AMEER BUX Versus THE STATE
GHULAM NABI SOOMRO, J. ‑‑‑‑Vide judgment dated 3‑12‑1999 passed by the learned Anti‑Terrorism Court No. 1, Karachi, the appellant Ameer Bux was convicted under section 302, P.P.C. read with section 7(1)(a) of the Anti‑Terrorism Act and sentenced to death with fine of Rs.50,000 or in default, to suffer R.I. for three years. He was also directed to pay compensation of Rs.1,50,000 under section 544‑A, Cr.P.C. to the legal heirss of the deceased H.C. Yousuf Ali, or in default of payment of compensation, he was to undergo further R.I. for six months. His sentences were ordered to run concurrently. He was however, allowed benefit of section 382‑B, Cr.P.C. He has challenged the above sentences through this appeal under section 25 of the Anti‑Terrorism Act read with section 410, Cr.P.C.
2. The prosecution case as per F.I.R. lodged on 20‑10‑1999 at Police Station Shah Latif Town, District Malir are that the complainant A.S.‑I. Anwar Mirani posted at ADRC (Anti Dacoity and Robbery Cell), District Malir alongwith members of his staff namely Head Constable. Yousuf Ali (deceased) and nine others, while on patrol duty on an official Mobile vehicle received information that a proclaimed offender namely Amer Bux (appellant), wanted in case Crime No.253 of 1989 under sections 324, 307, 34, P. P. C. and Crime No.133 of 1990 under section 307, 34, P.P.C. of Police Station Gadap, Karachi was present in Tajo Bagheecha near village Jam Kandha. After confirming the information, the police party reached at the pointed place at 00.30 hours, encircled the room and knocked at the door informing the insider that there was police outside, asking to come out, but he did not open the door, whereupon PC. Musharraf kicked open the door, while Head Constable Yousaf Ali entered into the room, accused Ameer Bux (appellant) opened fire from his .222 rifle which hit Head Constable. Yousuf Ali on his chest and left shoulder, as a result he fell down injured. Meanwhile Police Constable. Musharraf and Police Constable Abdul Rahman overpowered the accused and snatched the rifle from accused who upon enquiry disclosed his name as Ameer Bux son of Lal Bux. The rifle of the accused was secured, checked and found containing two magazines with 30 live rounds. The accused/appellant was arrested on the spot. Injured Head Constable. Yousuf Ali breathed his last while on way to Jinnah Hospital for medical treatment. Such report was taken down on a plain paper at Jinnah Hospital at 02‑18 hours and was sent to Police Station Gadap, for incorporating the same in 154, Cr.P.C. book which was registered at 03‑30 hours.
3. The police took up the investigation, delivered dead body in the hospital for post‑mortem examination at 1.00 a.m., visited the place of Wardat and after performing other usual formalities sent up the appellant for trial for the aforesaid offences.
4. A charge was framed against the appellant to which he pleaded not guilty and claimed to be tried. The prosecution in support of its case examined 8 P.Ws. and then closed its side. The appellant was examined under section 342, Cr.P.C. wherein he denied all the prosecution allegations and placed his innocence. He, however, did not examine himself on oath but opted to examine his father Lal Bux as D.W.1 (Exh.32) and Imam Bux a neighbourer as D.W.2 (Exh.33) whereafter he closed his side. Learned trial Court at the conclusion of the trial convicted and sentenced the appellant as above.
5. We have heard the learned counsel for the appellant arid the learned A.A.‑G. appearing for the State, have also perused the record of evidence and the impugned judgment.
6. It was contended on behalf of the appellant that the appellant was never a proclaimed offender. He was working as a Chowkidar at Tajo Bagheecha (Agricultural Farm). That nothing has been brought on record to show that he was declared as proclaimed offender or that Non- Bailable Warrants for his arrest were issued against him. It was contended that, night being dark and the appellant being fast asleep, so it was very difficult for him to have used the rifle. It was added that the prosecution story suffers from high improbabilities in many aspects and some of them being that the appellant (a proclaimed offender) would keep alongwith himself the rifle licence also and that he was not capable of firing at the police, while remaining on the ground. It was argued that this version of prosecution witnesses stands contradicted by medical evidence which shows that the appellant was in slightly upward position from the position of the deceased, and that the deceased and the appellant could not be standing on the same platform or level, at the time of receiving injury by deceased. It was urged that the medical evidence was very clear on the point that the injury (to the deceased) could not be caused while assailant would be in such position and the deceased in standing position. It was further argued that all the P.Ws. are policemen and inspite of having spy information they failed to associate any public witness in the occurrence. It was also argued that the fact of deceased policeman wearing plain clothes and not his uniform is also not explained as admittedly all the remaining members of police party were in uniform. That the prosecution evidence does not stand fully corroborated with the positive Ballistic Expert's report only. It was further argued that police failed to examine owner of Baghicha and also failed to produce evidence relating to the absconsion of the appellant. It was also argued that two F.I.Rs. referred above were not registered against the present appellant .as they did not mention parentage of the accused. It was lastly argued that the case of the prosecution is not free from doubt and the appellant is entitled to benefit of doubt and his consequent acquittal. It was alternatively argued that the appellant in the giver, circumstances had the right of self‑defence and he could exercise his right by making fire.
7. Reliance was placed upon the cases reported as 1996 PCr.LJ 181 (2) 1993 PCr.LJ 91 (3) 1999 SCMR 944 and (4) PLD 1988 SC 1445.
8. On the other hand Mr. Habib Ahmed, learned A.A.‑G. appearing for the State submitted that the deceased was killed in the room which was at the relevant time occupied by the appellant. The appellant himself has admitted his arrest on the night of incident at 10‑00 p.m. The defence theory that the appellant was later to his arrest, falsely involved in this case and substituted for the real offender, does not appeal to sense. Such plea in his view was a set lip one and false on the face of it. The learned A.A.‑G., however, conceded that the occurrence was not a terrorist act, as it was lacking necessary nexus with the provisions of the sections 6, 7 and 8 of the Anti‑Terrorism Act. He further submitted that in absence of specific evidence on the occurrence, which took place‑ inside the dark room and in view of the medical evidence, the appellant would be liable for punishment under. section 302(c), P.P.C.
Dealing first with the question whether the appellant was an absconder or a proclaimed offender, it may be stated that nothing is brought on record to show that the appellant was a proclaimed offender/absconder or whether there was a warrant of arrest against him. On the other hand the appellant has through his counsel sought to bring on record, for the purpose of perusal, judgments (of trial Court) in the referred F.I.R. cases, which are both of acquittal, where in the eye witnesses have stated that the accused in those cases (the appellant herein) was not the same person. The F.I.Rs. of the referred cases moreover do not disclose the parentage of the appellant. The prosecution has therefore, utterly failed to prove this point.
The P. Ws. Abdul Rehman (Exh.10) and Muhammad Anwar Mirani (Exh.13) have deposed that "a person present there stood up from the carpet lying on the floor of the hall. The said person was armed with a rifle and fired 3/4 shots at us", whereas P.W. Musharraf Hasnad (Exh.5) does not say that the person inside the hall was seen in lying position. Nevertheless, all the three are consistent that the fire shots resulted in injuries to the deceased. There seems, however, no doubt in the prosecution allegation that the room/house at the time of occurrence was inhabited by the appellant only and the deceased Head Constable Yousaf Ali got killed there. The bullet secured from the dead body of the deceased has matched with the appellant's .222 rifle. In such a situation, the defence evidence that the rifle was taken away by police around 03‑00 a.m. from the appellant's house, on the same night appears to be false and set up.
Of course, a kind of hostility is alleged against P.W. A.S.‑I. Anwar Mirani. But it would be very difficult to believe that the appellant was arrested prior to the incident, in order to be implicated, in the murder of a Head Constable which took place later.
Yet, with all the above evidence on record, the prosecution case would have to give way to certain mitigating circumstances as the incident has occurred inside the room/hall, where there was darkness and the medical evidence does' not fully fit in the ocular version. We are therefore, of the view that the conviction is to be altered and the sentence also is to be reduced.
Our above view emanates from the evidence on record, which on the one hand does not constitute a case of terrorism and on the other, calls for alteration of conviction and sentence.
In the case reported as Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274), the Hon'ble Supreme Court in its judgment at para. 29 has held as under:‑‑
"29. The new section 302 itself divides Qatl‑i‑Amd, for purpose of punishment into three categories;
(1) Qatl‑i‑Amd which is punishable with death as Qisas;
(2) Qatl‑i‑Amd punishable with death or life imprisonment as Ta'zir; and
(3) Qatl‑i‑Amd punishable with imprisonment of either description for a term which may extent to twenty‑five years, where according to the Injunction of Islam the punishment of Qisas is not applicable."
Section 302 of the P.P.C. therefore, itself contemplates plainly clearly, a category of‑cases which are within the definition of Qatl‑i‑Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of section 302, the law‑maker has left it to the Courts to decide on a case to case basis. But keeping in mind the majority view in Gul Hassan's case PLD 1989 SC 633, there should be no doubt that the cases covered by 'the Exceptions to the old section 300, P.P.C. read with the old section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C. In this connection should be content to refer to ( ﻯﺭﻴﺯﺣﻠﺍﻥﻣﺣﺭﻠﺍﺪﺑﻋ ) by ( ﻪﻗﻓﻠﺍﺐﺎﺗﮐ ) (translation by Manzoor Ahsan Abbasi), Volume V at page 528 which enumerates a large number of situations in which Qisas is not liable for Qatl‑i‑Amd; one of the situations mentioned by the learned Author at page 584 is:
The sentences under section 302(c), P.P.C. also have been awarded to the accused found not guilty for offence of Qatl‑i‑Amd liable to Qisas under subsection (a) or liable to Tazeer under subsection (b). Reference may be made to one of such cases i.e. The State v. Muhammad Hanif and 5 others reported as 1992 SCMR 2047, wherein the Hon'ble Supreme Court while dismissing the appeal of the State, upheld the sentence of ten years R.I. of the accused under section 302(c), P.P.C. awarded by the trial Court and maintained by the High Court in appeal. It is admitted fact that police party was neither having warrant for arrest or search, it may have given a reasonable presumption to him that they would not be the police party and instead might be some dacoits, and caused a reasonable alarm for himself so as to defend his own life/person; benefit of such aspect of the case should necessarily go, to the appellant.
Consequently, in view of the peculiar facts and circumstances of the case, we are inclined to accept the arguments put forth by the learned A.A.‑G. and imposed a sentence of R.I. for seven years upon the appellant under section 302 (c) P.P.C. only. The compensation allowed under section 544A, Cr.P.C. to the legal heirs of the deceased Heath Constable Yousuf Ali and additional R.I. for six months in failure of making payment of the compensation, is maintained. The benefit of section 382‑B, Cr.P.C. already granted by the trial Court is also kept intact.
Resultantly, the appeal with the above modifications to the sentences, stands dismissed. The reference for confirmation of death sentence is declined.
N.H.Q./A‑3/K Order accordingly.