reports of Chemical Exam iner, Serologist and that of the Punjab Forensic Science Agency (Ex.PGGG, Ex.PHHH & Ex.PFFF) and that of Serologist as Ex.PHHH. The appellants and their co-accused in their statements recorded under Section 342, Cr.P.C. had denied and controverted all the allegations of fact leveled against them. They neither opted to make statements under Section 340(2), Cr .P.C. nor produced evidence in their defence,
8. Learned trial Court, upon conclusion of the trial, proceeded to acquit co-accused Ashraf whereas convicted and sentenced the appellants, as stated above vide impugned judgment dated 08.03.2010. Hence, this criminal appeal, connected criminal appeal against acquittal of Respondent No. 1 as well as the Capital Sentence Reference.
9. It is pertinent to mention here that co-accused Muhammad Riaz and Muhammad Yahya were subsequently arrested, tried and ultimately convicted and sentenced by the learned trial Court to the capital punishment vide judgment dated 27.09.2017. Co-accused Hafiz Khubaib Ahmad was also arreste d subsequently and after facing full-dressed trial, he was acquitted of the charge vide judgment dated 09.10.2010. The Capital Sentence Reference No. 18-T of 2017 for confirmation or other wise of death sentence of said convicts, Criminal Appeal No. 102232-J of 2017 preferred by them, appeal against the acquittal of Muhammad Ashraf i.e. Criminal Appeal No. 865 of 2010 preferred by the complainant and Criminal Appeal No. 2612 of 2010 preferred by the State have also been heard and decided by this Court through the even dated separate judgment.
10. Learned counsel for appellants submits that the appellants are quite innocent and they had nothing to do with the alleged occurrence; that the mode and manner of the occurrence are not compatible with the real facts of the case; that it was a joint role without any specification of injuries on the person of any of the deceased as well as the injured witnesses; that the case was registered against ten nominated and four unknown accused, which creates an impression that the complainant entangled maximum male members of his opponent group in this case by widening the net; that the ocular account is not in line with the medical evidence; that there are major contradictions in the deposition of the witnesses of ocular account; that two co-accused having identical role have already been acquitted of the charge by the learned trial Court; that one Muhammad Azam was murdered at the spot belonging to the accused but neither any cross-version was registered nor the same was considered by the learned trial Court at the time of final adjudication; that the motive behind the occurrence i.e. blood feud enmity , could be considered as double edged weapon.
Learned counsel representing the acquitted accused namely , Muhammad Ashraf submits that during investigation, the respondent was found to be not; involved in this case; that no fire-arm weapon was recovered from his possession; that the respondent earns the double presumption of innocent in his favour after acquittal from the trial Court. At the end, he has prayed for acquittal of Muhammad Rafique and Muhammad Asif and dismissal of appeal of the complainant against acquittal of the respondent.
11. Conversely , learned Deputy Prosecutor General appearing for the State assisted by the learned counsel for the complainant has vehemently argued that it was a broad day light occurrence, which was sharply reported to the police containing names of the appellants and their companions, who had launch ed murderous assault upon the complainant party , being equipped with fire-arm weapons resulting into death of four innocent persons alongwith one Muhammad Azam and also fire-arm injuries to the witnesses of ocular account; that the ocular account furnished by injured prosecution witnesses is confidence inspiring and trustworthy , which is fully supported with, the medical evidence; that the motive as set up by the prosecution has not only been proved but also admitted by the other side in so many words during cross-examination; that the recovery of fire-arm weapons coupled with the positive report of the Ballistic Expert provides further corroboration to the ocular account; that there was no occasion for the prosecution to implicate the appellants falsely in the case in hand. Learned counsel prays for dismissal of the appeal of convicts and at the same time, he has prayed to convict the respondent with capital punishment having identical role to that of the already convicted co-accused.
12. We have heard learned counsel for the appellants, learned Deputy Prosecutor General appearing for the State assisted by the learned counsel for the complainant and perused the record with their able assistance.
13. This unfortunate incident took place on 11.06.2008at 04.00 p.m., in a broad day light, which was reported to the police on the same day and in consequ ence thereof, the crime report was registered at 05:30 p.m. within the shortest span of time, which excludes every hypothesis of deliberation, consulta tion and fabrication prior to the registration of case.
14. The mainstay of the prosecution case was on the testimony of Munir Ahmed (PW-12)/complainant, Muhammad Arif (PW-13) and Muhammad Riaz (PW-11): They had sustained fire-arm injuries at the venue of occurrence at the hands of the appellants, the respondent and their other companions. The complainant appeared in the dock in the Courtroom and reiterated what exactly narrated by him before the police under Section 154, Cr.P.C. stating therein that on 11.06.2008 at about 3.45 p.m. he alongwith all the four deceased and the injured witnesses left Kasur for his village at Raja Jang in two cars, one being driven by Salamat Ali and the other by Muhammad Ashraf. When they crossed Jaboo Walla bridge, the appellants, the respondent and their co-accused emerged there on a car and three motorcycles and overtook their vehicles near Rohi Nala. The appellants and the respondent were armed with Kalashnikovs whereas Mashkoor , Yaqoob , Riaz, Yahya, Javaid, Khubaib, Sarwar and four unknown accused were armed with fire-arm weapons. They started firing resulting into the spontaneous death of Farmaish, Sana Ullah, Arshad and Salamat whereas fire-arm injuries to the complainant, Muhammad Riaz and Muhammad Arif (PW-12, PW-11 & PW-13). The said act of the appellants, respondent and their co-accused spread panic and sense of insecurity amongst the public at large and also traffic jam for about one hour. One of the accused, subsequently known as Muhammad Azam, died due to firing of his companions. Muhammad Riaz and Muhammad Arif, being injured witnesses, in their deposition before the learned trial Court supported the complainant on all material particulars of the incident implicating the appellants, the respondent and their co-accused for the murder 6f four innocent persons and injuries to them. They were cross-examined by the defenc e at considerable length where they remained firm and consistent on all material aspects of the incident, in particular the date, time, place, mode and manner of the occurrence, names of the appellants, respondent and their co-accused and also the role assigned to them for causing fire-arm-injuries to the deceased and as well as the injured witnesses in the broad day light at the highway . The defence despite lengthy cross-examination could not extract any favourable material for the assailants.
15. Learned counsel for the appellants laid their emphasis that the appellants should be treated identically to that of co-accused Muhammad Ashraf and Hafiz Khubaib Ahmad, who have already been acquitted of the charge by the trial Court in the earlier respective separate trials having the role at par. We regret to disagree because the complainant as well as the State preferred respective criminal appeals No. 855/2010 & 399/2010 against the acquittal of Muhammad Ashraf and Hafiz Khubaib Ahmad (Criminal Appeal No. 2612 of 2010). The appeal preferred by the State against the acquittal of Muhammad Ashraf stood disposed of by this Court being superfluous whereas, the private appeal preferred by the complainant as well as appeal preferred by the State against the acquittal of Hafiz Khubaib was admitted for regular hearing, notice was issued to the acquitted accused and the same are under adjudication by this Court alongwith the appeal in hand. We are going to decide fate of the appeals against conviction and acquittal to the extent of Muhammad Ashraf through consolidated judgment as well as separate judgment against Hafiz Khubaib considering their case on equal footings by evaluating the evidence available on record due to their identical role. In such circumstances, the convicts would not get any benefit qua acquittal of the respondent.
16. Learned counsel for the acquitted accused/respondent has argued that the accused were shown behind the complainant's vehicle but they assaulted upon the complainant party from front side. Further contends that the eye- witnesses have proved their version in their deposition before the trial Court that after over-taking vehicles of the complainant party , the accused made fire shots upon them, which is sufficient to discard their testimony . We regret to disagree with this submission because the eye-witnesses, of their own, admitted overtaking the vehicles of the appellants especially the complainant, who confirmed this aspect in cross-examination deposing that: Accused persons had been chasing us for a distance of about one km. when ultimately near Rohi Nala accused started firing. The place from where accused vehicles crossed our car is also at a distance of about one km. from the place of occurrence. Despite the over-taking of the accused persons, we kept on travelling. When the accused persons over-took our vehicle, we did not inform the police. W e were traveling in a normal speed.
17. Learned counsel has argued that the ocular account furnished by the prosecution was belied with the medical evidence qua the availability of blackening around some of the injuries on the dead body of deceased Salamat. He adds that the injured witnesses though confirmed their presence at the venue of occurrence yet they may tell a lie and their testimony cannot be taken as a gossip truth. We have observed that none of the accused mentioned in the crime report was saddled with the responsibility of causing fire-arm injury at specific part of the body of any of the deceased or the injured witnesses. All the accused including the appellants and the respondent were assigned the joint role of making fire shot at the complainant party resulting into the death of five persons including their own companion and also injuries to the injured witnesses i.e. the witnesses of ocular account. All the deceased and the injured witnesses had sustained multiple fire-arm injuries on different parts of their bodies as is evident from their post-mortem examination report/medico legal certificates. No doubt some of the injuries on the person of deceased Salamat were showing blackening but it was the result of reckless firing by 14-persons, who were not supposed to stand at one place while firing. Certainly , they were moving and after satisfying the completion of their task, they left the place and it cannot be expected from the eye-witnesses to narrate exact distance of each assailant especially when they were under attack. This score alone does not create any dent in the ocular and the medical evidence.
18. The witnesses of ocular account had sustained fire-arm injuries at the spot and it confirms their presence at the spot alongwith the deceased, which otherwise was not disputed by the defence during the investigation, trial or at any subsequent stage. They , after sustaining injuries, were shifted to the hospital where their medico-legal examination was conducted on the same day and they got recorded their statements under Section 161, Cr.P.C. implicating the appellants, the respondent and their co-accused with the role of firing upon them after overtaking the complainant's vehicles. We have found no occasion for the injured witnesses to falsely implicate the appellants and their co-accused while letting off the real culprits. The presence of eye-witnesses at the spot is not disputed one rather it has been admitted by the defence in cross-examination in so many words. We have entertained no manner of doubt in our mind that all the injured witnesses made true, trustworthy and confidence inspiring deposition before the learned trial Court.
19. Dr. Zulfiqar Ahmed (PW-8) held autopsy on the dead bodies of deceased Sana Ullah, Farmaish Ali and Muhammad Arshad on the next day i.e. 12.06.2018 and observed 17, 15 & 04 ante-mortem fire-arm injuries respectively on their dead bodies. The cause of death of each deceased was main ly due to excessive hemorrhage and shock caused by fire-arm injuries to their vital organs. The probable duration between injuries and death was immediate whereas, between death and post-mortem examination, it was within 24-hours.
Dr. Muhammad Azam Khokhar (PW-9) held autopsy on the dead body of deceased Salamat and observed 33- injuries including an abrasion and exit wounds on different part of his body . The cause of death was due to excessive hemorrhage and injuries to the vital organs' brain, heart, liver, lungs, spleen and kidneys etc. The probable time between injury and death was immediate and that between death and post-mortem was within 24 hours. He also conducted post-mortem examination of an unknown person on the same day and observed three fire-arm wounds on different parts of his body . He also conducted medico-legal examination. of injured Muhammad Arif, Haji Munir Ahmed, Muhammad Riaz Akhtar and observed 11, 2 & 2 injuries respectively on different parts of their bodies. In the given circumstances, medical evidence qua the availability of multiple fire-arm injuries on the persons of each deceased and the injured witnesses due to reckless firing, provides further corroboration to the ocular account.
20. Learned counsel for the appellants has forcefully argued that Muhammad Azam, a companion of the accused, was done to death on the next day and that is why the duration between his injuries and death was given by the medical expert as 11-hours even though the police papers, inquest report, post-mortem examination report show that he was done to a death at the spot alongwith other deceased. We have observed that the said duration was not clarified by the medical officer, in his cross-examination by putting certain questions in that regard by either side. The documentary evidence speaks otherwise qua the time of death of the said deceased and, thus, the minor discrepancy as to the time of his death especially when it is not supported with any other document, does not create any adverse inference to the confidence inspiring ocular account. He was companion of the assailants and none of his legal heir stepped forward to claim his dead body other than as ascribed by the prosecution.
21. The motive behind this occurrence was longstanding blood feud enmity between the parties. The defence has not denied the existence of enmity rather admitted it in so many words during cross-examination.
22. During investigation conducted by Naseer Ahmad, Inspector (PW-15), appellants Muhammad Rafique and Asif, in pursuance of their disclosure, led to the recovery of Kalashnikovs (P-1 & P-2) alongwith live bullets, which were transmitted into the office of Punjab Forensic Science Agency on 06.07.2008 by Falak Sher ASI (PW-5) for comparison with the crime empties already deposited into the said office on 24.06.2008 through Muhammad Ayub and Mehmood-ul-Hassan, constables (PW-2 & PW-4). The report has been received with positive result showing that the weapon recovered at the instance of appellants were found wedded with 116 & 54-crime empties respectively . The recovery of respective fire-arm weapons coupled with the positi ve report of the Ballistic Expert, provides further corroboration to the ocular account.
23. We have observed that this incident was the backdrop of previous blood-feud enmity between the parties, which was specifically mentioned in the crime report and even in the deposition of the eye-witnesses before, the trial Court. The existence of previous enmity between the parties has also not been denied by the defence rather it is admitted one. The question which requires determination by this Court is that whether the alleged act of the appellants for causing death of five persons including their own companion and injures to three injured witnesses was accompanied by 'design' or 'purpose ' within the ambit of sub-section (1)(b)(c) to attract any of the category specified in sub-section (2) of Section 6 of the act ibid or not. In the present scenario when the occurrence was the result of previous enmity , though it was a thoroughfare and took the lives of five persons and injuries to three others yet on this score alone, the provisions of Anti-T errorism Act, 1997 does not attract to the facts and circumstances of the case. W e may refer to case titled "Khuda-e-Noor versus The State ( PLD 2016 Supreme Court 195).
24, Gathering all these facts and circumstances of the case, we have entertained no manner of doubt that the prosecution has been able to prove the charge of homicidal death of the deceased at the hands of appellants beyond shadow of reasonable doubt. The prosecution produced three injured witne sses, who had stamped fire-arm injuries on their persons, which establish es their presence at the venue of occurrence at the relevant time, which has otherwise not been disputed by the defence. The injured witnesses made consistent statements, which remained un-shattered throughout lengthy cross-examination rather it finds full support from the medical evidence.
The motive as set up by the prosecution has not only been proved but also admitted by the defence in so many words. The recovery of weapons of offence from the appellants i.e. Kalashnikovs coupled with the positive report of the Ballistic Expert (Ex.PFFF) provides further corroboration to the ocular accou nt. The prosecution proved the charge through confidence inspiring evidence and, thus, we have no legitima te exception to differ with the conclusion arrived at by the trial Court qua the conviction of the appellants in offences under Sections c 302(b), PPC but so far as the quantum of sentence is concerned, it was a joint role of all the accused mentioned in the crime report for making fire shot at the deceased and the injured witnesses and in that scenario it cannot be said with any degree of certainty that whose fire hit to whom and which injury was grievous, simple, dangerous to life or the cause of death. We deem it appropriate that this sole reason is sufficient to be taken as a mitigating factor awarding lesser sentence.
25. In view of what has been discussed above, Criminal No. 676 of 2010 is partially allowed to the extent that conviction and sentence of the appellants in an offence under Section 7 of the Anti-T errorism Act; 1997 are set aside and they are acquitted of the charg e in the said offence. The said appeal stands dismissed by maintaining conviction of the appellants in offence under Section 302(b)/34, PPC and their sentence in the said offence is converted into the imprisonment for life on four counts however the amount of compensation and sentence in lieu thereof shall remain intact. The appellants are further convicted and sentenced in offence under Section 324/34, PPC to the rigorous imprisonment for ten years on three counts and also to pay the fine of. Rs. 50.000/- each failing which they will have to further undergo simple imprisonment for six months. All the sentences of imprisonment shall run concurrently . The benefit of Section 382-B, Cr .P.C. is also extended to the appellants.
26. The role of Muhammad Ashraf (acquitted accused) was identical to that of the convicted accused but he was acquitted of the charge by the trial Court on account of his innocence by the Investigating officer as well as for non- recovery of weapon of offence. We have deeply gone through the evidence available on record but remained fail to find any material, which could be taken into account for declaring him innocent. The finding of the Investigating Officer in this regard was not based on sound reasoning and no material is available on record to justify his non- involvement in this case. There remains no iota of evidence on record to differentia te role of the respondent to that of the convicted accused. Undoubtedly , the prosecution has equally proved the charge against the respondent through cogent, convincing and confidence inspiring evidence. We, therefore, hold that he was equally responsible for the murder of the deceased alongwith his co-accused and we have no hesitation to convert his acquittal into one of conviction.
27. The epitome of above discussion is that Criminal 'Appeal No. 855 of 2010 is partially dismissed to the extent of acquittal of the respondent in offence under Section 7 of the Anti-T errorism Act, 1997. However , the same is allowed and impugned judgment to the extent of acquittal of the respondent in offence under Section 302/34, PPC is hereby set aside and he is convicted and' sentenced in the said offences to the imprisonment for life on four counts and also to pay the compensation of Rs. 200,000/- to the legal heirs of each deceased under Section 544- A, Cr.P.C. and in default thereof to further undergo simple imprisonment for six months on four counts. The remaining sentences shall remain intact. All the aforesaid sentences shall run concurrently . He is also extended the benefit of Section 382-B, Cr .P.C.
28. Capital Sentence Reference No. 21-T of 2010 is answered in the NEGA TIVE and the Death Sentence awarded to appellants Muhammad Rafique and Muhammad Asif, is not confirmed.