2002 PLP 660 (YLR)

ALI NAWAZ CHOWHAN, J.

This judgment shall dispose of Criminal Appeal No.19-T, Criminal Revision No.26, Criminal Miscellaneous No.8-Q and Murder Reference No.65-T of 2001. These arise because of the judgment dated 6-1-2001 handed down by Mr. Hussain Aziz Bhatti, Judge Special Court Anti-Terrorism No. 1, Rawalpindi Division.

2. The appellants, Ahmad Din alias Nikku, Muhammad Waseem, Muhammad Gulzar and Muhammad Munir, have been convicted under section 302/34, P.P.C. for having, murdered Mushtaq, Razzaq and Gulfraz alias Laftain and each one of them has been sentenced 'to death and fine of Rs.2,00,000 payable to the legal heirs of the deceased as compensation or in lieu thereof to undergo six months' rigorous imprisonment each. Ahmad Din alias Nikku and Muhammad Waseem appellants were also convicted under section 324 read with section 34, P.P.C. for launching murderous assault on Ishtiaq P. W and were sentenced to 10 years' rigorous imprisonment each. Ahmad Din alias Nikku appellant was further convicted under section 324, P.P.C. for attempt to commit murderous assault on Liaqat P.W. and was sentenced to 10 years rigorous imprisonment. He was also convicted under section 337A(i), P.P.C. for causing hurt to Liaqat P.W. and was sentenced to 2 years' rigorous imprisonment Ahmad Din alias Nikku and Muhammad Waseem appellants were additionally convicted under section 337-F(v), P.P.C. for causing injuries to Ishtiaq P.W. and were sentenced to 5 years' rigorous imprisonment Ahmad Din alias Nikku, Muhammad Waseem, Muhammad Gulzar and Muhammad Munir appellants were also convicted under section 7 of the Anti-Terrorism Act 1997 an were sentenced to death. All the appellants were given benefit of section 382-B, Cr.P.C All the sentences were ordered to run concurrently. Murder Reference was also sent to this Court under section 374, Cr.P.C. for confirmation of death sentences of the appellant.

3. According to Liaqat Ali (P.W.1) who is an injured P.W. in this case and who lodged the complaint Exh.P.A: "On 4-4-1999, at about 10-30 a.m. in the area of village Kauntrili, near Khu Darbarwali, I alongwith father Mushtaq, uncle Razzaq, uncle Laftain alias Gulfraz, brother Ishtiaq Muhammad Asif and Mistri Saleem after digging the foundation, were erecting the wall; at that time, saw Ahmad Din alias Nikku armed with double barrel gun. Waseem armed with single barrel gun, Gulzar armed with single barrel gun Munir armed with 222 rifle stand on the roof of Abdul Haq's house Gulzar and Nikku made the Lalkara directing us to stop work, my father replied that we are erecting the wall on our land; on this, Nikku made Lalkara that nobody should be spared Mushtaq, Waseem fired with respective weapon which hit my uncle Razzaq, Gulzar fired with his respective weapon, which hit my uncle Laftain on left shoulder, Munir fired with his respective weapons, which also hit my uncle Laftain, on right side of his chest, all the 3 injured fell down and died at the spot. Asif, to save his life, went behind the wall; I and Ishtiaq my brother-went towards the father when Nikku and Waseem fired together which hit my brother Ishtiaq; Gulzar fired which hit Mistri Saleem on left knee; again Nikku fired which hit me inside the left upper arm; again Munir fired 7/8 shots, but luckily hit nobody. After the firing, the accused managed to escape towards their houses making the firing. On hearing, the noise and fire shots, many women and men gathered at the place of occurrence including Haji Majeed and Haji Inayat, with the help of aforementioned Haji Majeed and Haji Inayat, the dead bodies were taken to Civil Hospital. The motive behind the occurrence was that accused wanted the passage from our land and my father was not willing to do so. Due to this, the accused persons has committed the murders and injured us."

4. The complainant was supported by Ishtiaq (P.W.2) another injured P. W. and Asif Hussain (P. W.3). According to whom he had escaped the onslaught having taken shelter at the time of the occurrence. He is also a witness of recovery of blood-stained earth from three spots where each of the deceased fell (Exhs.P.B, P.C and P.D). He is also a witness of the recovery of blood-stained earth where Ishtiaq was injured as well as the place where Mistri Muhammad Saleem had fallen after receiving in (Exhs.P.E and RR However, Mistri Saleem has not appeared as a witness of the occurrence. May be because he did not like to involve himself in this case being an outsider.

5. Muhammad Saeed Inspector (P.W.20) was posted as S.H.O. Police Station Sadar, Jhelum. He received information about the occurrence and went to the DHQ Hospital Jhelum where he recorded the statement of the complainant Liaqat Ali. He then prepared his injury statement Exh. P. E. E as well as the injury statement of Ishtiaq P.W. and Saleem Khan (Exhs. P. F. F and P. G. G) and sent them for their medico-legal examination. Whereafter he prepared the inquest report the deceased Razzaq (Exh. P. H. H) and his injury statement Exh.P.H.H/2, the inquest report of Mushtaq Exh.P.J.J and his injury statement Exh.P.J.J/2 as well as the inquest report of the deceased Gulfraz alias Laftain Exh.P.K.K and his injury statement Exh.P.K.K/2. He deputed Mushtaq Hussy constable P. W. and Ansar Mehmood constable P. W. to take these dead bodies to the mortuary and sent the complaint for the registration of the case. He later received medico-legal report and blood-stained clothes of Liaqat Ali injured delivered to him by Muhammad Arif vide memo. Exh.P.L as well as of Ishtiaq Ahmad and Saleem Khan vide memos. Exhs.P.K.L and P.J. He recorded the statements of Ishtiaq Saleem Khan injured in the hospital.

6. Subsequently, this Inspector went to the spot and prepared the rough site-plan Exh. P. L. L. He secured the blood-stained earth from the places where the deceased had received injuries and made these into sealed parcels (Exhs.P.B, P.C and P.D) as well as place where Ishtiaq and Saleem received injuries (Exhs.P.E and P.F). There he also found blood-stained adzes and two towels belonging to Mistri Saleem (Exh.P.2, P.3 and P.1/1-2) which he took into possession vide memo. Exh.P.G. At the spot he found 11 empty cartridges P.4 /1-11 of .12 bore gun recovered vide memo. Exh.P.H, 8 empties of .222 bore rifle P.5/1-8 were also recovered vide memo. Exh.P.I.

7. Later Ansar Mehmood and Muhammad Usman constables handed over to him the last worn clothes of the three deceased which he took into possession vide memo. Exhs.P.A.A, P.O and P.M.. He also received the sealed parcel containing lead bullet (P.12) from the Doctor which he took into possession vide memo. Exh.P.N. He recorded the statements of Ansar Mehmood, Muhammad Usman constables and Abdul Majeed and Inayat Hussain P. Ws. He then searched for the accused who were not available and deposited the case property with the Moharrir.

8. On 6-4-1999, he took the draftsman to the place of occurrence and got prepared the site-plan Exh. P. M alongwith its photocopies Exhs.P.M/1 and P.M/2 while scribing his own notes in the red ink.

9. On 21-4-1999, he arrested Munir Hussain accused and got recovered a .222 rifle used in the commission of the offence vide memo. Exh.P.D.D. This happened on 27-4-1999. Alongwith the rifle (P.23), five live bullets P.24/1-5 and magazine P.25 were also recovered. Ghulam Abbas and Sabir Hussain P.Ws. witnessed the recoveries. The rifle was sent to Moharrir for safe custody. He then procured warrants of arrest of the other three appellants Ahmad Din, Waseem and Gulzar which could not be executed because of their abscondence and later applied issuance of proclamation against them. On 13‑5‑1999, when he received the final results of the injuries of Liaqat Ali, Ishtiaq and Saleem which had been kept under observation, he made relevant additions in the offence in the F.I.R. and submitted an incomplete challan while taking action under section 512, Cr.P.C. against absconding accused.

10. On 21‑5‑1999, Manzoor Hussain and Fazal Hussain P. Ws. appeared and stated before him about the' involvement of Muhammad Din the acquitted accused in the conspiracy for the commission of the present occurrence. He, therefore, took action against him under section 109, P. P. C. and submitted the supplementary challan.

11. Subsequently, Ch. Mehdi Khan (P.W.21) took over the investigation. On 20‑8‑1999 he arrested the appellants Ahmad Din alias Nikku, Muhammad Waseem and Muhammad Gulzar when they were handed over to him by the Immigration Department on their return from abroad. He effected recovery of .12 bore double barrel gun from the house of Ahmad Din (P.17) which was taken into possession vide memo. Exh.P.Q in the presence of Muhammad Banaras and Muhammad Rafique P. Ws. Muhammad Gulzar led to the recovery of .12 bore gun (P.16) which was taken into possession vide memo. Exh.P.P in the presence of Sarfraz and Zulfiqar P.Ws. while Waseem on the same day also led to the recovery of .12 bore gun from his house (P.22) which was taken into possession vide memo. Exh.P.C.C. This recovery was witnessed by Muhammad Sarwar and Razak P.Ws. He handed over the recovered case properties to the Moharrir for safe custody in the Maalkhana and submitted incomplete challan against these appellants. 12.1. Masood Iqbal Medical Officer DHQ Hospital Jhelum (P.W.101 had conducted the autopsy on the dead bodies of the three deceased in his case. Relevant excerpts from his testimony are reproduced below in extenso. 12.2. In respect of Razak deceased relevant portion of his testimony is as follows:

"Following injures were found on the dead body:-- (1) Lacerated wound x " c. m. at forehead, right side (entry wound), blackening at edges present, crushing multiple bones and brain matter wound reached to posterior of cranium from where a metallic particle recovered. (2) Lacerated wound x " at left to mid of neck at back, edges inverted (wound of entry), blackening at edges present. (3) Lacerated wound 1" x 1" in front of neck, at left side, everted edges (exit wound). (4) Lacerated wound 1" x " c. m., at left shoulder joint. It traversed forward till lower part of left clavicle from where, a metallic particle recovered. Cranium and spinal cord: Scalp, skull and vertebrae; Fracture of frontal, right parietal, right temporal and occipital bones present. One metalic particle recovered from occiptal portion of skull. Brain matter and membrance crushed, spinal cord not opened. Thorax: Thoraic cavity contained blood, blood vessels of left side of neck crushed. Rest of the organs were found healthy. Abdomen: Mouth and phyarynx contained clotted blood; stomach contained Semi digested food particles, small intestines contained gases and chyme, large intestines contained gases and faecal matter; bladder contained 50 cc of urine. Rest of organs healthy. According to the Doctor, all the injuries were anti-mortem in nature, caused by fire-arm weapon and the death was due to Injuries Nos.1, 2 and 3, which had damaged vital organs. Time between injuries and death was immediate. Exh.P.U is the post-mortem examination report and Exh.P.U/1 is the pictorial representation of the Doctor. 12.3. Regarding the deceased Mushtaq Hussain relevant portion of the testimony is as follows:

"I found the following injuries on the dead body. (1) 1 x 1 c. m. lacerated wound behind left ear, making fractures of occipital bone, then base of skull reaches inside of right ear, from where a metal body was recovered. (2) x c.m. lacerated wound left cheek goes to oral cavity damaging tongue upper teeth upper lip goes out at chin. (3) x c.m. lacerated wound c.m. left in back of left eye, goes out via left eye, damaging eye ball in fracture of nasal bones. (4) x c. m. lacerated wound (entry wound) at tip of left shoulder joint. It pierced and reached at base of left clavicle form where a metallic particle recovered. (5) x c.m. lacerated wound left fore-arm on lateral side. It went through and through, on upper part of medial side of left fore-arm. Cranium and spinal cord: Fractures of occipital bones and base of skull; membrance and brain matter crushed, spinal cord was not opened. Lungs have mettled appearance, heart contains no blood; rest of organs appear healthy. Abdomen: Mouth and pharynx contained clotted blood, oral cavity damaged. Stomach contained semi-digested food material; Small intestines contained gases and chyme. Large intestines contained gases and faecal matter. Bladder contained 30 cc of urine. Rest appear healthy: It was opined by the Doctor that all the injuries were caused by fire-arm and were anti-mortem in nature. Death was due to Injuries Nos. 1 and 3 with attribution of other injuries, causing damage to vital organs. Time between injuries and death was immediate. His post-mortem report is Exh.P.V and Exh.P.V/1 is pictorial representation. 12.4. Regarding the deceased Gulfraz alias Laftain relevant portion of the testimony of the Doctor is as follows: "Following injuries were found: (1) 1/2 x 1/2 c.m. lacerated wound, just below and left of right nipple; it traversed crushing heart and left lung making fracture of, left 5th rib, then goes out. (2) 3/4 x 3/4 c.m. lacerated wound at anterior axillary fold goes back crushing blood vessels exits at left scapular region. (3) 1 x 1 c. m. lacerated wound anteriorly at left arm and goes out at left arm posteriorly. Cranium and spinal cord: Scalps and skull intact, vertabrae not opened. Brain and membrance were healthy, spinal cord not opened. Thoracic cavity full of blood, fracture of 5th left rib, plaeura congested, left lung perforated, pericardium and heart both crushed, no blood in it. Left axillary blood vessel crushed. Rest all healthy. Abdomen: Stomach contained semi digested food material. Small intestines contained gases acid chyme; large intestines contained faecal matter. Bladder contained about 30 cc of urine. Rest of all appear healthy. According to the Doctor, all the injuries were caused by fire‑arm. Death was due to Injuries Nos. 1 and 2 and these were anti- mortem in nature. Probable time between death and injuries was immediate. Exh.P.W is his post‑mortem examination report and Exh.P.W/1 is his pictorial representation.

13. Dr. Shahid Maroof (P. W.11) of the DHQ Hospital Jhelum had examined Liaqat Ali injured P.W. and found the following injury on his person: "

1. A fire‑arm wound of entry on left upper arm, near left axilla, on the medial surface, measuring 1 c.m. x 1/2 c.m., corresponding hole on the Shirt present, marked, signed and handed over to police. " X‑Ray was advised. Report of the Radiologist showed that there was no bony lesion and his injury was declared simple in nature. Exh.P.X is his M.L.R.

14. The Doctor also examined Ishtiaq P.W. and found the following injuries on his person: "(1) Fire‑arm wound of entry on right lower chest, 12 c.m. below the nipple, measuring 1/2 c.m. x 1/2 c.m. lateral side, blackening and tatooing. (2) Fire‑arm wound of entry on left lower chest lateral side, 9 c.m. away from the nipple, measuring 1/2 c.m. x 1/2 c.m., no blackening and tatooing. (3) Fire‑arm wound of entry on the medial side of fore‑arm, measuring 1/2 c.m. x 1/2 c.m. in the middle portion, no blackening and tatooing. (4) Fire‑arm wound of entry on the frontal surface of right fore‑arm, about 4 c.m. away and below to Injury No.3. No blackening and tatooing present." X‑Ray was advised. According to the report of the Radiologist, fracture was of mid shaft of right radious and ulna, with metallic density. A foreign body fragment was seen in the X‑Ray. Subsequently, according to the report of Surgical Specialist Rawalpindi dated 12‑5‑1999, Ishtiaq was operated for fire‑arm injury and the following findings were given in the report: "That through and through tear in the liver. (2) Rent in the left dome of diaphragm. (3) Chest intubation left side of chest. Injuries Nos. 1 and 2 were declared as Jura Jaifa and Injuries Nos. 3 and 4 were declared as Jura Ghair Jaifa Hashma caused by fire arm. Exh.P.Y is his medico‑legal report.

15. Fire‑arm injuries were also suffered by Saleem Khan P.W. These were 7 in number including clinical fracture of the left lower leg. Exh.P.Z is the medico‑legal report pertaining to him.

16. Dr. Khalid Javed (P.W.9) who is a Radiologist, came to support his X‑Ray report Exh.P.R/1 regarding die‑injuries of Liaqat Ali, Exh.P.S/1‑2 regarding the injuries of Saleem Khan and Exh.P.T/1‑4 regarding injuries of Ishtiaq P.W.

17. Amongst the formal witnesses, Muhammad Arif (P.W.4) had taken the injured P.Ws., Saleem Khan, Liaqat Ali and Ishtiaq for their medical examination at the Hospital on 4‑4‑1999. Muhammad Usman (P.W.5) had escorted the dead bodies of Razak and Gulfraz and had received the case properties from the Doctor which he handed over to the Investigating Officer vide memo. P.O. Abdul Majeed (P.W.6) had identified the three dead bodies.

18. Muhammad Akram (P.W.12) took three parcels of gun on 3‑9‑1999 to the office of the Forensic Science Laboratory Lahore which he delivered there intact. Muhammad Ansar (P.W.13) had escorted the dead body of Mushtaq to the mortuary. He received the case property after post‑mortem examination and delivered this to the Investigating Officer on the same day that is 4‑4‑1999 vide memo. Exhs.P.A.A and P.B.B. Talib Hussain constable (P.W.18) had taken three sealed parcels containing blood‑stained earth and two parcels of empties for onward transmission to the office of Chemical Examiner and Forensic Science Laboratory at Lahore which he deposited there intact. The parcels of empties were returned with an objection. Therefore, he deposited the parcels again on 15‑4‑1999. On 29‑4‑1999, he took the parcel of 222 rifle from Moharrir and deposited it at the Forensic Science Laboratory Lahore. Muhammad Saleem (P.W.19) had formally recorded the F.I.R. Exh. P. A/1 verbatim against the complainant Exh.P.A.

19. Sarfraz Ahmad (P.W.7) had witnessed the recovery of gun P.16 got recovered from Gulzar appellant vide memo. Exh.P.P. Muhammad Banaras (P.W.8) is a witness of recovery of .12 bore double barrel gun P.17 from the house of Ahmad Din on 29‑8‑1999 which was taken into possession vide memo. Exh.P.Q.' Muhammad Sarwar (P.W.16) is a witness of the recovery of .12 bore gun 222 from the appellant Waseem which was taken into possession vide memo. Exh.P.C.C. Sabir Hussain (P.W.17) is a witness of the recovery of rifle 222 bore which was got recovered on 27‑4‑1999 by Munir Hussain, alongwith .5 live bullets P.24/1‑5 and magazine P.25, which were taken into possession vide memo. Exh. P. D. D.

20. In their statements under section 342, Cr.P.C. case of the appellants except Ahmad Din was of denial. However, to the question if he had to say anything in his defence, Ahmad Din stated as follows: "I am innocent. I alongwith my family members owned plot in Khasra No.384, Chah Darbar Wala, which is also known as Khoo Khangawala before Khasra No.395. Khasra No.395 is owned by large numbers of persons including the deceased persons. The deceased persons are Gujar by caste, who are predominant tribe in this village and also in the adjoining villages. Where Jat by Caste are only few houses of the Jats in the village. The members of the National Assembly and Provincial Assembly during the days of occurrence were Gujar by caste. The deceased persons alongwith injured. P. Ws. in order to forcibly occupied our plot and started constructing a wall to which I intended on the ground that it was intended to be constructed on my plot. On my objection the deceased persons were collected at the spot. The deceased persons and their parties started firing. In order to save my life and honour of female of my family I also fired large numbers of persons and the injured P.Ws. received injuries in the melee. I then falsely challaned in this case. None of the other accused were present at the time of occurrence. "

21. None of the appellants appeared as their own witnesses nor did they produce evidence in defence.

22. Since a question arose before, the trial Court with respect to the ownership of the fields where the occurrence had taken place, the learned trial Court appointed Malik Ghazanfar Awan Tehsildar Jhelum (C.W.2) for going to the spot and verifying the factual position at the spot. When he appeared as witness, he stated that the site‑plan Exh. P. M. M was correct and was in accordance with the Revenue Record. His report is Exh.C.W.2/A which is in his hand while its pictorial representation is Exh.C.W.2/B, where with the help of yellow marker he has shown the place where the foundation had been dug by the complainant side.

23. Incidentally it may be mentioned that Muhammad Idrees (C.W.1) was entrusted with warrants against the appellants Ahmad Din, Waseem and Gulzar which could not be executed and later a copy of the proclamation against the said appellants was pasted by him on the door of their house in the village and other copies elsewhere as required under the law.

24. Although the appellants were charged for having caused injuries to Saleem P. W. but it appears that at the time of announcing of the judgment, this aspect of the case was lost sight of by the learned trial Court and there is no appeal filed by this date in this connection.

25. Learned counsel for the appellants begun his arguments by stating that no evidence has come on record with respect to the charge under section 7 of the Anti -Terrorism Act, 1997. That even under the provisions of section 302, P.P.C., the learned trial Court could not have fined the appellants as there is no provision for fine under these provisions any more. That the provisions of section 544‑A, Cr.P.C. had never been invoked by the learned trial Court for any such compensation. That anyway this was a case between two private parties without any serious risk to public or section of the public and having taken place in the field although not far away from the Abadi was not aimed to disrupting civil life although this was a triple murder case but it arose on account of a dispute over the land and was a case falling purely under the provisions of Pakistan Penal Code. Therefore, it was not covered under the definition of Terrorism under section 6 of the Anti‑Terrorism Act, 1997. As the contentions of learned counsel for the appellants had weight and have not been rebutted, we, therefore, are of the view that the charge under section 7 of the Anti- Terrorism Act has not been properly discussed by the learned trial Court nor is it established as such and we agree with the learned counsel for the appellants in this connection and the appellants are, therefore, acquitted of the charge. Under section 7 of the Anti‑Terrorism Act, 1997.

26. With respect to the sentencing or fine, we also feel that this is not provided by law and, therefore; we set aside the order of the learned trial Court in this connection at the very outset.

27. It was the contention of learned counsel for the appellants that the witnesses of recoveries were closely related to the complainant side and were inimically deposed against the appellants. But learned counsel for the appellants was unable to establish any such enmity showing the desire of the recovery witnesses to falsely prosecute the appellants in this case. They are related to the complainant party but this should not be the basis for discarding their testimony.

28. We also find that the weapons of offence which were recovered from the appellants, were found wedded with the empties recovered and the reports of the Forensic Science Laboratory borne on the file are Exhs. P.T.T and PUU which are in the positive and support the prosecutions case. Mere allegation about the enmity is never sufficient and the accusation are to be supported with strong evidence otherwise, such‑like allegations would be easy to make and there will be no end to it. The cross -examination against these recovery witnesses has not brought forth anything cogent which may convince us that they were the subborred witnesses and had not witnessed the recoveries and had come forth because of their deep‑rooted enmity against the appellants with the aspiration of prosecuting and punishing them. We feel that the recoveries were genuine although belated. In the case of the appellants Ahmad Din Gulzar and Waseem, it was so as they had absconded and the recoveries could only be effected on their arrest.

29. A lot was said investigation particularly Muhammad Saleem (P.W.19) that he became inimical towards the appellants and was instrumental implicating Ahmad Din after attributing him abetment and after fabricating against him through the testimonies Hussain (P.W.14) and Manzoor (P.W.15). That although the Rawalpindi Bench of this Court who had got recovered certain detenus belonging to the family of the appellants who had been wrongly confined by the Investigating Officer had directed that he refrained from further investigation but he continued to investigate the case and fabricate evidence.

30. It has been explained on behalf of the complainant side that the orders of the High Court were belatedly transmitted to the S.P. directing him to change the investigation and from that date onwards Muhammad Saleem had ceased to be an Investigating Officer. The investigation having been then taken over by Mehdi Khan (P.W.21). It has also been stated that the police had subjected to appellant's family to torture and had burnt their houses after the occurrence. In this connection, some F.I.Rs. appended with the case were referred to. But it has been stated by learned counsel for the complainant side that mere reference to the F.I.Rs. would not be enough. Learned counsel for the appellants ought to also inform this Court as to what was the result of these F.I.Rs. That even otherwise, the grievances highlighted against the police were post occurrence and called for a separate remedy. While going through the statement of Muhammad Sarwar (P.W.16), one finds that in his cross‑examination he stated that the recovery from Muhammad Saleem had taken place from the portion of a house which had not been burnt while only a portion of cattle‑shed had been burnt. This should further dispel the view of learned counsel for the appellants that as the houses had been burnt, the recovery effected from these houses appeared fake.

31. It was argued rather vehemently by learned counsel for the appellants that the occurrence had taken place in Khasra No.384 which belong to the appellants and the appellants had the right to protect their property rights. One finds a plea of defence even during cross‑examination of the P.Ws. before the trial Court that as the complainant side was armed and had started firing. Ahmad Din took action in self‑defence to protect his honour and property.

32. A perusal of Exh.P.M.M reflects that Khasra Nos. 384 and 385 are adjoining. The case of the defence was that the complainant side wanted to encroach on about 16 feet of their area and when they were stopped the occurrence took place. The case of the complainant side is that the construction was taking place in the field of the complainant and this offended the appellants who wanted a passage. This site although close to the village Abadi had now gained importance because of plotting for housing purposes.

33. The report of the Tehsildar (C.W.2) is not very clear and the learned trial Court was also in a quandary with respect to the ownership of the place where the construction had been started by the complainant side. Anyway the appellants had raised a plea of defence of their property and honour and onus, therefore, to establish this fell on them for bringing their case under the exception clause of the Pakistan Penal Code. No one paid attention to this aspect of the case. Even otherwise and. according to the Investigating Officer no spot inspection with respect to the ownership of the place where the occurrence took place was done. The village Patwari was also not called for such determination. The appellants should have produced him in their defence. While focusing attention on Exh.P.M.M, learned counsel for the appellants tried to make us believe that Khasra No.384 which belongs to the appellants was 66 feet deep from the northern boundary towards the south and the spot where the occurrence had taken place was within this area. But we find in the statements of other witnesses that a part of Khasra No.384 had been occupied for the road. Even otherwise, in the absence of a detailed spot inspection report, it is difficult to exactly determine as to who was the owner of the spot and whether it fell in Khasras Nos. 384 and

385. The appellants have thus failed in establishing the fact in their favour in this respect in support of their plea of defence of their property.

34. But anyway the complainant side were no aliens to this land and even if they had started building, the foundation they could have been stopped by means other than fire‑arms. The story of the prosecution that the complainant side had started firing has not been established at all. It is not even otherwise plausible. Because if the complainant side had an arm, they would not have allowed a triple murder and injuries to three P.Ws. taking place that easily at the hands of the appellants.

35. We are of the view that the complainant side was not armed when the aggression against them had taken place at the hands of the appellants. The abscondence of the three appellants named in the F.I.R. who had left for abroad also speaks unfavourably against them and they have not even cared to explain their abscondence properly. The appellants are desperate persons and having no qualms of conscience had done three persons to death and caused injuries to others. We, therefore, feel that although this case, according to our view, is not a peculiar case of terrorism, but is a case of triple murder.

36. The eye‑witnesses have stood the test of cross‑examination and they have remained steadfast and unshaken. The number of casualties speak of many assailants and not Ahmad Din alone. It is a day time occurrence and the prosecution story in the absence of my dent is to be believed and it is established. We, therefore, uphold the orders of conviction under section 302 read with section 34, P.P.C. against the appellants.

37. Ahmad Din appellant was convicted under section 324, P.P.C. for attempt to commit murder of Liaqat Ali P.W. and he was sentenced to 10 years' rigorous imprisonment. The injury suffered by Liaqat Ali P.W. was declared by the Doctor as Shajjah‑i‑Khafifah punishable under section 337‑A(i), P.P.C. We feel that under the circumstances, no offence under section 324, P.P.C. is made out against the appellant Ahmad Din. Because had he desired to launch a murderous attack, the result would have been disastrous. He is, therefore, acquitted of the charge under section 324, P.P.C. but convicted of the charge under section 337‑A(i), P.P.C. and sentenced to two years' rigorous imprisonment and also to pay Daman which was omitted in the judgment of the learned trial Court.

38. Ahmad Din and Muhammad Waseem appellants have been found guilty under section 324, P.P.C. read with section 34, P.P.C. for launching murderous assault on Ishtiaq P. W. and were sentenced to 10 years' rigorous imprisonment each. Additionally both of the them have been found guilty under section 337‑E (v), P.P.C. and sentenced to five years' rigorous imprisonment. The injury suffered by Ishtiaq P.W. was Jaifah Hashimah. The judgment of the learned trial Court with respect to the payment of Daman to which they were liable is silent. We uphold the conviction on both these counts but reduce the sentence under section 324 read with section 34, P.P.C. to 5 years' rigorous imprisonment each while also making them liable to pay Daman. All these sentences shall run concurrently. We also feel that the appellants convicted under section 302 read with section 34, P.P.C. could not have been additionally sentenced to a fine of Rs.200,

000. This legal infirmity in the judgment is removed.

39. With these modifications in the judgment of the trial Court, we dismiss the appeal. The death sentence of the appellants, namely Munir Hussain, Ahmad Din, Muhammad Gulzar and Muhammad Waseem, is confirmed and the Murder Reference is answered accordingly.

40. After the modification which have been made in the sentence and the addition of payment of Daman, we feel that Criminal Revision No.26 of 2001 has borne fruit. However, the sentence of fine of Rs.200,000 awarded by the trial Court being illegal sentence can neither be maintained nor enhanced and as such the revision petition is disposed of accordingly.

41. For what has been stated above, Criminal Miscellaneous No.8‑Q of 2001 is dismissed. T.A.F./M‑1343/L Order accordingly.