MUHAMMAD ASHRAF Versus THE STATE

KHAWAJA MUHAMMAD SHARIF, J .‑‑‑This judgment will dispose of Criminal Appeal No.999 of 1999 filed by Sarfraz, Muhammad Ashraf, Rashid Ahmad and Jafar Alt appellants and Criminal Appeal No.932 of 1999 tiled by Maqbool Ahmad, appellant, who were convicted and sentenced by learned Judge Special Court (STA), Faisalabad Division, Faisalabad vide his judgment dated 18‑9‑1999 as under:‑‑

Muhammad Ashraf, appellant, under section 302 (b) P.P.C. to death for committing Qatl‑e‑Amad of Muhammad Ashraf Fauji and to pay Rs.50,000 as compensation to the legal heirs of the deceased as required under section 544‑A, Cr.P.C., in default six months' SI.

Sarfraz, Rasheed, Jaffar Ali and Maqbool, appellants under section 302(b) read with section 149, Pakistan Penal Code to imprisonment for life and to pay Rs.25,000 each as compensation under section 544‑A, Cr.P.C., in default six months' S.I.

All the appellants under section 324 P. P. C. three years' R.I. for launching murderous assault on Allah Ditta P. W. and to pay Rs.10,000 daman to P.W. Allah Dicta as Tazir under section 337‑F, P. P. C., as per nature of the injury caused to the victim and will suffer S.I. till the payment of daman.

All the appellants also under section 324, Pakistan Penal Code ten years' R.I and to pay one third of diyat collectively amounting to Rs.57,000 under section 337‑D, P.P.C. as Tazir as per nature of the injury caused to minor Mst. Shazia. Each default will suffer S.I ' till the payment of diyat of his share.

All the appellants under section 148 P.P.C. three years' R.I with a fine of Rs.5000 in default one year's R.I.

All the sentences were ordered to run concurrently with the benefit of section 382‑B, Cr.P.C.

2. Occurrence in this case had taken place within the jurisdiction of Police Station Sadar, Faisalabad on 9‑6‑1993 at 8‑00 a.m. at a distance of two kilometers while the matter was reported to the police on the same day at 9‑30 a.m by Falak Sher complainant through complaint Exh. PD and the formal F.I.R. Exh.PD/1, Farooq Ahmad, M.H.C./A.S.‑I. P.W.5 in the Police Station at 9‑45 a.m. on the same day.

3. Brief facts of the case as disclosed by Falak Sher complainant in his complaint Exh.PD are that they were five brothers, one of them Muhammad Aslam was serving in Crescent Sugar Mills, Faisalabad and on the day of occurrence, i.e. 9‑6‑1993 at about 8‑00 a.m. he went to Munsha Tailor of the village to get new clothes sewed alongwith P.W. Allah Ditta on a motor‑cycle of aforesaid Allah Ditta and when were coming back they witnessed Muhammad Ashraf son of Sohna, Sarfraz son of Manzoor both armed with .222 bore rifles, Rasheed alias Sheedo and Jaffar Ali armed with 7 MM rifles and Neela son of unknown resident of Shahkot armed With mauzer were standing in front of the house of Molvi Noor who exhorted Lalkara' not to let Muhammad Aslam Fauji go alive. This lalkara attracted P.W. Zafar Iqbal and Noor Muhammad from nearby' grocery shop at the scene of crime viz. chowk. In view of aforementioned P.Ws. and complainant accused Muhammad Ashraf fired with .222 bore rifle hitting Muhammad Aslam underneath heart on left side and bullet penetrated through back, Muhammad Aslam collapsed being seriously injured. Sarfraz fired at Allah Ditta hitting on outer side of left thigh. One of the fire shots hit Mst. Shazia aged about 4/5 years daughter of Nawaz who was passing through the nearby chowk and she sustained injury on belly under umbilicus. Accused Neela, Jaffar Ali and Rasheed remained indulged in aerial firing and exhorting 'Lalkara' that whoever came near would be murdered. All the accused managed to escape under the cover of firing. Complainant and other relatives attended the injured, Aslam was being brought to hospital at Faisalabad by tractor but he succumbed to the injuries in the way. Allah Ditta and Mst. Shazia were admitted in hospital in Emergency Ward in injured condition.

The motive, as per Exh.PD, was that accused Muhammad Ashraf had delivered double barrel gun to Umer Hayat Machhi son of Mokha and sent him to murder Aslam deceased and injured P.W. Allah Ditto 7/8 days prior to the occurrence but Umer Hayat was arrested by the police on spy information of Muhammad Aslam deceased and was challaned, therefore, the accused were aggrieved.

4. Investigation of the case was taken over by Khalid Mehmood SI (P.W.16). After registration of the formal F.I.R., he went to Civil Hospital, Faisalabad where the dead body of Muhammad Aslam deceased was lying. He prepared injury statement Exh.PB. inquest report Exh.PC and then proceeded to the place of occurrence from where he took into possession blood‑stained earth vide memo. Exh.PO, also secured 5 crime empties from the spot through memo. Exh.PL and on 13‑6‑1993 he recorded the statement of Allah Ditta, injured in the hospital. The investigation was then taken over by Malik Zafar Ali, S.I. (P.W.13). Sarfraz accused was arrested by S.H.O. and P.W.13 took his physical remand. Accused Jafar was also joined with the investigation. Later on the investigation was transferred to Muhammad Siddique, S.I. (P.W.14). This Investigating Officer arrested Ashraf accused from District Jail, Sheikhupura and obtained physical remand. Ashraf accused while in police custody led to the recovery of rifle P.1 which was seized vide memo. Exh.PF. Muhammad Rashid accused was arrested on 14‑9‑1993 and sent to judicial lock‑up. On 1‑10‑1993 Jafar accused was arrested. After completion the investigation, all the five accused were challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced 16 witnesses in all. Thereafter, the learned DDA tendered in evidence report of the Chemical Examiner Exh.PR, report of the Serologist Exh.PS, reports of the Forensic Science Laboratory Exh.PT. Exh.PU and closed the prosecution case. Then statements of the accused were recorded under section 342, Cr.P.C. in which they claimed innocence. However, after conclusion of the trial, the accused were convicted and sentenced as stated above.

6. Learned counsel for the appellants except Maqbool submits that as, far, as Muhammad Ashraf and Sarfraz appellants are concerned, both these appellants had no motive to commit the crime in question which constitutes a ground for the award of, lesser sentence. Further submits that two important witnesses namely Zafar Iqbal and Noor Muhammad were given up as having been won over. Adds that only 5 crime empties of rifle .222 bore were recovered from the spot but no crime empty of the fire‑arms allegedly used by the other appellants at the time of occurrence were recovered. Further adds that nothing incriminating was recovered from Sarfraz appellant and he was declared innocent by the Police during the course of investigation. Learned counsel submits that there is conflict between ocular account and medical evidence and no person from nearby the place of occurrence was produced by the prosecution as an eye‑witness, the injured Mst. Shazia was not produced by the prosecution and that both the eye‑witnesses are interested and inimical towards the appellants and there is no independent corroboration to their testimony. Further submits that Muhammad Ashraf convict was minor at the time of occurrence and the Superintendent Jail concerned had taken him out from the death cell so on this ground the sentence of death cannot be maintained qua him. So far as Jaffar Ali and Rasheed Ahmad appellants are concerned, learned counsel for the appellants submits that only ineffective tiring was attributed to them and no crime empty of the firm arm which both these appellants were carrying was recovered from the spot.

7. Learned counsel for Maqbool appellant submits that only ineffective firing was attributed to him and he had no motive to join hands with his co‑accused.

8. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that it was a case of promptly lodged F.I.R., all the accused were named in the F.I.R. with the roles they played at the time of occurrence, all the accused were vicariously liable for tie acts of each other, Muhammad Ashraf at the time of recording of his statement under section 342 Cr.P.C. gave his age as 29 years, Muhammad Ashraf appellant was involved in 16 other criminal cases prior to the present occurrence, recovery was also affected from Muhammad Ashraf appellant and that ocular account is corroborated by the medical evidence. They both support the judgment of the trial Court.

9. We have heard learned counsel for the appellants and have gone through the record with their able assistance: In the instant case, the occurrence had taken place at 8‑00 a.m. on 9‑6‑1993 while the matter was reported to the police at 9‑30 a.m. the same day by Falak Sher real brother of the deceased Muhammad Aslam though the distance between the place of occurrence and the police station is 2 kilometers. The names of the accused and the roles they played during the occurrence was sufficiently mentioned in the F.I.R. There was also no question of mistaken identity of the accused. There was one deceased namely Muhammad Aslam, real brother of the complainant while there were two injured namely Allah Ditta and Mst. Shazia aged 3 years but she was not produced. Allah Ditta was examined as P.W.3. Both Falak Sher and Allah Ditto P.Ws. have fully supported the prosecution case to its hilt. They have no enmity to falsely implicate the appellants. Ocular account is corroborated by the medical evidence. Allah Ditta was medically examined on the day of occurrence at 9‑45 a.m. by Dr. Abdur Rehman (P.W.10). Injuries on his person were found to be fresh, so his presence at the spot cannot be doubted without any stretch of imagination. The post mortem examination on the dead body of Muhammad Aslam deceased was conducted by Dr. Qaisar Abbass (P.W.1) at 4‑45 p.m. on 9‑6‑1993. The probable duration given by the said doctor between the death and post mortem was 8 hours which coincides with the time of occurrence. Muhammad Ashraf appellant was arrested on 29‑8‑1993 while Sarfraz accused was arrested on 30‑6‑1993. During the custody, Muhammad Ashraf got recovered rifle .222, although according to report of the Fire‑Arms Expert the rifle was in such a condition that the crime empty recovered from the spot could not be put to the test of matching 5 crime empties of rifle .222 were recovered from the spot. It thus stands established beyond any shadow of doubt that it were Muhammad Ashraf and Sarfraz appellant who fired at the spot at the time of occurrence because both were only armed with .222 rifles.

10. Learned counsel for the complainant has submitted before us that Muhammad Ashraf appellant was involved in 16 cases. We have gone through the " ﻡﺯﻠﻤﺕﺧﺎﻧﺷﺗﺕﻳﻛﻳﻔﺘﺮﺳ ". The contention of learned counsel for the complainant is true and is .borne out from the record.

11. So far as motive is concerned, the prosecution has proved the same because it was Muhammad Ashraf who had sent his servant Umar Hayat along with rifle to murder Allah Ditta and Aslam son of Rajada because on the spy information of Muhammad Aslam son of Rajada, Umar Hayat was challaned in a case of illicit arms. Sarfraz appellant had common intention with Muhammad Ashraf appellant. Both these appellants were armed with .222 rifles. So far as the minority of Muhammad Ashraf appellant is concerned, his statement under section 342, Cr.P.C. was recorded by the trial Court on 20‑4‑1999 in which he gave his age as 29 years meaning thereby that he was of 24/25 years of age at the time of occurrence, that is, 9‑6‑1994. Muhammad Ashraf appellant was arrested on 29‑8‑1993. On the said date, the Investigating Officer had given the date of accused as 24/25 years.

No question, thus, arises that Muhammad Ashraf appellant was minor at the time of occurrence, hence there is no mitigating circumstance in his favour to award the lesser penalty. In 1998 SCMR 862, their lordships of the Honourable Supreme Court observed that in the absence of any mitigating circumstance, normal penalty of death is to be awarded. In these circumstances, we are satisfied in our mind and heart that it was Muhammad Ashraf appellant who caused fatal shot on the person of Muhammad Aslam deceased. Appeal to the extent of Muhammad Ashraf appellant is dismissed. Conviction and sentence recorded against him by the trial Court is maintained. His death is confirmed.

12. So far as Sarfraz appellant is concerned, he had also common intention with Muhammad Ashraf his co‑accused. He also caused injury on the person of Allah Ditta P.W. who himself appeared before the trial Court and supported the prosecution version. The learned trial Court has already taken a lenient view in awarding him the lesser penalty of imprisonment for life. So the conviction and sentence recorded against Sarfraz appellant is also maintained and appeal to his extent is dismissed. He is on bail and shall be taken into custody. However the sentence of all the appellants for causing injuries to Mst. Shazia is set aside as she was not produced by the prosecution.

13. Now, we take up the case of Rsheed Ahmad, Jaffar Ali and Maqbool Ahmad. They are accused of only ineffective tiring. No crime empty of the fire‑arm was recovered from the spot which these convicts were allegedly carrying at the time of occurrence and resorted to firing with that. To our mind, they had no motive to join hands with their co‑accused. These appellants have been able to create dents in the prosecution case, the benefit of which has to be extended to them ungrudgingly. While giving the benefit of doubt, we acquit Rasheed Ahmad, Jaffar Ali and Maqbool Ahmad, appellants from the charge. Criminal Appeal No.999 of 1999 to the extent of Jaffar Ali and Rasheed Ahmad and Criminal Appeal No.932 of 1999 filed by Maqbool Ahmad are allowed. Conviction and sentence recorded against them by the trial Court is set aside. All these three appellants are on bail and they shall stand discharged from their bail bonds.

H.B.T. /M‑1376/L Order accordingly.