ALTAF AHMED vs THE STATE and anothers

ORDER

Criminal Miscellaneous No, 1 of 2011 ' Altaf Ahmad son of Nazir Khan caste Pathan, resident of Village Gorna, Police Station Luksian, District Sargodha petitioner/convict was tried in case F.I.R. No, 425 dated 6-11-2008 registered under sections 302, 324, 337-A(ii), 337-L(2), 337-F(v), 109,148 and 149, P.P.C. At Police Station Luksian District Sargodha and vide judgment dated 25-8-2011 was convicted under section 302(b), P.P.C. As "Ta'zir" for causing death of Aroora Khan and was sentenced to death penalty with imposition of payment of compensation of Rs,3,00,000 under section 544-A, Cr.P.C. Or in default of payment thereof to undergo six months' S.I. He was also convicted under section 324, P.P.C. For allegedly causing injury to Mumtaz P.W.8 and sentenced to suffer R.I. For 10 years with fine of Rs,1,00,000 or in default in payment of fine further six months' S.I. As well as payment of Daman of Rs,60,000 under section 337-F(v), P.P.C. To the above mentioned injured P.W. The petitioner has moved this petition under section 426, Cr.P.C. For the suspension of his sentence and release on bail.

2. In order to understand the factual background to dispose of this petition, the first four paragraphs of the judgment passed by learned trial Court are hereby reproduced:- "Briefly stated the prosecution case as set out in the statement Exh.P.D of Nawab Khan complainant (P.W.10) are that he is resident of "Katcha Gorna", on 6-11-2008 at 7-00 a.m. He along with Mumtaz Khan (P.W.8), Nazar Khan, Aroora Khan, Niaz Khan (deceased), Inayat Khan (P.W.9) was present in their field situated in the bed of Channab River. All of a sudden Mazhar armed with Kalashnikov (since P.O.) Azhar armed with gun, Zulfiqar son of Sher and Khizar Hayat armed with rifle caste Pathan residence of "Katcha Gurna" along with six unknown persons riding mares came abruptly. Mazhar Khan (since P.O.) uttered Lalkara and came down from the mare. They started firing, with the result that Nazar Khan, Arrora Khan and Niaz Khan (all the three deceased) and Mumtaz Khan P. W. 8 were injured as a result of the fire shots of the accused who collapsed. He and Inayat Khan P. W. 9 came forward. He received fire shot at his left foot. Azhar accused inflicted blow on the backside of his neck. The unknown accused gave sota blows to Inayat Khan P. W. At different parts of his body. Muhammd Hayat, Muhammad Ameer and Noor Muhammad P.Ws.

(since given up) Caste Pathan resident of Katcha Gurna attracted to the place of occurrence and saw the same with their eyes. The accused fled by riding the mares. Nazar Khan deceased received fire shot on his right thigh. Aroora deceased received fire shot under his right arm pit and right thigh who expired at the spot. Niaz Khan deceased received fire shots at his abdomen and left hand. He as well as Mumtaz Khan P.W. Were also injured as a result of fire shots of the accused.

(2) The motive behind the occurrence is that the proprietary rights of agricultural property being Shamlat Deh were conferred upon the complainant and the possession was also with him. The accused wanted to get the possession forcibly who had committed murder of deceased by injuring the P. Ws.

(3) The accused had committed murder of Niaz Khan, Nazar Khan and Aroora Khan at the instigation of Zulfiqar, Gulzar alias Gula son of Nazir, Jehangir, Shera, Nazir and Iltaf.

(4) The complainant subsequently got recorded his supplementary statement on the same day to the effect that the unknown accused were Sarfraz Khan son of Shera, Iltaf Khan son of Malang Khan, Liaquat son of Salehoo son of Manzoor, Ahmed Ali son of Wali Muhammad Naikora, Sher Muhammad alias Sheri and Muhammad Ashraf son of Nazir."

3. Learned counsel for the petitioner argued that if the facts narrated in the F.I.R. (Exh.PD) are seen, petitioner Altaf Ahmad son of Nazir Khan was not alleged any active role in the main occurrence.

He, however, was shown as an abettor to the main culprits along with 5 others as they allegedly instigated the main accused for commission of the alleged occurrence, whereby three deceased Nazar Khan, Aroora Khan and Niaz Khan were murdered while others were injured. Learned counsel argued that another Altaf Hussain son of Malang was involved as an accused as the complainant P.W.10 Nawab Khan in his supplementary statement involved him having played active role along with other accused in the main occurrence. Learned counsel argued that trial Court perhaps did not deeply appreciate the records and evidence available on file and confused both of these accused i,e, petitioner Altaf Ahmad son of Nazir Khan an accused who allegedly did not participate in the occurrence rather was assigned the role of an abettor/instigator and was also not shown present on the spot with Altaf Hussain son of Malang Ali against whom there was allegations in the F.I.R. As well as in the statements of the witnesses that he played an active role in the commission of the alleged occurrence whereby three persons were murdered and others were injured. To substantiate the arguments learned counsel referred para Nos.3 and 4 of the judgment passed by learned trial court reproduced above. He also referred certain portions of the statements of accused under section 342, Cr.P.C. Recorded by the learned trial court. Learned counsel referred that petitioner Altaf Ahmed son of Nazir Khan was put the material piece of evidence against him brought on record by the prosecution whereby he was alleged that he on 5-11-2008 at 4-30 p.m.

While present at dera of Nazir instigated his co-accused Nazir, Zulfiqar son of Nazir, Jehangir Khan, Gulzar, Shera, Mazhar Iqbal, Muhammad Ashraf, Ahmad Ali P.Os as well as Sheri (since dead) accused for the murder of Nazar Khan, Niaz Khan and Aroora Khan who also injured Nawab Khan and Inayat Khan as a consequence of his abetment which occurrence was committed on 6-11- 2008 at 7-00 a.m., and he refused to accept this allegation. Learned counsel referred the statement of accused Altaf Hussain son of Malang wherein he was alleged that on 6-11-2008 at 7-00 a.m. The alleged date of the main occurrence he along with his co-accused in furtherance of their common object caused, the death of three deceased as well as injured two P. Ws. Learned counsel argued that if this record and evidence is seen, learned trial Court clearly confused the two accused i,e, Altaf. Ahmad son of Nazir Khan the present petitioner an abettor and Altaf Hussain son of Malang Ali an accused/convict who was assigned specific role in the main occurrence. Contends that petitioner Altaf Ahmad was unfortunately declared guilty for causing death of Aroora deceased and was awarded death penalty and Altaf Hussain was saddled with the liability of causing injury to one of the witnesses and he was sentenced to 10 years and 5 years' R.I. Under sections 324 and 337-F(v), P.P.C. Respectively. Learned counsel while arguing this petition submitted that no-doubt in normal course conviction passed against a person as death sentence is not suspended but in the peculiar circumstances of the case in hand when this illegality is floating on the surface and apparent by a glance, it is a fit case for suspension of sentence and release of the petitioner- appellant on bail till the final disposal of the appeal as there is no likelihood of early fixation and disposal of the main appeal in near future. Learned counsel while relying on "Fazal Rahim v. The State" (PLD 2004 Lahore 266) and "Muhammad Attique v. Shoaib alias Labba and another" (2007 SCMR 992) prayed that this petition be allowed.

4. Conversely, learned DPG assisted by learned counsel for the complainant although opposed .The petition on the ground that all the arguments advanced by learned counsel for the petitioner are touching the merits of the case which is not permissible at this stage. It was argued that the factual controversy about the identity of the petitioner and co-convict Altaf Hussain only can be seen at the time of hearing of the main appeal. We appreciate that learned counsel for the complainant (Barrister Usman G. Rashid), however, has shown grace and submitted that factually if record is seen the arguments advanced by learned counsel for the petitioner have force. He although submitted that there are very few precedents available whereby sentence of death under section 426, Cr.P.C. Was suspended. He further in this respect referred a judgment passed by this Court cited as PLD 2010 Lahore 156 (Hafiz Tanveer v. The State and another).

5. We have heard the learned counsel for the parties and have gone through the record.

6. Admittedly, if the record is seen, petitioner Altaf Ahmad son of Nazir Khan right from the beginning i,e, in complaint Exh.PD recorded by the complainant Nawab Khan P. W.10 was assigned role of an abettor/instigator a day prior to the main occurrence. Same role was assigned to him during the statements of the witnesses and specially when his statement under section 342, Cr.P.C.

Was recorded he was put the following question:-- Q.2. It is a fact that on 5-11-2008 at about 4-30 p.m. At Dera of Nazir accused situated in village Gurna, you and your co-accused Nazir, Zulfiqar son of Nazir, Jehangir Khan, Gulzar and Shera son of Lala abetted and instigated your co-accused now present in court and P. Os namely Mazhar lqbal, Muhammad Ashraf, Ahmad Ali and Sheri (since dead) to commit the murders of Mazhar Khan, Niaz Khan and Arora Khan and to injure Nawab Khan and Inayat Khan and as a consequence of your abetment your said co-accused committed the present occurrence on 6-11- 2008 at about 7-00 a.m?

' If the statement of other accused/appellant/convict namely Altaf Hussain son of Malang is seen, learned trial Court put him the following incriminating circumstances brought on record in the prosecution evidence in the shape of Q.3, which is hereby reproduced:- "It is a fact that on 6-11-2008 at about 7-00 a.m. In the bed of river Channab within the area of village Gurna Pathana you while armed with .12 bore gun along with your co-accused Azhar lqbal armed with gun, Mazhar. (PO) armed with Kalashnikov, Liaqat Ali armed with gun, Zulfiqar son of Shera armed with gun, Khizar Hayat armed with gun, Ahmad Ali (PO) armed with gun, Aman Ullah alias Mana armed with Sota, Ashraf (PO) armed with Sota and Sheri (since dead) while armed with sota, Sarfraz with gun formed yourself an unlawful assembly with the common object committing the murders of - Niaz Khan, Nazar Khan and Aroora Khan and making murderous assault on Mumtaz and Nawab Khan and Inayat Khan?"

In these circumstances although if the judgment passed by learned trial Court (Para 54) is seen, petitioner Altaf Ahmad son of Nazir Khan, was found guilty of causing death of Arora Khan, thus, was convicted under section 302(b), P.P.C. And sentenced to death penalty and payment of Rs,3,00,000 as compensation under section 544-A, Cr.P.C. He was also convicted for causing injury to one of the witnesses mentioned above and was convicted under section 324 read with section 337-F(v), P.P.C., although he was never alleged causing death of said deceased and causing injury to the injured person.

7. In view of the circumstances, the judgment cited by learned counsel for the petitioner and referred by learned counsel for the complainant, if seen, in all such judgments ratio was common that if by mere reading of evidence at a glance, court comes to the conclusion that evidence available on record is not sufficient to sustain the conviction or illegality is floating on the surface then while exercising power under section 426, Cr.P.C. The death sentence passed against a convict during the pendency of an appeal can be suspended. We in view of the circumstances respectfully following the judgments cited, allow this petition. Resultantly, sentence passed against the petitioner vide judgment dated 25-8-2011 is hereby suspended. He is directed to be released on bail subject to furnishing bail bonds in the sum of Rs,2,00,000 with two sureties each in the like amount to the satisfaction of Deputy Registrar (Judicial). While concluding we again appreciate the generosity shown by learned counsel for the complainant.