2022 P Cr (PLP)

SADAQAT ALI KHAN, J.

Appellant (Muhammad Ijaz alias Aju) has been tried by learned trial Court in case FIR No.537 dated 26.11.2014 offences under sections 302/148/149, P.P.C. read with section 7 of Anti-Terrorism Act, 1997 registered at Police Station City Jalalpur Pitkvala, District Multan and was convicted and sentenced vide judgement dated 07.04.2016 by the learned trial Court as under:- Under section 148, P.P.C. Sentenced to 3-years' R.I. with fine of Rs.10,000/- and in default of fine to further undergo 2-months' S.I. Under sections 302(b)/149, P.P.C. Sentenced to death with compensation of Rs.200,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default whereof to further undergo six months' S.I. Under section 7(a), Anti-Terrorism Act, 1997 Sentenced to death with fine Rs.100,000/- and in default whereof to further undergo six months' S.I. Benefit of section 382-B, Cr.P.C. was also extended in his favour. Appellant has filed this Criminal Appeal against his conviction whereas learned trial Court has sent C.S.R. for confirmation of his death sentence or otherwise, which are being decided through this single judgment.

2. The facts of the case have been stated by Allah Ditta complainant (PW-1) in his statement (examination-in-chief) before the learned trial court which is hereby reproduced for narration of the facts:- "Stated that on 26.11.2014, I along with Saeed Ahmad my nephew, Altaf and Hafeez Ur Rehman came to attend the court of Additional District and Sessions Judge, Tehsil Jalalpur for Parvi of case No.663/10 under sections 302/324/148/149, P.P.C. and after attending the court at about 11:00 a.m. we were present in the chamber of our counsel Rao Abdul Rehman, Advocate. I, Altaf and Hafeez Ur Rehman were standing outside the chamber while my nephew Saeed Ahmad alias Makhan sat inside the chamber. In the meanwhile, accused Ijaz alias Aju present in Court armed with pistol along with Arshad armed with pistol, Mumtaz alias Badhoo armed with pistol, Bilal armed with pistol and mother of accused Mst. Ghulam Fatima came there and started firing. First fire was made by Ijaz alias Aju accused which hit at body of Saeed alias Makhan on left side of his chest, second fire made by Mumtaz alias Badhoo which hit at abdomen of Saeed alias Makhan, Arshad, Bilal made fires from their pistols which hit Saeed Ahmad alias Makhan on right thigh and knee and shin. Mother of accused raised lalkara and said to her sons that if you are my sons left the Saeed alias Makhan be killed. Saeed alias Makhan fell down and succumbed to the injuries at spot. The two persons on motorcycle while armed were standing outside and they were watching the scene and supervising the occurrence and on seeing the public started firing, creating harassment in the Katchehry and the public men present there to save themselves took refuge in nearby chambers of advocates. The accused Ijaz alias Aju present before court was arrested at spot by Farooq constable present there in civil dress and the motorcycle of the accused was also recovered at spot.

2. The motive was the occurrence is that before the instant occurrence Qasim father of the accused was murdered and they got registered case on Saeed deceased of the case as well as others and due to that grudge the accused party before the instant occurrence murdered Bhanji of Saeed (deceased of this case). Ex.PA my statement was recorded by police."

3. We have heard the learned counsel for the appellant as well as learned D.D.P.P. and on perusing the record with their able assistance observed as under:- i. Sneed Ahmad alias Makhan was done to death in the Chamber of Rao Abdul Rehman Advocate, situated within the premises of "Kachahry", Tehsil Jalalpur Pir Wala on 26.11.2011 at 11:00 a.m. when he along with PWs came to attend the Court of Additional District and Sessions Judge, pertaining to murder case, FIR was lodged on the statement of his maternal Uncle Allah Ditta PW1 against Muhammad Ijaz alias Aju (appellant), Mumtaz Hussain alias Baddu (appellant in Crl. A. No.856 of 2019 as tried separately which has been dismissed today with some modifications), Arshad, Bilal (accused since P.Os.) and Ghulam Fatima (accused since acquitted). ii. Allah Ditta PW1 and his maternal nephew Hafeez Ur Rehman PW2 while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before the trial court regarding role of the accused that Muhammad Ijaz alias Aju (appellant) made fire shot with his pistol hitting on the left side of chest of Saeed Ahmad alias Makhan (deceased), second fire shot made by Mumtaz Hussain alias Baddu (co-convict discussed above) hit on the abdomen of Saeed Ahmad alias Makhan (deceased). Fire shots made by Arshad and Bilal (co-accused since P.Os.) with their pistols hit on right thigh, knee and shin of Saeed Ahmad alias Makhan (deceased). iii. After the occurrence appellant Muhammad Ijaz alias Aju was apprehended with motorcycle at the spot by Farooq Ahmad constable CW1, who has supported both the eye-witnesses. All these three witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated one another on all material aspects of the case. They have established their presence at the time of occurrence at the place of occurrence with their stated reasons. Their evidence is straightforward, trustworthy and confidence inspiring. Discrepancies pointed out in the statements of the PWs by the learned counsel for the appellant are minors and general in nature, occur in every case when the witnesses (who are human being) are cross-examined after a long time of the occurrence as in the present case, are not fatal to the prosecution case. iv. Medical evidence has been furnished by Dr. Faisal Sajid PW-8, who during postmortem examination observed firearm injury on the person of Saeed Ahmad alias Makhan (Deceased) attributed to appellant which along with other injuries was ante-mortem in nature and was sufficient to cause death in ordinary course of nature, therefore, medical evidence has fully supported the ocular account furnished by the above mentioned eye -witnesses. v. Just after the occurrence Muhammad Ijaz alias Aju (appellant) was apprehended by Farooq Ahmad constable CW1 with pistol as stated by him and Ghulam Ali, S.I. PW9, who made his formal arrest took into possession pistol .30-bore P

1. Report of Punjab Forensic Science Agency in this respect Exh.PO shows that crime empties recovered from the place of occurrence have been matched with it. vi. Motive of the occurrence was murder enmity; Qasim father of the appellant was murdered by Saeed Ahmad alias Makhan (deceased) etc. Bhanji of Saeed Ahmad alias Makhan (deceased) was also murdered which was not denied. vii. Appellant (Muhammad Ijaz alias Aju), while denying his involvement in the present occurrence in answer to question No.9 of his statement recorded under section 342, Cr.P.C. has submitted that deceased was a murderer, dacoit and chieftain of criminal gang, many criminal cases have been registered against him, and had enmity with so many people. Some unknown person has committed the present occurrence but he along with his family has been involved in this case due to murder enmity. He did not opt to appear as a witness under section 340(2), Cr.P.C. but produced certain documents in his defence evidence. Considering above, it is concluded that Muhammad Ijaz alias Aju appellant has failed to prove his defence plea and learned trial court has rightly discarded the same with sufficient reasons.

4. In view of the above discussion, we are of the view that the prosecution has proved its case beyond shadow of doubt against the appellant through evidence discussed earlier.

5. We have observed that appellant was tried by Special Judge/Anti-Terrorism Court, as occurrence took place within the premises of the Court in the Chamber of an Advocate and was also convicted and sentenced in offence under section 7(a), Anti-Terrorism Act, 1997 but same cannot be sustained because instant occurrence took place on previous private vendata i.e. enmity of the murders. Mere firing at one's personal enemy in the backdrop of a private vendata or design does not ipso facto bring the case within the purview of section 6 of Anti-Terrorism Act, 1997, so as to brand the action as terrorism. We note that by virtue of item No. 4(iii) of the 3rd Schedule to the Anti-Terrorism Act, 1997 a case becomes triable by an Anti-Terrorism Court if use of firing or explosives including bomb blast in the Court premises is involved in the case. That entry in the 3rd schedule only makes such a case triable by an Anti-Terrorism Court but such a case does not ipso facto become a case of terrorism for the purposes of recording convictions and sentences under section 6 read with section 7 of the Anti-Terrorism Act, 1997, unless there was a design or object contemplated by section 6 of Anti-Terrorism Act, 1997 which is missing in the present case. The case in hand had, thus, rightly been tried by an Anti-Terrorism Court but the said Court could not have convicted and sentenced the appellant for an offence under section 7(a) of the Anti-Terrorism Act, 1997 as it had separately convicted and sentenced the appellant for the offence of murder, etc. committed as ordinary crimes. (PLD 2017 SC 661 "Amjad Ali and others v. The State"), (2019 SCMR 1165 "Ahsan Shahzad and another v. The State and others"), (PLD 2019 SC 580 "Muhammad Yaqoob v. The State"), (PLD 2020 SC 427 "Ali Gohar and others v. Pervaiz Ahmed and others"), (2020 SCMR 1422 "Sadiq Ullah and another v. The State and another)". Hence, the conviction and sentence of the appellant in offence under section 7(a) of ATA, 1997, are hereby set aside.

6. On account of acquittal of Ghulam Fatima co-accused, the remaining four accused i.e. Muhammad Ijaz alias Aju (appellant), Mumtaz Hussain alias Baddu (co-convict discussed above), Arshad and Bilal (since P.Os.) cannot be convicted for the offence under section 148, P.P.C. as same pertains to rioting defined under section 146, P.P.C.; force or violence used by an unlawful assembly or its member (141 P.P.C.); five or more persons. In this view of the matter, the conviction and sentence of the appellant in offence under section 148, P.P.C. are hereby set aside.

7. So far as, the conviction of the appellant Muhammad Ijaz alias Aju in offence under section 302(b), P.P.C. for the murder of Saeed Ahmad alias Makhan (deceased) is concerned same is maintained but his sentence is altered from death to imprisonment for life as appellant along with his co-accused was attributed firearm injuries on the person of Saeed Ahmad alias Makhan (deceased), it is not discernible as to which of the accused is responsible for the fatal injuries to the deceased. In such circumstances, generally sentence of death is withheld by way of abundant caution. (2018 SCMR 372 "Atta-ur-Rehman and another v. The State"). The compensation and sentence in default whereof awarded by the trial court through the impugned judgment are maintained and upheld. Benefit of section 382-B, Cr.P.C. is extended in favour of the appellant.

8. Consequently, with the above said modification in the impugned judgment, instant Criminal Appeal filed by Muhammad Ijaz alias Aju appellant is hereby dismissed. C.S.R. is answered in NEGATIVE and death sentence of Muhammad Ijaz alias Aju appellant is NOT CONFIRMED. JK/M-208/L Appeal dismissed.