' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,985 of 1999 filed by Ikram Ullah Khan, Amir Abdullah, Surat Khan, Muhammad Aman and Riaz Ahmad, appellants who were convicted and sentenced by learned Special Judge, Anti-Terrorism Court, Sargodha vide judgment, dated 29-7-1999 as under:-- "Death on two counts and to pay a fine of Rs,one lac each on two counts in default of payment of fine to undergo R.I. For 10 years under sections 302/149, P.P.C. And read with section 6 of Anti- Terrorism Act, 1997. 3 years' R.I. With a fine of Rs,3,000 each in default of payment of fine to undergo R.I. For one month. 14 years' R.I. With a fine of Rs,10,000 each in default 6 months' R.I. Under sections 324/149, P.P.C. 3 years' R.I. With a fine of Rs,3,000 each in default one month's R.I. Under sections 379/149, P.P.C. Life imprisonment with a fine of Rs,50,000 each in default of payment of fine to undergo R.I. Under section 7 of Anti-Terrorism Act, 1997. Amir Abdullah appellant was also sentenced to undergo 3 years' R.I. With a fine of Rs,3,000 and in default one month's R.I. Under section 404, P.P.C. And Ikram Ullah appellant apart from the above sentences was also convicted under section 411, P.P.C. And sentenced to 3 years' R.I. With a fine of Rs,3,000 in default one month's R.I.
' All the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
' Murder Reference No,340/T of 1999 for confirmation of death sentence or otherwise of the convicts shall also be disposed of through this single judgment.
' Occurrence in this case had taken place at 11 a.m. On 13-1-1999 at a distance of 2 furlongs from Police Station Sadar, Mianwali while the matter was reported by Muhammad Saleem at 11-20 a.m.
The same day and the formal F.I.R. Exh.P.Z. Was recorded by Inspector/S.H.O.
' Briefly stated the facts of the case are that on 13-1-1999 at about 11 a.m., Muhammad Saleem Ullah, the complainant alongwith Fasi Ullah, Asmat Ullah, Hakim Khan, Rab Nawaz, Abdullah Khan and Haji Atta Ullah Khan was sitting in the lawn of the Kothi of Haji Ikram Ullah, M.P.A. Situate at Ghous- a-Azam Road, Mianwali, Muhammad Asad Khan aged about 5/6 years was also sitting alongwith Haji Ikram Ullah Khan when all of a sudden Ikram Ullah, Amir Abdullah armed with kalashnikov and three unknown persons who could be recognized if brought before the complainant, armed with 222 rifles and kalashnikov came there. Out of the abovesaid five assailants, Amir Abdullah and one unknown person who was armed with a kalashnikov stood outside the gate while Ikram Ullah Khan armed with kalashnikov alongwith other assailants who were armed with '222 rifle and kalashnikov came into courtyard of the Kothi. The accused who have entered into the house raised Lalkara that Ikram Ullah had not only refused to show favour to them but had also got father and brother of Ikram Ullah (accused) arrested by the police and started firing alongwith his co-accused due to which Aman Ullah fell down from the chair. Thereafter, all the five accused issued brust due to which Hakim Khan, Haji Atta Ullah, Rab Nawaz and minor Asad Khan were also injured. Amir Abdullah accused thereafter carrying away the kalashnikov belonging to Haji Ikram Khan alongwith the other accused ran away from the spot while firing in the air.
' The motive alleged was that father and brother of Ikram Ullah who were accused in the case of abduction for ransom did not show favour to them.
4. After registration of the formal F.I.R., Naveed Anwer, Inspector/S.H.O. (P.W.12) proceeded to the place of occurrence where the dead bodies of Ikram Ullah and Hakim Ullah Khan deceased were lying. He prepared injury statement Exh.P.B. And inquest report Exh.P.C. Of the dead body of Haji Ikram Ullah Khan, also prepared injury statement Exh.P.E. And inquest report Exh.P.F. In respect of deceased Hakim Khan, took into possession blood-stained earth from two places vide memos.
Exh.P.AA. And Exh.P.BB. Respectively, also took into possession empties of kalashnikov P.30/1-73 and crime-empties of 222 rifle P.31/1-6 vide memo. Exh.P.CC., recorded the statements of the witnesses present at the spot including Ahmad taxi driver, Taxi No,PRL/1833 was taken into possession vide memo. Exh.P.DD., the Inspector then proceeded to District Headquarters Hospital, Mianwali where Haji Atta Ullah and Rab Nawaz were lying in an injured condition, recorded the statement of Haji Atta Ullah Khan under section 161, Cr.P.C. After getting the fitness certificate from the doctor, the witness also recorded the statement of Rab Nawaz after getting fitness certificate from the doctor, the statement of Asad injured was also recorded, also took into possession Car RIM/965 vide memo. Exh.P.W., got prepared site plan Exh.P.S. And Exh.P.S./1, arrested Amir Abdullah appellant from the jungle on 4-2-1999, the accused was in possession of kalashnikov P.14 which was secured alongwith bullets vide memo. Exh.P.N., the witness applied for warrants of arrest under section 24 of the Police Act against Amanat, Surat and Ikram Ullah, accused, since the accused could not be arrested proclamation were issued, finally Surat Khan was arrested on 15-3-1999, on his pointatipn, Ikram Ullah was arrested on 15-3-1999, identification parade was held on 17-3-1999, while in custody, Ikram Ullah accused led to the recovery of kalashnikov P.20 alongwith cartridges which was secured vide memo. Exh.P.P., similarly Ikram Ullah Khan accused led to the recovery of 12 bore gun P.25 which too was taken into possession vide memo. Exh.P.P. Surat Khan accused also got recovered rifle 222 P.17 which was secured vide memo. Exh.P.O. Riaz Ahmad and Muhammad Aman accused were arrested on 31-5-1999, Amanat accused was found in possession of kalashnikov P.26 which was secured vide memo. Exh.P.Q. Riaz accused was also carrying kalashnikov P.28 which he was carrying at the time of his arrest and the same was taken into possession vide memo. Exh.P.R., identification parade in respect of Riaz and Muhammad Aman accused was conducted on 1-6- 1999 in jail premises and after completion of the investigation, all the five accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 21 witnesses in all, then the learned P.P. Tendered in evidence reports of the Chemical Examiner, Exh.P.FF., Exh.P.GG., reports of the Serologist Exh.P.GG./1, report of the Fire Arms Expert Exh.P.HH., report of the Forensic Science Laboratory Exh.P.II. And closed the prosecution case, thereafter, statements of the accused were recorded under section 342," Cr.P.C. In which they pleaded innocence. After conclusion of the trial, the accused were convicted and sentenced as stated above.
6. Learned counsel for the appellants after having read the entire prosecution evidence and other material available on record at the very outset submits that the learned Special Judge, Anti- Terrorism Court had no jurisdiction to try this case as it had got no nexus with terrorism and the provisions of sections 6, 7 and 8 of the Anti-Terrorism Act, 1997 are not attracted. Further submit that it is a case of personal vengeance and not a case of terrorism. In support of this submission, learned counsel for the appellants have relied upon 1998 SCM R 1156.
7. As far as merits of the case are concerned, learned counsel for the appellants submits that the motive has not been proved by the prosecution, the motive set up by the prosecution is improbable, unreasonable and unconvincing, except Ikram Ullah and Amir Abdullah, appellants, none of the appellant was named in the F.I.R., the identification parade had taken place after sufficient long time extending over one month, the accused were shown to the eye-witnesses before the identification parade, the eye-witnesses have not stated before the learned Magistrate who conducted the identification parade the role of each accused. The learned counsel for the other appellants submit that except Ikram Ullah and Amir Abdullah, they have no motive moreover 'except Ikram Ullah and Surat, accused no specific injuries are attributed to the remaining appellants, the occurrence under discussion could have been done by a single person and there was no need of five persons to come there in order to commit the crime, learned counsel for Riaz appellant submits that Riaz appellant belonged to Bahawalpur, he used to work at Data Darbar on the shop of a cook, no independent P.W. Has been produced, as far as P.Ws.15 and 19, the driver of the taxi and the other car are concerned they did not take part in the identification parade, some of the eye-witnesses have been given up by the prosecution, what led to the arrest of the Riaz appellant is absolutely not known, the actual name of Riaz is Muhammad Yousaf son of Muhammad Arif, in this regard, learned counsel has referred to pages 244 and 245 of the paper book which are the photostat copy of the identity care and Form "URDU TEXT", learned counsel for Ikram Ullah, Amir Abdullah and Surat Khan stated the occurrence had taken place at 11 a.m. And according to the prosecution the F.I.R. Was lodged at 11- 20 a.m. The same day, according to learned counsel within such a short span of time, the F.I.R.
Could not have been lodged, in fact the F.I.R. Was recorded after due deliberation and consultation, the motive is shrouded in mystery, the motive given in the F.I.R. By the complainant does not appeal to reasons, no documentary evidence was produced by the prosecution to prove the motive, once motive is set up by the prosecution and the prosecution fails to prove the same, then the benefit of that should be given to the accused, the complainant is nephew of the deceased, later on after the death of the deceased, the complainant became the M.P.A., the complainant, is a clever person and is resident of a place 5/6 miles away from the place of occurrence, the complainant is not a truthful witness, though there are injured eye-witnesses in this case but there is no surety that the injured witnesses spoke the truth either before the police or before the learned trial Court, Haji Attaullah Khan P.W.20 in fact was inimical towards Ikram Ullah accused because said Ikram Ullah had enmity with son-in-law of Atta Ullah and Atta Ullah who was injured in this occurrence tutored the complainant to give the names of the present appellants Ikram Ullah, Amir Abdullah and the complainant toed the line Haji Atta, P.W., since the complainant had enmity with Ikram Ullah so he had implicated him to take the revenge, when the blood-stained earth was sent to the Chemical Examiner, empties were not sent which also creates doubts about the recovery of empties from the spot, no empty of 222 rifle recovered from the spot matched with the rifle got recovered by the appellant Surat, appellant, no fatal injury is attributed to any of the appellant, it is a case of lesser sentence, recoveries are planted, there is clear violation of section 103, Cr.P.C. As no independent witness of recovery has been cited or produced by the prosecution and that the statement made by Surat appellant under section 342, Cr.P.C. In reply to Question No,16 is more natural convincing and probable one. Surat Khan accused had admitted his guilt but with another version. In support of the submissions made by learned counsel for the :appellant reliance has been placed on 1968 PCr.LJ 791, 1971 PCr.LJ 205, PLD 1971 SC 46, PLD 1984 SC 276 and 1985 SCM R 181.
8. On the other hand, learned counsel for the State submits that the prosecution has proved its case against the appellants, it was not a case of substitution because the legal heirs of Ikram Ullah deceased would not substitute the innocent persons in place of real culprits, Atta Ullah and Rab Nawaz are the injured witnesses and that the F.I.R. Was prompt so there was no question of deliberation and consultation. He supports the judgment of the learned trial Court.
9. Mr. Ijaz Hussain Batalvi, Advocate, learned counsel for the complainant submits that the case of the appellants is covered by section 2(h) and section 6 of Anti-Terrorism Act, 1997 apart from the Schedule of the Act, it was a case of promptly lodged F.I.R. Dr. Farooq, P.W.2, had examined minor Asad at 11-40 a.m. Though the minor was not examined by the prosecution, Rab Nawaz injured was examined at 11-30 a.m. While Atta Ullah was examined at 11-40 a.m. On the day of occurrence, due to the injuries caused by the appellants, the leg of Ata Ullah was amputated, all the three injured were brought to hospital by Abbas Khan son of Zaman Khan while the complainant went to the police station to lodge the F.I.R., there was no time with the prosecution for deliberation and consultation previous enmity existed between the parties, in the instant case, there were two deceased namely Ikram Ullah and Hakim Khan while three were injured, in all the deceased and the injured received about 50 injuries with fire-arm on their persons, the accused used the automatic weapons, the crime-empties recovered from the spot matched with the kalashnikov, the report of the Fire Arm Expert is positive, except 222 rifle recovered from Surat appellant because the crime-empties of 222 rifle were without precussion caps but the rifle was in working condition, the car which Surat appellant took on rent from P.W.15 which was used in the occurrence was also recovered, all the eye-witnesses have identified the three appellants namely Riaz, Amanat and Surat during the identification parade, it is not a case Of mistaken identity and that the prosecution has been successful in proving its case against the appellants.
10. We have heard learned counsel for the parties at great length and have gone through the record. In the instant case, the occurrence had taken place at 11 a.m. In the house of Ikram Ullah deceased. The police station was at a distance of 2 furlongs from the place of occurrence. Saleem Ullah, the complainant and real nephew of the deceased reported the matter to the police at 11-20 a.m. On the same day, that is, 13-1-1999. The case was registered in the police station, so there was no question of deliberation and consultation. The occurrence had taken place in broad daylight.
There was no previous background of enmity between the parties. Two assailants namely Ikram Ullah and Amir Abdullah were named in the F.I.R. While the description of three assailants was also given. Immediately after the arrest of three unknown accused, identification parade was held in which they were identified by the witnesses. Atta Ullah and Rab Nawaz injured P.Ws. Have not only identified the assailants but also have stated the roles played by them during the occurrence also before the police and the learned trial Court. The number of accused coincides with the number of injuries received by two deceased and the 3 injured P.Ws. The eye-witnesses are most natural witnesses. It has come on record during the cross-examination that Saleem Ullah, the complainant used to visit his uncle Ikram Ullah Khan (deceased) daily, so his presence at the spot was natural.
He (complainant) had given the names of the two accused and the description of 3 assailants in the F.I.R. He had got no enmity whatsoever against the appellants, had he got any enmity he must have given the names of other three accused in the F.I.R. Atta Rasul was examined as P.W.15. He deposed that on 13-1-1999 Surkhu Khan P.W. Hired his taxi car and he alongwith Surkhru went to the Kothi of Ikram Ullah (deceased) at about 11 a.m. At .12 bore gun of Surkhru was lying in the car.
Surkhru had to see Haji Ikram Ullah deceased and when the driver and Surkhru got down from the car and were about to enter the Kothi, firing started in the lawn of the Kothi. After the firing was over five persons who were not known to the driver while armed with kalashnikov came out from the Kothi. The accused pushed the witness and snatched the car from him and took away the same alongwith gun of Surkhru. Atta Rasul (P.W.15) was an independent witness. He had no enmity whatsoever with the accused to falsely implicate them. This P.W. Had identified all the appellants in the trial Court during the trial.
11. Ocular account is corroborated by the medical evidence. After sending the injured to the hospital, the complainant went to the police station to lodge the F.I.R. The conduct of the complainant at that time and place of occurrence was natural and probable. 73 empties of kalashnikov and 6 empties of rifle 222 were recovered from the spot. All the empties of kalashnikov matched with the weapon got recovered by the appellants except Surat appellant. Though the crime empties of rifle 222 were recovered from the spot but those were without percussion caps and since no data was available so no positive report could come on the record but it was stated in the report of the Fire-arm Expert that the rifle was in perfect working condition. Besides three eyewitnesses amongst whom two were injured the right leg of Ataullah P.W. Was amputated.
12. As for as, motive is concerned, it may be noted here, that the motive given by the complainant in the F.I.R. Was that on 10-1-1999 at about 4 p.m. The complainant alongwith Rasheed, Ashraf and Haji Ikram Ullah, M.P.A. Were sitting at the Dera when Ikram Ullah accused requested Haji Ikram Ullah deceased to ask the police to show favour to Amir Abdullah, who was a P.O. In a murder case and Sami Ullah who was also involved in a case of abduction for ransom to which the deceased flatly refused upon which Ikram Ullah accused went away with grudge in his mind and due to that grudge all the five accused in furtherance of their common object committed the murder of Ikram Ullah and Hakam Khan. It has come on record during cross-examination that Ikram Ullah and Amir Abdullah accused were the party men and friends of Ikram Ullah deceased. In our considered view when Ikram Ullah deceased refused to get favour from the police for them in a case of abduction for ransom and murder, they became annoyed and revengeful. We must note here that the occurrence had taken place in District Mianwali, the people of that district are hot headed persons.
Both Ikram Ullah, Amir Abdullah and in connivance with three accused namely Riaz, Amanat and Surat Khan after forming an unlawful assembly while armed with deadly weapons committed the murder of two persons and injured 3 P.Ws. We believe the motive set up by the prosecution. It is a case where sections 148 and 149, P.P.C. Are fully applicable. Identification parade of the accused was held in the jail by two Magistrates namely Muhammad Aslam Minhas and Sardar Noor Khan P.Ws.14 and 16 respectively. The identification parade was conducted in accordance with rules and regulations on the subject. As far as the objection of learned counsel for the appellants that the eyewitnesses had not stated before the learned Magistrates the roles of the assailants at the time of occurrence is concerned, it is without force because during the cross-examination it was brought on record that the eye-witnesses had stated the role of every appellant at the time of identification parade but the Magistrates could not record the same in the identification proceedings prepared by them.
13. It was also argued before us that it was a case of cross-version as pleaded by Surat appellant.
At this stage, we would like to reproduce the version stated by the appellant Surat in his statement recorded under section 342, Cr.P.C. In reply to Question No,16 which reads as under:-- "The true facts of the occurrence are that Hayat Ullah Khan Saoo and Kafayat Ullah Watta Khel were proclaimed offender in different cases. They were my friends and I had been visiting Mianwali and the surrounding villages in their company. They had enmity with Haji Ikram Ullah Khan deceased. I joined them to commit this occurrence on account of my friendship with them. Atta Ullah Khan P.W. Was already known to me because I had been visiting his house in village Shahbaz Khel. Ikram Ullah, Amir Abdullah, Riaz and Amanat alias Aman accused challaned in this case are innocent. Haji Atta Ullah P.W. Got this false case registered against Ikram Ullah and Amir Abdullah accused on account of enmity with them. The said P.Os. Were not nominated in this case on account of their fear in the mind of Atta Ullah and deceived the complainant party, who were not present at the spot at the time of occurrence."
14. A bare perusal of the version introduced by the appellant Surat would show that the same is absurd and improbable and even does not appeal to reasons and also reveals that the same is afterthought and made on inducement to create dents in the prosecution story and was given by the appellant at the behest of Ikram Ullah and Amir Abdullah accused. This fact is further supported from the fact that before this Court in the appeal under discussion all the three appellants namely, Ikram Ullah, Amir Abdullah and Surat have engaged same counsel to defend them. If both the versions are put in juxtaposition, the version put forth by the prosecution seems to be more plausible and nearer to the truth, so we have no hesitation in excluding the story introduced by Surat appellant for the first time before the learned trial Court out of consideration.
15. Learned counsel for the appellants also raised an objection with regard to the recoveries and submitted that the recovery proceeding were in violation of section 103, Cr.P.C. As all the witnesses were the police officials, it may be noted here, that the police officials are as good and reliable witnesses as any other public witness.
' So far as, objection of learned counsel for the appellants with regard to trial of the appellants by the learned Special Court, being coram non judice we would like to reproduce here the preamble of Ant-Terrorism Act which reads as under:-- "Whereas it is expedient to provide for the prevention of terrorism sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto."
' We may advantageously reproduce here subsection (h) of section 21 of the Act which reads as under:-- "terrorist act has the meaning assigned to it in section 6.". Section 6 of the Act is also necessary to be reproduced here which reads as under:-- "Terrorist Act.--- Whoever, in order to strike terror in the people or any section of the people, or to alienate any section of the people or to adversely affect harmony among different sections of the people does any act or thing by using bombs, dynamite or other explosive or in nameable substances, or the fire-arms or other lethal weapons or poisons or noxious gases or chemicals or other substances of hazardous nature in such a manner as to cause, or to be likely to cause the death or injury to any person or persons or damage to or destruction of property or disruption of any supplies of services essential to the life of the community or displays fire-arms, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties commits a terrorist act."
Moreover, it is scheduled offence. We would also like to reproduce here the schedule which reads as under:--
(1) Any offence punishable under this Act.
(2) Any offence punishable under any of the following sections of the Pakistan Penal Code (Act XLV of 1860), namely:--
(a) section 302,--
(a) if committed with a cannon, grenade, bomb, rocket or a light or heavy automatic weapons; In the instant case kalashnikov and rifle 222 were used. They are automatic weapons and the case of the appellants squarely falls within the ambit of Terrorism Act and the learned trial Court was fully empowered to try the case. So far as the judgment relied upon by learned counsel for the appellant, 1998 SCM R 1156 is concerned, we would like to state here that even according to that judgment the case of the appellants falls within the definition of Terrorist Act. The accused while armed with kalashnikov and 222 rifles committed the murder of a parliamentarian apart from one Hakim Ali and injured three witnesses in broad daylight in his house which is definitely an act of terrorism and it also created panic in the society.
The argument of learned counsel for the appellant that the accused who were not attributed any specific injury, their case is of lesser sentence is without any force because all the five appellants while armed with fire-arms formed an unlawful assembly and in furtherance of their common object committed the murder of two persons and injured 3 P.Ws., so there is no question of lesser sentence and there is also no mitigating circumstance toward the lesser sentence.
' The actual name of Riaz was Muhammad Yousaf son of Muhammad Arif. A bare perusal of Exh.D.H.
Form "URDU TEXT" would reveal that the name of appellant finds mention at Serial No,5 in the second part of the form and the name of Muhammad Yousaf is at Serial No,6 in the second part. In fact the appellant Riaz had produced the identity card of his brother Muhammad Yousaf.
In view of what has been stated above, we have no hesitation in holding that it were the appellants who committed the murder of Ikram Ullah Khan, Hakim Ali and injured three P.Ws. The motive has been fully proved. The ocular account is corroborated by the medical evidence and the recoveries from the appellants. The story given in the F.I.R. Is true and we believe the same. The act committed by the appellants falls within the meaning of terrorism resultantly, the appeal filed by the appellants is dismissed. Conviction and sentence recorded by the learned trial Court is maintained. The death sentence awarded to all the appellants is confirmed. Murder Reference is replied in the affirmative. /order accordingly.