2008 P Cr (PLP)

SYED HUSSAIN MAZHAR KALEEM, J.

Above titled appeals have been directed against the judgment of District Court of Criminal Jurisdiction Mirpur dated 27-8-2005, whereby appellants Muhammad Ilyas, Sajid Pervaiz and Muhammad Kamran were convicted and sentenced under sections 302/34, 337, A.P.C. and 13/20/65, Arms Act while Allah Ditta, Kalsoom, Ejaz, Imran, Irfan, Naeem and Kamran were acquitted of the charges.

2. Necessary facts for disposal of the appeals and the reference are that a case under sections 324, 337, 147, 148, 149 and 109, A.P.C. was registered against the appellants and others at Police Station, Islam Garh on the complaint of Shaukat Ali. It was reported that on 22-8-2003 at 10-00, a.m. the complainant, his brother Masood Ahmed and cousin Amjad Mehmood were installing an electric poll in the street outside of their houses. Kalsoom Begum and Allah Ditta came over there and tried to restrain them but the complainant party refused by telling them that they were installing poll with the permission of Electricity Department, upon which the accused threatened them and left the place. After about one and a half hours they along with Muhammad Ilyas, Sajid Pervaiz, Naeem, Ejaz, Imran, Kamran and Irfan came there in a Hiace Wagon No.3735-AJKF driven by Azhar son of Karamat. Sajid Pervaiz and Ilyas were armed with carbine and .12 bore gun while the others with pistols, sticks and hatchets. They raised Lalkara that they will not go alive. The complainant along with his brother Masood and Muhammad Saleem ran towards the roof of the house of Gulzar Ahmed. In the meantime the accused persons came into the courtyard of Allah Ditta. Muhammad Ilyas fired with .12 bore gun which hit at the chest of Masood Ahmed who fell down. Pervaiz appellant fired with carbine and caused injury at the chest of Muhammad Saleem while second fire made by the accused hit the complainant at his left arm and back. The victims fell down and the accused persons while making aerial firing ran away from the place of occurrence. The occurrence was stated to be witnessed by Muhammad Saleem, Masood Ahmed, Zahoor Ahmed, Muhammad Yasin and Amjad Mehmood and others. Motive behind the occurrence was old enmity and the immediate cause of installing electric poll in the street. Later on Masood Ahmed succumbed to the injury and offence of section 302, A.P.C. was added.

3. After completion of investigation, the challan was submitted before District Court of Criminal Jurisdiction, Mirpur. On conclusion of the trial, the Court convicted the appellants. Muhammad Ilyas appellant was sentenced to death under section 302, A.P.C. and two years imprisonment under section 13 of the Arms Act. Sajid Pervaiz appellant was sentenced to 10 years' R.I. with Rs.20,000 fine under section 302, A.P.C. 10 years' R.I. with Rs.20,000 fine under section 324, A.P.C. and in case of default to suffer 4 months' R.I., two years' R.I. with Rs.20,000 Daman under section 337, A.P.C. and 2 years' imprisonment under the Arms Act each. Muhammad Kamran appellant was convicted under section 13/20/65, Arms Act and was awarded 2 years imprisonment while Allah Ditta, Kalsoom, Ejaz, Imran, Irfan, Naeem and Kamran were acquitted of the charges through the impugned judgment. Hence these appeals and the reference.

4. Learned counsel for the convict-appellants and acquitted respondents argued that F.I.R. was lodged after preliminary investigation. Story regarding dispute over installation of electric poll was highly doubtful as no attempt was made by convict-appellants and acquitted respondents to remove it. Later on due to old enmity a story was concocted to rope them in the false case. Thus, motive was false and without any substance. Convict-appellants were shown to be present in the house of Allah Ditta at the time of occurrence while complainant party was present at roof of the house of Gulzar Hussain. Post-mortem report and medical reports pertaining to the injured persons were in contradiction to the ocular version. Recovery of weapon of offence was highly doubtful. No independent witness was produced by the prosecution. The trial -Court passed the impugned judgment without considering the defence version. In fact the complainant party initiated the occurrence and in view of circumstances of the case right of self-defence was available to the convict-appellants and acquitted respondents. Eye account given by inter se related and interested witnesses was not confidence-inspiring. Uncorroborated testimony of the witnesses was not safe to be relied upon. The prosecution failed to prove its case beyond reasonable doubt. The conviction of the appellants was without any lawful justification. Therefore, by accepting the appeal the appellants may be acquitted of the charges and appeal filed by the complainant may please be dismissed.

5. On the other hand it was argued that the occurrence took place during broad-daylight. Identification of the convict-appellants and acquitted respondents was not in doubt. All of them were ascribed specific role. The prosecution examined five eye-witnesses including Shaukat Ali who sustained injuries during the occurrence. Corroborative material in shape of post-mortem report, medical reports pertaining to the injured witnesses and weapons of offence recovered from the convict-appellants were also produced. Motive was proved and it was established that the convict-appellants and acquitted respondents committed the offence in furtherance of common object. All of them were responsible for committing murder of Masood Ahmed and causing injuries at the person of prosecution witnesses. Required standard of evidence for awarding sentence of "Qisas" was available on record and there was no justification to award the death sentence as Ta'zir to Muhammad Ilyas convict-appellant, therefore, by accepting the appeal he may be awarded sentence of "Qisas" while Sajid Pervaiz and Muhammad Kamran convict-appellants and acquitted respondents may also be convicted in accordance with law.

6. Learned Additional Advocate-General supported the arguments advanced by the learned counsel for the complainant.

7. Since both the appeals and the reference arise out of same order of the trial Court, therefore, these shall be disposed off through this common judgment.

8. I have heard the learned counsel for the parties and perused the record of the case.

9. The prosecution version was that on 22-8-2003 at 10-00 a.m., Shaukat Ali, Masood Ahmed and Amjad Mehmood were installing an electric poll in the street outside of their houses. Kalsoom Begum and Allah Ditta came there and tried to stop them but the complainant party refused and said that they have secured permission from Electricity Department. The accused threatened them and left the place. At about 11-30 a.m. they along with Muhammad Ilyas, Sajid Pervaiz, Naeem, Ejaz, Imran, Kamran and Irfan came there .in Hiace Wagon No.3735-AJKF driven by Azhar son of Karamat, Sajid Pervaiz and Ilyas were armed with .12 bore carbine and gun while the others with pistols, sticks and hatchets. They raised Lalkara and. threatened the complainant party to their lives, upon this Shaukat Ali, Masood Ahmed and Muhammad Saleem ran away and came at the roof of the house of Gulzar 'Ahmed while the accused persons came into the courtyard of Allah Ditta. Muhammad Ilyas fired with .12 bore gun which hit at the chest of Masood Ahmed who fell down. Sajid Pervaiz appellant targeted Muhammad Saleem and Shaukat Ali with .12 bore short pistol and caused injuries to them. The appellants and others were also alleged for aerial firing.

10. In support of the prosecution story, blood seized from the place of occurrence, short pistol and .12 bore short gun recovered at the instance of Sajid Pervaiz and Muhammad Ilyas convicts, five crime-empties of .12 bore gun taken into custody from the place of occurrence, post-mortem report, medical reports pertaining to the injured persons, site plan and Forensic Science Expert's report etc. were produced by the prosecution.

11. Established facts are that the deceased and the prosecution witnesses are related inter se. The accused persons are members of one family, an enmity was prevailing between the parties, at the time of occurrence the deceased and injured persons were at the roof of the house of Gulzar Ahmed while the accused persons were in the courtyard of the house of Allah Ditta respondent, the victims suffered fire-arm injuries. Forensic Science Expert's report shows that one out of five crime-empties seized from the place of occurrence was fired from .12 bore gun recovered at the instance of Muhammad Ilyas convict-appellant while four were fired from short pistol recovered at the pointation of Sajid Pervaiz.

12. The prosecution claimed that complainant and others were installing an electric poll which annoyed the accused persons and they committed the offence. It would not be out of place to mention here that as per eye-account after coming at the place of occurrence the accused party raised Lalkara and entered into the house of Allah Ditta respondent father of the appellants while the complainant party came at the roof of the .house of Gulzar Ahmed the real uncle of said Allah Ditta. There was nothing on record 'establishing that convict-appellants and acquitted respondents nourished a grudge due to installation of electric poll and particularly in view of the fact that they did not make any attempt to remove the poll, the claim of prosecution regarding immediate cause of occurrence was in doubt.

13. It was evident from the record that at the time of occurrence the victims and the prosecution witnesses trespassed and came at the roof of the houses of Gulzar Ahmed and Muhammad Rasib who were real uncle and brother of Allah Ditta respondent the father of appellants, though it was claimed that they came at the roofs in order to look after. the poll apprehending that the accused may not remove it but the explanation was not justified in the circumstances particularly when the accused persons did not make any attempt to remove the poll but entered into the house of Allah Ditta, there was no justification to trespass and come at the roofs of the houses of Gulzar Ahmed and Muhammad Rasib, certainly the convict appellants were not expecting their presence at the roofs, thus it implies that the occurrence was not premeditated and it cannot be ruled out that this act of the complainant party might have increased the prevailing tension which provoked the convict-appellants and they suddenly opened fire, therefore, death sentence awarded to Muhammad Ilyas appellant and conviction recorded against Sajid Pervaiz appellant for sharing intention and attempt to murder was not warranted in the circumstances.

14. It may be stated here that prosecution miserably failed to prove its case against Allah Ditta, Kalsoom. Begum, Muhammad Ejaz, Muhammad Imran, Muhammad Irfan and Muhammad Naeem E respondents, thus, they were rightly acquitted of the charges. The case against Muhammad Kamran appellant was also doubtful, the recovery of .30 bore pistol was not confidence-inspiring and case against him was similar to the acquitted respondents.

15. In light of the facts listed above, the appeal filed by the convict-appellants is partly accepted. Muhammad Kamran is acquitted of the charge, Sajid Pervaiz appellant is also acquitted of the charges under sections 302 and 324, A.P.C. however, his conviction under section 337, A.P.C. and the Arms Act is maintained while by modifying the impugned judgment death sentence awarded to Muhammad Ilyas appellant is altered into life imprisonment. The convicts shall also be entitled to the benefit of section 382-B, Cr.P.C. consequently the appeal filed by the complainant and another is hereby dismissed. The reference is refused. H.B.T./17/Sh.C.(AJ&K) Order accordingly.