MUHAMMAD TUFAIL vs The STATE

MANZOOR AHMAD MALIK, J.---Muhammad Tufail son of Nazar Muhammad (appellant), Muhammad Tufail son of Manmand and Manzoor (co-accused) were nominated in case FIR No.239/07 dated 11.07.2007, offence under sections 302, 353, 324, 34 and section 7 of Anti-Terrorism Act, 1997, registered at Police Station Satgarah, District Okara. Muhammad Tufail son of Nazar Muhammad and Muhammad Tufail son of Manmand faced trial before the learned Judge, Anti- Terrorism Court No. III, Lahore. The learned trial court vide judgment dated 02.07.2008 convicted and sentenced Muhammad Tufail son of Nazar Muhammad (appellant) as under:- "Accordingly I convict Muhammad Tufail son of Nazar Muhammad under section 302(b), P.P.C. read with section 34, P.P. C. for,- committing Qatl-i-amd of Ghulam Qadar, constable/driver and punish him with DEATH. Accused Muhammad Tufail son of Nazar Muhammad to be hanged by neck till he is dead. Accused Muhammad Tufail son of Nazar Muhammad is also convicted under section 7(a), A.T.A., 1997 for committing an act of terrorism and punish him with DEATH and fine of Rs. 50,000/ - and in case of non-payment to undergo SI for three months. I also convict accused Muhammad Tufail son of Nazar Muhammad under section 353, P.P.C. read with section 34, P.P.C., and award him RI for TWO Years for assaulting to deter police officials from the discharge of their duties. 1 also convict Muhammad Tufail son of Nazar Muhammad under section 7(h), A.T.A. 1997 and award him RI for Ten years and fine of RS. 50,000/- and in case of nonpayment of fine to undergo SI for three months. I also convict Muhammad Tufail son of Nazar Muhammad under section 13/20/65, Arms Ord. Pakistan Arms Ordinance and award him for keeping rifle 222 bore in possession without any valid license and the bullets and award him RI for three years. The accused is ordered to pay Rs. one lac as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased Ghulam Qadar Constable and in case of non-payment to undergo SI for six months."

Through the same judgment co-accused of the appellant namely Muhammad Tufail son of Muhamand was also awarded several convictions/sentences.

2. Aggrieved of their convictions and sentences recorded by the learned trial Court, the appellant and his co-accused Muhammad Tufail son of Mahmand preferred a joint appeal before the Lahore High Court, which was heard by a learned Division Bench of the Lahore High Court along with the capital sentence reference sent for confirmation or otherwise of the death sentence of the appellant. While dismissing the appeal to the extent of the appellant, and answering the reference in affirmative, the learned High Court acquitted his co-convict Muhammad Tufail son of Mahmand of all the charges. Muhammad Tufail (convict) assailed the impugned judgment through Criminal Petition No. 634-L of 2009 wherein leave was granted vide order dated 27.07.2009. Hence this appeal with the leave of the court.

3. We have heard learned counsel for the appellant, learned Additional Prosecutor General for the State and have also perused the available record with their able assistance.

According to the contents of the FIR, three persons were coming on a motorcycle. They were stopped by the Police being dubious but they resorted to firing upon the Police party. Police also resorted to counter firing in self-defence. Through the firing made by the culprits a Police constable-driver namely Abdul Qadar sustained firearm injury who died at the spot. One culprit along with motorcycle was overpowered by the Police who disclosed his name as Muhammad Tufail (appellant) and a rifle .222 bore was recovered from his possession. In this case the alleged occurrence took place at about 4:30 a.m. (morning) on 11.07.2007 and the matter was reported to the police through complaint on the same morning at 5:10 a.m. i.e. just after forty minutes of the occurrence on the basis whereof formal FIR was chalked out at 5.40 a.m. The appellant was charged for the murder of a police constable, deterring the Police party in discharge of their lawful duties and for possessing arms without license.

5.So far as the charge of qatal-i-amd of Abdul Qadar (deceased) is concerned, the ocular account was furnished by Noor Samad (PW-7) and Ghulam Dastgir 766/C.(PW.8). While appearing before the learned trial court both these witnesses supported the contents of the FIR and also stated that all the three culprits made indiscriminate firing whereas the appellant was also driving the motorcycle at the time of occurrence. None of these witnesses stated before the learned trial court that it was the shot fired by the present appellant which hit Police constable and proved fatal.

Therefore, in the eventuality when according to the own showing of the prosecution, the appellant was also driving the motorcycle at the time of occurrence there is little chance that the appellant's fire would have hit the deceased. The positive report of Forensic Science Laboratory (Exh. PU) would at the most suggest that the appellant also resorted to firing but it would not prove that the shot fired by the appellant had hit Ghulam Qadir (deceased) and proved fatal. Therefore, while extending him benefit of doubt, Muhammad Tufail son of Nazar Muhammad (appellant) is acquitted of the charges under section 302(b)/34, P.P.C. as well as section 7(a), A.T.A., 1997.

6.So far as the remaining convictions and sentences are concerned, there is sufficient evidence against the appellant as he was apprehended from the spot, recovery of motorcycle as well as rifle used during the occurrence was effected from him. Even otherwise material witnesses of B prosecution who are police officials have no malice against the appellant for his false implication in this case. Therefore, this appeal to the extent of charge under section 353, P.P.C., section 7(h), A.T.A., 1997 and section 13 of the Arms Ordinance, 1965 is dismissed. The convictions and sentences of the appellant under the aforementioned charges awarded/maintained by the learned courts below are upheld. The appellant shall be entitled to the benefit of section 382-B, Code of Criminal Procedure and all his sentences shall run concurrently. This appeal is partly allowed in the above terms.