2026 PLP 972 (SCMR)

ISHTIAQ IBRAHIM, J.

Sajjad @ Kala ( Petitioner ) along with co-accused Saeed, Shahid, Aleem, Muhammad Hussain alias Billu, Shah Nawaz, Faqir Hussain, and Basheer Ahmad ( absconding ), was charged in case FIR No. 321/2006, under sections 302, 324, 148, 149, and 109 of the Pakistan Penal Code, 1860 ( P.P.C. ) read with section 7 of the Anti-Terrorism Act, 1997 ( ATA ), registered at Police Station Jaranwala. The Petitioner was tried by the Anti-Terrorism Court, Faisalabad ( Trial Court ) and upon conclusion thereof, the Trial Court vide judgment dated 22.10.2013, convicted and sentenced him as follows: Under Section 148, P.P.C.: To undergo to two years rigorous imprisonment (R.I) with fine of rupees 20,000/- and in default thereof to further undergo one-month Simple imprisonment (S.I.) Under Section 302(b), P.P.C. read with 149, P.P.C.: To death as Ta azir on two counts and to pay compensation of rupees 1,00,000/- to legal heirs deceased Ebad Ali and Mehmood ul Hassan under section 544, Cr.P.C and in default thereof to further undergo 6 months S.I. Under Section 7(a) of the Anti-Terrorism Act, 1997 ( ATA ) read with 149, P.P.C.: To death on two counts with fine of rupees 1,00,000/- on two counts and in default thereof to further undergo six months S.I. Under Section 21-L ATA: To undergo 5 years R.I with fine of rupees 50,000/- and in default to further undergo 2 months S.I.

2. Being aggrieved by his conviction and sentences, the petitioner-convict preferred Criminal Appeal No. 406-J/2013 before the Lahore High Court, Lahore ( the High Court ), but the same was dismissed, conviction of the petitioner-convict under all the above offences was maintained; however, the sentences of death awarded to him under section 302(b), P.P.C. and section 7(a), ATA, were modified to life imprisonment on four counts. Accordingly, the Capital Sentence Reference No.26-T of 2013, sent by the Trial Court for conformation or otherwise of the death sentences of the petitioner-convict was answered in the negative vide judgment dated 04.12.2017 ( impugned judgment ).

3. Through Criminal Petition No.47-L of 2018, the petitioner-convict, seek leave to appeal against the impugned judgment of the High Court. Conversely, Muhammad Hussain, the complainant, has filed Criminal Petition No.44-L of 2018, seeking enhancement of sentence of the respondent-convict from life imprisonment to normal penalty of death under section 302, P.P.C. and section 7(a), ATA.

4. The prosecution case, as stated by the complainant Muhammad Hussain (PW-7) in the First Information Report (FIR) is that, he, his brother Ebad Ali deceased and nephew Shahbaz (PW-8), were undertrial prisoners in FIR No. 724 of 2003, registered under section 302, P.P.C. at Police Station Khurrianwala. On 06.03.2006, the police brought them in a prisoner van to the Jaranwala Katchery for the purpose of appearance before the learned Additional Sessions Judge, Jaranwala/Trial Court. At about 11:45 a.m. to 12:00 noon, they got down from the prisoners van near and were being escorted by Constable Shafique No. 3642/C and when reached near the Court of the Additional Sessions Judge Jaranwala, in the meantime, the petitioner-convict along with co-accused Saeed, Shahid, Aleem, Muhammad Hussain, Shahnawaz, Faqir Hussain, and Basheer Ahmad (absconding), all covered in chadars and duly armed with .244-bore rifles, emerged at the spot and raised lalkara to take revenge of the murder of Badar Munir. Co-accused Shahid and Saeed then opened fire at them, as a result of which Ebad Ali deceased and Constable Shafique (PW.6) got hit and sustained firearm injuries. The petitioner-convict then fired at Mehmood-ul-Hassan deceased, who had come from his village to Courts to meet the complainant. The remaining co-accused also opened indiscriminate firing, causing panic and confusion inside the court premises, as a result, other persons present in the Katchery for their cases, namely, Abdul Ghaffar, Shahid Iqbal, Sanaullah, and Afzal, also received firearm injuries. Mehmood-ul-Hassan deceased succumbed to injuries on the spot while Ebad Ali deceased, later died from his injuries while being taken to the hospital. The incident was witnessed by the complainant Muhammad Hussain (PW-7), Shahbaz (PW-8), and Shoukat Ali as well as other people present in the court premises. The motive behind the occurrence was stated to be the earlier murder of Badar Munir, brother of co-accused Shahid and Saeed, in a case in which deceased Ebad Ali, complainant and PW Shah Nawaz were facing trial and were brought to the court premises on the fateful day. Upon report of the complainant, FIR was registered against the petitioner-convict and absconding co-accused.

5. Upon the arrest of the petitioner-convict Sajjad alias Kala and completion of the investigation, a report under section 173 of the Code of Criminal Procedure, 1898 ( the Code ) was submitted against him before the Trial Court. After facing a regular trial, the petitioner-convict was convicted and sentenced by the Trial Court, as detailed hereinabove. The High Court, while maintaining the conviction of the petitioner-convict under all the offences, commuted the sentences of death awarded to him under section 302(b), P.P.C. and section 7(a) ATA to imprisonment for life on four counts and, consequently, answered Capital Sentence Reference No. 26-T of 2013 in the negative, vide the impugned judgment.

6. We have heard the learned counsel for the petitioner-convict as well as the learned Deputy Prosecutor General, Punjab, appearing on behalf of the State, and have perused the record, including the evidence and the judgments rendered by the Courts below, with their able assistance.

7. Since the co-accused are still absconding, therefore, our findings shall be confined solely to the role of the petitioner-convict Sajjad alias Kala and shall have no bearing on the prosecution case insofar as it relates to the role of the absconding co-accused.

8. Muhammad Hussain complainant (PW-7) and Shahbaz (PW-8) have furnished ocular account of the occurrence. It is undisputed that the incident took place near the courtroom of the learned Additional Sessions Judge, Jaranwala. The record establishes that the complainant, Ebad Ali deceased and Shahbaz (PW.8) were in police custody being charged in FIR No. 724 of 2003 registered under section 302, P.P.C. at Police Station Khurrianwala and on the fateful day, they were brought by the police to produce them before the ASJ, Jaranwala/Trial Court in the cited case. In view of the unrebutted documentary evidence brought on record by the prosecution in respect of the said case regarding production of the eye-witnesses, the presence of the eye-witnesses on the spot at the time of occurrence is thus established beyond reasonable doubt. Ebad Ali deceased, who was also handcuffed like the complainant, lost his life in the incident due to firearm injuries. A careful appraisal of the testimony of the eye-witnesses reveals that both are consistent with each other on all material particulars of the occurrence, including the day, date, time, place, and manner of occurrence, as well as the events preceding and following the incident. Both have directly charged the petitioner-convict and have attributed him the role of firing at Mehmood-ul-Hassan deceased. The eye-witnesses were subjected to lengthy and searching cross-examination by the defence; however, nothing could be elicited from them which might benefit the defence or cast any doubt upon the prosecution case. They remained firm and consistent, and fully corroborated each other on all material particulars of the occurrence. The incident took place in broad daylight, thereby completely ruling out the possibility of mistaken identity. The ocular account also finds supports from the medical evidence, particularly with regard to the role attributed to the petitioner-convict. Dr. Riaz Ali (PW-3), who conducted the post-mortem examination of deceased Mehmood-ul-Hassan, noted a firearm injury on his person which according to his opinion, was ante-mortem and sufficient in the ordinary course of nature to cause death.

9. Although, injured, namely, Muhammad Afzal (CW-1), Abdul Ghaffar (CW-2), Shahid Iqbal (CW-3) and Constable Muhammad Shafique (PW-6), who also sustained injuries in the incident, in their statements have shown their inability regarding the identification of the assailant, however, each one of them has admitted in unequivocal the occurrence on the same day, date, time, and place as stated by the eye-witnesses. Their inability to identify the assailants is quite understandable, as they were not related to either party and had come to the court in connection with their own cases. Moreover, owing to the suddenness of the occurrence and their lack of prior acquaintance with the parties, their explanation that they could not recognize the assailants, is understandable and appealable to prudent mind. The reluctance or inability of the above named injured witnesses does not, in any manner, diminish the credibility or evidentiary value of the eye-witnesses for the reason that it is a matter of common knowledge, of which judicial notice may safely be taken, that in our society, in such like incidents, the people ordinarily refrain from identifying or testifying against accused persons due to fear of retaliation, intimidation, and the risk of incurring lasting enmity for themselves and their families. Even otherwise, in such like situation of indiscriminate firing the first priority of such impartial and independent people is to save their lives and not to witness the occurrence or identity the assailants. As stated earlier, the testimony of these witnesses is sufficient to prove the commission of the offence on the day, date, time and place of occurrence as alleged by the prosecution.

10. We are conscious of the fact that the petitioner-convict has been assigned specific role of effective fire shot on the person of deceased Mehmood-ul-Hassan by the eye-witnesses and the role of effective fire shots on the person of constable Muhammad Shafique and Ebad Ali deceased has been assigned by them to absconding co-accused Shahid and Saeed. However, the above aspect would not absolve the petitioner-convict of liability of the murder of the deceased Ebad Ali. The evidence on record conclusively establishes that the petitioner-convict along with absconding co-accused while forming an unlawful assembly, armed with deadly weapons, jointly came to the court premises to take the revenge of the murder of Badar Munir deceased (brother of absconding co-accused). The nature of the weapons carried by the accused, the place of occurrence, and the manner in which indiscriminate firing was made upon the two deceased clearly demonstrate that the common object of the unlawful assembly of which the petitioner-convict was also a member, was to commit murder of the deceased. Section 149, P.P.C. embodies the doctrine of vicarious liability and operates as an exception to the general rule that a person is liable only for his own acts. For the application of section 149, P.P.C., it must be shown that: (i) the accused was a member of an unlawful assembly; (ii) an offence was committed by a member of such assembly in prosecution of the common object thereof, or was such as the members knew to be likely committed; and (iii) the accused shared the common object at the relevant time. In the present case, all the essential ingredients of section 149, P.P.C. stand fully satisfied. The petitioner-convict was an active member of the unlawful assembly, armed with a deadly weapon, and participated in the occurrence. The offence was committed in prosecution of the common object of the unlawful assembly, which was clearly within the knowledge of all its members. Consequently, the petitioner-convict is vicariously liable for the acts committed by his co-accused under section 149, P.P.C., irrespective of whether he fired the fatal shots on the person of deceased Ebad Ali or not.

11. The moot question for determination is whether, having regard to the mode and manner of the occurrence, the place of occurrence, and the alleged motive, the provisions of the Anti-Terrorism Act, 1997 ( ATA ) are attracted to the present case. According to the eye-witnesses, the motive behind the occurrence was to avenge the murder of Badar Munir, the brother of co-accused Saeed and Shahid, in a case in which the complainant, deceased Ebad Ali, and PW Shahbaz were nominated as accused and on the fateful day, they were being produced in the said murder case of Badar Munir, before the Trial Court under police custody. Upon a careful and holistic examination of the prosecution evidence, we find no material to bring the actions of the petitioner-convict within the ambit of terrorism as defined under section 6 of the ATA, particularly in light of the principles enunciated in Ghulam Hussain v. The State (PLD 2020 SC 61). The occurrence appears to be the result of a private vendetta rather than an act designed to terrorize the public at large or create a sense of insecurity in society. We note that the courts below treated the case as one of terrorism on the premise that the actions of the accused and the place of occurrence fall within the Third Schedule of the ATA and, therefore, constitute terrorism. The relevant provision relied upon in this regard is Entry No. 4(iii) of the Third Schedule, which reads: Third Schedule 4(iii): Firing or use of explosives by any device, including bomb blast in court premises. It is pertinent to note that Entry No.4(iii) ibid was introduced through a notification issued in the year 2012 and published in the official Gazette the same year, whereas the present incident took place in the year 2006, well before the said amendment meaning thereby that when the occurrence took place Entry No.4(iii) was not in the Third Schedule attached to ATA. It is a settled principle of criminal jurisprudence that penal provisions cannot be applied retrospectively and an accused cannot be tried for an offence which did not exist in law at the time of the occurrence.

12. In addition to above, as explained in Ghulam Hussain case (supra), a reading of the Third Schedule of the ATA, shows that an Anti-Terrorism Court is conferred jurisdiction not only to try offences that satisfy the statutory definition of terrorism under the ATA but also certain other heinous offences which do not amount to terrorism. Such offences are included in the Third Schedule of ATA to enable their speedy trial by the Anti-Terrorism Court. In these cases, although the offences are heinous, they do not constitute terrorism per se; the Anti-Terrorism Court may try the case and impose punishment only for the substantive offence, not for terrorism. For clarity, an illustrative example is the offence of abduction or kidnapping for ransom under section 365-A, P.P.C., which is also included in Entry No. 4 of the Third Schedule and punishable under section 7(e) ATA. An ordinary kidnapping for ransom under section 365-A, P.P.C., although heinous, does not constitute terrorism; it is merely triable by an Anti-Terrorism Court. However, if the kidnapping is committed with the design or purpose specified in clauses (b) or (c) of subsection (1) of section 6 of the ATA, it amounts to terrorism, attracting punishment under section 7(e) in addition to 365-A, P.P.C.

13. Applying the principles settled by this Court in Ghulam Hussain s case, the present case arising out of personal vengeance, cannot be treated as terrorism to the extent of the murder of the two deceased. As regards injuries allegedly sustained by constable Muhammad Shafique (PW.6), we note that he has not named any accused in his statement for causing him such injuries. Similarly, the doctor/medical officer who allegedly examined him has not been produced by the prosecution. In this view of the matter, the injuries allegedly sustained by constable Muhammad Shafique remained unproved. We are mindful of the fact that this Court in its judgment rendered in Criminal Appeal No.22-K/2022 and Crl.P.L.A. No.184-K of 2020, titled, Riaz Hussain v. The State after exhaustive discussion reached to the conclusion that in cases where the officers/officials of the Law Enforcement Agencies are harmed or killed not because of personal enmity, but solely because of their deployment for discharging of lawful duty, and where such attacks are deliberately planned as part of an assault/attack on a person(s) in custody, the intent and effect of the act transcend private vendetta attract provisions of ATA. The targeting of police personnel in the performance of their duties, particularly, through premeditated armed assaults even on a private party or while committing any illegal act, constitutes a direct challenge to State authority and the justice system. Such act shall fall within the definition of terrorism. This refined analysis does not unsettle the jurisprudence established in Ghulam Hussain s case, but rather supplements it by recognizing that serious violence against law enforcement agencies, even in the context of private feuds of third parties, may acquire the character of terrorism when it systematically targets those upholding the rule of law. It is also to be noted that if any harm is caused to an official outside their official duty hours on account of an act performed by them in discharge of their official duties, i.e. as consequence of their official duty, such harm shall equally be treated as arising from their official role and would thus amount to terrorism. The action of the petitioner-convict and keeping in view the peculiar facts and circumstances of the case, falls within the definition of 6(1)(m) ATA which is reproduced below:- (m)involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties.

14. In view of the foregoing discussion, Criminal Petition No.47 of 2018, is converted into an appeal and partly allowed in the manner that conviction and sentence of the petitioner-convict under section 7(a) ATA are set aside. The conviction and sentences of the petitioner-convict under sections 302(b), P.P.C. and 148, P.P.C. are maintained. The petitioner-convict, is however, convicted under section 7[1](h) ATA and sentenced to undergo rigorous imprisonment for five years and to pay Rs.50,000/- as fine and in default thereof to further undergo 01-month simple imprisonment. All the substantive sentences of the petitioner-convict shall run concurrently. Benefit of Section 382-B of the Code is extended to him. partially allowed. Criminal Petition No.44-L of 2018

15. The learned High Court has rightly held that, in the absence of a positive matching report from the Punjab Forensic Science Agency (PFSA) regarding the alleged crime rifle recovered at the instant of the petitioner and the crime empties, such recovery is of no legal consequence. Likewise, the finding of the High Court that the motive, namely the murder of Badar Munir, brother of the absconding co-accused, was not directly attributable to the petitioner-convict, is based on a proper and judicious appreciation of the evidence on record. Taking into consideration the non-establishment of motive against the petitioner-convict and the inconsequential nature of the recovery as mitigating circumstances, the High Court rightly exercised its discretion in commuting the sentence of death to imprisonment for life, in line with the settled principles laid down by this Court. We find no ground and evidence to warrant enhancement of sentence of the respondent-convict. Therefore, this petition for enhancement of sentence is dismissed. MH/S-8/SC Order accordingly.