ASIF SAEED KHAN KHOSA, J.~ Arif Masood, Sana Ullah, Zulfiqar Khan and Shaukat Hayat 'appellants were convicted for an offence under Section 302 (b), PPC read with Section 34, PPC vide judgment dated 29.05.2002 handed down by the learned Judge, Anti- Terrorism Court,' Faisalabad and Arif Masood 'appellant was sentenced to imprisonment for life each. Through the same judgment the above-mentioned four appellants were also convicted by the learned Trial Court for an offence under Section 7(a) of the Anti-Terrorism Act, 1997 and Arif Masood appellant was sentenced to death and the other three appellants were sentenced to imprisonment for life each. For the said offence all the said four appellants were also sentenced to a i.e of Rs. 20,000/ each or in default of payment thereof to undergo simple imprisonment for i.e years each. All the said four appellants were also ordered by the heirs of Hameed Ullah deceased, order than his two heirs namely Mst.
Saeeda and Mst. Hameeda,. By way of compensation under Section 544-A, Cr.P.C, or in default, of payment thereof to undergo simple imprisonment for six months each. All the above- mentioned four appellants were further convicted by the learned Trial Court for an offence under Section 337- F(iii), PPC read with Section 34, PPC and were sentenced to rigorous imprisonment for three years each. The learned Trial Court had, however, acquitted Aslam Khan, Aman Ullah and Ameer Abdullah accused of all the charges levelled against them by the prosecution. The above- mentioned four convicts- appellants have, challenged their convictions and sentences before this Court through Criminal Appeal No. 1769 of 2002. Zia Ullah complainant has filed Criminal Appeal No. 1768 of 2002 before this Court seeking setting aside of the acquittal of the above- mentioned three accused persons recorded by the learned Trial Court. The said complainant has also preferred Criminal Revision No. 762 of 2002. Seeking enhancement of the sentences passed by the learned Trial Court against Sana Ullah, Zulfiqar khan and Shaukat Hayat convicts. We have heard. All these matters together along with Murder Reference No. 68-T of 2002 seeking confirmation of the sentence of death passed by the learned Trial Court against Arif Masood convict and we propose to decide all these matters together through the present, consolidated judgment .
2. The prosecution's case unfolded in the FIR was that Zia Ullah complainant was posted as a Deputy Secretary at the Punjab Red Cross, Lahore and his I family had an on-going murder feud with Shaukat Hayat, etc. And some murder cases between the parties were pending at the relevant time before the Court of the learned Additional Sessions Judge Chiniot, District Jhang. On 30.03.2000 the complainant, his father I namely Hameed Ullah, Advocate, his brother namely | Ata Ullah and his paternal uncle namely Hidayat Ullah had gone to the relevant Court at Chiniot and at about 11.30 a.m. On that day the complainant, his brother end his paternal uncle were standing near the gate of the Municipal Committee and the complainant's father | namely Hameed Ullah, Advocate was standing in a , nearby street when suddenly Shaukat Hayat, Aslam Khan, Ameer Abdullah, Aman Ullah, Arif Masood, Sana Ullah and Zulfiqar Khan accused emerged from that street raising Lalkaras while armed with pistols and started indiscriminately firing at the complainant party. The complainant, his brother and his paternal uncle saved their lives by lying on the ground whereas the complainant's father namely Hameed Ullah, Advocate received some fires and fell down in an injured condition. Akbar Khan, AS1 who ,had also come to the same Court in connection with getting his statement recorded in the case between the parties also received a i.e and he too fell down upon receipt of his injury. Thereafter the accused party left the place of occurrence while raising Lalkaras that it had avenged the murder of Umar Hayat. Hameed Ullah, Advocate succumbed to his injuries and died at the spot. Soon thereafter the local police reached the place of occurrence and then on the basis of a statement made by Zia Ullah complainant in respect of the said incident FIR' No. 125 was registered at Police Station City Chiniot, District Jhang at 12.05. p.m.
On the same day, i.e. 30.03.2000 for offences under Sections 148/302/324/149,. PPC.
3. The investigation of this case was mainly conducted by Mirza Anjum Kamal, it spector (PW12) and partly by Muhammad Aslam Tareen, SSP (DW1).# During the investigation the dead-body of Hameed Ullah deceased was got subjected to post-mortem examination, Akbar Khan, AS1 was got medically examined, the accused persons were arrested, licensed pistols were recovered from the possession.
4. At the commencement of the trial a charge withe four heads under Sections 148, PPC, 302/149, PPC and Section 7-of the Anti-Terrorism Act, 1997 was framed by the learned Trial Court against all the seven accused persons who pleaded not guilty to the same and claimed-a trial.
5. During the trial the prosecution produced twelve witnesses in support of its case against the accused persons. Zia Ullah complainant (PW6), Hidayat Ullah Khan (PW7) and Akbar Khan, AS1 (PW8) furnished the ocular account of the incident in question. Zia Ullah complainant (PW6) and Hidayat Ullah Khan (PW7) also deposed about' the motive, Saleem Ullah (PW9) stated about recovery of a pistol from the. Possession of Aslam Khan accused. The medical evidence was provided by Dr. Saif Ullah Harral (PW4) and Dr. Muhammad Afzal (PW5)- Mirza Anjum Kamal, Inspector (PW12) stated about the various, steps taken by him during the investigation Of this case.
The remaining evidence produced by the prosecution was more or less of formal nature.
6. In their statements recorded under section 342, Cr.P.C, all the accused persons denied and controverted all the allegations of fact levelled against them by. The prosecution and professed their innocence. They, however, opted hot to make statements on oath under Section 340(2), Cr P.C. But Muhammad. Aslam Tareen, SSP was produced as DW1.
7. At the conclusion of the trial the learned Court acquitted Aslam Khan; Aman Ullah and Ameer Abdullah accused but, after finding the prosecution's case against them to have been proved beyond reasonable | doubt, convicted and sentenced Arif Masood, Sana I Ullah, Zulfiqar Khan and Shaukat Hayat accused as I mentioned and detailed above. Hence, the present j appeals, revision petition and the connected Murder Reference before this Court.
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8. We 'have heard the learned counsel for the parties and have through the record of this case with their assistance, t has been argued by the learned counsel or the convict- appellants that the prosecution had failed to prove its case against the convicts- appellants beyond reasonable doubt and, therefore, they are entitled to be acquitted by this Court. As against that the learned Assistant Advocate-General- appearing go the State as well as the learned counsel for the complainant have maintained that the prosecution had succeeded in establishing the convicts- appellants guilt to the hilt and, therefore, their convictions and sentences recorded by the learned Trial Court do not warrant any interference by this Court. The learned counsel or the complainant has gone on to maintain that the acquittal of Aslam Khan, Aman Ullah and Ameer Abdullah accused by the learned Trial Court' ought to be set aside by this Court and also that the sentences passed by the learned Trial Court against Zulfiqar Khan, Sana Ullah and Shaukat Hayat convicts may be suitably enhanced.
9. After beating the learned counsel for the parties and going through the record of this case with their assistance we have observed that the occurrence in this case had taken place in broad daylight and the FIR in respect of. The same had been lodged with sufficient promptitude. The place of occurrence was adjoining the premises of a Court, the building of a Police Station and the office of the local municipality. We have; however, also observed that in the FIR lodged by Zia Ullah complainant' (PW6) only a general allegation regarding indulging in indiscriminate firing had been levelled against all the seven accused persons collectively and no specific i.e or injury had been attributed to any of the accused persons. Soon after lodging of. The FIR the complainant had got his supplementary statement recorded by the Investigating Officer wherein he had pointed out and specified that the shot fired by Arif Masood appellant had hit Hameed Ullah deceased on his head, the shot fired by Sanaullah appellant had. Hit the left thigh of Akbar Khan, AS1 (PW8), the shot fired by Shaukat Hayat appellant had hit the right cheek of Hameed Ullah deceased and the shot fired by the Aslam Khan acquitted accused had hit the chest of Hameed Ullah deceased. No other accused had person in this case was attributed any specific injury even in the said supplementary statement made "by the complainant. The said details emerging from the supplementary statement of the complainant were subsequently deposed about by Zia Ullah complainant (PW6) and Hidayat Ul|ah Khan (PW7) during the trial. Akbar Khan, AS1 (PW8) had, however, failed to nominate any of the accused persons before the learned Trial Court.
10. The motive set up by the prosecution was a long standing and on-going murder feud between the accused party and the complainant party originating in the year 1992 and it was in connection with some murder cases between the parties that both the parties were present at the place of occurrence on the day when this occurrence had taken place. Such pitched enmity between the parties had not only been deposed about before the learned Trial Court by Zia Ullah complainant (PW6) and Hidayat Ullah Khan (PW7) but the same had also been admitted in so many words by the accused persons themselves in- their statements recorded under Section 342, Cr.P.C. Even the Investigating Officer of this case namely Mirza Anjum Kamal, Inspector (PW12) had conceded the existence of such enmity between the parties since the year 1992. It is proverbial that a pitched enmity between the parties can cut both ways as on the one hand it can prompt the accused party to 4' get even with the complainant party and on the other hand it can also proved a basis J for false implication of the accused party by the -j complainant party or to propel the complainant party to spread its net wide by entangling maximum number of persons belonging to the accused party, In that backdrop we have decided to exercise caution and to | look for independent corroboration before placing reliance upon the ocular evidence produced by the prosecution.
11. Although licensed pistols had allegedly been recovered from the possession of Arif Masood appellant and Aslam Khan acquitted accused during, the investigation of this case yet the fact remains that no crime-empty had been recovered from the place of occurrence and, thus, the weapons recovered from the said accused persons never stood connected with the alleged offences. The alleged recovery of weapons from the possession of the said accused persons was therefore, legally inconsequential in this case and the same could not provide any corroboration to the ocula account.
12. Taking up the case of Arif Masood convict- appellant first, we have observed that according to Zia Ullah complainant (PW6) and Hidayat Ullah Khan (PW7) this appellant had caused a firearm injury on the head of Hameed Ullah deceased which injury according to Dr. Saif Ullah Harral (PW4), had proved fatal. The said eyewitnesses had made consistent statements before -the learned Trial Court regarding the role played by this appellant in the incident in question and the said eyewitnesses had received corroboration in that regard from the medical evidence. We have, thus, entertained no doubt regarding this appellant's presence and' participation' in the occurrence and regarding his firing the fatal shot at the head of the deceased. The convictions and sentences of this appellant recorded by the learned Trial Court for offences under Section 302(b), PPC read with Section 34, PPC and Section 7(a) of the Anti-Terrorism Act, 1997 are, therefore, liable to be upheld and maintained by us. This appellant had caused the murder of a practicing Advocate just outside the premises of a Court and the highhandedness by him has, therefore, compelled us not to show any lenience towards him in the matter of his sentences.
13. As regards Sana Ullah convict-appellant he had not caused any injury to Hameed Ullah deceased and although Zia Ullah complainant (PW7) had attributed a firearm injury to this appellant on the left thigh of Akbar Khan, AS1 (PW8) yet the said injured victim namely Akbar Khan, AS1 (PW8) had failed to implicate this appellant for his injury. During the investigation nothing had been recovered from the possession of this appellant, In these circumstances we have felt that the prosecution had failed to prove its case against this appellant beyond reasonable doubt and he is entitled to be acquitted by extending the benefit of doubt to him.
14. As far as Zulfiqar Khan convict-appellant is concerned he too had not been attributed any injury to Hameed Ullah deceased or even to Akbar Khan, AS1 (PW8). During the investigation no weapon had been recovered from his possession and it was found doing the investigation that he was empty-handed ai the time of the alleged occurrence. Thus, this appellant is also entitled to be acquitted by extending the benefit of doubt to him.
15. Shauka flay at convict-appellant's case is somewhat to that of Arif Masood convict- appellant with the only difference that the injury caused by this appellant on the right cheek of Hameed Ullah deceased had not proved fatal. Zia Ullah complainant (PW6) and Hidayat Ullah Khan (PW7) had consistently deposed against him regarding firing a shot hitting the right cheek of Hameed Ullah deceased, the medical evidence had provided complete support to the said allegation and the motive had provided corroboration to the ocular account to his extent.-In this view of the matter we have felt that the prosecution had succeeded in establishing this appellant's guilt beyond reasonable doubt and, therefore, the convictions of this appellant recorded by the learned Trial Court for offences under Section 302(b), PPC read with Section 34, PPC and Section 7(a) of the Anti- Terrorism Act, 1997 do not warrant any interference by us. The injury caused by this appellant to Hameed Ullah deceased had not proved fatal and, therefore, we have found that the learned Trial Court was justified in not awarding the capital punishment against this appellant.
16. Akbar Khan, AS1 (PW8) had not nominated any accused person who had caused the firearm injury on his person and as a matter of fact this injured witness had not nominated any accused person at all vis-a-vis the entire occurrence, In this situation we have felt that the learned Trial Court was not justified in convicting and sentencing the four convicts-appellants for an offence under Section 337-F(iii), PPC read with Section 34, PPC and their convictions and sentences of this count are, therefore, liable to be set aside.
17. Adverting now to the acquitted accused persons in this case we have straightaway observed that the case against Aman Ullah and Ameer Abdullah accused is at par with the case against Zulfiqar Khan convict-appellant who has been found by us above to be entitled to acquittal because the said convict- appellant had not been attributed any injury to Hameed Ullah deceased or to Akbar Khan, ASP A'(PW8) and nothing had been recovered from his possession during the investigation of this case. The position regarding Aman Ullah and Ameer Abdullah accused in both these respects is identical to that of Zulfiqar Khan convict- appellant. In these circumstances the acquittal of Aman Ullah and Ameer Abdullah accused recorded by the learned Trial Court does not warrant any interference by us.
18. The case of Aslam Khan accused has appeared to us to be: somewhat similar to that against Arif Masood convict-appellant regarding whose, guilt we have entertained no manner of doubt. Zia Ullah complainant (PW6) and. Hidayat Ullah Khan (PW7) had consistently deposed before the learned Trial Court that Aslam Khan accused had fired a shot on the chest of Hameed Ullah deceased and according to Dr. Saif Ullah Harral (PW4) the injury paused by this accused person had also proved fatal. Thus,: the ocular account to the extent of this accused person had not" only received corroboration from the evidence of motive but had also received, support from the medical evidence and in ordinary circumstances we would have felt persuaded to convert the acquittal of this accused person into conviction but we have found .An insurmountable legal hurdle in that regard. The criminal case in hand had been.Tried by an Anti-Terrorism Court and the charge framed against the accused party, including Aslam Khan accused, included a head under Section 7(a) of the Anti-Terrorism Act, 1997. The acquittal of Aslam Khan accused recorded by the learned Trial Court has been challenged before us not bu the State or by any officer mentioned in Section 25 of the Anti-Terrorism Act, 1997 but by the complainant of this criminal case. A perusal of Section 2'5 of the Anti-Terrorism Act, 1997 shows that in its own wisdom the legislature has not conferred any right of appeal upon, any person other than those mentioned in the said section itself. The complainant of a criminal case does not figure in the said section at all. Interestingly the complainant in the present case has filed Criminal Appeal No. 1768 of 2002 before this Court by invoking none other than Section 25 of the Anti-Terrorism Act, 1997 itself, In order to convince us about the maintainability of the complainant's appeal in that regard the learned counsel for the complainant has heavily relied upon the provisions of Section 417(2-A), Cr.P.C/ but the argument of the learned counsel for the complainant in this respect overlooks the provisions of Section 32 of the Anti-Terrorism Act, 1997 which excluded any application of any other law to a case of terrorism if the provisions of such other law are inconsistent with the provisions of the Anti-Terrorism Act, 1997.
While addressing arguments questioning maintainability of Criminal Appeal No. 1768 of 2002 filed by the complainant before this Court against the acquittal of Aslam Khan and two others recorded by the learned Trial Court the learned counsel for the said acquitted accused persons has relied upon the cased of Haji Muhammad Ibrahim v. The State and two others [1998 P.Cr.L.J. 850], Habib Bank Ltd v. The State and six others["\99Z SCMR 1853], Faiz Muhammad and others v. Mehrab Shah and others [PLD 1997 Pesh. 166], Haji Khan Kharo v. Muhammad Shareef and two other [2000 P.Cr.L.J. 568], Quaid-e-Azam v. The State [2000 P.Cr.L.J. 216], and an unreported case of Criminal Appeal No. 33/2000 (BWP), decided by a learned Division Bench of this Court on 11.04.2002 wherein it had been held that a right of appeal is a creation of statute and a party having not been conferred such a . Right of appeal by a statute cannot maintain such an appeal. When confronted with the said precedent cases the learned counsel for the complainant switched his stance and maintained that depriving an aggrieved person of a right -of appeal under the provisions of Section 25 of the Anti-Terrorism Act, 1997 is against the Injunctions of Islam. This submission of the learned counsel for the complainant conveniently overlooks the fact that by virtue of the provisions of Article 203-D of the Constitution of the Islamic Republic of Pakistan, 1973 it is the Hon'ble Federal Shariat Court which can examine a law qua its repugnancy to the Injunctions of Islam and by virtue of the provisions of Article 203-G of the Constitution this Court or even the Hon'ble Supreme Court of Pakistan have been denuded of any jurisdiction to entertain any proceeding or exercise any power or jurisdiction in respect of any matter falling within the power or jurisdiction of the Hon'ble Federal Shariat Court, In this view of the matter a conclusion is inescapable that Criminal Appeal No. 1768 of 2002 filed by Zia Ullah complainant before this Court against the acquittal of Aslam Khan, Aman Ullah and Ameer Abdullah accused is not maintainable and that same is liable to be dismissed of that score.
19. As far as Criminal Revision No. 762 of 2002 preferred before this Court by Zia Ullah complainant seeking enhancement of the sentences passed by the learned Trial Court against Zulfiqar Khan, Sana Ullah and Shaukat Hayat convicts-appellants is conceded we have already held above that Sana Ullah. And Zulfiqar Khan convicts-appellants are entitled to be acquitted because the prosecution had failed to prove its case against them beyond reasonable doubt. We have also held above that the injury caused by Shaukat Hayat convict-appellant to Hameed Ullah deceased had not proved fatal and, therefore, no occasion has been found by us for enhancing his sentence in that regard, In this view of the matter Criminal Revision No. 762 of 2002 does not call for any interference by this Court.
20. For what has been discussed above Criminal Appeal No. 1769 of 2002 is dismissed it the extent of Arif MasOod convict-appellant conditions and sentences recorded by the learned Trial Court for offences under Section 302(b), PPC read with Section 34, PPC and Section 7(a) of the Anti-Terrorism Act, 1997. However, the conviction and sentence of this appellant recorded by the learned Trial Court for an offence under Section 337-F (iii), PPC read with Section 34, PPC are set aside. Criminal Appeal No. 1769 of 2002 is also dismissed to the extent of the convictions and sentences of Shaukat Hayat convict-appellant recorded by the learned Trial Court for' offences under Section 302(b), PPC read which Section 34, PPC and Section 7(a) of the Anti- Terrorism Act, 1997. Both the sentences of imprisonment passed against this appellant by the learned Trial Court shall run concurrently and the benefit under Section 382-B, Cr.P.C, shall be extended to him. However, the conviction and sentence of this convict-appellant recorded by the learned Trial Court for an offence under Section 337-F(iii), PPC read with Section 34, PPC are set aside. Criminal Appeal No. 1769 of 2002 is, however, allowed to the extent of Sana Ullah and Zulfiqar Khan convicts-appellants, all of their convictions and sentences recorded by the learned Trial Court are set aside and they are acquitted of the. Charge. They shall be released from the jail forthwith if not required in any other case. Criminal Appeal No. 1768 of 2)02 filed by the complainant against the acquittal of three accused persons recorded by the learned Trial Court is hereby dismissed as not maintainable. The bail bonds and sureties of the said acquitted accused persons shall stand . Discharged. Criminal Revision No. 762 of 2002 filed by the complainant seeking enhancement of the sentences of three convicts-appellants is also dismissed.
21. Murder Reference No. 68-T of 2002 is answered in the affirmative and the sentences of death passed by the learned Trial Court against Arif Masood convicts-appellants is hereby confirmed.