Shahid vs State

CJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

Criminal Appeal No. 745 of 2007 (Shahid etc Vs. The State etc. ) Criminal Appeal No. 867 of 2007 (Sultan Ahmad Vs. Muhammad Iqbal etc.) Criminal Appeal No. 1074 of 2007 (Sultan Ahmad Vs. Mudassar etc.)

(C.S.R NO. 37-T of 2007) Date of hearing: 20.10.2014 Appellants by: Ch. Muhammad Anwar Bhinder, Advocate Ms. Bushra Qamar, Advocate/ Defence counsel on state expenses.

Complainant by: Mr. Ijaz Feroze, Advocate State by: Mr. Khurram Khan, DPG

Sadaqat Ali Khan, J.: This single judgment shall dispose of Criminal Appeal No. 745 of 2007 filed by Shahid, Muhammad Azam and Mudassar appellants (against their convictions), Criminal appeal No. 867 of 2007 filed by complainant Sultan Ahmad appellant (against the acquittal of Muhammad Iqbal, respondent No.1) and Criminal Appeal No. 1074 of 2007 filed by complainant Sultan Ahmed appellant (for enhancement of the sentences of Mudassar, Rizwan and Asghar Ali respondents No. 1 to 3) and C.S.R No.37-T of 2007 sent by the learned trial court i.e. Judge Anti-Terrorism Court-II, Gujranwala for confirmation of the death sentences of appellants Shahid and Muhammad Azam or otherwise as all four matters have arisen out of the same judgment dated 09.05.2007 passed by learned Judge, Anti-Terrorism Court-II, Gujranwala according to which the present appellants/convicts were convicted and sentenced as under:- “(i) Shahid was convicted under section 7 (a) of the Anti-Terrorism Act, 1997 read with section 302 (b) PPC and sentenced to death along-with fine of Rs.50,000/- and in default thereof further undergo three months S.I.

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(ii)Muhammad Azam was convicted under section 7 (a) of the Anti-Terrorism Act, 1997 read with section 302 (b) PPC and sentenced to death along-with fine of Rs.50,000/- and in default thereof further undergo three months S.I.

(iii)Mudassar was convicted under section 7 (c) of the Anti-Terrorism Act, 1997 read with section 324 PPC and sentenced to ten years R.I along-with fine of Rs.25,000/- and in default thereof further undergo two months S.I.

Whereas, Muhammad Iqbal, Mudassar above stated appellant, Asghar and Rizwan were acquitted by the trial court through the impugned judgments under sections 302, 324, 148/149 PPC read with section 21-I, 7 (A & B) of ATA 1997 but Rizwan and Asghar have been convicted under section 337-A(i) of PPC with the sentence of one year R.I. and with payment of ‘Daman’ Rs.5,000/- each on two counts and in default thereof further one month S.I on two counts with benefit of section 382-B Cr.P.C (Rizwan and Asghar convicts on second round did not file appeal against their convictions under section 337-A(i) and they have been served out their sentences above as stated by the learned counsel for the appellants) in case FIR No. 256 dated 22.11.2002 under sections 302, 324, 337-H(ii), 337-A(i), 337-F(iii), 337-A(i), 148/149 PPC read with Section 6/7 of Anti-Terrorism Act, 1997 police station, Ahmad Nagar, District Gujranwala.

2.The facts of the case has been stated by Sultan Ahmad complainant/PW-14 real brother of Ghulam Muhammad deceased in his statement before the learned trial court and same statement is hereby reproduced for narration of the facts: - “About one year 7 1⁄2 months before I Ghulam Muhammad Saif Ullah, Javed, Zia Ullah, Muhammad Ramzan s/o Muhammad Yousaf, Muhammad Ramzan s/o M. Ishaq, Razzaq were coming back from graveyard. When we reached near shop of Hafiz Muhammad Ashfaq at about 5:30 p.m. Muhammad Azam, Muhammad Iqbal accused armed with pistol (both are real brothers), Mudasar, Imran, Mubashar was armed with pistol, Mudassar was also armed with pistol, Imran was armed with gun, Asghar s/o Akbar armed with Sota, Shahid armed with pistol, Babar armed with pistol, Ansar armed with Rifle, Rizwan armed with Sota, Sajjad armed with Sota, Mohsin armed with pistol, Gulzar mason empty handed came there. Gulzar mason

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raised Lalkara that they be caught hold and be done to death. Iqbal fired with pistol upon Ghulam Muhammad which hit upon his front side of neck. He fell down. Thereafter, Shahid fired upon Saif Ullah which hit upon his chest. Then Mubbashar fired upon Saif Ullah which hit upon his body. He also fell down. Then Azam fired upon Javed which hit upon his chest. He also fell down. Ansar who was armed with rifle were firing in the air and was spreading terror. The Mudassar fired upon Zia Ullah. Zia Ullah became injured. Then Babar went in the house of my brother Muhammad Ishaaq and fired upon Mst. Anwar Bibi. Then Imran fired by which Muhammad Ramzan s/o Muhammad Yousaf was injured. Then Asghar and Rizwan accused injured Ishaaq and Ramzan with dandas. I, Aman Ullah, Anwar and fie injured were present at the spot and saw the occurrence. Saif Ullah, Ghulam and Javed succumbed to the injuries at the spot. The accused while abusing and waving their weapons went away from the spot. Zia Ullah, and Mst. Anwar Bibi were shifted to hospital in a vehicle.

The occurrence had taken place at the instance of Karamat, Amanat, Nawab, Nawab accused. Karamat accused is Inspector. This occurrence had been taken place at the instance of Karamat Inspector who stated that he would handle the case. I went to take the police when I reached at Chattha Petrol Pump, police was already present there. I reported the matter with the police”

3.After registration of the case, investigation started and on completion of the investigation report under section 173 Cr.P.C was submitted in the trial court.

4.Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 30.08.2003 against present appellants/convicts Shahid, Muhammad Azam, Mudassar and their co-accused namely Rizwan, Ansar, Asghar, Imran, Sajjad Ali, Muhammad Iqbal, Mohsin Ali, Karamat Ali, Amanat Ali (died during the trial), Muhammad Nawaz and Nawab Ali (since acquitted) under section 7-A, C and 21-I of ATA-1997 read with sections 302, 324, 148/149 PPC to which they pleaded not guilty and prosecution evidence was summoned.

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5.Prosecution produced Dr. Capt. Muhammad Khalid Ch. PW-1, Dr. Shahid Nawaz Ahmad PW-2, Dr. Dr. Irshad Ullah PW-3, Muhammad Farooq PW-4, Muhammad Arshad PW-5, Masood Ahmad Bhatti Draftsman PW-6, Dr. Shahid Masood Ch. PW-7, Muhammad Abdullah PW-8, Muhammad Qasim PW-9. Dr. Roohi Yasmin WMO PW-10, Shahbaz Ahmad PW-11, Javed Iqbal PW-12, Qaiser Nawaz, Constable PW-13, Sultan Ahmed PW-14, Muhammad Ramzan PW-15, Zia Ullah PW-16, Zia Ullah PW-17, Imtiaz Farooq F.C-58 PW-18, Muhammad Riaz Constable PW-19, Abdul Hameed ASI PW-20, Muhammad Arshad PW-21, Muhammad Anwar PW-22, Muhammad Riaz PW-23, Mehmood Ahmed SI PW-24,, Malik Manzoor Ahmad DSP PW-25 whereas PWs namely Inayat, Noor Muhammad were given up by the prosecution being unnecessary and tendered in evidence death report Ex.PAA/1, death report Ex.PBB/1, copy of postmortem report and pictorial diagram Ex.PB, reports of Chemical Examiners Ex.PDD, Ex.PDD/A, Ex.PDD/B, reports of Serologist Ex.PEE, Ex.PEE/A, Ex.PEE/B, recovery memo of blood stained earth Ex.PF, recovery memo of blood stained earth Ex.PG, recovery memo of blood stained earth Ex.PH, recovery memo of blood stained clothes Ex.PJ to Ex.PL, copy of postmortem report and pictorial diagrams Ex.PN and Ex.PO, complaint Ex.PP, FIR Ex.PP/1, recovery memo of pistol 30-bore Ex.PQ, recovery memo of Sotas Ex.PR to Ex.PT, recovery memo of pistol 30 bore Ex.PU, recovery memo of Sota Ex.PV, complaint Ex.PW, FIR Ex.PW/1, copy of FIR dated 1.10.2003 Ex.PX, recovery memo of pistol 30 bore Ex.PY, death report Ex.PY/1, dead report Ex.PZ/1 and closed the prosecution evidence.

6.Medical evidence was furnished by Dr. Shah Nawaz Cheema, M.O THQ, Hospital Wazirabad District Gujranwala PW-2 who stated that on 23.11.2002 he conducted postmortem examination on the dead body of Saif Ullah deceased and observed as under:-

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“External appearance.

The dead body was of a young man of average built, wearing qameez and Shalwar of off-while coloured and vest of off-while colour. Corresponding boles were present on Qameexz and Vest, which were blood stained. Body was pale blooking, while mouth and eyes semi open. Rigor mortis were present in all the four libs and postmortem staining were also present.

Injuries

1.A firearm would of entry with inverted margins measuring 5 cm x 5 cm, 2 cm right to the midline and 7 cm from the inner side of right nipple, burning and blackening were present injury was going deep, on the front of Rt. Chest.

2.A firearm wound of exit with everted margins measuring 1.5 cm x 1 cm going deep on the middle and back of left chest, 6 cm to the left of middle.

3.Contused swelling 4 cm x 2 cm on the left of top of head

4.Contused swelling measuring 5 cm x 3 cm on the right side of top of head. On discetion.

I performed the dissection of the dead body. Scalp found injured corresponding to injuries No.3 and 4. Skull bone was healthy and skull cavity was opened. Verterbea not opened. It was healthy. Membrans and brains were opened and found to be healthy. Spinal cord was healthy and not opened. Thorax.

Right third costal cartilage was damaged, corresponding to injury No.1. Corresponding pleura was injured and cavity was full of blood. Right lungs was also injured. Aortic arch was injured. Heart was empty and healthy. Left lung was healthy. Larynx and trachea were also healthy.

Abdomen.

All the parts of body wall and cavity were healthy. Stomach was empty and healthy. Small intestine was empty healthy. Large entestine was full of gas and digested matter. Liver and spleen and kidneys were also healthy. Urinary bladder was healthy and empty. Organs of generation were healthy.

Remarks and opinion.

In my opinion all the injuries were ante- mortem in nature and injury No.1 is sufficient to cause death in ordinary course of nature because of excessive internal bleeding leading to haemorrhage shock and

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death. Probable duration in between injuries and death was immediate and probable time in between death and postmortem examination was 13 and 14 hours”

Dr. Shahid Masood Chaudhary, SMO IPOH, Lahore PW-7 who stated that on 23.11.2002 at 09:35 a.m he conducted postmortem examination on the dead body of Muhammad Javed deceased and observed as under:-

“EXTERNAL APPEARANCE:

It was a dead body of a young person with face pale, eyes and mouth were closed. Rigor mortis were present. Postmortem staining were also present. The dead body was wearing shalwar, qameez coloured gray, white vest, which were blood stained and were signed by me and werealso handed over to the police.

ON DISSECTION:

1.A fire arm enterance wound with inverted margins 1 cm x 1.5 cm x going deep on the front of the right chest 1 cm medial mid-line 9 cm from the right nipple.

CRANIUM AND SPINAL CORD:

Skull, scalp opened and were found healthy, vertebrae were not opened, membrain and brain were opened and were found healthy. Spinal cord was not opened.

THORAX:

All the organs were healthy, except Paricardium and heart which were injured.

ABDOMEN:

All the organs were healthy, except diaphragm and small intestines, which were injured. Stomach was empty, small intestines contained fecal gases, bladder was empty.

MUSCLES, BONES AND JOINTS:

The injury already mentioned. Disease, deformity and fracture nil.

OPINION:

In my opinion all the injuries were ante- mortem in nature. Injury No.1 fatal enough, causing reputure of the heart, which causes excessive bleeding which leads to shock and death.

The probable time elapsed in between the injury and death was within half an hour, and that in between death and postmortem examination was within 16 to 17 hours”.

Likewise, on the same day at 09:00 a.m the said doctor namely Shahid Masood Chaudhary, SMO

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IPH, Lahore PW-7 conducted postmortem examination on the dead body of Ghulam Muhammad deceased and observed as under:-

“EXTERNAL APPEARANCE:

It was a dead body of a middle age 50/51 years (about), eyes and mouth were close, face pale, rigor mortis and postmortem staining were present, on the dependent parts of the dead body. The dead body was wearing light brown coloured Qameez and shalwar, white vest, which were blood-stained and were signed by me and were also handed over to the police.

ON DISSECTION:

1.A fire arm entrance wound with inverted margins going deep on the front on the right side of the chest 2 cm below the right clavicle 2 cm from medial to mid-line, measuring 2 cm x 1 cm.

SKULL AND SCALP

Opened and were found healthy, vertebrae were not opened, membrain and brain were healthy, spinal cord was not opened.

THORAX:

All organs were found healthy, except 4th left rib which was fractured and injured, Walls, ribs, cartilages were also fractured. Left lung injured. Heart was empty.

ABDOMEN:

All organs were found healthy. Stomach, large intestines, small intestines, bladder were empty. Small intestines was containing fecal gasses matter.

MUSCLES, BONES AND JOINTS:

Injuries have already been mentioned. Disease, dislocation nil. 4th left rib was fractured.

OPINION:

In my opinion all the injuries were ante- mortem in nature. Injury No.1 was fatal enough in ordinary course of life. Injury No.1 caused excessive hemorrhage which leads to shock and death.

Probable time in between injury and death was within half an hour and in between death and postmortem examination was within 15 to 16 hours”.

7.On the other hand, statements of present appellants Shahid, Muhammad Azam, Mudassar and their co-accused (since acquitted) were recorded under section 342 Cr.P.C who refuted the allegations so leveled against them and have not opted to appear as a witness under section 340(2) Cr.P.C and produced in defence evidence Muhammad Nawaz ASI DW-1 and

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Zulifqar Ali as DW-2 and in reply to questions No. 12 “why this case against you and why the PWs deposed against you?” the appellant Shahid replied as under:- “Actually the complainant party assaulted at our houses and we came out while the complainant party was armed with firearms and deceased as well as injured were caused injuries by way of firing made by the complainant party and I have been falsely involved in this case”.

Likewise, in reply to question “why this case against you and why the PWs deposed against you?” the appellant Muhammad Azam replied as under:- “That the complainant party assaulted on our houses and after hearing voices I came later on, while I was empty handed and the complainant party due to mala-fide intention, grudge and enmity involved me in this case falsely”.

Likewise, in reply to question No.12 “why this case against you and why the PWs deposed against you?” the appellant Mudassar replied as under:- “I have been falsely involved in this case. I was not present at the spot at the relevant time. I was away from my house in connection with my job. The complainant has no knowledge about the occurrence”.

8.After conclusion of the trial, learned trial court convicted the present appellants Shahid, Muhammad Azam and Mudassar with above stated sentences through judgment dated 09.05.2007. Hence this appeal.

9.Learned counsel for the appellants contended that:-

(i)the judgment of the trial court dated 09.05.2007 is against law and facts on the file and is liable to be set-aside.

(ii)that the prosecution has failed to prove its case against the present appellants as there are many major discrepancies in the statements of the PWs further there is conflict between ocular evidence and medical evidence and the learned trial court has convicted the appellants on the basis of surmises and conjectures;

(iii)it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law;

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(iv)lastly submitted that appeal may be accepted and the judgement of the trial court dated 09.05.2007 may kindly be set aside and appellants may be acquitted.

10.On the other hand, learned DPG assisted by learned counsel for the complainant has vehemently opposed the appeal and submitted that: -

(i)prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the present appeal. 11 Learned counsel for the complainant while arguing in criminal appeal No.867 of 2007 has submitted that: -

(i)as the prosecution has proved its case beyond shadow of doubt against Muhammad Iqbal respondent No.1 so learned trial court wrongly acquitted him whereas in view of the facts and the circumstances of the case, he is liable to be convicted as provided under the law;

12.Learned counsel for the complainant while arguing in criminal appeal No.1074 of 2007 has submitted that: -

(i)as the prosecution has proved its case beyond shadow of doubt against Mudassar appellant/respondent No.1 and Rizwan and Asghar Ali respondents No.2 & 3, so learned trial court wrongly awarded them lesser punishment and in view of the facts and the circumstances of the case, they are liable to be awarded maximum punishment as provided under the law;

13.We have heard the learned counsel for the parties and perused the record.

14.It is important to note here that initially seventeen (17) following accused have been mentioned by Sultan Ahmed complainant/PW-14 in his written application dated 22.10.2002 Ex.PP upon which FIR Ex.PP/1 was

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registered on 22.11.2002 at police station Ahmed Nagar district Gujranwala:- “1. Shahid present appellant, 2. Rizwan, 3. Ansar, 4. Asghar,5. Imran, 6. Mubashir, 7.Muhammad Azam present appellant,8.Sajjad, 9. Muhammad Iqbal, 10.Mohsin Ali, 11.Karama Ali,12.Amana Ali 13. Muhammad Nawaz, 14. Nawab Ali, 15. Mudassar Present appellant 16. Babar and 17. Gulzar”

15.On 07.11.2003, learned trial court framed the charge against the accused 1 to 15 stated above whereas accused Babar and Gulzar were declared POs (who were still POs).

16.Amanat Ali accused during the trial had died.

17.In the first judgement dated 30.11.2005, (which had been set aside by this court by accepting criminal appeal No. 187 of 2006 and 1971 of 2005 and remanded the matter back to the learned trial court for rewriting the judgment after hearing all concerned parties).

18.Learned trial court acquitted Mubashir, Iqbal, Imran, Ansar, Sajjad, Mohsin, Karmat Ali, Muhammad Nawaz and Nawab Ali whereas convicted Rizwan and Asghar under section 337-A(i) of PPC and sentenced them with one year imprisonment and fine of Rs.5000/- each on two counts and in default thereof one month S.I with benefit of section 382-B Cr.P.C and acquitted them under sections 302, 324, 148/149 PPC and 7 ATA

19.Mudassar accused was convicted under section 7 (c) of ATA 1997 and sentenced to 10 years imprisonment R.I. with fine of Rs.25,000/- and in default thereof two months S.I with benefit of section 382-B Cr.P.C

20.Shahid was convicted under section 7(a) of ATA 1997 with death penalty and fine of Rs.50,000/- in default thereof three months S.I for the murder of Saif Ullah deceased.

21.Azam was convicted under section 7 (a) of ATA 1997 with death penalty and find of Rs.50,000/- and in default thereof three months S.I for the murder of Javed deceased.

22.Shahid, Azam, Rizwan, Asghar and Mudassar convicts against above stated judgment of the trial court dated 30.11.2005 filed criminal appeal No. 1971 of 2005 against their conviction stated above whereas complainant Sultan Ahmed filed criminal appeal No. 187 of 2006 against above stated judgment of the trial

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court for the acquittal of Muhammad Iqbal, Rizwan and Asghar (because Rizwan and Asghar were convicted only under section 337-A(i) PPC stated above), Mubashir, Imran, Ansar, Sajjad Ali, Mohsin Ali, Karamat, Muhammad Nawaz and Nawab Ali before this court.

23.Criminal Appeal No. 187 of 2006 filed by complainant Sultan Ahmed was allowed only to the extent of Muhammad Iqbal acquitted accused (respondent No.1 of instant criminal appeal No. 867 of 2007, Asghar Ali and Rizwan respondents in the instant Criminal appeal No. 1074 of 2007) whereas criminal appeal No. 1971 of 2005 stated above was also allowed through same judgment dated 27.2.2007 passed by this court and case was remanded back to the learned trial court for rewriting of the judgment after hearing learned counsel for the parties. Relevant paras No. 12, 13 & 14 of that judgment are hereby reproduced for reference: - “At the very outset, it has been noticed that the learned trial court has convicted the appellant shahid son of Asghar, under section 7(a) of the Anti- Terrorism Act 1997, for committing murder of Saif Ullah deceased and awarded him death penalty and fine of Rs.50,000/- failing which to further undergo three months S.I. For committing the murder of deceased under section 7 (a) of the Anti- Terrorism Act 1997, appellant No.2, Azam was awarded death penalty and fine of Rs.50,000/- or in default to further undergo 3 months S.I. Rizwan and Asghar appellants No. 3 & 4 have been sentenced to one year R.I under section 337-A(i) PPC and fine of Rs.5000/- on two counts, in default they are to undergo S.I for one month each with benefit of section 382-B Cr.P.C. Finally, Mudassar appellant No.5 has been awarded ten years R.I and fine of Rs.25,000/- under section 7 (c) of the Anti-Terrorism Act 1997 and in default to further undergo two months S.I. Benefit of section 382-B Cr.P.C was also given. However, the appellants were also charged under section 302, 324, 148/149 PPC and 21- I/7(a), 21-I(/7(c) of the Anti-Terrorism Act 1997 but no findings were given by the learned trial court on these offences. Thus, it is a fit case for remanding to the learned trial court for rewriting the judgment.

13.Criminal Appeal No. 187 of 2005 has been filed by the complainant against acquitted accused, which has however been admitted only to the extent of Muhammad Iqbal, Rizwan and Asghar and has been dismissed o the extent of remaining acquitted accused namely Mubashir, Imran, Ansar, Sajjad Ali, Mohsin Ali, Karamat Ali, Muhammad Nawaz and Nawab Ali, therefore, the remanding order will not be applicable to these acquitted accused against whom criminal appeal No. 187 of 2005 has not been admitted.

14.In light of what has been discussed above, while allowing Criminal appeal No. 1971 of 2005 and Criminal appeal No. 187 of 2005 (only to the extent of Muhammad Iqbal, Asghar Ali and Rizwan) the impugned judgment is set aside, resultantly,

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sentences of the appellants in Cril. Appeal No. 1971 of 2005 and acquittal of respondents namely Muhammad Iqbal, Asghar Ali and Rizwan (in Crl. A. No. 187 of 2006) are set aside and the case is remanded to the learned trial court for rewriting of the judgement preferably within 60 days from the receipt of this judgment after hearing the learned counsel for the parties. Accordingly, death sentence awarded to Shahid son of Asghar and Muhammad Azam is not confirmed and reference No. 02-T of 2006 is replied in negative. They shall be treated as under trial prisoner”.

24.In view of the above, criminal appeal No. 187 of 2006 filed by Sultan Ahmed complainant against judgment dated 30.11.2005 for acquittal of accused Mubashir, Imran, Ansar, Sajjad Ali, Mohsin Ali, Karamat Ali, Muhammad Nawaz and Nawab Ali had been dismissed and case was not remanded back to their extent and complainant Sultan Ahmed did not challenge this acquittal before august Supreme Court of Pakistan which has attained finality.

25.In post remand proceedings, learned trial court convicted Rizwan and Asghar accused (not appellant before this court) under section 337-A(i) of PPC with sentence of one year R.I. with payment of ‘Daman’ of Rs.5000/- each on two counts in default thereof one month S.I with benefit of section 382-B Cr.P.C by acquitting them under section 302, 324, 148/149 PPC and read with section 7 (c), 21-I read with section 7 (a) and 7 (c) of ATA 1997 well mentioned in paras No. 27 and 29 of the impugned judgment dated 9.5.2007.

26.According to the learned counsel for the parties, Rizwan and Asghar have not filed any appeal at this time against their conviction and they have served out their sentences and they are not appellant before this court now but they are respondents No. 2 & 3 in criminal appeal No. 1074 of 2007 filed by complainant Sultan Ahmed appellant for enhancement of their sentences.

27.Impugned judgment dated 9.5.2007 has been passed by trial court to the extent of Shahid, Muhammad Azam present appellants/convicts, Rizwan and Asghar respondents No.2 & 3 in Criminal appeal No. 1074 of 2007 stated above, Muhammad Iqbal (acquitted accused) respondent No.1 in criminal appeal

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No. 867 of 2007 and Mudassar appellant No.3 in criminal appeal No. 745 of 2007 and respondent No.1 in criminal appeal No. 1074 of 2007 stated above in view of the single judgment passed by this court on 27.2.2007 while deciding criminal appeal No. 1971 of 2005 and criminal appeal No. 187 of 2006 and C.S.R No. 02-T of 2006 stated above.

28.Now, we take up the case of Muhammad Iqbal (acquitted accused) respondent No.1 in criminal appeal No. 867 of 2007 filed by complainant Sultan Ahmed PW-14 appellant against his acquittal.

29.Complainant Sultan Ahmed PW-14 is real brother of Ghulam Muhammad deceased. Muhammad Ramzan injured PW-15 is husband of the ‘Phophi’ of Sultan Ahmed complainant PW-14, Zia Ullah injured PW-16 is ‘Bhatija’ of Sultan Ahmed complainant PW-14.

30.Muhammad Anwar PW-22 is ‘Bhanja’ of Sultan Ahmed complainant PW-14. These all four PWs claim themselves to be the eye witnesses of the occurrence and stated that Muhammad Iqbal fired with his pistol 30 bore upon Ghulam Muhammad deceased which hit him on his front side of the neck.

31.Doctor Shahid Masood Ch. PW-7 had conducted postmortem examination on the dead body of Ghulam Muhammad deceased on 23.11.2002 at 09:30 am and observed following sole firearm injury on the right side of the chest of Ghulam Muhammad deceased: - “A firearm enterance wound with inverted margins going deep on the front on the right side of the chest 2 cm below the right valvical 2 cm from medial to mid-line, measuring 2 cm x 1 cm.”

32.In view of the above, medical officer did not observe any firearm injury on or around the neck of Ghulam Muhammad deceased and above stated injury observed on the right chest of Ghulam Muhammad deceased was not attributed to Muhammad Iqbal accused/respondent No.1 in criminal appeal No. 867 of

33.So, there is conflict between ocular account and medical evidence and it is settled law that in such a situation preference is to be given to medical evidence.

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34.Mehmood Ahmed SI/I.O of this case PW-24 stated in his examination-in-chief that on 18.12.2002 12 accused appeared before him and he arrested six accused whereas arrest of rest of six accused was deferred. Muhammad Iqbal, Karamat Ali, Amanat Ali (since died) Nawab Ali, Muhammad Nawaz and Mohsin Ali (acquitted accused) had not been arrested by Mehmood Ahmed SI/I.O of this case PW-24 but they joined the investigation on 18.12.2002 and their arrest was deferred. Mehmood Ahmed SI/I.O of this case PW- 24 further stated in his examination-in-chief as under: - “I confronted both the parties. I found six accused namely Karamat Ali, Amanat Ali, Nawab Ali, Muhammad Nawaz, Muhammad Iqbal and Mohsin Ali as innocent. On 28.1.2003 I produced both the parties before the SHO who verified my Zimni. On 29.1.2003 I produced both the parties before the ASP/SDPO Wazirabad. He verified his investigation and the investigation of the SHO. On 31.1.2003, I prepared report under section 173 Cr.P.C”.

35.In view of the above, Muhammad Iqbal accused has been declared innocent during the investigation and nothing was recovered from or on pointation of the accused Muhammad Iqbal. Complainant Sultan Ahmed did not challenge above stated findings of above stated officer anywhere and also did not file any private complaint.

36.Motive of the occurrence mentioned by Sultan Ahmed complainant PW-14 in his written application Ex.PP is that there was dispute of the wall between ‘Mistri’ Gulzar Ahmed and complainant party and Muhammad Azam etc. were extended help to ‘Mistri’ Gulzar (P.O). Motive is not attributed to Muhammad Iqbal accused well mentioned in para No. 29 of the impugned judgement.

37.In view of the above, we entertain serious doubt in our minds regarding participation of Muhammad Iqbal accused in the present occurrence. Reliance is palced on case titled Khalid Mehmood and others V. The State (2011 SCMR 664) in which Hon’ble Supreme Court of Pakistan has observed at page 669 as under:- “Adverting to the case of Abid Hussain appellant, it may be observed that no weapon of offence has been affected from his possession. He was found innocent by different

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police agencies including Ch. Akthar Hussain, DSP CIA, Sheikhupura and got discharged from the Court of the Magistrate, which order was not challenged by the complainant. We entertain serious doubt in our minds, regarding participant of appellant Abid Hussain in the commission of crime. The evidence of the complainant and Nasir Ahmad PWs qua appellant Abid Hussain ins not credible and trustworthy. The following observations were made by this Court in Ayub Masih V. The State (PLD 2002

SC 1048): -

“it is hereby necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there be an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not the imaginary or artificial. The rule of benefit of doubt, which described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, it is better that ten guilty persons be acquitted rather than one innocent person be convicted. In simple words it means that utmost care should be taken by the court in convicting the accused. It was held in The State VS. Mushtaq Ahmad, (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reading a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and that is enforced rigorously in view of the saying of the Holy Prophet (PBUH) that the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent.”

And rightly learned trial court has acquitted Muhammad Iqbal by giving him benefit of doubt. Judgement of the trial court to the extent of Muhammad Iqbal accused is neither perverse nor illegal.

38.Learned counsel for the complainant could not point out any illegality in the impugned judgment to the extent of Muhammad Iqbal accused. It is settled law that in absence of perversity, illegality and misreading or non-reading of evidence, the judgement of acquittal shall not be disturbed even though second opinion may be reasonably possible. Reliance is placed on case Muhammad Tasaweer Vs. Hafiz Zulkarnain and two others (PLD 2009 SC 53) in which Hon’ble Supreme Court of Pakistan at page 57 observed as under: - “Needless to emphasize that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by this court in Muhammad Mansha Kausar versus Muhammad Asghar and others, (2003 SCMR 477) “that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent court of law. Such findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading non-reading of

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evidence.... Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible”

39.For the foregoing reasons, criminal appeal No. 867 of 2007 filed by complainant Sultan Ahmed appellant warranting no interference, hence, this Criminal Appeal has no merits and is dismissed.

40.Adverting to the case of Shahid, Muhammad Azam and Mudassar appellants/convicts, it is settled by now that maxim ‘falsus in uno falsus in omnibus’ has no universal application and it is bounded duty of the Court to sift the grain from the chaff and the credibility of Sultan Ahmed PW-14, Muhammad Ramzan PW-15, Zia Ullah PW-16 and Muhammad Anwar PW-22 (eye witnesses) could not be said to have been shattered due to the above stated acquittal of Muhammad Iqbal appellant through the impugned judgement and acquittal of Mubashir, Imran, Ansar, Sajjad, Mohsin, Karamat Ali, Muhammad Nawaz and Nawab in the previous judgment dated 30.11.2005 of the trial court upheld by this court vide judgment dated 27.2.2007 in criminal appeal No. 187 of 2006 filed by Sultan Ahmed complainant. Reliance is palced on case titled Elahi Bakhsh Vs. Rabnawaz and another (2002 SCMR 1842) in which Hon’ble Supreme Court of Pakistan has observed at page 1847 as under:- “in such an eventuality the credibility of “Ellahi Bukhsh PW-7 and Abdur Razzaq PW-10 could not be said to have been shattered due to the said acquittal. It is well settled by now that the maxim ‘falsus in uno falsus in omnibus’ has no universal application and it is bounden duty of the court to sift the grain from the chaff. In this regard reference can be made to Khairu. State (1981 SCMR 1136). A thorough scrutiny of the entire evidence would reveal that the statements of prosecution witnesses are consistent, confidence inspiring and in consonance with the probability in the case and fitted in with other evidence and circumstances of the case and being worthy of credence could not have been brushed aside. The prosecution, in our considered opinion has substantiated the allegation beyond shadow of doubt and accordingly Criminal Petition for Leave to Appeal (108/2001) being devoid of merit is dismissed”.

41.Before proceeding further, we would like to see the applicability of section 7(a) and (c) of ATA 1997 in the instant case.

42.Mehmood Ahmed SI/I.O of this case PW-24 stated in cross-examination that no crime empty was recovered from the place of occurrence, this show that there was no indiscriminate firing. Place of occurrence is the street but admittedly no passerby or any other

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irrelevant person suffered any injury at the hands of accused.

43.Sultan Ahmed complainant PW-14 has specifically mentioned motive in his written application Ex.PP moved by him on 22.11.2002 for registration of the FIR Ex.PP/1 as under: -

44.Mehmood Ahmed SI/I.O of this case PW-24 stated in cross-examination as under: - “During investigation, I found that there was a quarrel in between Shahid and Saif Ullah half an hour before the present occurrence. Present occurrence took place due to the quarrel in between Shahid and Saif Ullah and due to dispute of wall”

45.In view of the above, occurrence took place in result of personal enmity between the parties. In absence of any evidence to the effect that incident had created sense of fear or insecurity in the public or any section of public community or any sect, no independent person from the vicinity has been produced by prosecution in this regard. It would not have been contended that that section 7 of ATA 1997 is attracted in the instant case. It is our considered view that applicability of section 7 ATA is not made out to the facts and circumstances of the present case. Therefore, conviction and sentences recorded by the trial court under section 7 (a) and (c) of ATA 1997 against Shahid, Muhammad Azam and Mudassar appellants are hereby set-aside. Reliance is palced on case Muhammad Yaqoob and others v. The state and others (2009 SCMR 527) in which Hon’ble Supreme Court of Pakistan has observed at pages 534 and 535 as under: - “Though learned counsel for the appellants has not specifically challenged convictions of the appellants under section 7 of the Anti-Terrorism Act 1997 and occurrence in the case allegedly took place in Samooote Bazar, opposite UBL Branch, wherein three persons were done to death and another sustained grievous injuries yet, in the sense of any stipulation in the FIR to the effect that the incident had struck terror or panic in the public and in the absence of any evidence to the effect that the incident had created sense of fear or insecurity in the public or any section of public or community or any sect, it could not have been contended that section 7 of the Anti-Terrorism AC 1997 was

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attracted in the instant case. It would be pertinent to mention here that in order to bring a particular act within the ambit of section 7, it is to be seen as to whether the said act had created sense of fear or insecurity in public or in any section of public or community or any sect, or the occurrence was simply the result of previous enmity or personal vendetta.

Since in the instant case it has been established that motive behind the incident was previously strained relations between the parties and an iota of evidence has not been brought on record to show that object was not to kill the deceased but also to strike terror or create sense of fear or insecurity in the general public or community or any sect thereof, therefore, in our view section 7 of Anti-Terrorism Act was not attracted. In the case of ‘Tariq Mahmood v. The State 2008 SCMR 1631, the occurrence had allegedly taken place in a Bazaar which was heavily populated and it was claimed that due to firing there was stampede in the traversers yet, since it was found that there was no evidence that the act of respondents/accused struck terror amongst the masses and he place of occurrence was not a busy populated area rather it took place on a service road, therefore, the provisions of Anti-Terrorism Act were not attracted. IN the case of Muhammad Idrees and others v. The State 2008 SCMR 1544, occurrence took place on the bank of canal. It was not established on record that the act done by the accused persons had created sense of fear or insecurity in public, therefore, it was held that section 7 of the Anti- Terrorism Act was not attracted. In the case of Mohabba Ali v. the State 2007 SCMR 142, the alleged incident took place because of previous enmity and private vendetta inside the fields of sugarcane and banana, about 14/15 miles away from main road, it was held that intention of the accused was not at all to create sense of fear or insecurity or to destabilize public at large or to advance any sectarian cause and design or purpose of offence as contemplated by provisions of section 6 of Anti-Terrorism Act 1997 was not attracted. In the case of Fazal Dad v. Col (Retd.) Ghulam Muhammad Malik PLD 20078 SC 571, since nothing was brought on record to show that the occurrence created terror, panic or sense of insecurity among people by securing possession land in question by accused persons, therefore, the case did not qualify to be a terrorist act within the contemplation of section 6 of the Anti-Terrorism Act or its schedule. Convictions and sentences recorded against the appellants under section 7 of the Anti-Terrorism Act, are, therefore set aside”.

46.The detail of prosecution case as mentioned in FIR Ex.PP/1 recorded on the written application Ex.PP of Sultan Ahmed complainant (PW-14) real brother of Ghulam Muhammad deceased has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same.

47.Time of occurrence is 5.30 pm whereas place of occurrence is the street near the shop of Hafiz Muhammad Ashfaq.

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48.Sultan Ahmed complainant PW-14, Muhammad Ramzan PW-15, Zia Ullah PW-16 and Muhammad Anwar PW-22 (eye witnesses) stated that Shahid fired upon Saif Ullah deceased which hit him on his chest. Azam fired upon Javed deceased which hit on his chest. Mudassar fired upon Zia Ullah PW-16 in result of which he became injured. Saif Ullah and Javed both were nephews ‘Bhatija’ of Sultan Ahmed complainant PW-14. These four eye witnesses stated that they were coming back from graveyard ‘Qabarstan’ and when they reached near the shop of Haji Muhammad Ashfaq at about 5:30 pm the instant occurrence took place and they saw the occurrence.

49.The presence of above mentioned eye witnesses at the spot at the relevant time therefore could not considered as unnatural or improper. Their evidence to this extent is trustworthy and straight forward.

50.The medical evidence of the prosecution was furnished by Dr. Capt. Muhammad Khalid Ch. PW-1, Dr. Shahd Nawaz Ahmad PW-2 and Dr. Shahid Masood Chaudhry PW-7.

51.Dr. Capt. Muhammad Khalid Ch. PW-1 stated that on 22.11.2002 he medical examined Zial-ul- Hassan PW-16 and observed following two injures caused by firearm weapon: -

i)A firearm lacerated wound of entry 1⁄2 cm x 1⁄2 cm going deep on front of right upper most chest 8 cm below top of right shoulder.

ii)A firearm lacerated wound of exit 1.5 cm x 1 cm on back of right lower chest, 2 cm right lateral to mid line, corresponding cut were present on qameez, vest and were also blood stained, general condition of the patient was noted serious as blood pressure was not recordable, in with dry tongue, emergency treatment was given and was admitted in ward No. 16, X-ray chest was advised, and surgical notes were also requested”

The above stated medical evidence has not been challenged by Mudassar appellant in cross examination

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except one question that there was no blackening on the injuries and the distance is about more than three feet.

52.It is concluded that medical evidence is in line with ocular account furnished by Sultan Ahmed complainant PW-14, Muhammad Ramzan PW-15, Zia Ullah PW-16 and Muhammad Anwar PW-22.

53.Dr. Shahid Nawaz Ahmad PW-2 stated that on 23.11.2002 he conducted post mortem examination on the dead body of Saif Ullah deceased and observed following four injures: -

1.A firearm would of entry with inverted margins measuring 5 cm x 5 cm, 2 cm right to the midline and 7 cm from the inner side of right nipple, burning and blackening were present injury was going deep, on the front of Rt. Chest.

2.A firearm wound of exit with everted margins measuring 1.5 cm x 1 cm going deep on the middle and back of left chest, 6 cm to the left of middle.

3.Contuse swelling 4 cm x 2 cm on the left of top of head

4.Contuse swelling measuring 5 cm x 3 cm on the right side of top of head.

And further stated that injury no.1 is entry wound and was sufficient to cause death in ordinary course of nature. Probable duration in between injury and death was immediate whereas probable time in between death and postmortem was 13/14 hours. He further stated that injures No. 1 & 2 were the result of firearm whereas injuries No. 3 & 4 were caused by blunt weapon.

54.Eye witnesses stated above specifically stated that Shahid appellant made fire with 30-bore pistol which hit on the chest of Saif Ullah deceased. In this way, medical evidence has corroborated the ocular account furnished by above stated eye witnesses.

55.Likewise, Dr. Shahid Masood Ch. PW-7 stated that on 23.11.2002, at about 9:35 a.m he conducted the postmortem on the dead body of Javed deceased and he observed following entry wound: - “A fire arm enterance wound with inverted margins 1 cm x 1.5 cm x going deep on the front of the right chest 1 cm medial mid-line 9 cm from the right nipple”.

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And further stated that injury No.1 is sufficient to cause death of Javed deceased in ordinary course of nature. He further stated that probable time that elapsed in between the injury and death was within half an hour and that in between death and post mortem examination was within 16 to 17 hours.

56.Sultan Ahmed PW-14, Muhammad Ramzan PW- 15, Zia Ullah P:W-16 and Muhammad Anwar PW-22 (eye witnesses) specifically stated that Muhammad Azam made fire with his 30 bore pistol which hit on the chest of Muhammad Javed deceased. Corresponding injury stated above has been observed by above stated medical officer and it is observed that medical evidence is in line with ocular account furnished by above stated eye witnesses.

57.Admittedly, no weapon of offence has been recovered from or on pointing out of Azam appellant.

58.Mehmood Ahmed SI/I.O of this case PW-24 submitted in his examination-in-chief that on 18.12.2002, he arrested Shahid appellant and on 1.1.2003 during interrogation, he disclosed and led to the recovery of pistol 30 bore which was taken into possession through recovery memo Ex.PQ. This witness Mehmood Ahmed SI/I.O of his case PW-24 stated in cross-examination that no crime empty was recovered from the place of occurrence. So in absence of the crime empty recovery of the pistol P-11 has become inconsequential and could not be considered as corroboratory evidence in instant case.

59.Abdul Hameed I.O of this case PW-20 stated that Mudassar appellant during interrogation on 1.10.2003 made disclosure and led to the recovery of pistol 30 bore P-19 from the graveyard of village Dhilla Chatha which was taken into possession through recovery memo Ex.PY.

60.In absence of the crime empty, recovery of the pistol P-19 on the pointation of Mudassar appellant is inconsequential and cannot be considered as corroboratory evidence in the instant case.

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61.Motive of the occurrence mentioned by Sultan Ahmed complainant PW-14 in his written application Ex.PP moved by him on 22.11.2002 for registration of the FIR Ex.PP/1 is as under: -

62.In view of the above, motive is not attributed to Shahid, Azam and Mudassar appellants rather the same is attributed to ‘Mistri’ Gulzar (P.O) who is not related to them.

63.No documentary evidence in this regard has been produced by the prosecution despite the claim of disputed wall. Thus the motive part of the incident has remained absolutely unproved. Reliance is palced on case Ghulam Mohy-ud-Din alias Haji Babu and others Vs. The State (2014 SCMR 1034) in which Hon’ble Supreme Court of Pakistan has observed at page 1044 as under: - “In the present case a specific motive was set up in the FIR at the time of reporting the crime by the complainant. He had alleged that there was a dispute between the parties over a ‘Khokha’ (wooden stall), however, no independent corroboratory evidence on this point was furnished. Thus, the version, repeating the same stance at the trial, without any independent corroboratory evidence in this respect, would have no legal worth and judicial efficacy. It has been claimed that the dispute had led to civil litigation over the ‘Khokha’ but no document form judicial record was furnished to the trial Court to show even to a little extent that indeed the dispute over a ‘Khokha’ was a burning issue between the parties and they had already been battling for the same in the Civil Court. Thus, the motive part of the incident has remained absolutely unproved”.

64.We have disbelieved the prosecution evidence qua the motive and did not consider the recovery of the pistol of 30-bore on the pointing out of Shahid and Mudassar appellants as a corroboratory evidence in the instant case in absence of the crime empties but if the prosecution evidence qua the motive and above

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mentioned recoveries is excluded from consideration, even then, there is sufficient incriminating evidence available on record to prove the prosecution case.

65.As discussed earlier, prosecution case was proved against the appellants Shahid, Azam and Mudassar through the evidence of eye witnesses namely Sultan Ahmed PW-14, Muhammad Ramzan PW- 15, Zia Ullah PW-16 and Muhammad Anwar PW-22. The eye witnesses were cross-examined at length but their evidence could not be shaken during the process of cross examination to the extent of above stated appellants. They corroborated each other on all material aspects of the case to their extent. Their evidence is quite natural and trust worthy and confidence inspiring to the extent of Shahid, Muhammad Azam and Mudassar appellants which has been fully supported by medical evidence furnished by Dr. Capt. Muhammad Khalid Ch. PW-1, Dr. Shah Nawaz Ahmad PW-2 and Dr. Shahid Mehmood Ch. PW-7.

66.On the other hand, Shahid appellant/convict stated in his statement under section 342 Cr.P.C in reply to questions No. 12 “why this case against you and why the PWs deposed against you?” as under:- “Actually the complainant party assaulted at our houses and we came out while the complainant party was armed with firearms and deceased as well as injured were caused injuries by way of firing made by the complainant party and I have been falsely involved in this case”.

But he did not appear under section 340 (2) Cr.P.C and also did not produce any defence evidence to support his plea.

67.Likewise, Muhammad Azam appellant/convict stated in his statement under section 342 Cr.P.C in reply to questions No. 12 “why this case against you and why the PWs deposed against you?” as under:- “That the complainant party assaulted on our houses and after hearing voices I came later on, while I was empty handed and the complainant party due to mala-fide intention, grudge and enmity involved me in this case falsely”.

But he did not appear under section 340 (2) Cr.P.C and also did not produce any defence evidence to support his plea.

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68.Mudassar appellant/convict stated in his statement under section 342 Cr.P.C in reply to question No. 12 “why this case against you and why the PWs deposed against you?” as under:- “I have been falsely involved in this case. I was not present at the spot at the relevant time. I was away from my house in connection with my job. The complainant has no knowledge about the occurrence”.

But he did not appear under section 340 (2) Cr.P.C and also did not produce any defence evidence to support his plea.

69.In view of the above, the defence of Shahid, Muhammad Azam and Mudassar appellant is nothing except denial which is hereby discarded.

70.It is settled law that mere relationship of a witness with the deceased would not make the witness unworthy of reliance and it is our confirmed view that prosecution has proved its case against the appellants Shahid, Azam and Mudassar beyond any shadow of doubt.

71.Now coming to the quantum of sentence of Shahid and Muhammad Azam appellants, we have noted some mitigating circumstances in favour of the appellants Shahid and Muhammad Azam. Firstly, nothing was recovered from or on pointation of Muhammad Azam accused during the investigation and recovery of the pistol of 30 bore on the pointation of Shahid appellant has not been considered as corroboratory evidence in the instant case in absence of the crime empty. Secondly, evidence of motive has been disbelieved by us in the preceding paras of this judgement. Thirdly, it is a case of single fire shot that Shahid made fire with his pistol 30 bore which hit Saif Ullah deceased and Azam fired with his 30 bore pistol which hit on the chest of Javed deceased and there is no allegation of repetition of firearm injury against these two appellants and it is not determinable in this case as to what was the real cause of occurrence and as to what has actually happened immediately before the occurrence which resulted into present unfortunate incident.

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Therefore, in our view, the death sentence awarded to Shahid and Muhammad Azam appellants is quite harsh.

72.It is well recognized principle by now that the accused is entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence as well. In this regard we respectfully refer the case of Meer Muhammad alias Meero Vs. The State (2009 SCMR 1188) wherein the Hon’ble Supreme Court of Pakistan has held as under: - “it will not be out of place to emphasize that in criminal cases the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence.

73.Further reliance is placed on case Zafar Iqbal and others v. The State (2014 SCMR 1227) in which Hon’ble Supreme Court of Pakistan has observed at page 1235 & 1238 as under: - “the question of awarding of sentence is required by law to be adverted to in every criminal case and it is the duty of the Court to always consider this aspect of the matter while awarding sentence. In the present case trial Court has awarded death sentence to the appellants, which has been maintained by the High Court and the murder reference has been answered in positive. On examination of the record certain facts have come to light, which needs to be given serious consideration and they probably have in them material on the basis of which the case of mitigation in sentences could be found. Although in the ocular account it is alleged that appellant Iftikhar has fired with a rifle at Jaffar Hussain deceased on his head and he has also fired at Abdaal Hussain deceased on the left side of his chest but the prosecution has not been able to secure or recover any firearm from this appellant. At the same time appellant Asghar Iqbal is alleged to have fired with his rifle at Abdaal Hussain deceased on his left ear with his rifle. Although 7 mm rifle was recovered on the pointation of this appellant but no recovery of empty of this rifle was made from the place of incident and there is no report of Forensic Science Laboratory (FSL) of connecting the recovered 7 mm rifle with the two crime empties recovered from the place of incident. It is also noted that the real motive as propounded in the prosecution version was against deceased Jaffar Hussain in that he was the one, who has beaten appellant Iftikhar. The motive being against deceased Jaffar Hussain, it is not understandable as to why the appellant after having murdered Jaffar Hussain will proceed covering distance and murder Jaffar Hussain’s two sons, namely, Abdaal Hussain and Abrar Hussain. This will go to show that something very obnoxious may have happened at the place of occurrence of which neither the

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prosecution has given any evidence nor the same has come out from the side of defence. Thus the immediate circumstance or cause for the happening of the events, which culminated into the murder of three persons namely, Jaffar Hussain, Abdaal Hussain and Abrar Hussain are altogether shrouded in mystery” “All the above factors in the light of the law laid down by this Court as discussed above lead us to the conclusion that there are sufficient extenuating circumstance, on the basis of which the appellants could not be made liable to the maximum punishment provided under section 302(b) PPC, rather the ends of justice would be met, if their death sentence is converted into imprisonment for life. While maintaining the conviction of the appellants and modifying the sentence benefit of section 382-B Cr.P.C, this appeal is partially allowed in the above terms”.

74.For the foregoing reasons, the conviction of Shahid and Muhammad Azam appellants under section 302(b) PPC awarded by the leaned trial court through impugned judgement dated 09.05.2007 is maintained but their sentences are altered from death to imprisonment for life. The fine imposed by trial court is converted into compensation under section 544-A Cr.P.C payable to the legal heirs of Saif Ullah and Javed deceased and sentence in default thereof is maintained and upheld. The benefit of section 382-B Cr.P.C is also given to the appellants.

75.Consequently, with the above said modification in the sentences of Shahid and Muhammad Azam present appellants, Criminal Appeal No. 745 filed by Shahid, Muhammad Azam and Mudassar present appellants is hereby dismissed. C.S.R No.37-T of 2007 is answered in NEGATIVE and death sentences of Shahid and Muhammad Azam present appellants are NOT

CONFIRMED.

76.Learned defence counsel at state expense for Mudassar appellant has stated that Mudassar appellant is on bail but he is not in attendance today despite direction of this court. Learned trial court is directed to take necessary steps for implementation of this judgment to his extent.

77.It is mentioned in the FIR that Rizwan and Asghar respondents No.2 & 3 gave beating to Muhammad Ramzan and Muhammad Ishaq injured PWs with ‘Sotas’. Dr. Irshad Ullah S.M.O PW-3 had

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medically examined Muhammad Ramzan injured PW on 22.11.2002 at 11:00 pm and found only one following injury: -

“Abraded swelling 4 cm x 3 cm on the left side of anterior part of head, 3 cm from the heir line” and this injury was declared ‘Shajah-i-Khafifa’ attracting offence under section 337-A(i) PPC and likewise, same medical officer had medically examined Muhammad Ishaq injured PW and observed following sole injury: - “lacerated wound 2 cm x 1⁄2 cm x scalp deep on the left side of anterior part of head 2 cm from the hair line”

and thereafter declared it as ‘Shajah-i-Khafifa’ attracting offence under section 337-A(i) PPC.

78.No other injury is attributed to Rizwan and Asghar respondents No. 2 & 3 in criminal appeal No. 1074 of 2007 on the person of Saif Ullah and Javed deceased.

79.Learned trial court through the impugned judgment acquitted Asghar and Rizwan accused under sections 324, 302, 148/149 PPC and sections 21-I read with section 7 (a) (c) of ATA 1997 well mentioned in paras No. 27 & 29 of the impugned judgment, likewise, no injury is attributed to Mudassar appellant in criminal appeal No. 745 of 2007 and respondent No.1 in criminal appeal No. 1074 of 2007 on the person of Saif Ullah and Javed deceased.

80.Complainant Sultan Ahmed did not challenge the acquittal of Mubashir, Imran, Ansar, Sajjad, Mohsin, Karamat Ali, Muhammad Nawaz and Nawab Ali after dismissal of his appeal No. 187 of 2006 to their extent by this court on 27.2.2007.

81.In view of the above, criminal appeal No. 1074 of 2007 filed by Sultan Ahmed complainant for enhancement of sentences has no merits and same is also dismissed.

82.Before parting from this judgment, it is observed that Babar and Gulzar accused are the POs and their

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case shall be decided on its own merits whenever they were arrested or surrendered before the trial court without being influenced from this judgment.

(Abdul Sami Khan) (Sadaqat Ali Khan) Judge Judge

Approved for reporting

Irfan

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CJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

Criminal Appeal No. 1074 of 2007 (Sultan Ahmad Vs. Mudassar etc.)

Date of hearing: 20.10.2014 Appellants by: Mr. Ijaz Feroze, Advocate State by: Mr. Khurram Khan, DPG

Sadaqat Ali Khan, J.: For the reasons recorded in our judgment of even date passed in Crl. Appeal No.745 of 2007 (CSR No.37-T/2007), the instant Crl. Appeal filed by Sultan Ahmad complainant /appellant for enhancement of sentences of Respondents No.1 to 3, has no force and the same is dismissed.

(Abdul Sami Khan) (Sadaqat Ali Khan) Judge Judge

Irfan

Criminal Appeal No.745 of 2007 Criminal Appeal No. 867 of 2007 Criminal Appeal No. 1074 of 2007 Appeal No. 393-2010

CJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

Criminal Appeal No. 867 of 2007 (Sultan Ahmad Vs. Muhammad Iqbal etc.)

Date of hearing: 20.10.2014 Appellants by: Mr. Ijaz Feroze, Advocate State by: Mr. Khurram Khan, DPG

Sadaqat Ali Khan, J.: For the reasons recorded in our judgment of even date passed in Crl. Appeal No.745 of 2007 (CSR No.37-T/2007), the instant Crl. Appeal filed by Sultan Ahmad complainant /appellant against the acquittal of respondent No.1, has no force and the same is dismissed.

(Abdul Sami Khan) (Sadaqat Ali Khan) Judge Judge

Irfan