2020 PLP 287 (SCMR)

MANZOOR AHMAD MALIK, J.

Convict-appellant Imtiaz alias Taji, after a regular trial, was convicted by the trial Court under section 302(b), P.P.C. and sentenced to death, besides being convicted and sentenced to different terms of imprisonment, under some other penal provisions, as enumerated in Para 1 of the impugned judgment. The learned High Court dismissed the appeal filed by the appellant and maintained his conviction and sentence under the capital charge, thereby answering the murder reference in the affirmative. However, his convictions and sentences under sections 148, 324, P.P.C. read with section 149, P.P.C. were set aside. Thereafter; the appellant filed a jail petition, wherein leave was granted by this Court on 20.11.2017. The criminal petition filed by the complainant was ordered to be heard along with criminal appeal arising out of jail petition.

2. Prosecution case against the appellant, as divulged from the contents of FIR, registered on the statement of complainant Tariq Ejaz (PW-10) is that on the fateful day and time, he was present with his father Ejaz Ahmad (deceased) at General Bus Stand, Hafizabad, where the latter was a General Manager. The appellant armed with .244 bore rifle along with his co-accused carrying their respective fire-arms came there Naukar Hussain raised a lalkara. The appellant made a fire with his rifle, which hit on the belly of Ejaz Alimad. The fire shot by co-accused Sadaqat hit Ejaz Ahmad on his left thigh. During the occurrence, Atif, Tahir Abbas and Tasawar also sustained injuries. Ejaz Ahmad succumbed to injuries later on.

3. After hearing the learned counsel for the parties at length and perusal of available record, it has been observed by us that it was a broad daylight occurrence, which has taken place at 02.00 p.m. at General Bus Stand, Hafizabad. The matter was reported to police on the same day at 2:20 p.m. i.e. within twenty minutes of the occurrence, Dr. Nusrat Abbas (PW-8) in his statement recorded during trial stated that he medically examined Ejaz Ahmad alias Jajj Pehalwan on the same day at 3.00 p.m. This circumstance alone is sufficient to exclude any chances of preconcert or premeditation in reporting the matter to police. The ocular account in this case was furnished by Tariq Ejaz (PW-10) and Meer Tahir (PW-11). Tariq Ejaz (PW-10) is the complainant of the case and is the real son of deceased Ejaz Ahmad. He has given sufficient explanation for his presence at the spot at the relevant time. Meer Tahir son of Noor Muhammad (PW-11) used to work at General Bus Stand and sustained fire-arm injuries during the occurrence. Both these witnesses by and large remained consistent on all the material aspects of the case and held the appellant responsible for fire-arm injury on the abdomen of Ejaz Ahmad (deceased). Their statements get support, from the medical evidence adduced by Dr. Nusrat Abbas (PW-8), who medically examined Ejaz Ahmad (deceased), in injured condition and observed a fire-arm wound of entry on left side of front of abdomen. The statement of Dr. Basharat Rasool (PW-16), who conducted autopsy on the dead body of Ejaz Ahmad, further affirms the case of prosecution against the appellant. In these circumstances, we have no manner of doubt in our mind that the prosecution has proved its case against the appellant beyond reasonable doubt. However, there are a number of circumstances, which favour the case of appellant for reduction in the quantum of his sentence. Firstly, only a single fire on the person of deceased is attributed to him. It is, an admitted fact that he did not repeat the fire. Secondly, a specific motive was alleged by the prosecution inasmuch as some time prior to present occurrence, the accused party had taken over the possession of Gujranwala Stand situated in General Bus Stand, Hafizabad and friction between the parties persisted. On account of that friction, the accused side in order to occupy other stands in the General Bus Stand committed the occurrence. The learned High Court, while reappraising the evidence, has not given any definite finding qua the motive behind the occurrence. On our own independent assessment, it has been observed by us that there is no detail as to when the accused side, on the previous occasion, took possession of Gujranwala Stand; whether the complainant side had reported that matter to police; which was the other stands, the accused side wanted to take possession. No other independent piece of evidence has been produced by the prosecution during trial to substantiate this claim. Moreover, the report of FSL qua .44 bore rifle recovered from the appellant is only to the effect that said weapon is in working condition. As such, the same cannot be of much help for the prosecution. During the course of arguments, it has been stated by learned counsel for the complainant at the Bar that two co-accused of the appellant namely Sadaqat and Naukar Hussain, who were ascribed active role during the occurrence, inasmuch as fire shot by Sadaqat hit Ejaz Ahmad (deceased) on his left thigh, were acquitted on the basis of compromise. All these circumstances justify reduction in the quantum of sentence of the appellant from death to imprisonment for life.

4. For the foregoing, the instant criminal appeal is partly allowed. The conviction of the appellant under section 302(b), P.P.C. is upheld, however, his sentence of death is converted into imprisonment for life. Benefit of section 382-B, Code of Criminal Procedure is extended to the appellant. Criminal Petition No. 275-L of 2011

5. The instant petition filed by complainant against the acquittal of Respondents Nos. 1 to 3 is barred by time. The reasons assigned in the application for condontation of delay are not legally plausible. Even on merits, it has been observed by us that the findings of acquittal rendered by the learned High Court are neither arbitrary nor capricious or fanciful. Therefore, Criminal M.A. No. 512-L of 2011 is dismissed for being without merit. Resultantly, Criminal Petition No. 275-L of 2011 is dismissed for being barred by time as well as on merits. MWA/I-10/SC Order accordingly.