2025 PLP 2456 (YLR)

Muhammad Ayub Khan Tareen, J.

This judgment shall dispose of Criminal Appeal No 402/2023 and Criminal Revision Petition No.34/2023, as both these appeal and revision petition are directed against the judgment dated 31st August 2023, passed by the learned Judge, Anti-Terrorism Court, Rakhni, in ATC case No.06/2021, whereby the appellants Zohaib Ahmed son of Farooq Ahmed, Sikandar Hayat son of Ellahi Bakhsh and Muhammad Gul alias Gul son of Khuda-e-Dad, were convicted and sentenced in the following terms: i) under section 302(b)/149 P.P.C to suffer imprisonment for life each for two counts and to pay compensation Rs.10,00,000/- each to the legal heirs of deceased persons under section 544-A, Cr.P.C, in default to further suffer six months simple imprisonment each; ii) under section 7 (1)(a) of the Anti-Terrorism Act, 1997 to suffer life imprisonment each with a fine of Rs.50,000/- each in default to further suffer six months each; iii) under section 7(1)(b) of the Anti-Terrorism Act, 1997 to suffer rigorous imprisonment for ten years each and to pay fine Rs.50,000/- each, in default to further suffer six months each; iv) under section 7(1) (g) of the Anti-Terrorism Act, 1997 to suffer rigorous imprisonment for two years each with a fine of Rs.10,000/- each, in default to further suffer simple imprisonment for two months each; v) under section 324/149, P.P.C to suffer rigorous imprisonment for five years each with a fine of Rs.20,000/- each, in default to further suffer simple imprisonment for four months each; vi) under section 147, P.P.C to suffer rigorous imprisonment for one year each; vii) under section 148, P.P.C to suffer rigorous imprisonment for one year each. All the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C. Hence, this appeal with the prayer to set aside the impugned judgment, passed by the trial court and, to acquit the appellants (accused) of the charge. Besides, criminal revision petition, filed by the complainant Abdul Qayyum for enhancement of sentence.

2. Facts of the case are that in pursuance of PW-1 Abdul Qayyum's application (Ex: P/1-A), a criminal case, vide FIR No.39/2021 (Ex: P/28-A) dated 6th October 2021, under sections 302, 324, 147, 148, 149 P.P.C read with section 7 of the Anti-Terrorism Act 1997 was registered at P.S. Rakhni, District Barkhan, wherein he alleged that on the fateful day of the incident i.e. 6th October 2021, he and his brother Abdul Sattar were present at Rakhni, they received information that tribesmen of Leghari tribe blocked the road at Biwatah and not allowing the tribesmen of Khetran tribe to enter in Punjab, upon which he along with Abdul Sattar, Fareedullah, Shah Zaman and Saifullah, started for negotiation with Legharis, when they reached near Custom Check-post Dera Road Rakhni found Irfan Shah, Waseem Khan, Haji Nasir, Yar Khan alias Dada present. SHO and police officials were also present on the spot; meanwhile appellants and their unknown accomplices started indiscriminate firing and caused serious injuries to Abdul Sattar, police officials Allah Dad, Saifullah, Nadir Khan and Irfan Shah son of Zaman Shah, Waseem Khan son of Paind Khan, Haji Nasir son of Khan Muhammad, Yar Khan alias Dada son of Muhammad Khan, as a result Abdul Sattar died on the spot and Yar Khan succumbed to his injuries in the hospital. Ghulam Fareed also filed an application regarding the same incident and nominated appellants Sikandar, Muhammad Gul alias Gul and absconding accused Ahmed Din, Farooq, Muhammad Bakhsh alias Mola.

3. On completion of investigation, challan (Ex: P/28-J) of the case was submitted and the co-accused were declared as absconders; trial commended, charge was framed and readover to the appellants, to which they pleaded not guilty and claimed trial.

4. To substantiate the accusation, the prosecution produced and examined, PW-1 Abdul Qayyum (complainant) who produced application (Ex: P/1-A); PW-2 Shah Zaman son of Sahib Dad is eye-witness of the occurrence; PW-3 Fareedullah (eye-witness); PW-4 Nasir Khan son of Khan Muhammad (injured/eye-witness); PW-5 Nadir Khan son of Sher Khan (injured/eye-witness); PW-6 Saifullah Head Constable (injured/ eye-witness); PW-7 Allah Dad Constable (injured/eye-witness); PW-8 Waseem Khan son of Paind Khan (injured/ eye-witness); PW-9 Attaullah Head Constable is witness of recovery memo (Ex: P/9-A) of parcel (Article-P/9-1) containing sample of seal (Article-P/9-2) and blood stained cotton of deceased Abdul Sattar (Article-P/9-3); PW-10 Syed Irfan Shah son of Zaman Shah (injured/eye-witness); PW-11 Rahman Shah Head Constable is witness of recovery memo (Ex: P/11-A) of parcel (Article-P/11-1) and recovery memo (Ex: P/11-B) of parcel (Article-P/11-2) containing sample of seal (Article-P/11-3) and blood stained shirt of injured Irfan Shah (Article-P/11-4). PW-12 Khalid Mahmood Constable, witness of recovery memo (Ex: P/12-A) of parcel (Article-P/12-1) containing blood stained earth of deceased Yar Khan; PW-13 Khalid Mahmood Constable, witness of recovery memo (Ex: P/13-A) of parcel (Article-P/13-1) containing blood stained earth of deceased Abdul Sattar, recovery memo (Ex: P/13-B) of parcel (Article-P/13-2) containing blood stained clothes of injured Saifullah HC. PW-14 Ahmed Khan Head Constable, witness of recovery memo (Ex: P/14-A) of parcel (Article- P/14-1) containing sample of seal (Article-P/14-2), blood stained clothes of deceased Abdul Sattar (Article-P/14-3) and recovery memo (Ex: P/14- B) of mobile phone (Article-P/14-4). PW-15 Ghulam Fareed son of Rahman produced his application (Ex: P/15-A) for nomination of appellants Sikandar Hayat, Muhammad Gul alias Gul and absconding accused. PW-16 Lal Jan Constable is witness of recovery memo (EX: P/16-A) of parcel (Article-P/16-1) containing sample of seal (Article-P/16-2) and blood stained uniform of Constable Allah Dad (Article-P/16-3). PW-17 Manzoor Ahmed Head Constable is witness of disclosure memo of accused Zohaib Ahmed (Ex: P/17-A), pointation memo (Ex:P/17-B), recovery memo (Ex: P/17-C) of parcel (Article-P/17-1) containing sample of seal (Article-P/17-2) and Kalashnikov (Article-P/17-3), magazine (Article-P/17-4) and seven live rounds (Article-P/17-5). PW- 18 Abdul Khaliq Constable is witness of disclosure memo of accused Muhammad Gul alias Gul (Ex: P/18-A), pointation memo (Ex: P/18-B), recovery memo (Ex: P/18-C) of parcel (Article-P/18-1) containing sample of seal (Article-P/18-2) containing Kalashnikov along with magazine and three live rounds (Article-P/18-3). PW-19 Muhammad Mazhar is witness of disclosure memo of accused Sikandar Hayat (Ex: P/19-A), pointation memo (Ex: P/19-B), recovery memo (Ex: P/19-C) of parcel (Article-P/19- 1) containing sample of seal (Article-P/19-2), Kalashnikov along with magazine (Article-P/19-3) and nine live rounds (Article-P/19-4). PW-20 Rasool Bakhsh Head Constable is witness of recovery memo (Ex: P/20-A) of parcel (Article-P/20-1) containing sample of seal (Article-P/20-2) and blood stained shirt of deceased Yar Khan (Article-P/20-3). PW-21 Qaisar Khan Head Constable is witness of recovery memo (Ex: P/21-A) of parcel (Article-P/21-1) of empties. PW-22 Mir Masood Khan son of Dost Muhammad (eye-witness); PW-23 Mahmood Khan son of Khan Muhammad is witness of recovery memo (Ex: P/23-A) of blood stained clothes of injured Haji Nasir (Article-P/23-1). PW-24 Muhammad Asghar son of Paind Khan is witness of recovery memo (Ex: P/24-A) of parcel (Article-P/24-1) containing blood stained clothes of injured Waseem Khan. PW-25 Ajab Khan Head Constable is witness of recovery memo/ (Ex: P/25-A) of parcel (Article-P/25-1) containing blood stained clothes of injured Nadir Khan Constable. PW-26 Dr. Masood Ahmed, Medical Officer, who examined the deceased and injured witnesses and issued MLCs (Ex: P/26-A to P/26-H). PW-27 Taj Muhammad ASI, who reached at the place of occurrence and cordoned the area. PW-28 Muhammad Jalil SI is the investigation officer, who produced FIR (Ex: P/28-A), site plans (Ex: P/28-B and P/28-C), Merg reports of deceased (Ex: P/28-D and P/28-E), interim challan (Ex: P/28-F), FSL report of blood stained cotton and clothes of deceased and injured (Ex: P/28-G), supplementary challan (Ex: P/28-H) and FSL report of crime weapons and empties (Ex: P/28-I) and final challan (Ex: P/28-J). The appellants (convicts) were examined under section 342, Cr.P.C, wherein they disputed the prosecution story and pleaded their innocence. However, they did not opt to record their statements on Oath provided under section 340(2) Cr.P.C, nor produced any witness in defence.

5. After hearing the arguments and evaluating the evidence, the learned trial court found the appellants guilty, as such, convicted and sentenced them as mentioned above.

6. We have given our anxious consideration to the arguments of learned counsel for the appellants, as well as, the learned counsel for complainant and learned Additional Prosecutor General for the State and have gone through the evidence, as well as, the impugned judgment with their able assistance and have considered the relevant law included those case laws cited at the bar. First we would take-up the point regarding applicability of section 6 of the Anti-Terrorism Act 1997 to the present case, which is punishable under section 7 of the Act and likewise we would also consider the legal position of the trial of the present appellants by the said forum, which culminated in the conviction of the appellants under the said penal provisions of the Act and under sections 302(b), 149 P.P.C. The scope and applicability of section 6 of the Act has been dilated upon by the Honourable Supreme Court of Pakistan, as well as, High Courts and the view, which was persistently taken in this regard is that all the acts mentioned in subsection (2) of section 6 of the Act, if committed with design/motive/intent to intimidate the Government, public or a segment of the society, or the evidence collected by the prosecution suggest that the aforesaid aim is either achieved or otherwise appears as a by product of the said terrorism activities, are to be dealt with the special court established under the Act. Thus the test to determine whether a particular act is terrorism or not is the motivation, object, design or purpose behind the act and not the consequential effect created by such act. In the present case, the allegation against the appellants are that on 10th October 2021 at approximately 4:30 p.m. an incident occurred near the Customs Check Post in Rakhni, where the Leghari tribesmen from the Punjab region obstructed the highway leading to Dera Ghazi Khan. They halted vehicles belonging to Khetran tribesmen due to a dispute arisen some three months ago regarding the murder of three individuals of Leghari tribe allegedly killed by Khetran's tribesmen. Virtually the stoppage of the movement, the Khetran tribesmen including elders and traders gathered there to negotiate the matter and the local police also came on the spot to intervene and to defuse the tension between the two tribes, at that time the firing brook out and two persons from Khetran tribesmen were killed and several others including police officials were injured. In the light of above allegation they were declared to have created sense of fear, insecurity in the minds of people of the locality and as such they were convicted under section 7(1)(a)(b)(g) of the Act. No doubt, the offence is heinous one, however, it does not appear in subsection (2) of section 6 of the Act; hence, the said offence does not fall within the cognizance of the Anti-Terrorism Courts. Further the modes and manner of the occurrence does not suggest their design for creating fear and terror in the public rather their aim was to revenge their personal enmity from the Khetran tribe. It is the persistent view of the Honourable Supreme Court of Pakistan that mere gravity or brutal nature of an offence would not provide a valid yardstick for bringing the same within the definition of terrorism. This view was re-affirmed by the larger bench of the august apex court in the case of Ghulam Hussain and others v. The State and others (PLD 2020 SC 61) wherein it has been held as under: "

12. It is of vital importance to mention here that while providing in the amended section 6 that "in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of the people, does any act or thing

" the legislature never specified the motivation for that "act or thing" on the part of the perpetrator which propelled or prompted him to commit a terrorist act. Thus, the actus reus was itself considered to be determinative if the same was intended to create fear and insecurity, etc. in the public at large, had the effect of creating such fear and insecurity, etc. or had a potential for creating such fear and insecurity, etc. According to this definition what was of paramount consideration was the effect of the act, whether actual, intended or potential, and not the design or the purpose behind that act. It was in that context that the Hon'ble Supreme Court of Pakistan had interpreted the provisions of section 6 of this Act in many cases, to be discussed later on in this judgment, and had held that an act was to be considered a terrorist act if its effect, whether actual, intended or potential, was to create fear and insecurity, etc. in the society at large." It further held with regard to 'personal vendetta' as under: "

16. For what has been discussed above it is concluded and declared that for an action or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti-Terrorism Act, 1997 the action must fall in subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clause (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta." It was held in Abrar Ahmed Farooq and others v. The State and another (PLD 2024 SC 815) as under: "

34. With regard to the conviction and sentence awarded to the appellants under section 7(a) ATA, it is observed that in the instant case the motive of the occurrence was personal vendetta i.e. previous enmity due to murder of Muhammad Nawazish (father of both the appellants) in respect whereof FIR No.432 of 2008 was lodged with PS Saddar Hasanabdal against the complainant/ PW-1, deceased Muhammad Akram, deceased Muhammad Azmat and others. There is nothing on record to show that while making firing upon the deceased in the Court premises, the appellants wanted to create fear or terror or insecurity in or around the Court premises." In the case of Muhammad Akram v. The State (2022 SCMR 18), the Honourable Supreme Court of Pakistan held as under: "

7. We have heard learned counsel for the parties and gone through the record. There are two aspects of the case, which need our consideration: (i) whether compromise in the substantive offence i.e. section 302(b) is genuine, and (ii) whether section 6 of the Anti Terrorism Act punishable under section 7 thereof was applicable in the instant case. As far as the first aspect of the case is concerned, there is no denial to this fact that the compromise between the parties has been affected with the intervention of the elders of the locality which fact is reported to be genuine by the learned Sessions Judge while making his report dated 25.11.2020. As far as the interest of the minors is concerned, it is clearly described in the report that Defence Saving Certificates to the tune of Rs.28,00,000/- have been purchased against the name of three minors of the deceased as share of their Diyat, as such the legal formalities of the law are fully adhered to. Hence the law of the land is fully applied as far as the first aspect of the case is concerned. So far as the question as to whether the provisions of section 6 of the Anti-Terrorism Act punishable under section 7 thereof are applicable in the given circumstances, it is noteworthy that the petitioner had committed the crime due to very specific reason. It is nowhere mentioned that the petitioner is a person of desperate character having any previous antecedents of criminal activities, rather the offence was committed under the impulses of 'ghairat'. The possibility cannot be ruled out that the petitioner could not afford the insult incurred because of the act of his wife and he has lost control and under the impulses of disgrace and humiliation he opted to commit the crime. The injury caused to the police personnel was not in direct conflict with the law enforcing agencies, rather as Mst. Sidra Nazir was in custody of the police constable the injury caused by him could be result of misdirected shot due to heat of passions. In United Kingdom, the framers of the law enacted an Act called "Homicide Act, 1957" in which they have dealt with such like situation under the 'dictum' 'diminished liability'. It is a legal doctrine that absolves an accused person of part of the liability for his criminal act if he suffers from such abnormality of mind as to substantially impair his responsibility in committing or being a party to an alleged violation, which is committed due to love and affection and injury to reputation. The doctrine of diminished responsibility provides a mitigating defense in cases in which the mental disease or defect is not of such magnitude as to exclude criminal responsibility altogether. It is most frequently asserted in connection with murder cases requiring proof of a particular mental state on the part of the accused. While drawing analogy from said legislation when there is no allegation available on the record that the petitioner intended to cause injury to the police personnel strictosensu and his only aim was to take the life of his wife under the impulses of 'ghairat', the situation has become altogether different. Even otherwise, the learned Trial Court had convicted the petitioner under sections 337-D and 324, P.P.C. for causing injury on the person of the police personnel and the said injured has also affected a compromise with the petitioner and has forgiven him and has also waived his right to collect Arsh equivalent to 1/3rd of Diyat. In the case reported as Ghulam Hussain v. The State (PLD 2020 SC 61), this Court has categorically held that only creating fear or insecurity in the society is not by itself terrorism unless the motive itself is to create fear or insecurity in the society and not when fear or insecurity is just a by product, a fallout or an unintended consequence of a private crime and mere shock, horror, dread or disgust created or likely to be created in the society does not transform a private crime into terrorism. In Farooq Ahmed v. The State (2020 SCMR 78), the accused had committed murder of a person in the premises of Sessions Court due to previous enmity and was convicted and sentenced under section 302(b), P.P.C. and section 7 of the Anti Terrorism Act to death. However, during the pendency of his appeal before this Court, the parties entered into a compromise and this Court while accepting the compromise under section 302, P.P.C., set aside the conviction and sentence of the petitioner under section 7 of the Anti Terrorism Act on the ground that murder was committed due to personal enmity and the petitioner/convict did not want to create fear, insecurity or terror in the society. The same was the case in Dilawar Mehmood v. The State (2018 SCMR 593) wherein the murder was committed in a cattle market due to previous enmity and he was convicted and sentenced to death by the Trial Court under section 302(b), P.P.C. read with section 7 of the Anti Terrorism Act, which was reduced to imprisonment for life by the High Court. During the pendency of the jail petition filed by the accused before this Court, the parties entered into a compromise and compounded the offence under section 302(b), P.P.C.. So far as the conviction and sentence of the petitioner under Section 7(a) of the Anti Terrorism Act is concerned, this Court set aside the same on the ground that the occurrence was the result of previous enmity between the parties, therefore, there was no element of terrorism. In view of the facts and circumstances narrated above, we are of the view that the provisions of section 6 of the Anti Terrorism Act are not attracted in the present case, therefore, the conviction and sentence recorded under section 7 of the Anti Terrorism Act is set aside. Now that when the parties have compromised the offence under sections 302(b)/337-D/324, P.P.C. and we have set aside the conviction and sentence under section 7 of the Anti Terrorism Act, the only punishment left to the petitioner is under section 353, P.P.C., which is not compoundable. However, we have been informed that the petitioner has already undergone the period of his sentence of 2 years' RI."

7. Keeping in view the above, the offences in the present case do not qualify the meaning of section 6, which is punishable under section 7 of the Act, this court after screening the entire evidence and material available on the record has come to the conclusion that section 7 of the Act is not applicable to the present case in the light of the judgments of the Honourable Supreme Court of Pakistan, as such the conviction of any offence under Anti-Terrorism Act, 1997 cannot be sustained.

8. Now we would look into conviction and sentence of the appellants under sections 302, 324, 147, 148 and 149 P.P.C by the learned trial court in the impugned judgment. It appears from the record that the prosecution has produced twenty-eight (28) witnesses including six (6) injured eye-witnesses namely PW-4 Nasir Khan, PW-5 Nadir Khan, PW-6 Saifullah, PW-7 Allah Dad Constable, PW-8 Waseem Khan and PW-10 Irfan Shah and six other eye-witnesses including the investigation officer of the case, as he was also present at the place of occurrence for defusing the tension between the two tribes and maintaining law and order situation, the report was lodged by the complainant Abdul Qayyum (PW-1), the brother of deceased Abdul Sattar, wherein he charged the present appellant Zohaib Ahmed for the killing of his brother. It is worth mentioning here that the other appellants have been implicated by the eye-witnesses in their statements. The complainant reported the matter at 5:45 p.m. while the occurrence was taken place at 4:30 p.m. after one hour and fifteen minutes of the occurrence, whereas the place of occurrence was situated at a distance of five kilometers from the police station. Thus the report has promptly been lodged. In his report, the complainant has assigned role of indiscriminate firing. The presence of the complainant, injured and other eye-witnesses was established on the spot.

9. The injured eye-witnesses, PW-5 Nadir Khan, PW-6 Saifullah and PW-7 Allah Dad, are all police officials who are not related to the complainant to depose falsely. Their presence at place of incident has been clearly established by their injuries. Each has identified the appellants as being involved in indiscriminate firing which resulted injuries to them, as well as, the murder of Abdul Sattar and Yar Khan alias Dada. Consequently, their testimonies can not be discarded; they saw the appellants with firearm weapons and making fire at them and deceased; they identified the appellants in court through their evidence they corroborate the complainant and other injured eye-witnesses in all material aspects. It is well settled by now that police witnesses are as reliable as ay other witness unless any ill will or enmity has been attributed to them which has not been done in this case. PW-4 Nasir Khan, PW-8 Waseem Khan and PW-10 Syed Irfan Shah are also injured eye-witnesses of the occurrence they implicated all the appellants with indiscriminate firing and their statements along with other eye-witnesses are confidence inspiring, which stands substantiated from the circumstances and other evidence. Thus we find the evidence of eye-witnesses mentioned above to be fully corroborative and reliable, trustworthy and confidence inspiring especially in terms of correctly identifying the appellants as some of the persons who committed the murder of the deceased and injured the others, despite that they were subjected to very lengthy cross-examination but nothing material could be brought out nor any dent could be created in their evidence, they stood firm and their veracity could not be shaken.

10. We have also noticed that some eye-witnesses are related to the deceased but mere relationship is no ground to discard their straight forward and confidence inspiring evidence especially when their presence at the spot has been established. The apex court in number of cases has held that statement of a witness can not be discarded solely on the plea that he is related to the deceased. An interested witness is a person who has a motive to falsely implicate a person. Reliance is placed on Sharafat Ali v. The State (1999 SCMR 329), Abdul Rauf v. The State (2003 SCMR 522). In the light of above sole criteria, we do not find their testimonies as tainted or they had any motive to falsely implicate the appellants. No plausible reasons have been established by the defence to indicate why the complainant and other eye-witnesses would substitute the appellants by leaving the real culprits. The testimony of the complainant and eye-witnesses are convincing one and thus in our view, they were rightly believed by the trial court.

11. The unnatural death of deceased Abdul Sattar and Yar Khan have also been proved rather not disputed and the perusal of the MLCs reveals that the injuries on the persons of deceased were of firearm, therefore medical evidence also supports the ocular account; there are some discrepancies with regard to injuries in medical and ocular evidence but they are minor in nature. Not only the occurrence is of day light but the parties were already known to each other, therefore the question of mis-identification does not arise. Again the prosecution case has further been supported by recovery of sixteen firearm empties from the place of occurrence, blood stained earth and garments of deceased and injured persons and supportive medico legal evidence.

12. Although the prosecution relies on the recovery of the crime weapons, which were allegedly recovered on the pointation of the appellants and subsequently matched by the Forensic Sciences Laboratory (FSL) with the crime empties recovered from the crime scene; there are some legal flaws and discrepancies with regard to recovery and subsequently sending the same collectively to the FSL, yet if the same is kept out of consideration as it does not improve their case, as all the eye-witnesses of the occurrence, whose presence at the place of occurrence has not been disputed, have fully implicated them with role of firing upon both the deceased and also upon the injured persons. Reliance is placed on Abrar Ahmed Farooq v. The State (PLD 2024 SC 815), the relevant para No.28 is reproduced as under: "

28. Due to the above discrepancy in the report of firearm expert, even if the same is kept out of consideration to the extent of appellant Iftikhar Ahmad, it does not improve his case as all the eye-witnesses of the occurrence, whose presence at the place of occurrence has not been disputed/denied by the defence, have fully implicated him in the occurrence with the role of firing upon both the deceased with the appellant Abrar Ahmad Farooq. Both the appellants were overpowered/ arrested on the spot by the police with crime weapons. The evidence on record proves that both the appellants committed murder of deceased by firing in furtherance of common intention." Positive chemical reports showed that the blood gathered at the scene was human blood.

13. All the PWs are consistent in their evidence and even if there are some contradictions in their statements, we consider these contradictions as minor in nature and not material so as to affect the prosecution case. Their evidence provides a believable corroborated unbroken chain of events. Reliance is placed on Muhammad Iqbal v. The State (PLD 2001 SC 222). Though some statement of PWs have been recorded with a delay but such delay has been explained as they were admitted in the hospital. Even if their statements are ignored even then there are other injured as well as eye-witnesses whose statements were not recorded with delay, therefore, contention of the learned counsel who raised objection with regard to delayed statement of PW-4 and PW-7 have no force.

14. Yes there is no specification and there is no definite opinion as to whose short proved fatal but this doubt is not sufficient for acquittal of appellants because the bare reading of section 149 P.P.C which introduces a concept of common object or joint criminal liability under the penal system reveals that when a criminal act is done by several persons in furtherance of their common intention or object, each of such person is liable for that act in the same manner as if it were done by him alone. The Honourable Supreme Court of Pakistan in Sh. Muhammad Abid's case (2011 SCMR 1148) has observed that: "

10. Once it is found that the accused persons had common intention to commit the crime, it is immaterial as to what part was played by whom as law as to vicarious liability is that those who stand together, must fall together. The question what injuries were inflicted by a particular accused in cases to which section 34, P.P.C. applies is immaterial, the principle underlying the section being that where two or more persons acted with a common intention each is liable for the act committed as if it had been done by him alone." Section 149, P.P.C is reproduced here in below for ready reference: "

149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." Inference of common object has to be drawn from various factors such as the weapons with which the members were armed, their movements, the acts of violence committed by them and the result. Reliance is placed on Surendra and others v. State of Uttar Pradesh (2012 SCMR 1422). Proof of specific overt act is not necessary while determining the guilt of accused being member of unlawful assembly and it would be sufficient for the prosecution to establish that the accused being member of unlawful assembly shared common object. Reliance is also placed on Ali Ahmed and others v. The State (2022 PCr.LJ 1480).

15. To prove the charge of common intention or common object, the prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of mind of all the accused persons to commit the offence for which they were charged. In the present case, it is established from the record that the appellants had arrived to the scene of occurrence with deadly weapons along with absconding accused and made firing at the deceased and prosecution witnesses, thus actus reus "guilty act" and mens rea "a guilty mind" which are the pre-requisite for the constitution of criminal behaviour are proved against them.

16. For determining the quantum of sentence, each case has to be judged upon its own facts and circumstances. A single mitigating circumstance would be sufficient to put a Judge on guard for not awarding the penalty of death but imprisonment for life. It is a settled law in the case of enhancement or reversal of sentence where it depends upon finding of facts, such fact would not be reversed. As in the case for enhancement to death unless amongst others there is either misreading or non-reading of evidence or any substantial point has been a miscarriage of justice ordinarily, there is no interference and in the instant case the motive of the occurrence for the appellants was a tribal dispute and the Honourable Supreme Court of Pakistan, in a number of cases has considered such pleas as a mitigating circumstance. The learned trial court while handing down the judgment impugned before us, has already taken care of all established principles of law by awarding life imprisonment, which seems to us appropriate and in accordance with law, warranting no interference.

17. Careful perusal of the record in the light of relevant provisions of the law clearly shows that the prosecution has been able to prove its case against the accused beyond reasonable doubt, contradictions and discrepancies being minor are ignorable in the circumstances. The learned trial court exercised its jurisdiction properly and passed a well reasoned and speaking judgment that is not open to any exception; hence, maintained; however, the judgment passed by the trial court to the extent of section 7(1) (a)(b) (g) of the Anti-Terrorism Act 1997 is set aside; the remaining sections, i.e. 302, 324, 147, 148 and 149 P.P.C are directed to run concurrently and benefit of the section 382-B, Cr.P.C shall remain intact. Consequently, with the above modification, the appeal filed by the appellants is dismissed.

18. So far criminal revision petition filed by the complainant is not based on good grounds of law and facts therefore, the same stands dismissed. JK/110/Bal. Appeal dismissed.