MUHAMMAD ASIF alias ACHHI Versus State
CH. MUSHTAQ AHMAD, J.--- This judgment will dispose of Criminal Appeal No.471-J/2016 filed by appellants who were convicted by learned Additional Sessions Judge, Gujranwala, in case FIR No.518 dated 11.07.2012 registered under sections 302, 324, 337-F(v), 148, 149, P.P.C. at Police Station Garjakh vide impugned judgment dated 19.05.2016 and sentenced as under:-
Death as Ta'zir under sections 302(b)/149, P.P.C. to each appellant.
R.I for three years each under section 148, P.P.C.
R.I for 07-years each under sections 324/149, P.P.C. and to pay fine of Rs.50,000/- each in default of which to further undergo RI for six months each.
R.I for 04-years each under section 337F(v)/149, P.P.C. and to pay fine of Rs.50,000/- each in default of which to further undergo RI for six months each.
All the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was extended to appellants.
Feeling aggrieved, appellants preferred this appeal whereas Murder Reference No.309 of 2016 captioned above, was sent under section 374, Cr.P.C. for confirmation of death sentence awarded to the convict. We propose to decide both the matters through this consolidated judgment.
2. Case was registered on the complaint (Ex.PA) of Muhammad Ikram (PW-1) in which it was alleged that complainant was resident of Muslim Town Masjid Gulzar Madina Street Gujranwala. At about 11.00 a.m. on 11.07.2012 he was present in the street. Accused Vicky Butt (since P.O) and Umair alias Marry (since P.O) were quarrelling with one Waseem. Complainant asked them to refrain from the same on which accused Umair alias Marry started abusing the complainant and gave a fist blow on his face, which resulted in dislocation of his tooth. Accused Vicky Butt made phone call to his o-accused who were all vagabonds and proclaimed offenders. In a few minutes, accused Asif alias Achhi armed with pistol, Naveed alias Needu armed with pistol (since P.O), Atif alias Aati armed with pistol, Wallayat alias Wallayata armed with pistol along with eight unknown persons came there. Accused Umair alias Marry raised a Lalkara to teach lesson to the complainant and his companions for quarrelling with the accused. Naveed alias Needu fired a shot from his pistol which hit Muhammad Faazil (PW-5), father of the complainant on left foot. Muhammad Ramzan son of the complainant tried to rescue his injured grandfather when accused Asif alias Achhi fired a shot from his pistol which hit Muhammad Ramzan on left side of upper chest near the neck and he fell down after receiving that injury. Other accused persons made reckless firing in the air and fled away from the scene. They left their motorcycle (P4) on the place of occurrence. Muhammad Ramzan son of the complainant succumbed to the injuries on the way to hospital. The occurrence was witnessed by Muhammad Adnan (PW-4), Abdul Razzaq and Muhammad Faazil, besides the complainant.
Motive behind the occurrence was dispute between the accused and complainant as complainant repeatedly asked the accused to refrain from unlawful activities and for that reason they committed murder of Muhammad Ramzan and caused injuries to father of complainant.
3. PW-13 Muhammad Afzal SI/I.O. reached the spot, took into possession deadbody of deceased, sent the same to the mortuary for postmortem examination, prepared injury statement (Ex.PQ), inquest report (Ex.PL), rough site plan (Ex.PP) and recovery memos, recorded statements of witnesses, arrested the accused and after usual investigation, submitted report.
4. PW-14 Major Dr. Atiq-ur-Rehman conducted postmortem on the dead body of Muhammad Ramzan and noted one injury. According to him, sole firearm injury causing damage to vital organ of left chest led to hemorrhage and shock resulted in death. The injury was ante-mortem. According to him, probable time between injury and death was within half an hour and that between death and post mortem was 08 to 12-hours.
5. During trial prosecution produced 15 witnesses apart from report of chemical examiner (Ex.PV), report of serologist (Ex.PW) and report of PFSA (Ex.PX). Statements of accused were recorded under section 342, Cr.P.C. wherein they denied the charges and professed innocence.
6. At conclusion of trial, appellants were convicted and sentenced as mentioned above, hence this appeal.
7. Learned counsel for appellants contended that injuries on the person of PW-1 Muhammad Ikram and PW-5 Muhammad Faazil were self inflicted and they had not witnessed the occurrence nor they were present at the place of occurrence at the relevant time and that both the appellants were falsely implicated in this case who were entitled to acquittal. Further added that appellant Muhammad Atif alias Aati was assigned no effective role during the occurrence, hence, his case is being distinguishable and he was entitled to acquittal.
8. Conversely, learned DPP assisted by learned counsel for complainant has supported the conviction recorded against appellants and further submitted that both the accused were nominated in the FIR; that Muhammad Asif alias Achhi appellant had fired at Muhammad Ramzan (deceased) during the occurrence and the weapon of offence i.e. pistol (P4) was sent to the Forensic Science Agency which wedded with the crime empties already sent for the comparison, thus the ocular account was corroborated by recovery of pistol as well as medical evidence.
9. Arguments heard. Record perused.
10. Occurrence took place at about 11.00 a.m. in Gujranwala City within the area of Police Station Garjakh. Muhammad Ramzan was gunned down by appellant Muhammad Asif alias Achhi who was son of PW-1 Muhammad Ikram and grand son of Muhammad Faazil (PW-5). PW-1 Muhammad Ikram and Muhammad Faazil (PW-5) were injured during the occurrence, as per version contained in the FIR. Muhammad Faazil (PW-5) sustained fire arm injury at the hand of Naveed alias Needu (accused since P.O) whereas complainant Muhammad Ikram (PW-1) had received a fist blow at the hand of Umair alias Marry accused. As per prosecution version, one Vicky Butt and Umair alias Marry accused were quarrelling with one Waseem. Complainant forbade them on which accused Umair alias Marry started abusing him and his companion Vicky called co-accused on telephone who came at the spot carrying weapons. Four nominated accused along with eight unknown came at the spot out of them appellant Asif alias Achhi fired with pistol and the shot hit Muhammad Ramzan which resulted in his death. Other accused also resorted to aerial firing. It is pertinent to mention here that six accused including present appellants were charged sheeted in this case on 27.08.2013 on multiple charges. During trial, four accused namely Naveed alias Needu, Muhammad Shahbaz, Muhammad Willayat and Umair alias Mary escaped and present appellants being in jail faced the trial and were convicted on conclusion of the case. Presence of the eye-witnesses in this case at the place of occurrence the relevant time, is well explained. It was a daylight occurrence. Complainant party and the accused are also related inter-se. No question of mistaken identity was involved. The occurrence was not a pre-planned affair. It is mentioned in the FIR that accused Vicky and Umair alias Marry were quarrelling with one Waseem when complainant forbade them. Accused abused the complainant and then called their companions who rushed to the place of occurrence out of them Asif alias Achhi appellant fired at Muhammad Ramzan, son of the complainant.
11. Medical evidence in this case was provided by PW-14 Major Dr. Atiq ur Rehman who noted a fire arm wound of entry below left clavicle without exit. Bullet was removed from back of left-side of middle of chest. As per opinion of PW-14, fire arm injury caused damage to vital organs of the left chest. Time between injury and death was within half an hour and between death and postmortem 08 to 12 hours. PW-14 had also medically examined Muhammad Ikram (PW-1) and Muhammad Faazil (PW-5) who were brought by the police.
12. PW-13 Muhammad Afzal SI had conducted investigation in this case who reached at the place of occurrence on receiving information along with Ashiq ASI and other officials and found the complainant along with other witnesses at the spot. He handed over deadbody to the police constable. He arrested the accused Asif and Atif appellants along with Naveed (accused since P.O) on 17.08.2012. On 26.08.2012 all the accused led to the recovery of pistols. Pistols were sent to the office of Forensic Science Agency through Azmat Ali (PW-8) on 18.09.2012. The same witness (PW-8) had transmitted crime empties along with sealed parcel containing blood stained cotton on 06.08.2012. Report of Forensic Science Agency (Ex.PX) was produced before the court which shows that pistols were found in operating condition, however, cartridges cases were identified as having been fired by pistol (P4) which according to the report was said to be recovered from accused Muhammad Asif alias Achhi. The ocular account was thus supported by report of Forensic Science Agency. The testimony of the eye-witnesses that it was appellant Muhammad Asif alias Achhi who fired at deceased Muhammad Ramzan, was confidence inspiring.
13. Learned trial court in this case has also recorded conviction against present appellants under section 324, P.P.C. read with section 149, P.P.C. for causing fire arm injury to Muhammad Faazil (PW-5) as well as under section 337-F(v), P.P.C. with compensation of Rs.50,000/- on each count with the direction to run all sentences concurrently, however, we have noticed that the occurrence was not a pre-planned affair in this case, it took place suddenly when the accused abused the complainant by whom they were forbidden to quarrel with one Waseem.
14. In the given scenario, the formation of unlawful assembly for the purpose of committing the offence by all the accused was not constituted and the accused at the most could be held liable for their individual acts committed during the occurrence, as apparently it was not a case of vicarious liability.
15. Admittedly appellant Muhammad Aatif alias Aati had not caused any injury to deceased nor to any witness. In the peculiar facts and circumstances noted above in our opinion commonality of object between all the accused was missing. In the given situation Charge, against appellant Aatif alias Aati was not proved on record. Consequently, we allow appeal to his extent and set-aside conviction and sentences awarded to him by the trial court. He shall be released forthwith, if not required in any other case. Death sentence awarded to him is not confirmed and murder reference is answered in negative.
16. However, on reappraisal of evidence, we have concluded that conviction recorded against appellant Asif alias Achhi was sustainable for the reason that ocular account furnished by the witnesses that he committed Qatl-i-amd of Muhammad Ramzan (deceased), was confidence inspiring. However Death penalty awarded to him, in our view was not warranted and alternate punishment of imprisonment for life was sufficient to meet the ends of justice for the reason that motive alleged by the prosecution was not proved on record against appellant and only a single fire shot was fired by him when all the accused came at the spot on a telephone call. It is also matter of record that appellant Asif alias Achhi did not cause injury to Muhammad Faazil (PW-5). On prosecution's own showing a fire arm injury was caused to him by Naveed alias Needeu (accused since P.O). Appellant Muhammad Asif could not be held liable for an injury caused by his co-accused. In the above backdrop, conviction recorded by trial court under section 324, P.P.C. and section 337-F(v), P.P.C. read with section 149, P.P.C. against appellant, is set aside.
17. Consequently, maintaining the conviction recorded by trial court against appellant Muhammad Asif alias Achhi under section 302(b), P.P.C. we convert the death sentence to imprisonment for life as Ta'azir with benefit under section 382-B, Cr.P.C., with the direction to appellant to pay compensation of Rs.2,00,000/ under session 544-A to the legal heirs of deceased in default of which, to further undergo SI for six months. In the above terms, Criminal Appeal No.471-J of 2016 is partly allowed and Murder Reference No.309 of 2016 is answered in negative and death sentence awarded to appellants is not confirmed.
JK/M-161/L Appeal partly allowed.