'PLJ 2022 Cr.C. 548 (DB) [Lahore High Court, Lahore] Present: CH. ABDUL AZIZ:AND MUHAMMAD AMJAD RAFIQ, JJ. MUHAMMAD RIAZ, etc.--Appellants : versus STATE and another--Respondents Crl. A. Nos. 46468, 47443 & C.S.R. No. 10-T of 2017, heard on 1.12.2021. : Scanned with CamScannerMUHAMMAD Ri 032 LAZY. State 2 (Ch. Aba Aste ee pturder Cases ype ts creamy na xen Snare Spd rete svatchfulness. we record, with scion cre sad | hati Peon Goa, tea Oxy of ney $5, 9020), 824 87-F(, 427 & 148-Anticerrorom Ae KVL 1090, 8. 1a)-Convetion and sentence Chahine ane wee Modification is sentences-This io sequleencat at Greumspetive approach thet eyewitness cesunt Se apposed oy terinizing it in reference to coroboratin. rom acne Source of unimpeachable nature-it during this swine seer tccount is found confidence inspiring but is not earrovoraed on Some other Unshakeablesouree, recor shoul he had to alersate sentence of imprisonment for life instead of inflicting capt sentence-Motive behind every case of homicide has ts own f/_inportace more eo when five persons are dono to death-Projected facts of crime give reflection that assailants were having venom of snake against victims but unfortunately reason of such vengeance was not brought to limelight~Similarly due to failure of prosecution to prove motive sentence of death was converted into imprisonment for life in cases~Prosecution failed to draw a distinguishing line betweon perpetrators who fired at vehicle in which four deceased were boarded and vehicle in which (deceased) along with “Y” since dead were sittingThere is a consistent view of Hon'ble Apex Courts that in cases wherein it is uncertain that whose fire shot ‘awarded--All appellants are also awarded conviction wS. 7(a) of f proved fatal then alternate sentence of imprisonment of life to be ATA, 1997 which upon review of record is also found by the Court to be suffering from perversity--Admittedly, offence was outcome of personal vendetta and is not committed with mens rea mentioned in Section 6(1) of ATA, 1997--After scrutinizing evidence produced by prosecution we do not find any circumstance to label act of appellants was with intentions and designs mentioned in Section. 641) of ATA, 1997 rather was an outcome of personal enmity, thus conviction and sentence awarded under Section 7(a) of ATA, 1997 to appellants is set-aside-Neither post-mortem of (deceased) was conducted nor details of his injuries or even causes of his death ‘Were ‘brought on record through any of two doctors during trial thus conviction under Section 302(b), PPC in this regard is also se Scanned with CamScannerMuwaanuan Ruazy, Stare : oo (Ch, Abdul Aziz, J.) Puy aside-Though *Y” did not appear in witness box but due to hig ‘death thus no exception can be taken from absence of his deposition ‘and accordingly corresponding conviction is maintained. (P.556, 559, 560, 561 & 562] B, C, E, F, GH &y 2012 SCMR 1936; 2013 SCMR 1602 and PLD 2020 $C 61. Pakistan Penal Code, 1860 (XLV of 1860)~ <8. 302(b)-Qatle-amdInfiction of alternate sentence of imprisonment for life under Section $02(b), PPC will meet ends of Jjustice--In this regard firstly itis observed by us that motive set-out by prosecution remained unproved and no reason is divulging from record behind commission of instant crime-Failure of prosecution * to prove canvassed motive is always regarded a sufficient extenuating circumstance which warrants infliction of alternate sentence of imprisonment of life under Section 802(b), PPC. (P. 5601 2010 SCMR 97. ] Mis. Azam Nazir Tarrar, Wajid Magsood, Sulman Bahadar Rana, Adnan Faroog and Mudasser Nazir Chattha, Advocates for Appellants. Mis. Muhammad Ahsan Bhoon, Abdul Razeaq Younas, Fiaz Ahmad Ranjha, Faisal Munir Malik and Madiha Gohar, Advocates for Complainant. Rai Akhtar Hussain, DPG for State. Date of Hearing: 1.12.2021. Jupamer Ch. Abdul Aziz, J.-Appellants, namely, Muhammad Riaz, Muhammad Magsood alias Bao, Mashoog Ali, Subah Sadiq alias Sobay Khan, Rasheed alias Sheedu, Muhammad Arshad alias Billy and Abdul Hameed alias Hameed, involved in case FIR No. 13 dated 11.01.2014 under Sections 302, 324, 427, 337-F(ii), ‘887-Fliv), 337- F(v), 337-F(vi), 148, 149, PPC read with Sections 21-L and 7 of the Anti-Terrorism Act, 1997 registered at Police Station Mustafabad, Kasur were tried by learned Judge, Anti-Terrorism Court-I, Lahore. ‘The learned trial Court vide judgment dated 26.05.2017 while ‘scquitting Muhammad Aslam, Muhammad Ashraf and Muhammed Anwar, proceeded to, convict and sentence the appellants in the following terms: * 1 Under Section 302(6), PPC: to suffer death senteree ‘ch on four Courts for each deceased Bach conve 2 Scanned with CamSeanner- - MUHAMMAD RUZ. Stare oo (Ch, Abdul Ae, J.) eel also ordered 0 pay an amount wount of Ry, corn ener Stn SUA nt Lom ft eons foreach sec see pan ols0 ordered 10. pay am amount oy coni00, 0001. as compensetion under Section S44 CrP.C. to the legal heirs of each deceased, in case of ise Coe ck come se frhr andy on a ae et xe ars ech or atnpt fo ona murder of Yaqoob alias Sahib Din (since died). Bach ‘convict is also ordered to pay fine of Rs. 50,000)- each a Imprisonment for seven years each for causing injury 7 fand fracture of Yagoob (since died). Back conviet is also three years each ‘along with fine of Rs. 10,000/-each and eet ce th as ne tin 7.2860 ern st eis pect ‘thereof to further undergo 15 days SI each. ‘All the sentences were ordered to run ‘concurrently. i (complainant) filed Crimins ‘Appeal No. 47443 of 17 against ‘reference under Section 374, Cr.P.C. ‘which was numbered 8s Sentence Reference No. 10-T-2017 for the ‘confirmation oF otherwise of death sentences awarded to ‘Muhammad Riaz, 0,000. as Scanned with CamSeannerNN ‘MunanaaD Riaz v. STATE i (Ch. Abdul Aziz, J.) ms alias Bao, Mashoog Ali, Subah Sadiq aliag Soy, oe Bs eM at Se eg Abdul Hameed alias Hameed (appellants). Al these matters are being disposed of through this single judgment. 2, Suecinetly stated the case of prosecution as it gleans from the complaint (Exh.PN) lodged by Nasir Javed (PW.13) is to the effect that he is resident of Sattoki, District Kasur; that on 11.1.2014, he along with his brother Masood Ahmad Bhatti, Babar Sarfraz, Khalid Bashir, Ameer Ali, Umer Farooq, Ijaz Ahmad, Mehmood Ahmad, Muhammad Irfan, Yaqoob and Zia ullah while boarding in two cars and a Vigo Dala was proceeding to Lahore so as to attend Mehfil-e. Millad being held in the house of Masood Bhatti; that at about 05:00 pan. when they all crossed the Toll Plaza Mustafabad, two cars and three motoreyeles erossed their vehicles and forcibly stopped Vigo Dala of Masood Ahmad Bhatti; that they saw Muhammad Riaz, Masood, Mashoog, Arshad Ali alias Billy, Rasheed alias Shedu, Ashraf, Aslam, Hameed Pandoki wala, Anwar Sidhupuray Wala all armed with Kelashnikovs whereas Subeh Sadiq armed with rifle M6 and six unknown also armed with deadly ‘weapons de-boarded from their vehicles and made indiscriminate firing atthe Dala of Masood Bhatti and all the persons seated therein died at the spot; that the accused Persons who were seated in another vehicle coming behind also made indiscriminate fring upon Zia Ullah and Yagocb alias Sahib during hich Zia Ullah succumbed to tho injures, whereas Vagoob sustaines Severe injuries; that they all seated in third vehicle witnessed the ‘whole incident in daylight. The motive behind this occurrence wes thet about 27/8 months before the instant occurrence one Sarja Bhatti aad his son were murdered and their logal heirs had strong suspicion thet ‘Masood Bhatti was behind the seene and due to aforementionbd rearce the accused persons committed this occurrence ‘That the aforementioned incident took place on main < Rerorepur road due to which traffic from both sides stopped and the, people after leaving their respective vehicle started running, that 4 The investigation ofthe case was entrusted to Muhammed Soa ea the Ste tesipt of intrmation qua the ‘cecurronce visited the place of occurn injury statements GExPU, ExPV, Ex PW and ExPX) and ingen wee at ExPAA and Ex.PBB) of Masood Ahmed, celewethit deceased) respectively. He also nmol ithlt statement (Ex.PCC) of Muhammad ‘Yagoob alias Sahib. Thereafter, be Scanned with CamScanner7 2 ‘MUHAMIAD Rus, Srane 2022 (Ch. Abdul Aziz, J.) oem ed rough site-lan (Ex.PDD) ofthe place of eure nikow (P21/1-700) and 25 empties of rife 228 bore then Care Car No, BI2ULEC CP ste semmnsy moe, A Tova St, cy sr ain, tn constituted JIT and Ghulam Fareed (PW-18) SHO Pole Statin ar Division, Kasur was one of the member of suid JIT: On 13.01 201, Ghulam Fareed SHO inspected the place of occurrence. On 0504 2014 he recorded supplementary statement of Nasir Javed (compleioons ‘gherein he nominated Asif @ Asu, Asif’ @ Kaki, Amul tare Hames, Zager and Maieb On movant m8 accused Riaz who got recovered Kalashnikov (P26) with five bec, (21/18) which was taken into possession through recovery meme (@xMPS). He then interrogated Maqsood who got serena Kalashnikov (P28) with five bullets (P29)1-5) which were taken ints jon through recovery memo, (Exh PT). On 13.04.2014 accused ‘Arshad alias Billy, Subeh Sadiq, Rasheed and Hameed made disclosure ‘and in pursuance thereof Subeh Sadiq got recovered M-16 (P33) along with five bullets (P34)/1-5) which were taken into possession thedush recovery memo. (Exh.PFF/I); aoused Arshad alias Bily got recovered Kalashnikov (P30) with six bullets which were taken into possession through recovery memo. (Exh.PEE/1); accused Rasheed alias Shedu st recovered Kalashnikov (P37) with four bullets (P87/1-4) which were taken into possession through recovery memo. (Exh PUI); accused Abdul Hameed got recovered Kalashnikov (P38) with three bullets (P39/1-8) which were taken into possession through recovery memo. (Exh.PKK). He recorded statement of witnesses under Section 161, Cr.P.C. and got prepared report under Seetion 173, Cr.PC. 4, Prosecution in order to prove its case against the appellants produced nineteen PWs including Nasir Javed and Umer Farooq sd Masi P.15) who are eyewitnesses. Dr, and Rasheed Masih (PW.13 and P.15) Muhammad Ahmad and DriJsmail Zia (PW.3. and PW.20) wir ‘onducted post-mortem examination vide postmortem examination reports (Bxh.PA to Exh.PD/2), Muhammad Arshad SI (PW.16) and Ghulam Fareed Inspector (PW.18) investigated the case lusion of prosecution evidence, appellants were axaninel onder Sstion 242, CrP, who rete th algeos. leveled aguinst them and pleaded their innocence. The appallants did Not appear under Section 340 (2), Cr-P.C., however, Produced i Akbar ‘SI and Muhammad Zeeshan Latif (DW.1 and DW.2) ther defence, On the conclusion of trial, the appollants Muhanad it, Muhammad Maqsood alias Bao, Mashooq Ali, Subah Sadiq Scanned with CamScannerON" cro, Muumwaan ny sr ws (Ch, Abdul Aziz, J.) M4 Sobay Khan, Rasheed alias Sheed, Muhammad /rshad alias Bitty and Abdul Hameed alias Hameed were convicted and sentenced 1s aforesated, whereas Muhammad Aslam, Muhaminod Ashraf and ‘Muhammad Anwar were acquitted. Hence, the instant apps, againat conviction & sentence, aequittl and Capital Sentence Reference. 6. It is contended on beholf of appellants that, though apparently the information of erime was furnished to police within 3 Tours but it was made to look so through tampering of record and i. fact the case was registered Inte in the night; that allegation of committing Uhe crime was pointed towards fifteen persons, most of ‘whom were related inter se, thus the ease is of wider net; that none of the appellants is ascribed any specific injury and they are implicated ‘with the general sllegation of indiscriminate firing upon the vehicles in ‘which the vietima were boarded; that one Muhammad Yaqoob who received injuries during the same incident and was most important witness but his deposition could aot be recorded as he wos later done to death by the complainant; that safely a presumption ean be drawa that Muhammad Yagoob was not willing to support false prosecution case and accordingly-he tras eliminated; that though the prosecution came forward with a specific motive but miserably filed to prove i; that similarly, out of 725 crime empties collected during investigation by the police none matched with any of the veapons recovered from the appellants; that it ean safely be concluded that the prosecution allegations remained uncorroborated; that it was a night time ‘occurrence but prosecution failed to prove the souree of light; that during investigation it came on record that appellant Mashook Ali was suffering from multiple ailments and this fact alone is suficient to rule out the possibility of his participation in the erime; that even the presence of PWs atthe spot is doubtful in nature and probably due to the same reason post-mortem examinations were delayed and that Sines proseition led to prov it ease against the appllants hence conviction awarded to them is to be set-aside, = f 7. On the other hand, learned law officer assisted by leurned cn i hs an ee yar furnished to police without any delay and establishing the presence of that the crime scene is Grand ‘Trunk Road eyewitnesses at the spot; (G.T.Road) and the inci Scanned with CamScannerNal ~ 2002 + Mumma tiv. Stare 6x0. 556 (Ch. Abad Aci, J.) ~~ pers, at oun he pen cin Se ie wear eee ear aies mies Grell be sought from the duly proved motive and Sey aaa Fo ec opens omni cold Booed murder ‘of five innocent persons, ncn ey eee po ho Pn et pele ee ee 8, Learned counsel for the complainant while art i iminal oon ee ue edo? Amal No 48001 ek cee verry vont ts PL ween icon mht hs Ree ara ih wih lei of Fe aly fate ow aa hn ae poe ey ‘and that since the guilt ‘of Respondents No. 1 & 2 was established iad eeu of Rape Ne i ee Sg a he rant one sr 20 Peete pe ri 2 espe oranda theca Sea ee rp a stat 00 pm aE on a ie et ny ane Ss. Rai ee et was oor namely Rasheed Masih (PW.15) & ‘Muhammad Yaqoob (since any Rand Ma oo eo Ma Se in Te ar “hotion by complainant Nasir. Javed (PW.13) through written pplication (Exh.PN) presented in the Police Station at about 6:30 ‘pi, leading to the registration of FIR (ExhPE). The allegation of ‘committing this crime was pointed towards 9-nominated and 6- Unknown perpetrators. During investigation, the complainant Nasir Javed (PW.13) got -recorded supplementary statement and lifted veil from the identity of ‘three out of six unknown persons: and nominated them as Asif alias Assu (killed in police encounter), Asif alias Kaki Billa (PO) and. Ajmal Khan (PO).556 Cr.C, ‘MUHAMMAD Riz v.Stame Puy (Ch. Abdul Aziz, J.) 111 The detail of this heart wrenching episode was brought on record during trial by throo witnesses, namely, Nasir slaved, Umer Farooq and Rasheed Masih (PW.13 to 15). As per allegations, the appellants went berserk due to murder of two relatives and pounced ‘upon the ive deceased with frightening ferocity. We are mindful of the fact that in FIR (Exh,PE) nine persons including the appellants were nominated as assailants and six others were described as unknown accused. So far as, the appellants are concerned, they were intarwaven with each other as Kinsmen. The implication of closely related nine persons in a case of homicide gives rise to a possibility of wider net Unfortunately, i is a common phenomenon in rural neighbourhood of [Punjab that in murder cases, along with actual offenders some ‘innocent persons are also dragged and for this reason it is always ‘Alconsidered appropriate to peruse the record with extreme care and [watchfulness, An observation of the Hon'ble Supreme Court of Pakistan expressed in case tiled as Muhammad Zaman v. The State (2014 SCMR 749) since is relevant on the point, hence is being referred hereunder: “Phe tragedy may have been enccted by Mukhtar who has gone ino hiding or Muncwar who hos beon acquitted because the deceased Shabbir was alleged to have ilici relations with their Sater, but many who have no visible nexus with this part of the Story hve also been roped in, Its 0 because itis customary in this part ofthe country to throw wide the net of implication to ope in all those who could possibly pursue the ease or do something to save the skin of the one who is innocent or who is actually responsible for the commission of crime. The Courts, therefore, is required to exercise much greater care and circumspection while appraising evidence." We also consider it appropriate to mention here that this is the requirement of such circumspective approach that the eyewitness account be appraised by scrutinizing it in reference to corroboration “from independent source of uniimpeachable nature. If during this B]scrutiny ocular account is found confidence inspiring but is not [corroborated from some other unshakeable source, resort should be had to alternate sentence of imprisonment for life instead of inflicting capital sentence, 12 In the above backdrop, we have examined the eyewitness account furnished by complainant Nasir Javed (PW.13), Umer Faroo (PW.14) and injured eyewitness Rasheed Masih (PW.15), Admittedly, ir Javed and Umer Farooq were closely related with Masood Bhatti (deceased) who was canvassed to be the main target, of murderous assault. The relationship of PW.13 & PW.14 with Masood Bhatti by 1? Scanned with CamScanneros MUNA Rey, State ce wa Ch Att ac aaa tardch it on impediment for one sie proves chmily or ra Fr doposiion,sispoet evil that gh th ce, We foo rewitnesses were 0 express here reece te oneal Chat they had nome spy oe teenen from implicate the sppellants in this eae ania too by letting till the recor speaks about the ata enmity Pebwen the to ides, epee om any factor 0 as to tag the narrators of reais ‘count: as interestad Ie Pct ayy tobe ly tna es sen As Tein ere on the ony a Me he nena AS vanes were on tir “Ania hore for attending Mahite-aniec in” fhe house o mad Bhatti (deceased) en ‘Mustafa Abad fell victim ret ll Plaza on ther hand the dence ie fosed $2 failed in establishing the the wie ee have been present at {G, Reverting back to thb deposition of Nasir Javed and Umer Feroog (PW.13 & 14) they are noticed to have means simple and Fraiehtforward account by saying that all the perpetrators eaves fred at the vehicles in which the victims were bonded: The con Sses opted not to have resort to the unnatural narration ofthe tqulttence wherein each assailant is assigned role of firing in a ‘0 specific locale of injury. The deposition of the eyewitnesses is mainly (fallenged on the ground that the actual incident occurred mu hater "* Sun-set.and in order to get rid of complication of darkness Scanned with CamSeanneroo” ‘Muniamman Riaz v. Stare (Ch. Abdul Aziz, J.) F ele ved 0 saan the melt ma referenoe foe ota 1 sD), Binegonty Sorvin 1132 (eh DO) ana fe tg Bok (sh.DQ) So far my ADM i omen eee thelr the rlevas catty wa maby Abid Manca oe pm but ater his return oo he ee scons Obes nan 2 mentioned in Exh.DN is not the time of murder incident rather it, feraine oth relurnof Auta Mebnood Sts pee eee oe Exh.DO is concerned, no witness from 1122 appeared in the dock for proving ety toe Josument thas Gr tee ee a Crud fom coneraton. Ae rognd BD eee Inormaion recat 688 pm. Gevugh ¢ phone oot a unknown person, whereby, he reprted Sacer ee a sty that Buh DQ law its ign Keon eee ae ie By Abt Mehmood in EaRDN ber he scutes Sue ae 860 pm, Adel, reneualy Since aa aT tefore G5 pm poia had gather nteeaien a a aN Ye pes, the aoremeionl docainte hy ean cme To to the factor that they were sitting in third vehicle and probably the assailants failod to notice their presence. The shoot es luck of witnesses 14. ‘The medical evidence in this case was furnished 1 etfuhammad Ahmad and Drlsmail Zia (PW: ang PW.at), Forme! Serial the autopsy of Masud Ahmad Bhatt, Aamir Ali, Bb Satfraz and Khalid Bashir (deceased), whorces ihe Inner medial Scanned with CamScaimner| ‘002 © MUnanstan Riaz v. Snare (Ch. Abdul Aziz, J.) Cr.0, 559 autopsy reflects positively upon the prompt registration of FIR and excludes possibility of concoction and absence of witnesses from the spot. Though the post-mortem examination of Zia Ullah (deceased) was not conducted but due to an application given by his heirs in this regard. ‘The most important aspect noticed from the medical evidence is the number of injuries as Masud Bhatti, Baber Sarfraz, Khalid Bashir and Ameer Ali were in receipt of 18, 11, 13 and 5 firearm entry wounds respectively. Needless to niention here, the aforementioned injuries give a clue that the crime was committed by more persons than two or three. We have intentionally withheld ourselves from giving an observation about the injuries of Muhammad Yaqub (injured) as ho did not appear before the trial Court. To conclude, itis observed that medical evidence supports the ease of prosecution about the time of incident, the kind of weapons used in the erime and the duration within which these were caused. 15, Motive behind overy. ease of homicide has- its own, ‘importance more #p when five persons are done to death. The projected| facts of the crime give reflection that the assailants were having venom|C of snake against the victims but unfortunately the reason of such vengeance was not beought to limelight. From the very inception of| «ase, prosecution ceime forward with a specific motive and described it a suspicion of tho appsilants about tho involvement of Masud Bhatti in the murder of their two relatives having occurred 2 ¥ months back. ‘The frailty of such motive was badly exposed from the statements of none other than the eyewitnesses. lv this regard, Nasir Javed (PW.13) ‘admitted during cross-examination that for the murder of Siraj Din ‘and his son Foyyez a eriminal caso vide FIR No, 470/13 vas registered ‘at Police Station Mustafa, Abad and none from the complainant side Including the deceased was an accused in the said ease. Nasir Javed (PW.13) even went on to concede that in none of the murder eases of the family of accused, any person from his family (complainant's) is arrayed as arcused. Similarly, the other eyewitness namely Umer Farooq (PW.14) admitted the aforementioned aspeets in unequivocal terms. It will not be an over exaggeration to hold that the five persons Jost their lives for opaque reasons and a5 a necessary consequences, We are of the view that motive remained unproved. 16, We have farther observed that during spot inspection 700 ‘time empties of 7.62 caliber and 26 casings of .223 bore were secured by the police from tho evime.oeeno. During investigation, though Weapons were rezovered from all the appellants but according to PFSA eport (El, PVV) none of them matched with the crime empties Secured from the spot, Neodless to mention here that such report of PPSA is of no help to the prosecition. Scanned with CamScannerMUnavntap RIAzv. Stare Si; bao Gc (Ch. Abdul Aaiz, J) 17. Im the aftermath of above discussion, we will like reiterate here that though the presence of witnesses at the spot jg ‘established and their deposition inspires confidence but still due to the implications of about 14 persons in the case we are compelled to be at our toes for resorting to a eircumspective approach while deciding the ultimate fate of the ease and quantum of sentence. Firstly, it is noticed by us that Mashoog Ali (appellant) was also assigned the role of active participation in the crime but overwhelming documentary evidence (ExhDX) was led to prove that he was suffering from multiple ailments and was aged about 56 years on the eventful day. This fact ‘was even adinitted by Ghulam Fareed inspector (PW. 18) during his ross-examination, In these circumstances, it appears strange that a man sulfering from multiple diseases having naive physical condition ‘ill atively participate in an incident like the instant one, Thus, as an abundant caution conviction awarded to Mashoog Ali (appellant) is set. aside and he is acquitted from the ease. 18, After in-depth review of entire prosecution case we have noticed cortain factors whereby we are leaned to hold that infliction of alternate sentence of imprisonment for life under Section 302(b), PPC will meet the ends of justice. In this regard firstly it is observed by us that the motive set-out by the prosecution remained unproved and no Djreason is divulging from record behind the commission of instant Secured from th from the a i volume of suge the extent of ine! ne of shots fired by each appellant crime. The failure of prosecution to prove the canvassed motive is always regarded a sufficient extenuating circumstance which warrants infliction of alternate sentence of imprisonment of life under Section Neb) PPO. In this respec, reliance ean be placed upon the case of Noor Muhammad v. The State and another (2010 SCMR 97) wherein ‘the Hon'ble Supreme Court of Pakistan observed as unde: Zrostction though not called upon to establish motive in eve) ee ee ‘has set up a motive and fails to prove the same, defence tie" Must suffer: the consequence and not the clive Mmatehed with any of the weapons Teo" 88 that none of the 725 erime empti respect ucless to ascertain ¢ePeants. From this shosteeming we 2° ond ascertain the "edly, all the appetianee wasiation in the incident, re assigned role of firing at th? Scanned with CamScannera MUTAMNAD Riaz y. Sr Cr.C., 561 (Ch, Abdul Aziz, sohicles in which victims were seated. IL has not skipped from our yotice that all the deceased except Zia Ullal wa rehicle whereas Zin Ullah (deceased) along with Mubummad Yaqub {since dead) were in the second vehicle, Admittedly, the autopsy of Zin Ullah was not conducted and this omission gained more iimportance when seen in the context that no medical officer appeared before the {rial Court to narrate even about the detail of his extornal examination or to depose that he was in receipt of firearm injuries. Unescapably, it fan be held that prosecution failed to bring on record any legally ‘acceptable evidence so as to assist us in holding beyond shred of any ambiguity that Zia Ullah died homicidal death and that too after the receipt of injuries inflicted through a weapon none other than the rifles. Similarly, Muhammad Yaqub could not appear before the trial Court and that too due to his murder committed by the complainant Nasir Javed (PW.13). Keeping in view the fact autopsy of Zia Ullah ‘yas not conducted and Yaqub did not appear before the trial Court, it can be held that the appellants who fired at the second vehicle do not deserve to be awarded death sentence. In the same stretch we have anxiously noticed that the prosecution failed to draw a distinguishing line between the perpetrators who fired at the vehicle in which four| deceased were boarded and the vehicle in which Zia Ullah (deceased) along with Yaqub (since dead) were sitting, ‘There is a consistent view of the Hon'ble Apex Courts that in cases wherein it is uncertain that |F ‘whose fire shot proved fatal then alternate sentence of imprisonment! of life to be awarded. Reliance can be placed in ease reported as Muhammad Yaqoob vs. The State (2008 SCMR 1082), wherein the| Honble Supreme Court of Pakistan has held as under: "While considering the question of sentence, we feel that as it is not certain from the evidence on record that it was the shot of the appellant which resulted in the death, of Asghar Nodeem, deceased, it constitutes. a mitigating or extenuating circumstartces justifying lesser punishment, as held by this Court in cases of Allah Dad and another v. The Siate 1995 SCMR 142 and Saeed and others v. The State 1984 SCMR 1069, We are inclined to partly allow the appeal and while ‘maintaining the conviction, we reduce the sentence of the ‘appellant from death to imprisonment for life .." boarded in one 19, All the appellants are also awarded conviction undor Seetion 7 (a) of ATA, 1997 which upon review of record is also foond by | \8 tobe suffering from perversity. Admittedly, the offence uteome coment ‘attioned in Section 6(1) of AT'A, 1997. In a recent pronounce of personal vendetta and is not committed with mens ret} -s (PLD 8 Ghulam Hussain and others v. The State and others ( Scanned with CamScanner562. Cr.C. Muna Ruzv.STATE 9°) pp (Ch. Abdul Aziz, J) 3 2020 SC 61), the Hon'ble Supreme Court of Pakistan dilated insdepyy, ton the eac to be tried bythe Court constitute under ATA ep and observed as under: For what has been’ discussed above it:is concluded and “deelared that for an action or threat of action £0 ‘be accepted as. declared ocanin the, meanings of Section 6 of the Ants: ‘Terrorism Act, 1997 the action ‘must fall in sub-section 2) of Beret cfte said At and the use or threat f such ection Seti shigned to achieve any of the objectives specified | clause (b) of sub-section (1) of Section. 6 of that Act or the use or j set Pouch action must be 10 achive any of the Purpotes, ‘mentioned in clause (¢) of sub-section (1) of ‘Section 6 of that wher tt is clarified that any action constituting an offence Act cn 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 clauses (b) > er (c) of sub-section (1) of Section 6 of the ‘said Act. It is further clarified that the actions specified in ‘sub-section (2) of Section 6 ° of that Act do not qualify to be labeled or characterized as {trvorsm of such actions are taken in furtherance of personal _enmity or private vendetta’... After seutinizing the evidence produced by the prosecution we d9 not find any circumstance to label the act of the appellants was with the Hfintentons ond designs mentioned in Section 6(1) of the ATA, 1997 rather was an outcome of personal eae personal enmity, thus the conviction and sentence awarded under @) of ene ‘Section 7(a) of ATA, 1997 to the appellants is 20. As dacused above neither the postmortem of Zia Ulsh ted bet mr ie details of his injiries or even ‘the 1| tor uring tial thus the envston under Seaten aoa, PC 1S conviction under Section 302(b), PPC ii stag AE 20002! Of above din tied aaa Oe, of sbove dscusion, wo hore a capt ee hereby decide the abiow : Capital Sentence Reference as under: Scanned with CamScanner22 ‘MUHAMMAD Riaz v, Sta C.C.863 (Ch, Abdul Aziz, J,) (@) The conviction awarded to appellants namely. Muhammad Riaz, Muhammad Magsood alias, Bao, Subah Sadiq alias Sobay Khan, Rasheed alias Sheedu, Muhammad Arshad alias Billy and Abdul Hameed alias Hameed under Section 302 (b), PPC, is maintained, however, their death sentence is converted into imprisonment for life on four counts each. So far as their conviction for the Qate-Amd of Zia Ullah (eceased) is concerned it is also set-aside. (8) ‘The conviction and sentence awarded to the appellants Muhammad ‘Riaz, Muhammad Magsood, Muhammad Arshad, Subeh Sadiq, Rasheed alias Shedu and Abdul Hameed under Section 824, 837-F(vi), 148, 427, PPC shall remain intact. All the aforementioned sentences shall run concurrently with benefit of Section 882-B, Cr. (4) ‘The conviction and sentence awarded tothe appellants Muhammad Rise, Muhammad Maqsood, Muhammed Arshad, Subeh Sadiq, Rasheed alias Shedu and Abdul Hameed under Section 7) of ATA, 197 is set-aside. 22, With this modification, Criminal Appeal No, 46468 of 2017 partly allowed. : 25, So fer as CrlAppeal No. 47443 of 2017 directed against the ittal of Muhammad Aslam and Muhammad Ashraf (Respondents fo 1 to 2) is concerned it is also dismissed, We have already observed tthat case from its very appearance gives reflection of wider net, ndly, itis noticed from record (that Muhammad Aslam jent No. 1) was a police employee and took the pled of alibi wating that at the eventful time he was present in’Elito Force Center wun The aforementioned innocence plea was probed from all angles by the JIT and it was proved that from 11.01.2014 till 17.01.2014 Jahesaaihd Aslam remained present oh his duty. The plea of alibi so raised by Muhammad Aslam was supported from the Roznamcha of ‘Force Kasur a8 well as from the Incharge Elite Force and other Elite ‘personals. Similerly, Muhammad Ashraf (Respondent No.2) also came forward with the defence plea from the very initial stage of the case ret ut the eventful time he was present in Qaud-e-Azam Law College “along with other class fellows, This plea was also verified by the JIT “titer an in-depth scrutiny, ‘Tho verification of the defence plea put forth by Muhammad Ashraf resulted in a declaration of innocence Scanned with CamScanner564 Cr.C. MUHAMMAD KASHIF V. STATE PLy (Sardar Ahmed Naeem, J.) Respondents No. | and 2, there acquittal is not open to any legitimate legal exception. So far as Muhammad Anwar (Respondent No. 8) is concerned, it evinces the order sheet of this Court dated 06.06.2019 that he died and accordingly a death certificate was also tendered. In these circumstances the instant appeal is dismissed. 24. Resultantly, Capital Sentence Reference is answered in the NEGATIVE and death sentence awarded to Muhammad Riaz, Muhammad Magsood' alias Bao, Muhammad Arshad alias Billy, Mashoog Ali, Subah Sadiq alias Soby Khan, Rasheed alias Sheedu and Abdul Hameed, alias Hameed (convicts) is NOT CONFIRMED. AAK) Appeal partly allowed. Scanned with CamScanner