' ASIF SAEED KHAN KHOSA, J.---Akbar Ali appellant was convicted for an offence under section 7(a) of the Anti-Terrorism Act, 1997 vide judgment dated 12-4-2003 rendered by the learned Judge, Anti-Terrorism Court-II, Gujranwala and was sentenced to death. He was also convicted for an offence under section 302(b), P.P.C. And was sentenced to death as Ta'zir and to pay a sum of Rs.1,00,000 to the heirs of Muhammad Arif deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo ample imprisonment for six months. He was further convicted for an &fence under section 392, P.P.C. And was sentenced to imprisonment &V fourteen years and a fine of Rs.50,000. Through the same judgment the learned trial Court had also convicted Sajjad appellant for an offence under section 7(a) of the Anti-Terrorism Act, 1997 and he was sentenced to imprisonment for life and a fine of Rs.50,000. He was also convicted for an offence under section 302(b), P.P.C. Read with section 34, P.P.C. And was sentenced to imprisonment for life and to pay a sum of Rs100,000 to the heirs of Muhammad Arif deceased by way of compnsation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months. He was further convicted for an offence under section 392, P.P.C. And was sentenced to imprisionment for fourteen years and a fine of Rs.50,000. All the sentense of imprisonment passed against both the appellants were to run concurrently. The appellants have challenged their conviction and sentences before this Court through Criminal Appeal No.634 of 2003 which has been heard by us along with Murder Reference No.18-T of 2003 seeking confirmation of the sentences of death passed by the learned trial Court against Akbar Ali appellant. We propose to decide both these matters together through the present consolidated judgment.
2. According to the F.I.R. No.42 registered at Police Station Sadar Daska, District Sialkot at 4-55 a.m.
On 1-3-2002 for offences under sections 302/392/34, P.P.C. Muhammad Yaqoob complainant, his brother namely Muhammad Arif, Basharat Ali and Bashir Ahmad were travelling on a truck from Lahore to a leather factory at Sambrial, District Sialkot during the night between 28-2-2002 and 1- 3-2002 when at 2-30 a.m. Their truck was stopped due to a road blockade whereafter three persons emerged there for the purposes of committing robbery. One of the said persons put a Chhurri on the flank of Basharat Ali P.W. And made him raise his hands and then took out a sum of Rs.2,500, his driving licence, his National Identity Card, two photographs, a small diary and a builty from his pocket. In the meanwhile the complainant's brother namely Muhammad Arif went forward towards the culprits whereupon one of the culprits fired a shot from his rifle at Muhammad Arif hitting him on his left leg. Upon receipt of that injury Muhammad Arif fell on the ground and thereafter the culprits ran away from the spot. Muhammad Arif was taken to Civil Hospital, Daska by the complainant and his companions but he succumbed to his injury and died. Sometime after the present occurrence the complainant came to know the culprits' names as Akbar Ali, Sajjad and Irfan alias Fanu. After registration of the F.I.R. The case in hand was investigated by the local police.
The present appellants were arrested and some recoveries were effected from their possession.
After completion of the investigation a challan was submitted before the learned trial Court. After holding a full-dressed trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
3. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. At the outset the learned counsel for Akbar Ali appellant has submitted that he does not challenge the convictions of the appellant recorded by the learned trial Court but he only prays for reduction of the said appellant's sentences of death to imprisonment for life. The learned counsel for Sajjad appellant has, however, argued that the prosecution had failed to prove its case against the said appellant beyond reasonable doubt and, thus, he is entitled to be acquitted by this Court. As against that the learned counsel for the State has maintained that the prosecution had succeeded in establishing the guilt of the appellants to the hilt and, thus, their convictions and sentences recorded by the learned trial Court do not warrant any interference by this Court.
4. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have observed that the ocular account of the incident in question had been provided before the learned trial Court by Muhammad Yaqoob complainant (P.W.8) and Basharat Ali (P.W.9). The F.I.R. In this case had been lodged with reasonable promptitude and both the present appellants had been specifically nominated therein as perpetrators of the alleged offences along with their absconding co-accused. Both the said eyewitnesses had correctly identified the present appellants before the A learned trial Court by pointing their accusing fingers towards them and had also described in unison the roles respectively played by them during the occurrence in issue. The learned counsel for the appellants have failed to point out any background of or bitterness between the said eye-witnesses and the appellants so as to prompt the former to falsely implicate the latter in a case of this nature. Both the said eyewitnesses had advanced plausible explanations for their presence with the deceased at the time of the occurrence. Muhammad Yaqoob complainant (P.W.8) was a brother of Muhammad Arif deceased and was accompanying him on the journey because of shortage of drivers on account of Eid holidays and Basharat Ali (P.W.9) was a loader of the relevant truck. It is common knowledge that truck drivers do not travel alone and they need substitute drivers as well as loaders to go with them on business trips. Thus, the explanations advanced by the above mentioned eye-witnesses in that regard were quite believable. A suggestion made by the defence to Basharat Ali (P.W.9) during his cross-examination shows that the defence had accepted the presence of the said witness with the deceased at the time of the fateful incident. A crime-empty recovered from the place of occurrence had matched with B the fire-arm recovered from the possession of Akbar Ali appellant.
The record shows that the crime-empty had been sent to the Forensic Science Laboratory prior to recovery of the fire-arm from the said appellant. During the investigation some cash and the National Identity Card of Basharat Ali (P.W.9) had been recovered from the possession of Akbar Ali appellant and some cash, two photographs of Basharat Ali (P.W.9) and a dagger had been recovered at the instance of Sajjad appellant. Basharat Ali (P.W.9) had identified his National Identity Card as well as his photographs so recovered from the possession of the appellants. The medical evidence has provided full support to the prosecution's case. Some minor discrepancies found in the statements of the eye-witnesses regarding the distance from which the shot had been fired at Muhammad Arif deceased were easily explainable because the incident in question had taken place during a night and, thus, the eye-witnesses were not expected to appreciate the distance with any degree of exactitude. The learned counsel for Akbar Ali appellant has not challenged before us the convictions of the said appellant recorded by the learned trial Court and has only prayed for reduction of his sentence of death to imprisonment for life. It is common knowledge that highway robberies are not committed single-handedly and it is generally a group of persons which commits such an offence with pre-concert and common intention.We have already observed above that the eye-witnesses produced by the prosecution had no earthly reason to falsely point their accusing fingers D towards the present appellants before the learned trial Court. They had made consistent statements before the learned trial Court and their statements have inspired our confidence.
5. The discussion made above leads us to a confident conclusion that the prosecution had succeeded in establishing its case against both the appellants beyond reasonable doubt and the learned trial Court was quite justified in recording their convictions. As far as the sentences passed by the learned trial Court against the appellants are concerned we have observed that Sajjad appellant has already been treated leniently by the learned trial Court and he has not been awarded the sentence of death. As regards Akbar Ali appellant we have observed that he is a young man with no previous history of involvement of any crime. At the initial stages of the robbery committed by him he had not used his firearm and according to the prosecution's own case he had fired at Muhammad Arif deceased when the latter had lunged forward to tackle E this appellant in the darkness of the night. This appellant might not have been able to see whether Muhammad Arif deceased was about to assault him with any weapon or not and in that predicament this appellant had fired only once upon Muhammad Arif deceased and that too not on any vital part of his body. This appellant had not repeated his fire despite having an opportunity in that regard. We have further observed that according to the statement made by Dr. Shaukat Ali Bhatti (P.W.4) before the learned trial Court a possibility could not be ruled out that if the deceased had been proyided medical aid in time then he might have survived. The cumulative effect of all these considerations is that we have found that in the circumstances of this case it would be safe and would serve the interests of justice if the sentences of death passed by the learned trial Court against Akbar Ali appellant are converted into sentences of imprisonment for life.
6. For what has been discussed above Criminal Appeal No.634 of 2003 is dismissed to the extent of the convictions of both the appellants recorded by the learned trial Court but the same is partly allowed to the extent of converting Akbar Ali appellant's sentences of death recorded by the learned trial Court for offences under section 7(a) of the Anti-Terrorism Act, 1997 and section 302(b), P.P.C. To imprisonment for life on both the said counts. All the other sentences of Akbar Ali appellant as well as all the sentences of Sajjad appellant are, however, upheld and maintained.
The learned trial Court had failed to pass any sentence against these appellants in case of default by them in payment of fine. Both the appellants shall undergo simple imprisonment for six months each on account of non-payment of fine by them. All the sentences of imprisonment passed against both the appellants shall run concurrently to each other and the benefit under section 382-B, Cr.P.C. Shall be extended to both of them. Criminal Appeal No.634 of 2003, is disposed of in these terms.
7. Murder Reference No.18-T of 2003 is answered in the negative and the sentences of death passed by the learned trial Court against Akbar Ali appellant are not confirmed.