2016 PLP 28 (SCMR)

IJAZ AHMED CHAUDHRY, J.

Appellant along with two other co-accused was tried in case registered vide FIR No. 503 dated 20.7.2003 under sections 302, 324, 353, 332, 186, 34, P.P.C. read with section 7 of the A.T.A., 1997, at Police Station Baghbanpura, Lahore. The learned Trial Court vide its judgment dated 19.8.2005 while convicting and sentencing co-accused on various counts, convicted the appellant under section 7(a) of the A.T.A. and sentenced him to death with a fine of Rs.50,000/- or in default whereof to further undergo two months SI. He was also convicted under section 7(b) of the A.T.A. and was sentenced to 10 years RI with a fine of Rs.10,000/- or in default whereof to further undergo two months' SI. He was further convicted under section 7(h) of the ATA and was sentenced to 10 years' RI with a fine of Rs.10,000/- or in default whereof to further undergo two months' SI. The learned High Court vide impugned judgment maintained the convictions and sentences recorded by the learned Trial Court against the appellant.

2. Facts as given in the impugned judgment are as under:- "

3. Succinctly the prosecution case as contained in FIR Exh.PR/1 lodged on the complaint Ex.PR made by Nasir Mushtaq SHO is that complainant along with other police officials was present at Chowk Basi More Band Road in search and arrest of Proclaimed Offenders when a secret information was received that Sharafat Ali appellant (PO) in many other cases and his brother Asif Ali who was also a proclaimed offender in case FIR No. 307/2003 for the offence under section 216, P.P.C. were present in their home. On this information they raided the said house where Saif Ali along with his sons namely Sharafat Ali and Asif Ali was present who on seeing the police party raised lalkara to kill them whereupon Sharafat Ali took out his 30 bore Mouzer lying under the pillow and while making firing upon the police party went inside the residential room, his brother Asif Ali also while firing at the police party followed him the same room and both of them continued firing at the police party from inside the room. Saif Ali accused went to the roof top of his house and started firing with his 12 bore gun. Statedly the police party also in the right of self defence started firing. Allegedly, the fire made by Sharafat Ali appellant hit Zulfiqar constable on the abdomen when he (Zulfiqar) stepped forward in order to arrest the accused and he fell on the ground. During the cross-firing Sharafat Ali appellant also received injuries on different parts of his body. All the said three accused were apprehended by the police at the spot with their weapons. The injured were removed to hospital for medical treatment where Zulfiqar deceased succumbed to the injuries later on. During the spot inspection certain crime empties were recovered and the same were taken into possession. After the occurrence Nasir Mushtaq, Inspector (SHO) wrote the complaint Ex.PR and on the basis of the same formal FIR Exh.PD was registered at Police Station Baghbanpura, Lahore."

3. We have heard learned counsel for the appellant as also learned Additional Prosecutor General at some length and have perused the evidence on record with care and caution.

4. The record reveals that the appellant was a proclaimed offender in many other cases. Pursuant to spy information, the police party raided the house of the appellant. The appellant resisted his arrest and instead started firing at the police party. As a result of his firing, one constable Zulfiqar Ali received firearm injury on his abdomen and died at the spot. During the encounter, the appellant had also received several firearm injuries. From the spot, police had collected certain empties. These empties along with weapon recovered from the appellant were sent to the office of Forensic Science Laboratory and according to the report, the said empties matched with the weapon recovered from the appellant. During trial, five police officials had appeared as eye-witnesses. They remained firm on all major particulars of the case i.e. date, time and place of occurrence and despite lengthy cross-examination their credibility could not be shaken. The PWs had no enmity with the appellant to falsely implicate him in the case. The incident had taken place at 5.30 am whereas the FIR was registered on the same day at 6.00 am i.e. after thirty minutes of the occurrence wherein the appellant was specifically nominated with a specific role. Such a promptly lodged FIR excludes any chance of false implication.

5. For what has been discussed above, the prosecution has proved its case against the appellant beyond any reasonable shadow of doubt. The appeal having no merit is accordingly dismissed and leave is refused. MWA/S-16/SC Appeal dismissed.