KHALID MEHMOOD and 4 others vs THE STATE

ORDER

1. MUHAMMAD NAWAZ ABBASI, J.---This criminal petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed seeking leave to appeal against the judgment dated 4-12-2001 passed by a Division Bench of Lahore High Court, Rawalpindi Bench, in Criminal Appeal No,482-T of 2000 whereby conviction and sentences awarded to the petitioners by the trial Court were maintained.

2. The petitioners a-i the acquitted accused were tried by Special Court established under Anti Terrorism Act, 1997 for Rawalpindi Division and Islamabad Capital Territory, for the charges under sections 148/353/302/324/395/225/224/149/109, P.P.C. Read with section 7 of Anti-Terrorism Act, in a case registered at Police Station Neela, District Chakwal. The petitioners and their co- accused allegedly armed with lethal weapons attacked on police officials who after producing Arshad Mahmood son of Zafar Hussain and Iftikhar Ahmed son of Manzoor Ahmad, accused in case F.I.R. No 56 dated 30-7-1999 and F.I.R. No,47 dated 6-7-1999 registered at Police Station Neela, District Chakwal, before the Court concerned at Chakwal were taking them back to the police station in an official vehicle being driven by Aftab Ahmed injured witness. The petitioners and the acquitted accused while suddenly confronted the police party opened firing to get Arshad Mahmood released from police custody and as a result of their firing Muhammad Nawaz, AS.-I., was killed while Aftab Ahmed, driver of the official vehicle was injured. The learned trial Judge having found the petitioners guilty of the charges convicted and sentenced them and their co-accused as Under:- "Under section 148 P.P.C. Sentence to undergo R.I. For 3 years each.

3. Under sections 353/ 149, P.P.C. R.I. For 2 years each and also awarded fine of sum of Rs,2,000 each in default of payment of fine all the accused have to suffer S.I. For 6 months each.

4. Under sections 302(b) read with sections 396 and 149, P.P.C.Khalid Mehmood accused is sentenced to death to be hanged by neck till death, whereas all other accused are convicted and sentenced to undergo imprisonment for life each.

5. Under sections 324/149, P.P.C. Accused Khalid Mehmood is convicted and sentenced to undergo R.I. For 10 years and a fine of Rs, 10,000 in default of payment of fine he will also to suffer 6 monthsS.-I. Whereas all the other accused are convicted to undergo R.I. For 5 years each.

6. Under, section 337-F(iii), P.P.C. Accused Khalid Mehmood is convicted and sentenced to pay Rs,20,000 as Daman to the injured Aftab Ahmed P.W.

7. And also sentenced to undergo R.I. For 3 years, whereas all other accused are sentenced to undergo R.I. For 2 years each under section 149, P.P.C. Read with section 337-F (iii), P.P.C.

8. Under sections 225/149, P.P.C. All the accused persons are sentenced to P.P.C. Undergo R.I. For 2 years each.

9. Under sections 109, P.P.C. Read with 224 P.P.C. All the accused persons are sentenced to, undergo R.I. For 2 years each.

10. Under section 7. A.T.A. Khalid Mehmood sentenced to death whereas all others sentenced to life imprisonment. Accused Arshad Mehmood, having escaped from lawful custody of police, is convicted and sentenced to R.I. For 2 years under section 224, P.P.C."

11. In appeal, learned Division Bench of the High Court while maintaining the conviction and sentences of the petitioners acquitted their co-convicts.

12. The learned counsel for the petitioners has contended that the sole injury sustained by Muhammad Nawaz, AS.-I. Which proved fatal to his life, was attributed to Zafar Mahmood, a proclaimed offender, and Khalid Mahmood petitioner was assigned the role of causing fire-arm injury to Aftab Ahmed driver of the vehicle. The remaining accused allegedly made firing in the occurrence without causing any damage to any person of the complainant party.Learned counsel has submitted that in the given situation, the learned trial Judge while keeping in view the individual role of each petitioner convicted and sentenced them accordingly.

13. Therefore, the conviction and sentence awarded to Khalid Mahmood petitioner under section 302, P.P.C. Would not be justifiable and that separate conviction and sentence of the petitioners under section 7 of Anti-Terrorism Act, 1997 was also not proper.

14. Learned counsel appearing for the complainant, on the other hand, has contended that the petitioners have committed naked terrorism in the broad daylight, therefore, they would be vicariously liable for commission of offence and would not deserve any leniency, in the matter of sentence.

15. We having heard the learned counsel for the parties and going through the record with their assistance, deem it proper to grant leave to appeal to consider the question of sentence. Order accordingly.