MUHAMMAD ALI and otherss vs THE STATE and others

ASIF SAEED KHAN KHOSA, J.---Muhammad Ali, Jehangir, Munir Ahmad, Ijaz Ahmad, Nadeem alias Nannha, Ashfaq Ahmad, Naseer Ahmad and Azeem Ali appellants were convicted and sentenced for various offences vide judgment dated 26-11-1999 handed down by the learned Judge, Anti- Terrorism Court, Faisalabad and the details of their convictions and sentences are as follows:--

(i) All the above mentioned eight appellants were convicted for an offence under section 148, P.P.C.

And were sentenced to rigorous imprisonment for three years each.

(ii) All of them were convicted for an offence under section 302(b), P.P.C. Read with section 149, P.P.C. For the murder of Mst. Naziran Begum deceased and on account of waiver of his right of Qisas by one of her heirs namely Inayat Ali they were all sentenced to imprisonment for life each as Ta'zir and were ordered to pay a sum of Rs,50,000 each to the remaining heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for seven years each.

(iii) All of them were convicted for an offence under section 302(b), P.P.C. Read with section 149, P.P.C. For the murder of Ijaz Ali deceased and on account of waiver of his right of Qisas by one of his heirs namely Inayat Ali they were all sentenced to imprisonment for life each as Ta'zir and were ordered to pay a sum of Rs,50,000 each to the remaining heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for seven years each.

(iv) All of them were convicted for an offence under section 302(b), P.P.C. Read with section 149, P.P.C. For the murder of Mumtaz Ahmad deceased and on account of waiver of his right of Qisas by one of his heirs namely Inayat Ali they were all sentenced to imprisonment for life each as Ta'zir and were ordered to pay a sum of Rs,50,000 each to the remaining heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for seven years each.

(v) All of them were convicted for an offence under section 302(b), P.P.C. Read with section 149, P.P.C. Each for the murder of Lal Din Khan deceased and Muhammad Ali and Jehangir appellants were sentenced to imprisonment for life each as Ta'zir whereas the other six appellants were sentenced to death each as Ta'zir. All the appellants were ordered to pay a sum of Rs,50,000 each to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for seven years each.

(vi) All of them were convicted for an offence under section 302(b), P.P.C. Read with section 149, P.P.C. Each for the murder of Muhammad Sharif deceased and Muhammad Ali and Jehangir appellants were sentenced to imprisonment for life each as Ta'zir whereas the other six appellants were sentenced to death each as Ta'zir. All the appellants were ordered to pay a sum of Rs,50,000 each to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for seven years each. As Ashfaq Ahmad appellant had been convicted for the murder of his father namely Muhammad Sharif deceased therefore, he was held to be disentitled to receive any compensation.

(vii) All of them were convicted for an offence under section 324, P.P.C. Read with section 149, PPC each for launching murderous assault upon Muhammad Aamer injured PW and were sentenced to rigorous imprisonment for ten years each and to pay a fine of Rs,25,000 each or in default of payment thereof to undergo further rigorous imprisonment for three years each.

(viii) All of them were convicted for an offence under section 337-F(v), P.P.C. Read with section 149, P.P.C. Each for causing injuries caused to Muhammad Aamer injured PW and were sentenced to rigorous imprisonment for five years each as Ta'zir and to pay a sum of Rs,25,000 each to Muhammad Aamer injured P.W. By way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for one and a half years each.

(ix) All of them were convicted for an offence under section 324, PPC read with section 149, PPC each for launching a murderous assault upon Mushtaq Ahmad (PW11) and were sentenced to rigorous imprisonment for ten years each and to pay a fine of Rs,25,000 each or in default of payment thereof to undergo further rigorous imprisonment for three years each.

(x) All of them were convicted for an offence under section 7 of the Anti-Terrorism Act, 1997 and Muhammad Ali and Jehangir appellants .Were sentenced to imprisonment for life each and the remaining appellants were sentenced to death each and to pay a fine of Rs,50,000 each or in default of payment thereof to undergo rigorous imprisonment for seven years each.

(xi) The benefit under section 382-B, Cr.P.C. Was extended to all the appellants and the sentences of imprisonment passed against them were ordered to run concurrently. All the above mentioned appellants have challenged their convictions and sentences before this Court through Criminal Appeal No,1368 of 1999 and Irshad Ahmad complainant has filed Criminal Revision No,1032 of 2002 before this Court seeking enhancement of the sentence passed by the learned trial Court against Muhammad Ali appellant which have been heard by us alongwith Murder Reference No,.501-T of 1999. A co-accused of the above mentioned appellants namely Muhammad Akram had become a Proclaimed Offender and after his arrest he too was tried by the same learned trial Court and vide judgment dated 24-5-2002 he was convicted and sentenced as follows:--

(i) He was convicted for an offence under section 302 (b), P.P.C. For the murder of Ijaz Ahmad deceased and was sentenced to death as Ta'zir and was ordered to pay a sum of Rs,20,000 to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months.

(ii) He was convicted on three counts of section 302(b), P.P.C. Read with section 149, P.P.C. For the murders of Mst. Naziran Begum, Mumtaz Ahmad and Lal Din Khan deceased and was sentenced to imprisonment for life on all the three counts and was ordered to pay a sum of Rs,20,000 on each count to the respective heirs of the said three deceased by way of compensation under section 544-A, Cr.P.C.

(iii) He was convicted for an offence under section 7 of the Anti-Terrorism Act, 1997 and was sentenced to death and to pay a fine of Rs,50,000 or in default of payment thereof to undergo simple imprisonment for seven years.

(iv) He was convicted for an offence under section 337-F(v), P.P.C. Read with section 149, P.P.C. And was sentenced to rigorous imprisonment for five years and to pay Daman of Rs,10,000 to Muhammad Aamer injured P.W. Or in default of payment thereof to remain in jail till realization of the same. In case of realization of the amount of Daman the said amount was ordered to be paid to Muhammad Aamer injured P.W.

(v) He was convicted for an offence under section 337-L(2), P.P.C. Read with section 149, P.P.C. For causing an injury to Mushtaq Ahmad (P.W.11) and was sentenced to rigorous imprisonment for one year and to pay a sum of Rs,3,000 to the said injured victim as Arsh or in default of payment thereof to be kept in jail till its realization. The amount of Arsh, in case of its realization, was ordered to be paid to Mushtaq Ahmad (P.W.11).

(vi) He was convicted for an offence under section 148, P.P.C. And was sentenced to rigorous imprisonment for two years.

(vii) The benefit under section 382-B, Cr.P.C. Was extended to him and all the sentences of imprisonment passed against him were ordered to run concurrently. Muhammad Akram appellant has challenged his convictions and sentences before this Court through Criminal Appeal No, 900 of 2002 whereas the State has filed Criminal Appeal No, 923 of 2002 seeking conviction and sentence of Muhammad Akram appellant on the count pertaining to the murder of Muhammad Sharif deceased. We have heard both these appeals alongwith Murder Reference No, 63-T of 2002. We propose to decide all the above mentioned appeals, revision petition and the connected Murder References together through the present consolidated judgment.

2. The prosecution's case unfunded in the F.I.R. Was that IrshadAhmad Shad complainant was a resident of Chak No,135/GB situated within the area of Police Station Tirkhani, District Faisalabad and was an agriculturist by profession. Ijaz Ahmad and Mumtaz Ahmad deceased sons of Inayat Ali were his nephews whereas Muhammad Ali appellant was the paternal uncle of Ijaz Ahmad and Mumtaz Ahmad deceased. About 30/35 years ago Muhammad Ali appellant and Ijaz Ahmad and Mumtaz Ahmad deceased had constructed a Dhari in Killa No, 1 of Square No, 42 and they used to tether their cattle at the said Dhari together. Apart from that four and a half acres of land of Muhammad Ali appellant had been taken on rent by Ijaz Ahmad and Mumtaz Ahmad deceased who used to cultivate the same. In the year 1998 Muhammad Ali appellant retook the possession of his land from Ijaz Ahmad and Mumtaz Ahmad deceased and about one week prior to the present occurrence Muhammad Ali appellant demanded that Ijaz Ahmad and Mumtaz Ahmad should pay a sum of Rs,1,000 to him by way of arrears of rent but Ijaz Ahmad and Mumtaz Ahmad deceased maintained that they had paid the entire rent to Muhammad Ali appellant and nothing was outstanding in that regard. Three days prior to the present occurrence Muhammad Ali appellant told Ijaz Ahmad and Mumtaz Ahmad deceased that the land underneath the above mentioned Dhari also belonged to him and, therefore, they should remove their cattle fromthere. The dispute about tethering of the cattle at the said Dhari was taken to Lal Din Khan deceased, a brother of the complainant, for decision and he decided that Ijaz Ahmad and Mumtaz Ahmad deceased should keep on tethering their cattle at the said Dhari till the latter construct a new Dhari of their own for tethering their cattle. Muhammad Ali appellant accepted the said decision of Lal Din Khan deceased but when the brother of Muhammad Ali appellant namely Jehangir appellant and Muhammad Ali appellant's nephews namely Ashfaq Ahmad and Naseer Ahmad appellants, etc. Came to know of that decision they objected to the same and maintained that Lal Din Khan had no capacity to decide the matter and his decision in that regard was not acceptable to them. At about 10-00 a.m. On 20-9-1998 Irshad Ahmad complainant summoned Muhammad Ali, Jehangir, and Ishfaque Ahmad appellants, etc. And tried to pacify them so that they did not quarrel with Ijaz Ahmad and Mumtaz Ahmad deceased on that score. At about 4-00 p.m. On the same day Irshad Ahmad complainant and his brother Mushtaq Ahmad (P.W.11) were present in their own house when they received an information that nine persons including Muhammad Ali, Jehangir and Ashfaq Ahmad appellants, etc were proceeding to the disputed Dhari after making preparation for a fight. Thereafter Irshad Ahmad complainant and his brother Mushtaq Ahmad (P.W.11) also proceeded towards the Dhari and saw Ashfaq Ahmad appellant armed with a carbine, Naseer Ahmad, Munir Ahmad, Azeem Ali, Jehangir, Muhammad Ali, Nadeem alias Nannha, Ijaz Ahmad and Muhammad Akram appellants armed with hatchets going towards the said Dhari for fighting with Ijaz Ahmad and Mumtaz Ahmad deceased. By that time Mst. Naziran Begum, a sister of the complainant and the mother of Ijaz Ahmad and Mumtaz Ahmad deceased, had already reached the said Dhari upon receipt of information about the preparation made by the accused party.

Irshad Ahmad complainant, Mushtaq Ahmad (P.W.11), Muhammad Razzaq and Shahzad Hassan PWs followed the accused party to the relevant Dhari. When they reached one Bigha short of that Dhari they saw that the complainant's sister namely Mst. Naziran Begum deceased was present at the Dhari and she had required her sons namely Ijaz Ahmad and Mumtaz Ahmad deceased to run away from there and they had hidden themselves in the nearby sugarcane field. In the meanwhile the accused party also reached the spot and Muhammad Ali appellant raised a Lalkara demanding that Mst. Naziran Begum deceased should hand over her sons namely Ijaz Ahmad and Mumtaz Ahmad deceased to the accused party. Muhammad Ali appellant also proclaimed that the accused party would teach a lesson to the complainant party fornot. Vacating possession of the Dhari.Thereafter Ashfaq Ahmad appellant fired a shot from his carbine hitting Mst. Naziran Begum deceased on the left side of her abdomen which shot crossed her body and made an exit from the opposite side. Upon receipt of that injury Mst.Naziran Begum deceased fell on the ground whereupon Jehangir appellant gave a hatchet blow to her on the back of her right shoulder. Munir Ahmad appellant then gave a hatchet blow to Mst. Naziran Begum deceased on the right side of her neck and Naseer Ahmad appellant gave a hatchet blow to her on the outer side of her right arm. Muhammad Ali appellant then gave a hatchet blow to the fallen Mst. Naziran Begum deceased hitting her on her head above her right ear. Jehangir appellant then gave a hatchet blow on Mst. Naziran Begum deceased's head hitting near her left ear. Thereafter Nadeem alias Nannha and Jehangir appellants caught hold of the legs of the fallen Mst. Naziran Begum deceased and started dragging her. Upon seeing the said treatment of their mother by the accused party Ijaz Ahmad and Mumtaz Ahmad deceased came out of the sugarcane field and tried to rescue their mother but Muhammad Ali appellant gave a hatchet blow on the left side of Ijaz Ahmad deceased's neck. Muhammad Akram appellant then gave a hatchet blow on the left clavicle bone of Ijaz Ahmad deceased and thereafter Ashfaq Ahmad appellant gave two successive hatchet blows to Ijaz Ahmad deceased which hit him near his neck. Upon receipt of those injuries Ijaz Ahmad deceased fell on the ground and in his fallen condition he was given a hatchet blow by Ijaz Ahmad appellant hitting him on the back of his right hand. Azeem All appellant gave a hatchet blew on the right side of the head of Mumtaz Ahmad deceased and upon receipt of that injury Mumtaz Ahmad deceased also fell on the ground. Naseer Ahmad appellant then dragged Mumtaz Ahmad deceased by catching hold of the latter's legs. Upon receipt of an information about that incident the complainant's brother namely Lal Din Khan deceased came to the spot alongwith his minor son namely Muhammad Aamer, aged about 6/7 years, in order to separate the parties but Azeem Ali appellant gave a hatchet blow on the forehead of Lal Din Khan deceased. Ashfaq Ahmad appellant also gave a hatchet blow on the left elbow of Lal Din Khan deceased whereupon the latter fell down and in that fallen condition Naseer Ahmad appellant gave a hatchet blow on the neck of Lal Din Khan deceased. Nadeem alias Nannha appellant then gave a hatchet blow on the left side of the chest of Lal Din Khan deceased.

Upon seeing all that the minor son of Lal Din Khan deceased namely Muhammad Aamer started crying and then he was given a hatchet blow by Naseer Ahmad appellant on the left side of his head. Azeem Ali appellant then gave a hatchet blow on the back of the head of Muhammad Aamer minor. Ashfaq Ahmad appellant also gave a hatchet blow on the head of the said minor.

Upon receipt of those injuries Muhammad Aamer minor also fell down. After witnessing the said occurrence the complainant's brother namely Mushtaq Ahmad (PW11) reached the spot and implored the accused party to desist from injuring the complainant party but Ashfaq Ahmad appellant shouted that Mushtaq Ahmad should also not be spared. Upon that Mushtaq Ahinad ran fromthe spot but he was followed by Ashfaq Ahmad appellant and was fired at by him. A pallet of the shot fired by Ashfaq Ahmad appellant hit the left lower leg of Mushtaq Ahmad (P.W.11). Due to fear Irshad Ahmad complainant, his son namely Shahzad Hassan P.W. And Muhammad Razzaq, P.W. Did not go near the accused party but witnessed the entire occurrence from its beginning to the end. When the accused persons became sure about the deaths of their victims they left the spot while firing in the air. The complainant and others then went near the injured persons and found Lal Din Khan, Ijaz Ahmad, Mumtaz Ahmad and Mst. Naziran Begum to have succumbed to their injuries and died at the spot whereas Muhammad Aamer minor had received serious injuries and he was immediately dispatched to Civil Hospital, Samundari for medical treatment. After some time of the said incident the complainant came to know that the dead body of Muhammad Sharif, father of Ashfaq Ahmad appellant, was laying in the sugarcane field of Muzammal Hussain which field was situated four Killas away from the disputed Dhari. According to the complainant Muhammad Sharif deceased had also been murdered by the accused party. The motive set up in the FIR was that the above mentioned deceased had been done to death by the accused party so as to forcibly dispossess the complainant party from the disputed Dhari. Leaving the deadbodies in the care of Muhammad Razzaq and Shahzad Hassan P.Ws. Irshad Ahmad complainant proceeded to report the matter to the police but he met a police officer on his way and made a statement before him at 4-40 p.m. On the same day, i,e, 20-9-1998 in respect of the said incident. On the basis of that statement of Irshad Ahmad complainant formal F.I.R. No,224 was registered at Police Station Tirkhani, District Faisalabad at 5-40 p.m. On 20-9-1998 for offences under sections 148/302/324/149, P.P.C.

3. The investigation of this case was conducted by Mukhtar Ahmad, DSP (P.W.17), Mumtaz Khan, D.S.P. (P.W.18), Muhammad Zafar, S.H.O. (P.W.20), Ch. Masood Ahmad, DSP (P.W.21) and Ghulam Sarwar, S.-I. (P.W.23). All these Investigating Officers had investigated this case at different stages and during the investigation the deadbodies were got subjected to post-mortem examination, the injured witnesses were got medically examined, the accused persons were arrested on different occasions and recoveries were effected from most of them on different dates. Upon completion of the investigation a challan was submitted before the learned trial Court whereafter the appellants in Criminal Appeal No, 1368 of 1999 and the appellant in Criminal Appeal No,900 of 2002 were separately tried at different times. All the appellants had pleaded not guilty to the charge framed against them by the learned trial Court and had claimed a trial. During the two trials twenty-three prosecution witnesses had been produced before the learned trial Court in the case subject- matter of Criminal AppealNo,1368 of 1999 and sixteen prosecution witnesses were produced in the case subject-matter of Criminal Appeal No, 900 of 2002. In their statements recorded under section 342, Cr.P.C. All the appellants had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. However, none of them had opted to make a statement on oath under section 340(2), Cr.P.C. The appellants in Criminal Appeal No,1368 of 1999 had, however, produced Muhammad Afzal as DW1 in support of their version of the incident. At the conclusion of the two trials the learned trial Court found all the appellants in both the, said appeals to be guilty vide judgments dated 26-11-1999 and 24-5-2002 respectively and all the said appellants were convicted and sentenced for various offences as mentioned and detailed above. Hence, the present appeals, revision petition and the connected Murder References before this Court.

4. We have heard the learned counsel for the parties for many days and at great length, have gone through the record of this case with their assistance and have attended to each and every aspect of this case from every possible angle presented and demonstrated before us. Although very lengthy arguments have been addressed before us by the learned counsel for all the parties yet for the purposes of brevity it may be mentioned here that according to the learned counsel for the convicts-appellants the prosecution had failed to prove its case against the convicts-appellants beyond reasonable doubt as the eye-witnesses produced by the prosecution were closely related to the deceased, their statements were replete with serious contradictions, they had failed to receive independent corroboration from the recoveries and had also failed to receive support from the medical evidence. According to the learned counsel for the convicts-appellants the prosecution had failed to satisfactorily explain the murder of Muhammad Sharif deceased; the convicts-appellants had acted in exercise of their right of private defence; and at any rate even according to the prosecution's own case the case in hand was one of a free fight and of individual liability of different culprits. They have gone on to maintain that the case in hand did not in/blue any terrorist activity and also that the convicts-appellants did not deserve capital punishment. As against that the learned counsel for the complainant as well as the learned counsel for the State have maintained that the prosecution had succeeded in establishing the convicts-appellants' guilt to the hilt and the circumstances of this case were such that the sentences passed against the convicts-appellants by the learned trial Court do not warrant any interference by this Court. They have further maintained that Muhammad Sharif deceased had been done to death by the convicts-appellants themselves in order to conceal their aggression against the complainant party and to give this case a twist so as to advance a plea of exercise of right of private defence.

They havealso argued that the brutality shown by the convicts-appellants does not call for any sympathy from this Court in the matter of sentence. They have also prayed that the acquittal of Muhammad Akram appellant from the charge pertaining the murder of Muhammad Sharif deceased ought to be reversed by this Court and the sentence of Muhammad Ali appellant may be suitably enhanced.

5. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has straightaway been noticed by us that the parties to this case are closely related to each other inasmuch as Muhammad Sharif deceased was the real father of Ashfaq Ahmad appellant and was an elder brother of the husband of Mst. Naziran Begum deceased besides being a brother-in-law of Lal Din Khan deceased. Inayat Ali, the husband of Mst. Naziran Bibi deceased and father of Ijaz Ahmad and Mumtaz Ahmad deceased, is a real brother of Muhammad Ali appellant, Jehangir appellant and one Nazir and all these four brothers are paternal uncles of Ashfaq Ahmad appellant. Lal Din Khan deceased was a brother-in-law of Muhammad Ali appellant and Jehangir appellant besides being a brother-in-law of the above mentioned Inayat Ali and Nazir. Nadeem alias Nannha appellant and Azeem Ali appellant are brothers and are sons of Jehangir appellant. Naseer Ahmad appellant and Munir Ahmad appellant are real brothers and are sons of Nazir who is a paternal uncle of Ashfaq Ahmad appellant.

Muhammad Akram appellant is a servant of Ashfaq Ahmad appellant. Ijaz Ahmad appellant is a son-in-law of the above mentioned Nazir and a brother-in-law of Naseer Ahmad and Munir Ahmad appellants. It has been admitted before us at all hands that the complainant party of this case is the descendent of one Sardar Khan and the accused party of this case is the descendent of one Ahmad Khan and the said Sardar Khan and Ahmad Khan were real brothers. Irshad Ahmad complainant and Mushtaq Ahmad (P.W.11) are real brothers and Mst. Naziran Begum deceased was their sister. Irshad Ahmad complainant and Mushtaq Ahmad (P.W.11) are maternal uncles of Ijaz Ahmad deceased and Mumtaz Ahmad deceased. Aamer, an injured victim in this case, is a son of Lal Din Khan deceased. It is not disputed that the closely related members of the complainant party and the accused party had been living in the same village throughout their lives and prior to the present occurrence no untoward incident of any serious proportion had ever taken place between them. Even according to the F.I.R. Itself the parties to this case were occupying eachothers' land and were utilizing the disputed Dhari together for the last about 30/35 years for tethering their cattle thereat.

6. We have further noticed that the Dhari in issue had been jointly owned by Muhammad Ali appellant and his brother Inayat Ali and this is so established from the statement of Bilal Ahmad Patwari (P.W.14) andhis statement in that regard had not been contested during his cross- examination. The F.I.R. Shows that Muhammad Ali appellant and the sons of his brother Inayat Ali namely Ijaz Ahmad deceased and Mumtaz Ahmad deceased used to jointly tether their cattle at that Dhari and it was only one week prior to the present occurrence that Muhammad Ali appellant had required Ijaz Ahmad deceased and Mumtaz Ahmad deceased to tether their cattle somewhere else but Lal Din Khan deceased had decided that Ijaz Ahmad deceased and Mumtaz Ahmad deceased would continue to tether their cattle at the same Dhari till such time that a new Dhari was constructed by them for the purpose. According to the F.I.R. Muhammad Ali appellant had accepted that decision of Lal Din Khan deceased but the brothers of Muhammad Ali appellant and his nephews had felt agitated over the same. This background of the recent bitterness between the parties had been admitted by the convicts-appellants in their statements recorded under section 342, Cr.P.C.

7. The controversy between the parties and the uncertain and unclear part of the story begins at this stage and the parties to this case are at variance on the point as to how the main occurrence taking place on 20-9-1998 had started. According to the F.I.R. At the fateful time in the afternoon of 20-9-1998 the complainant and others had received an information that the nine convicts- appellants were proceeding towards the Dhari in issue after making preparations for a fight with an ostensible purpose of evicting Ijaz Ahmad deceased and Mumtaz Ahmad deceased from the said Dhari and for taking possession of the same. It had been maintained in the F.I.R. That it was after receipt of that information that the complainant party also went after the accused party and then, when both the parties were available at the relevant Dhari, the convicts-appellants launched an assault upon the complainant party killing Mst. Naziran Begum, Ijaz Ahmad, Mumtaz Ahmad and Lal Din Khan deceased and injuring Mushtaq Ahmad (P.W.11) and a minor boy namely Aamer. It was further maintained in the F.I.R. That after the main occurrence was over the complainant party came to know that the dead body of Muhammad Sharif was lying in a field situated four Killas away from the disputed Dhari and, according to the complainant, Muhammad Sharif had also been murdered by the accused party itself. As against that the, accused party had maintained before the learned trial Court that Muhammad Sharif had been trying to pacify the parties at the spot at the relevant time but it was the complainant party which had done him to death and it was thereafter that the complainant party had sustained its injuries at the hands of the accused party.

In the peculiar circumstances of this case we have felt persuaded to understand that the actual circumstances in which Muhammad Sharif deceased was murdered in this case may hold the key to throwing light on the most probable circumstances in which five persons had lost their lives and two othershad sustained injuries at the spot at the relevant time and, thus, we have deemed it proper to analyze at the outset as to which version regarding Muhammad Sharif's death is .Correct and if both the rival versions are incorrect then what, in the circumstances of this case, was the most likely scenario in which the death of Muhammad Sharif deceased fits into this case.

8. In the F.I.R. Lodged by Irshad Ahmad complainant (P.W.10) and in the statement made by Mushtaq Ahmad (P.W.11) under section 161, Cr.P.C. Nothing whatsoever had been disclosed as to how Muhammad Sharif deceased, the father of Ashfaq Ahmad appellant, a brother of the husband of Mst. Naziran Begum deceased, a brother of Muhammad Ali appellant and Jehangir appellant and closely related to all others involved in this case, was murdered and by whom and as to how his dead body was available in a field situated four Killas away from the disputed Dhari. During the trial both Irshad Ahmad complainant (P.W.10) and Mushtaq Ahmad (P.W.11) had made glaring improvements in that regard and had maintained that Muhammad Sharif deceased was available with the accused party during the alleged occurrence and it was during the progress of that occurrence that he had received various injuries at the hands of the accused party itself which had deliberately mounted an assault upon him with an intention to kill him. We have found such blatant improvements by the eye-witnesses in this regard to be utterly unbelievable inasmuch as no explanation whatsoever had been advanced by the eye-witnesses as to why the close blood relations of Muhammad Sharif deceased would want to deliberately do away with him and that too when the accused party was itself pitched against the complainant party. It is nobody's case that Muhammad Sharif deceased was siding with the complainant party at that time or was sympathizing with the complainant party in its dispute with the accused party over the Dhari in issue. There is also no evidence available on the record to establish as to how and why the dead body of Muhammad Sharif deceased was removed from the place of occurrence to a field situated four Killas away. In this state of the prosecution's evidence the naked improvements made by the eye-witnesses in respect of the circumstances in which Muhammad Sharif deceased, a member of the accused party, had been done to death have been found by us to be liable to outright rejection. The explanation advanced in that regard by the accused party has also failed to inspire our confidence. According to the version of the accused party advanced through the statements recorded under section 342, Cr.P.C. Muhammad Sharif deceased was available at the disputed Dhari immediately prior to the present occurrence and it was the assault launched by the complainant party upon him that had prompted the other members of the accused party to retaliate there and then against the complainant party. We have, however, noticed that according to the record of this case thefirst version advanced by the accused party during the investigation of this case was got recorded before the Investigating Officer after about 7/8 months of the alleged occurrence and the said version had been found by the investigating agency to be untrue. The record further shows that the accused party had instituted a private complaint in respect of its version of the alleged incident only a couple of days before the final judgment was passed by the learned trial Court in the challan case against the accused party and that private complaint had been dismissed by the learned trial Court after finding no good reason for summoning the complainant party to face a trial in respect of the accused party's version. It is not disputed that the said dismissal of the accused party's private complaint by the learned trial Court had never been assailed by the accused party any further. The only witness produced by the accused party before the learned trial Court in support of its own version during the trial of the challan case was Muhammad Afzal (D.W.1) who was not only a chance witness but the explanation advanced by him for his presence at the spot at the relevant time was also absolutely unbelievable. It has, thus, not surprised us to learn that the said witness had been disbelieved and discarded by the learned trial Court and we have found no reason to disagree with the learned trial Court on that score. Apart from that we have found it to be unbelievable that Muhammad Sharif deceased was allowed by the accused party to sustain as many as eight injuries with fire-arm, sharp-edged weapon and blunt weapon and still his kith and kin in the accused party present at the spot had not intervened to save him despite being armed with a fire-arm and hatchets. In this view of the matter the explanation advanced by the accused party that Muhammad Sharif deceased had received his injuries in the presence of the accused party was devoid of any substance being unnatural and unbelievable. It may also be pertinent to mention here that if Muhammad Sharif deceased had received his injuries in the presence of the accused party then the accused party would not have left his deadbody at a place four Killas away from the spot and would have either left his deadbody at the spot or would have taken it away to its residential quarters. For all these reasons we have found that the explanations advanced by both the parties regarding the circumstances in which Muhammad Sharif deceased had lost his life and had a rendezvous with his death were not only far from being conclusively established but the same were also unbelievable and unacceptable.

9. The discussion made above prompts us to solve this mystery regarding the death of Muhammad Sharif deceased on our own through our independent assessment of the evidence available on the record and by reconstructing the story in that respect so as to find a clue to the real cause which led to the main occurrence. There is no denying the fact that the accused party, which included the only son and two real brothers of Muhammad Sharif deceased, had no earthly reason to kill Muhammad Sharif deceased. The medical evidence shows that Muhammad Sharif deceased had died around the same time at which the main occurrence had taken place. The story contained in the F.I.R. Creates an irresistible impression that Muhammad Sharif deceased had been done to death prior to the main occurrence. According to the F.I.R. The Main occurrence had been witnessed from its inception to its culmination and Muhammad Sharif deceased was not involved in the same. The dead body of Muhammad Sharif deceased was found in a field situated four Killas away from the place of the main occurrence and according to the F.I.R. Nobody had seen his murder. There is- no evidence available on the record that anybody had heard any fire report or hue and cry leading to the death of Muhammad Sharif deceased. We have, therefore, found it to be reasonable to conclude that Muhammad Sharif deceased had in fact been murdered immediately prior to the main occurrence and it was none other than the complainant party which could have done that. We feel fortified in this impression by the fact that Muhammad Sharif deceased had received as many as eight injuries on his body which had been caused by fire-arm, sharp-edged weapon and blunt weapon and if he had been murdered- during the main occurrence - that would have clearly established that the complainant party was armed with all the said three types of weapons during the main occurrence. If that were to be so then in order to meet the assault mounted by the accused party in the main occurrence the complainant party would certainly have used those weapons to defend itself but that was not to be. It is admitted at all hands that none from the present convicts-appellants had received any injury whatsoever on his person during the main occurrence. The only conclusion that we can draw in this respect is that Muhammad Sharif deceased had been done to death by the complainant party in the afternoon of the day of occurrence in a field situated four Killas away from the disputed Dhari and thereafter the complainant party had abandoned his dead body in that field, had gone back and had laid down its weapons not anticipating any immediate retaliation from the accused party. Upon receipt of information about the murder of Muhammad Sharif deceased by the complainant party the accused party rushed to the. Dhari in dispute, found the complainant party available thereat unarmed A and launched a concerted and premeditated attack upon the complainant party not by way of exercise of right of private defence and not by way of a free fight but by way of a vengeful retribution and retaliation. This impression formed by us draws strength from the fact that, having been blinded with rage and anger over the murder of Muhammad Sharif deceased, the accused party made an indiscriminate assault upon all the members of the complainant party and in that assault they did not spare even Mst. Naziran Begum deceased or even a minor boy namely Aamer aged about six years. The question of exercise of right of private defence would have been relevant if the accused party had found Muhammad Sharif deceased to be still under attack from the complainant party and a question of a free fight and individual liability would have cropped up if the accused party had confronted the complainant party immediately after the assault launched by the complainant party upon Muhammad Sharif deceased but there is no indication of that kind available on the record of this case.. We have, therefore, felt persuaded to conclude in the circumstances of this case that after receiving information about the murder of Muhammad Sharif deceased the accused party formed an intention to kill, armed itself with a fire- arm and hatchets, went to the place where the complainant party was available unarmed and then mounted a determined and concerted assault upon the complainant party in order to kill anybody who came its way. Such a response of the accused party to the murder of Muhammad Sharif deceased could not be said to be contemporaneous, unstructured or spontaneous but the, same could only be described as swift, prompt and concerted. The theories advanced by the learned counsel for the convicts-appellants regarding an exercise of right of private defence by the accused party and a free fight have, therefore, been found by us to be devoid of any merit or substance.

10. The next question to be considered is as to which of the convicts-appellants had actually participated in the said occurrence and against whom the prosecution's case had been proved beyond reasonable doubt. In this context we have observed that the occurrence in question had taken place in broad-daylight and the F.I.R. In that regard had' been lodged with reasonable promptitude. In the F.I.R. All the convicts appellants had been specifically nominated and definite roles had been attributed to each one of them therein and even before the learned trial Court the eye-witnesses produced by the prosecution had consistently deposed about their presence and participation in the main occurrence. One of the eye-witnesses produced by the prosecution, i,e, Mushtaq Ahmad (P.W.11) had the stamp of a fire-arm injury on his person and thus, his availability at, the spot at the relevant time was quite obvious. It may be true that the statements made by the eye-witnesses before the learned trial Court went astray' to some extent in respect of some attributions contained in the F.I.R. But at the same time we cannot lose sight of the fact that in a large-scale incident like the one in the present case such variations were natural to have occurred.

However, by and large, the presence and participation of the convicts-appellants in the occurrence had consistently been deposed by the eye-witnesses. The motive set up by the prosecution revolving around the dispute between C' the parties over the relevant Dhari had not been denied or controverted by the convicts-appellants in their statements recorded under section 342, Cr.P.C. The murder of Muhammad Sharif deceased by the complainant party of this case immediately before the present occurrence had ignited the said motive and had propelled the accused party into action by way of retaliation and, thus, the motivation on their part to physically harm as many members of the complainant as they could was written large on the face of this case. A lot of emphasis has been laid by the learned counsel for the convicts-appellants before us upon some contradictions between the medical evidence and the ocular account but even such contradictions were explainable because of the large scale of the incident and participation in the same by a large number of persons from both the sides. What is relevant for the present purposes is that most of the attributions against all the convicts-appellants, except Ijaz Ahmad appellant, had found support from the medical evidence. Ascension of Muhammad Akram appellant had provided corroboration to the prosecution's case against him. Even otherwise murder of five persons and causing of injuries to two others could not, have been accomplished by a lesser number of culprits. After assessing and evaluating the evidence available on the record in depth we have arrived at a confident conclusion that except to the extent of Ijaz Ahmad appellant the prosecution had succeeded in establishing that all other convicts-appellants had actually participated in the occurrence in this case with common object. As far as Ijaz Ahmad appellant is concerned we have noticed that according to the prosecution's case the only role played by him in the occurrence in question was that of causing an injury on the back of right hand of Ijaz Ahmad deceased but the Post-mortem Examination Report in respect of the said deceased showed that the said deceased had not sustained any such injury. No other injury to any other person had been attributed to this appellant. No weapon had been recovered from the possession of this appellant during the investigation of this case. He was not directly connected with the motive set up by the prosecution. We have, therefore, decided to extend the benefit of doubt to this appellant.

11. After the conclusions of fact ,arrived at by us above we now proceed to examine as to which offences had been proved to have been committed by the accused party of this case and how different convicts-appellants are to be treated by us. The results of our deliberations in this regard are recorded in the following paragraphs.

12. It is admitted at all hands that Jehangir appellant has already died and, therefore, Criminal Appeal No, 1368 of 1999 has abated to his extent.

13. We have already observed above that the prosecution had failed to prove its case against Ijaz Ahmad appellant beyond reasonable doubt and, thus, Criminal Appeal No, 1368 .Of 1999 is allowed to his extent, his convictions and sentences recorded by the learned trial Court are set aside and he is acquitted of all the charges. He shall be released from the jail forthwith if not required in any other case.

14. The convictions recorded and sentences passed by the learned trial Court against all the convicts-appellants for an offence under sections 6/7 of the Anti-Terrorism Act, 1997 have been found by us to be unsustainable. In this context we have found that according to the provisions of the Anti-Terrorism Act, 1997, as they stood at the relevant time in un-amended form, a Special Court .Constituted under the said Act had been conferred the jurisdiction to try the offences under the said Act and also the jurisdiction to try all other offences mentioned in the Schedule appended with that Act. The case in hand had been tried by an Anti-Terrorism Court because it involved "more than one victim" and by virtue of the provisions of item No, (2)(a)(iii) contained in the Schedule of that Act murder cases involving more than one victim could be tried by an Anti- Terrorism Court but the punishment for such murders was to be governed by the Pakistan Penal Code. It had been held by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Amin v. The State 2002 SCM R 1017 that the offences under section 302, P.P.C. And sections 6/7 of the Anti- Terrorism Act, 1997 are quite distinct and separate from each other. In the present case in order to secure a conviction of the accused party for an offence under section 6 of the Anti-Terrorism Act, 1997 and for obtaining its punishment under section 7 thereof it had to be established by the prosecution that the accused party had committed a "terrorist act" as defined in section 6 of the said Act as it stood at that time. The essential ingredient of a "terrorist act" as it was defined at that stage was that the criminal activity allegedly committed by the accused party had to be committed in order "to strike terror in the people or any section of the people or to alienate any section of the people or adversely affect harmony among different sections of the people" which surely was not the motivation of the accused party in this case. In the year 1999 an amendment was introduced in section 6 of the Anti-Terrorism Act, 1997 enlarging the definition of a "terrorist act" and encompassing within its fold an activity which was "likely to" cause fear and insecurity in the minds of the people but that amendment was introduced subsequent to the present occurrence and the same was not applicable to the case in hand. Be that as it may, the fact remains that no witness belonging to the complainant party had uttered even a single word about any fear and insecurity created in the society at large on account of the criminal activity of the accused party and Mukhtar Ahmad, D.S.P. (P.W.17), the Investigating Officer, had stated before the learned trial Court in black and white that no evidence had been produced before him nor he had himself collected any evidence regarding fear and insecurity spreading in the locality due to the actions of the accused party. Even otherwise, as already held above, the motivation on the part of the accused party in the present case was a retaliation against the complainant party after the murder of Muhammad Sharif deceased and such motivation was based purely upon a personal and private grievance which had no nexus with the objects of the Anti-Terrorism Act, 1997. In this view of the matter by virtue of the law declared by the Hon'ble Supreme Court of Pakistan in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) the convicts-appellants could not have been convicted by the learned Anti-Terrorism Court, Faisalabad for an offence under section 6 read with section 7 of the Anti-Terrorism Act, 1997. The convictions and sentences of the appellants recorded by the learned trial Court on that count of the charge are, therefore, set aside and they are acquitted of the said charge.

15. The convictions and sentences of the convicts-appellants, other than Ijaz Ahmad appellant, for an offence under section 148, PPC are upheld and maintained.

16. The convictions and sentences of the convicts-appellants, other than Ijaz Ahmad appellant, for offences under sections 324/149 and 337-L(2)/149., PPC in respect of Mushtaq Ahmad (PW11) are upheld and maintained.

17. It has been argued before us by the learned counsel for the convicts-appellants that the convictions and sentences of the convicts-appellants in respect of causing injuries to the minor injured victim namely Aamer are not sustainable because the said injured, victim had never made any statement before the learned trial Court. We have, however, remained unable to subscribe to this submission of the learned counsel for the convicts-appellants. In the case of Manzoor and others v. The State and others (1992 SCM R 2037) it had been held that "Under the Islamic Law punishment could not be awarded for the injuries of those injured who did not appear at the trial nor accounted for their absence satisfactorily. Similarly, under Qisas law the conviction and sentence could not be awarded for the injured who appeared at the trial but were not able to name their assailants. In the present case all the injured were unable to name their assailants.

Such a situation should have been dealt with under Ta'zir". The present case was surely one of Ta'zir and not of Qisas and the record of this case clearly shows that the injured victim namely Aamer had in fact been produced by the prosecution before the learned trial Court for the purposes of getting his statement recorded but the learned trial Court had found him to be a minor and, thus, incapable of making a statement before the Court. In these circumstances the absence of a statement of the said minor victim stands satisfactorily explained and accounted for in this case.

Even otherwise we have found that in Ta'zir cases a blindfolded adherence to this principle of Islamic Law pertaining to cases of Qisas may lead to unwholesome and unpalatable consequences because it may entail automatic acquittal of accused persons in all cases of hurt, etc. Where the victims are of very young ages or insane and, thus, incapable of making statements before a Court of law. After all if in a murder case of Ta'zir a dead person's injuries can be proved by a doctor and the perpetrator can be identified and pointed out by the living eye-witnesses then why should the same principle be not applicable to Ta'zir cases of hurt where the victims are incapable of deposing before the Court on account of their minority or insanity! In the case in hand the absence of the minor victim's statement before the learned trial Court stood satisfactorily explained and accounted for and the factum of sustaining of injuries by him at the hands of the accused party stood amply proved through the ocular account supported by the medical evidence and, therefore, the convictions and sentences of all the convicts-appellants, other than Ijaz Ahmad appellant, for offences under sections 324/149, PPC and 337-F(v)/149, P.P.C. In respect of causing of injuries to the said injured victim are upheld and maintained by us.

18. The convictions and sentences of the convicts-appellants for an offence under section 302, P.P.C. Read with section 149, PPC on the count of the charge pertaining to the murder of Muhammad Sharif deceased are set aside as it has already been held above by us that Muhammad Sharif deceased had been murdered by the complainant party of this case and not by the convicts-appellants.

19.The convictions of the convicts-appellants, other than Ijaz Ahmad appellant, on all the other counts of the charge under sections 302/149, P.P.C. Are, however, upheld and maintained. As regard the sentences passed by the learned trial Court on those counts we have noticed that for the murders of Mst. Naziran Begum deceased, Ijaz Ahmad deceased and Mumtaz Ahmad deceased the convicts-appellants had been awarded the lesser sentences of life imprisonment each on account of the fact that Inayat Ali, an important heir of the said three deceased, had forgiven the convicts-appellants. It may be true that a partial compromise in a case of Ta'zir cannot enure to the benefit of a culprit regarding his conviction but at the same time it is equally true that the matter of sentence surely lies within the discretion of the trial Court and in an appropriate case a partial compromise can validly be considered to be a mitigating factor qua the question of sentence. The learned counsel for the State has referred to the cases of Bashir Ahmed v. The State and another (2004 SCM R 236) and Niaz Ahmad v. The State (PLD 2003 SC 635) maintaining that in the said cases the Hon'ble Supreme Court of Pakistan had refused to give effect to partial compromise and had also refused to reduce the sentence of death (in that score. We have gone through the judgments passed in the said present cases but those cases have respectfully been found by us to be clearly distinguishable from the case in hand. In the first of the said cases the conviction and the sentence of death passed against the convict had already been upheld and maintained by the Hon'ble Supreme Court and the partial compromise in that case was a subsequent development and in that backdrop the Hon'ble Supreme Court had refused to give effect to such partial compromise even in the matter of sentence at that stage of that case whereas in the present case the learned trial Court seized of the original trial had itself, exercised its own lawful jurisdiction and discretion in the matter of sentence and had considered a partial compromise to be a valid basis to be considered towards mitigation of the sentences of the convict appellants. In the second case mentioned above the brutality perpetrated by the convict was found to be such that the Hon'ble Supreme Court had not felt persuaded to reduce the convict's sentence of death to imprisonment for life on the solitary ground of a partial compromise, It goes without saying that in a case of Ta'zir even a complete compromise may not be accepted by the Court as the matter of compounding of an offence statutorily requires the blessings and approval of the Court and in the circumstances of a given M case such an approval may not be granted by the Court. There is no cavil with the proposition that as held by the Hoit'ble Supreme Court of Pakistan in the case of Sh. Muhammad Aslam v. Shaukat Ali alias Shauka (1997 SCM R 1307), a partial compromise cannot be given effect to in a case of Ta'zir as far as the matter of compounding of the offence N is concerned but the matter of sentence is entirely a different matter and the same lies within the jurisdiction and discretion of the trial Court. The case Of Sh.

Muhammad Aslam v. Shaukat Ali aliai Shauka (1997 SCM R 1307), had been expressly referred to and relied upon by the Hon'ble Supreme Court in both the above mentioned precedent cases cited by the learned counsel for the State. In the said case of Sh. Muhammad Aslatil in a case of Ta'zir a learned Division Bench of this Court had reduced the sentence of death passed by the learned-trial Court against the convict to imprisonment for life on account of a partial compromise and the convict had maintained before the Hon'ble Supreme Court that due to the partial compromise he was entitled to take advantage of the provosts of section 309(2), PPC and could be released by paying Diyat to the heirs of the deceased who had not entered into the compromise. That argument on behalf of the convict was repelled by the Hon'ble Supreme Court on the ground that the provisions of section 309(2), P.P.C. Relate to a case of Qisas and not to a case of Ta'zir and as the case against that convict was one of Ta'zir, therefore, the convict could not take advantage of the partial compromise. It, is respectfully submitted that it was never held in that case by the Hon'ble Supreme Court that in a case of Ta'zir a partial compromise cannot be considered to be a valid factor towards mitigation of sentence. As a matter of fact reduction of the sentence of thee convict in that case of Ta'zir by this Court on the basis of a partial compromise had not been interfered with by the Hon'ble Supreme Court. In that legal backdrop and in view of the peculiar circumstances of this case we have found no illegality in the awarding of lesser sentences of imprisonment for life against the convicts-appellants in respect of the above mentioned three murders. The sentences of death passed against the convicts-appellants for an offence under sections 6/7 of the Anti-Terrorism Act, 1997 have already been set aside by us, the convicts- appellants have already been acquitted by us from the charge of murder in respect of Muhammad Sharif deceased and for three other charges of murder the convicts-appellants had not been sentenced to death by the learned trial Court. The only remaining count for an offence under section 302, PPC read with section 149, P.P.C. Entailing the sentence of death against the convicts-appellants is in respect of the murder of Lal Din Khan deceased and in that regard we have found multiple and sufficient mitigating circumstances floating on the surface of the record warranting reduction of the sentences of the convicts-appellants on that count. Firstly, the murder of Lal Din Khan deceased by the accused party was preceded by a murder of Muhammad Sharif deceased by the complainant party and it was in retaliation of that murder that the accused party had reacted and resorted to violence against the complainant party. In the circumstances of this case discussed above we have found that the accused party had committed the murder of Lal Din Khan deceased in hot blood and not in cold blood and the murder of Lal Din Khan deceased was a direct result of provocation offered to the accused party by the complainant party itself. The retaliation by the accused party was a result of an impulsive reaction but unfortunately it had overreacted. It had been held by the Hon'ble Supreme Court of Pakistan in the case of Ghulam Abbas v. Mazhar Abbas and another (PLD 1991 SC 1059) that in a case where the provocation preferred by the complainant party was not grave and sudden the erstwhile provisions of Exception 1 to section 300, P.P.C. Did not stand attracted but the fact that the murder had been committed on account of provocation offered by the complainant party could validly be considered as a mitigating circumstance for reduction of a sentence of death to that of imprisonment for life. In the peculiar circumstances of this case we have felt persuaded to adopt that course. Secondly, it is not clear as to who had caused the fatal injury to Lal Din Khan deceased and, therefore, it would be oppressive and unjust to send a number of persons to the gallows in the absence of any certainty as to who was actually responsible for terminating his life. In view of all these considerations the sentences of death passed by the learned trial Court against the convicts-appellants on the count of the charge pertaining to the murder of Lal Din Khan deceased are reduced to imprisonment for life each.

20. We have noticed that in the matter of passing of sentences in default of payment of compensation by the convicts-appellants under different counts of the charge the learned trial Court had passed sentences in clear disregard of the provisions of section 544-A, Cr.P.C. It is hereby clarified that in default of payment of compensation under all the relevant counts of the charge the convicts-appellants shall undergo simple imprisonment for six months each on each relevant count and the impugned judgment passed by the learned trial Court is hereby modified to that extent.

21. All the sentences of imprisonment passed against the convicts-appellants shall run concurrently and the benefit under section 382-B, Cr.P.C. Shall be extended to them.

22. As a result of the discussion made and the conclusions arrived at above Criminal Appeal No, 923 of 2002 filed by the State and Criminal Revision No, 1032 of 2002 filed by the complainant are dismissed and Criminal Appeal No, 1368 of 1999 and Criminal Appeal No, 900 of 2002 are disposed of in the terms stated above. Murder Reference No, 501-T of 1999 and Murder Reference No, 63-T of 2002 are answered in the negative and the sentences of death passed against the relevant convicts-appellants by the learned trial Court are not confirmed.