AHSAN SHAHZAD and another Vs The STATE and others

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supreme court Islamabad
supreme court Islamabad

AHSAN SHAHZAD and another—Appellants

Vs

The STATE and others—Respondents

Criminal Appeal No. 293-L of 2017 and Criminal Petition No. 25-L of 2015, decided on 28th May, 2019.

(On appeal against the judgment dated 3.12.2014 passed by the Lahore High Court, Lahore in Criminal Appeal No. 363-J of 2011 and C.S.R. No. 39-T of 2011)

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

(a) Penal Code (XLV of 1860)—

—-S. 302(b)—Anti-Terrorism Act (XXVII of 1997), S. 7(a)—Qatl-i-amd, acts of terrorism—Reappraisal of evidence—Occurrence was reported to the police on the same afternoon half an hour of its happening on the basis whereof formal FIR was chalked out—Even post-mortem examination on the dead body was conducted on the same day within 3-1/2 hours of the occurrence—Such circumstances, when taken into consideration collectively, established presence of the witnesses of ocular account at the spot and ruled out any chances of consultations or deliberations for false implication of the accused in the case—Witnesses were residents of the same city where the occurrence took place and it was brought on record through their cross-examination that they had visited the office of the deceased in connection with some important work—Ocular account was fully supported by the medical evidence—Prosecution had successfully brought home guilt of the accused to hilt so far as the murder of deceased, therefore, present appeal to the extent of conviction of accused for qatl-i-amd of deceased had no force—Appeal was dismissed accordingly.

(b) Penal Code (XLV of 1860)—

—-S. 302(b)—Anti-Terrorism Act (XXVII of 1997), S. 7(a)—Qatl-i-amd, acts of terrorism—Reappraisal of evidence—Conviction under S. 7 of the Anti-Terrorism Act, 1997, setting aside of—Murder committed due to personal vendetta—Conviction and sentence of the accused recorded by the Trial Court and altered/modified by the High Court under S. 7(a) of the Anti-Terrorism Act, 1997 could not be sustained because the prosecution alleged a specific motive in the FIR as well as before the Trial Court—Although according to the verdict of the High Court the said motive was not proved but the fact remained that the prosecution pressed hard that the murder of deceased was committed because of personal vendetta—Moreover, it was brought on record through the cross examination of complainant that the provisions of Anti-Terrorism Act, 1997 were added in the case after a considerable delay—Considering the overall circumstances of the case, the provisions of Anti-Terrorism Act, 1997 were not attracted in the case particularly when only deceased was the target—Accordingly conviction and sentence of the accused under S. 7(a) of the Anti-Terrorism Act, 1997 was set aside and he was acquitted of the said charge, however sentence of imprisonment for life under S. 302(b), P.P.C., the amount of compensation and the sentence in default thereof as altered/upheld by the High Court were maintained—Appeal was dismissed accordingly.

Naveed Ahmad Khawaja, Advocate Supreme Court for Appellant.

M. Akram Qureshi, Advocate Supreme Court for Petitioner.

Ch. Muhammad Mustafa, DPG for the State.

M. Akram Qureshi, Advocate Supreme Court for the Complainant.

Date of hearing: 28th May, 2019.

JUDGMENT

MANZOOR AHMAD MALIK, J.—Ahsan Shahzad (appellant) faced trial before the learned Judge Anti-Terrorism Court No.1, Faisalabad in case FIR No.899/2011 dated 29.09.2010 offence under sections 302, 324 and 34, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997 registered at Police Station Civil Lines, Faisalabad. After regular trial, he was convicted and sentenced as under:-

“32 …Epitomizing my discussion, I convict the accused Ahsan Shzahzad under section 302(b) of P.P.C. and sentence him to death and will also pay compensation under section 544-A of Cr.P.C. in the sum of Rs. 1,00,000/- and in the case of default to undergo SI for 6 months. He is also sentence (sic.) under section 7(a) of the Anti-Terrorism Act, 1997 and sentence (sic.) to death and will also pay fine in the sum of Rs.1,00,000/- and in default thereof to undergo SI for 1 year. Thus in totality sentence of death will be on two counts. He be hanged by the neck till he be dead. He is also convicted under section 337-H(2) of P.P.C. and sentenced to 2 years’ R.I. with the fine of Rs.20,000/- and in default thereof to undergo SI for 2 months. He is also convicted under section 7(b) of the Anti-Terrorism Act, 1997 and sentenced to 5 years’ R.I with fine in the sum of Rs.20,000/- in default thereof to under (sic.) SI for 6 months.”

2. Aggieved of his conviction and sentence, the appellant preferred Criminal Appeal No.363-J of 2011 whereas the learned trial court transmitted CSR No.39-T of 2011 for confirmation or otherwise of the sentence of death awarded to the appellant. Both these matters were taken up together by a learned Division Bench of the Lahore High Court and through the impugned judgment dated 03.12.2014, conviction of the appellant under section 302(b), P.P.C. and section 7(a) of Anti-Terrorism Act, 1997 awarded by the learned trial court was maintained, however, his sentences were altered from death to the imprisonment for life. The compensation awarded by the learned trial court and sentence in default thereof was also maintained and upheld. All the sentences were ordered to run concurrently with benefit of section 382-B, Code of Criminal Procedure. Convictions and sentences of the appellant under section 337-H(2), P.P.C. and section 7(b) of the Anti-Terrorism Act, 1997 were set a6ide. With these modifications in the convictions and sentences of the appellant, his appeal was dismissed. Capital sentence reference was answered in the negative and the sentences of death were not confirmed. Feeling dissatisfied of the verdict of the learned appellate court, Ahsan Shahzad (convict) filed Jail Petition No.462 of 2014 whereas Malik Zafar Iqbal complainant filed Criminal Petition No.25-L of 2015. Both these petitions came up for hearing before this Court on 03.10.2017 when leave was granted in Jail Petition No.262 of 2014 filed by the convict whereas Criminal Petition No.25-L of 2015 filed by the complainant was ordered to be heard along with criminal appeal arising out of the jail petition.

3. Precisely, the prosecution story, as set out in the FIR (Exh.PA/1) chalked out on the statement (Exh.PA) of Zafar Rashid complainant, is that on 29.09.2010, he along with Muhammad Aslam (PW.12) and Malik Irtaza Ijaz (PW since given up) were present in the office of Amjad Rashid who was Office Superintendent TMA Office Madina Town Faisalabad. At about 01:15 p.m. Ahsan Shahzad (appellant) armed with a pistol along with three unknown culprits entered into the office and raised a lalkara that they would teach a lesson for marking absence of the appellant and ordered inquiries against him. In the meanwhile, Ahsan Shahzad (appellant) fired through his pistol which hit Amjad Rashid on the front of chest at left side, who fell from the chair. After Amjad Rashid had fallen, the appellant fired another shot at him but missed the target. The culprits made good their escape while making aerial firing. Amjad Rashid in injured condition was escorted to the Civil Hospital who succumbed to the injuries in the way.

4. We have heard learned counsel for the parties and with their able assistance have also gone through the available record.

5. The occurrence in this case took place on 29.09.2010 at 01.15 p.m. whereas it was reported to the Police on the same afternoon at 01:45 p.m. i.e. just half an hour of its happening on the basis whereof formal FIR was chalked out at 02.00 p.m. Even post mortem examination on the dead body was conducted on the same day at 04:35 p.m. i.e. within 3-1/2 hours of the occurrence. These circumstances, when taken into consideration collectively, establish presence of the witnesses of ocular account at the spot and rule out any chances of consultations or deliberations for false implication of the appellant in this case.

6. Ocular account in this case was furnished by Zafar Rasheed (PW.11), Muhammad Aslam (PW.12) and Sardar Naseer Ahmad (PW.13). Conviction and sentence of the appellant recorded under section 337-H(2), P.P.C. and section 7(b) of the Anti-Terrorism Court, 1997 for making ineffective firing at Sardar Naseer Ahmad (PW) was set aside by the learned appellate court for valid reasons. Therefore, now Zafar Rasheed (PW.11) and Muhammad Aslam (PW.12) are relevant for the disposal of these matters. Zafar Rasheed complainant is the brother of the deceased whereas Muhammad Aslam was the retired official of the same department where the deceased was employed at the time of his death. Both these witnesses are residents of the same city where the occurrence took place. It was brought on record through the cross-examination of these witnesses that they had visited the office of the deceased in connection with some important work. Therefore, we hold that these witnesses were present at the time and place of occurrence and had witnessed the crime.

7. Ocular account is fully supported by the medical evidence furnished by Dr. Saeed Akbar Tariq (PW.6) who conducted post-mortem examination on the dead body of Amjad Rashid (deceased) and observed an entry wound on the front of chest above the left nipple.

8. Motive behind the occurrence recovery of a pistol allegedly at the pointation of the appellant and positive report of Forensic Science Laboratory were not believed by the learned appellate court for valid reasons recorded in paras 18 and 19 of the impugned judgment. Upon our own independent reappraisal of the material available on record, the said findings are borne out from the record and not open to any exception. Likewise evidence of the abscondence of the appellant was not put to him while examining him under section 342, Code of Criminal Procedure, therefore, same cannot be used against him for maintaining his conviction and sentence on a capital charge.

9. Epitome of the above discussion is that the prosecution has successfully brought home guilt of the appellant to hilt so far as the murder of Amjad Rashid (deceased), therefore, this appeal to the extent of conviction and sentence of imprisonment for life altered by the learned appellate court for qatl-i-amd of Amjad Rashid (deceased) has no force.

10. We have, however, observed that conviction and sentence of the appellant recorded by the learned trial court and altered/modified by the learned appellate court under section 7(a) of the Anti-Terrorism Act, 1997 cannot sustain because the prosecution alleged a specific motive in the FIR as well as before the learned trial court. Although according to the verdict of the learned Lahore High Court the said motive was not proved but the fact remains that the prosecution pressed hard that the murder of Amjad Rashid was committed because of personal vendetta. Moreover, it was brought on record through the cross-examination of complainant that the provisions of Anti-Terrorism Act, 1997 were added in this case after a considerable delay. Considering the overall circumstances of the case, we are of the view that provisions of Anti-Terrorism Act, 1997 are not attracted in this case particularly when only deceased was the target. Accordingly conviction and sentence of the appellant under section 7(a) of the Anti-Terrorism Act, 1997 is set aside and he is acquitted of the aforesaid charge. Sentence of imprisonment for life under section 302(b), P.P.C., the amount of compensation and the sentence in default thereof as altered/upheld by the learned appellate court for qatl-i-amd of Amjad Rashid (deceased) are maintained. Benefit of section 382-B, Code of Criminal Procedure shall be available to the appellant.

11. There was a single firearm injury on the person of the deceased. As discussed in para 8 of this judgment, motive behind the occurrence and recovery of a pistol at the pointation of the appellant were not believed by the learned appellate court for valid reasons and since we have already acquitted Ahsan Rashid (respondent No.1) of the charge under section 7(a) of the Anti-Terrorism Act, 1997, there remains no question for enhancement of his sentence. Therefore, there is no merit in Criminal Petition No. 25-L of 2015, which is dismissed and leave to appeal is refused.

MWA/A-18/SC Order accordingly.

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