MUHAMMAD AMIN Versus THE STATE

1. MUHAMMAD NAWAZ ABBASI, J .‑‑‑This petition for special leave‑ to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been filed against the judgment, dated 13‑9‑2001 passed by a Division Bench of Lahore High Court, Rawalpindi Bench, through, which the conviction and sentence awarded to the petitioner and his co‑accused by a Special Court, established under Anti‑Terrorism Act, 1997, for Rawalpindi, Division, vide judgment dated 3‑1‑2001, was maintained.

2. The petitioner and his co‑accused were convicted and sentenced in the following manner:‑‑

(a) The petitioner was sentenced rigorous imprisonment for a term of 10 years and Zar Khan his co‑accused for a term of.7 years under section 398, P.P.C.;

(b) Under section 324, P.P.C. the petitioner was sentenced to rigorous imprisonment for 20 years with fine of Rs.50,000 and in default of payment of fine to undergo rigorous imprisonment. for one year. The amount of fine if realized was directed to be paid to Ali Harder and Naseer Ahmed injured witnesses.

(c) The petitioner has been sentenced to death both under section 302(b), P.P.C. and under section 7 of the Anti‑Terrorism Act, 1997.

3. The High Court while maintaining the conviction and sentence of the petitioner and his co‑accused dismissed their appeal with the following conclusion in paras. 25 to 29 of the impugned judgment:‑

4. "25. Both the appellants admitted their presence at the spot. Muhammad Amin appellant has given his own version while his co -accused/appellant Zar Khan admitted that both of them had gone for the purposes of dacoity.

5. 26 Muhammad Amin appellant has only given a story which he has not substantiated by stating how he knew the complainant side previously. Where did he have his business and which had led to the conflict regarding money and the occurrence had taken place. His statement is, therefore, just bald and it advances an unconvincing story which is unacceptable to a prudent mind.

27. It has been argued by the appellant side that the statement of Zar. Khan appellant was exculpatory. As far as he is concerned, it was not recorded as required under section 364, Cr.P.C. and was of no value as far as his co‑accused is concerned. A bare reading of the statement of Zar Khan appellant reflects that it is inculpatory. The statement was made voluntarily before the Court against a question whether he has to explain his conduct and is a valid circumstance for consideration with respect to the case and it cannot be brushed aside on technical objections.

28. The prosecution, it appears, has been able to establish its 'case against the appellants and this Court upholds the orders of conviction..

29. Learned counsel for the appellant Muhammad Amin lastly prayed for a lesser sentence on the plea that he was a young man and this was his maiden offence. However, we after having given a lot of thought to this request, are of a different view and feel that no mitigating circumstance is available to the appellant Muhammad Amin on this plea. Particularly when this was not raised before the trial Court for a factual determination and while the doctor who conducted this medico‑legal report showed him to be of the age of 30 years and according to the complainant, he appeared to be a ‑person of 25/30 years of age. The tendering of documents like his school leaving certificate at this stage should also be of no avail so belatedly. We, therefore, uphold the sentence in case of the appellants and finding no merit in the appeals dismissed."

6. The occurrence in the present case took place on 7‑2‑1998 in the house of Jehangir Khan first informant in Ghosia Colony, Rawalpindi , within the area of Police Station New Town, Rawalpindi and the case was registered on the basis of statement made by Malik Jehangir Khan within one hour. It was stated in the F.I.R. that Malik Jehangir Khan alongwith his father Malik Zamir Ahmed alias Malik Zar Dad, Amir Hamza and Muhammad Saleem, were present in the Baithak of his house in Ghosia Colony when at 2 p.m. three persons of the age of 25 to 27 including the petitioner entered in the Baithak. The petitioner who was armed with a pistol, warned the complainant and his companion not to move from their places. However, on an attempt made by Zamir Ahmed to put resistance the petitioner in quick succession fired three shots at him and he expired at the spot. On hue and cry of the complainant and his companions, a few persons from Mohallah including Nasir Ahmed son of Ali Muhammad attracted to the scene of occurrence. The petitioner and his companion with a view to escape from the place of occurrence ran out who were chased by Nasir Ahmed and others and while running petitioner fired at Nasir Ahmed which hit on his left thigh. However, the petitioner was apprehended with pistol in his hand at the spot whereas his co‑accused successfully escaped. During the course of occurrence, the petitioner also sustained injuries and on arrival of police, he alongwith pistol was handed over to the police at the spot. The injured witnesses and the accused; were medically examined by Dr. Navid Akhtar Malik (P.W.) in the Holy Family Hospital, Rawalpindi whereas the post‑mortem examination on the dead body of Zamir Ahmed,, deceased, was conducted by Doctor Shaheen Akhtar Malik (P.W.) in the District Headquarter Hospital, Rawalpindi. Inspector Zar Muhammad P.W.7 upon completion of the investigation in the case, challaned the accused to face the trial before ‑ the Special Court . The petitioner in his statement under section 342, Cr.P.C while denying the charge, made the following answer to a question put to him by the Court:‑‑

7. "Actual story is. that the complainant was familiar with me prior to the occurrence and they used to get repair their electric articles and furniture from me and my brother who was also working at Rawalpindi . That on the day of occurrence complainant called me for the settlement of account in a deserted house No.90, Goshia Colony, Rawalpindi and the complainant alongwith his father and 2/3 more persons were also present there. 1 demanded my dues from the complainant amounting to Rs.10,000 which he refused to pay on which a quarrel took place and complainant inflicted injury on my head with his pistol 30 bore. I tried to catch hold Zamir Ahmad and Ali Haider in order to save my life and run away from that house, Jehangir again fired on me which hit Zahir Ahmad who was passing from that place. The complainant has his own residential house in Pandora, District Rawalpindi, but he negated the false story of rental house and showed the occurrence there. I myself appeared at the police station and narrated the occurrence before the S.H.O. who sent me for medical examination, but thereafter he registered this instant false case against me in connivance with the complainant party and the Investigating Officer dishonestly investigated the case."

8. Zar Khan co‑accused of the petitioner made following statement under section 342, Cr.P.C:‑‑

9. "Honestly speaking, the real story is that I accompanied the Amin co‑accused on his asking and entered in the house of deceased, to commit. the dacoity, but I was empty‑handed. When we entered in the Baithak of complainant, Amin co‑accused shouted to hands up and further said that nobody should move, otherwise he will be killed. Zamir Ahmad deceased tried to apprehend the Amin and he fired three shots at him and I managed to escape, thereafter what happened I know nothing."

10. Learned counsel for the petitioner in the light of the version given by the petitioner in his statement under section 342, Cr.P.C. contended that the occurrence had not taken place in the manner as suggested by the prosecution and that while putting the prosecution story in juxtaposition to the version of the petitioner, it would be manifestly clear that the petitioner had nor committed the offence with which he was charged and further the case was not triable by the Special Court established under the Anti -Terrorism Act, 1997 as the occurrence was result of private motive and no element of terror in terms of section 6 of the Anti‑Terrorism Act, 1997, was involved. The learned counsel next argued that as per school leaving certificate of the petitioner produced by him in appeal before the High Court, he was in his youth at the time of occurrence and being first offender would deserve leniency in the. matter of sentence. We have heard the learned counsel for the petitioner at length and perused the record with his assistance.

11. The co‑accused of the petitioner in his statement under section 342, Cr.P.C. has admitted that he alongwith petitioner and one another entered into the baithak of complainant with a view to commit robbery and that on an attempt made by Zamir Ahmed deceased to apprehend them and cause interference, he was fired at thrice by the petitioner. This admission of the co‑accused of the petitioner may not independently be sufficient to establish the charge against the petitioner but his apprehension with weapon of offence (pistol) at the spot would establish his guilt beyond reasonable doubt. The petitioner himself in his statement under section 342., Cr.P.C. has admitted the occurrence with the version that he was called by the complainant at his place for settlement of account and on the demand made by him from the complainant for payment of Rs.10,000 payable by the complainant to the petitioner, the complainant picked up a quarrel with him as a result of which he and Zamir Ahmed deceased sustained injuries. The petitioner has not produced any evidence in support of the version that he having business relation with the complainant on his call visited at his residence. The petitioner even himself did not appear in the witness‑box to make a statement on oath in support of his version of the occurrence. There is not an iota of evidence direct or circumstantial in support of the defence version to justify its plausibility. The arrest of accused at the spot with weapon of offence and his admission that deceased sustained injuries in the occurrence at his hand would provide a strong corroboration to the ocular account for providing charge against the petitioner. The accused entered in the Baithak of the house of complainant armed with pistol with the purposes to commit A robbery and in consequence to the resistance put by the father of complainant he was killed by the petitioner and further the petitioner with a view to create terror also fired at Nasir Ahmed in the street when he alongwith others, made an attempt to apprehend the petitioner and thus, the manner in which the petitioner while committing robbery took the life of deceased and caused fire‑arm injuries to Nasir Ahmed in the broad daylight would squarely bring the case with the ambit of "terrorism" in term of section 6 of the Anti -Terrorism Act. 1997. We are, therefore, of the considered view that the offence committed by the petitioner was triable by the Special Court established under Anti‑Terrorism Act, 1997. Having considered the plea of youthness taken on behalf of the petitioner on the basis of his school leaving certificate produced by him before the High Court, we are of the view that no sanctity can be attached to the said certificate as no effort was made 8 either to take the plea of minority at the trial or was produced any evidence in this behalf. The age of the petitioner in the police. file as well as in the judicial record was recorded more than 25 years at the time of occurrence and thus, in any case, he was‑ not in his extreme youth at the time of occurrence. The learned trial Court has observed that by appearance, the age of petitioner was about 30 years. In absence of any evidence of extreme youthness, it is not possible for us to differ with the trial Court and the Appellate Court.

12. The petitioner with a view to commit robbery entered in the house of the complainant and while acting desperately, fired at the father of the complainant and also fired at the witnesses in the street who made an attempt to interrupt, therefore, there was no mitigation in favour of the petitioner for lesser punishment and consequently, the sentence awarded to him by the trial Court and maintained by the High Court in appeal, is upheld.

13. Learned counsel for the petitioner has contended that after awarding the capital punishment under section 302(b), P.P.C., there was no justification for awarding sentence of death under section 7 of the Anti- Terrorism Act, 1997, and argued that the death penalty under two statutes for the same offence was not legal and would amount to double punishment for the same offence .which is not legal. The offence of "terrorism" as defined under section 6 of the Anti‑Terrorism Act, 1997, is an independent offence which is punishable under section 7 of the said Act, therefore, separate sentence both under section 302(b), P.P.C. and under section 7 of the Anti‑Terrorism Act, 1997 for committing such offences was quite legal.

14. For the foregoing reasons, we do not find it a fit case .for grant of leave and while upholding the conviction and sentence awarded to the petitioner by the trial Court and maintained by the High Court, dismiss this petition. Leave is refused:

15. N.H.Q./M‑353/S

16. Leave refused.