' MUHAMMAD NAWAZ ABBASI, J.---This appeal, with leave of the Court has been directed against the judgment of Lahore High Court, Lahore, whereby Murder Reference No,288-T/99- sent by trial Court and Criminal Appeal No,650 of 1999 filed by the appellant, against the conviction and sentence of death awarded to him by the Special Court No, II, established under Anti-Terrorism Act, 1997 on the charge of murder along with different other sentences of imprisonment under sections 392/324 read with 34, P.P.C. Was dismissed to the extent of charge of murder of Azhar Imam, police constable whereas the sentences under sections 392 and 324/34, P.P.C. Were set aside.
2. The short facts of the case in the background leading to the filing of this petition as contained in the statement of Iqbal Hussain P.W.12 recorded by Muhammad Yousaf, A.S.I. (P.W.4) on the basis of which case was registered, are that the complainant and Azhar Imam, deceased constable, armed with G-3 rifle while patrolling on a Motorcycle bearing No,4372/GAK at about 2-15 p.m. On receiving a wireless message that two persons armed with pistols having committed dacoity in the post office Satellite Town Gujranwala ran way in a 'rickshaw towards the Katchery Chowk, started chasing the dacoits and when near Girls College, Settellite Town, gave signal to stop the rickshaw in which the petitioner and his co-accused were boarded, they started firing at the police officials as a result of which Azhar Imam, Constable was hit on the left side of his chest and succumbed to the injury at the spot. The accused namely Syed Zaigham Abbas (since dead) forcibly picking up service rifle G-3 of Azhar Imam resorted to indiscriminate firing as a result of which Mst. Fatima Bibi (P.W.2), Mst.Qurrat-ul-Aain (not produced) and Ghaznavi (P.W.1) sustained injuries. The assailants then while boarding in an another rickshaw, ran away towards the east and in the meanwhile, Ihsan-ul-Haq, A.S.I. (P.W.13), Zulfiqar (not produced) and Muhammad Zahoor, constable (not produced on an official vehicle No,2698-GAK,being driven by Muhammad Akhtar, constable reaching there, chased the accused and as a result of cross-firing of the police in self defence, Zaigham Abbas, one of the assailants, was killed whereas Ali Imran, appellant, escaped. Tahir Majeed, S.I./S.H.O. Police Station, Settellite Town, Gujranwala (P.W.16) on receiving wireless message about the occurrence, proceeded towards octroi post and having inspected the spot, sent the dead body of deceased accused to the Civil Hospital Gujranwala, for postmortem examination. He having taken into possession G-3 service rifle with a 9-mm pistol and rickshaw, prepared the injury statement and inquest report of Azhar Imam deceased constable and after taking blood with cotton from place of his murder, sent his dead body to the mortuary. The investigation was then taken over by Maqbool Ahmad, S.I./S.H.O. (P.W.15) who recorded the statement of the witnesses under section 161, Cr.P.C. And on the arrest of Ali Imam, accused, recovered from him a pistol along with three live bullets and currency notes of Rs,5,000 and on the conclusion of the investigation, challaned the accused to face the trial before the Special Court established under Anti-Terrorist Act, 1997. Learned Judge of the Special Court, having found the appellant guilty of the charges under section 302(b), P.P.C. Read with 392/324/34, P.P.C., convicted and sentenced him accordingly. The appeal filed by the appellant before the High Court, failed and leave was granted in the present appeal, vide order dated 12-9-2002 as under:-- "Leave to appeal is sought against the judgment of the Lahore High Court, Lahore dated 3-4-2002, whereby petitioner's Criminal Appeal No,650/99 regarding his conviction and sentence of death under section 302, P.P.C. For the murder of Azhar Imam, was dismissed and he was ordered to pay Rs,30,000 as compensation to the legal heirs of the deceased or in default thereof to undergo six months' S.I. And his conviction and sentences under section 324, P.P.C. For causing injuries to Ghazanvi and Mst. Fatima were maintained. His conviction and sentences under section 392, P.P.C.
And under section 324, P.P.C. For causing injuries to Qurrat-ul-Aain were set aside and his appeal to that extent was accepted. Murder reference was answered in affirmative.
2. After hearing the learned counsel for the petitioner, we are inclined to grant leave, inter alia, to consider the following questions:--
(i) Whether the evidence of a single police official was sufficient to convict and sentence the petitioner to capital punishment when there was a counter-allegation against the police party for killing one of the accused in counter-firing?
(ii) whether in the facts and circumstances of the case death penalty awarded to the petitioner was justifiable or he was entitled to lesser punishment.
3. Leave is accordingly granted."
3. Learned counsel for the appellant has contended that the occurrence had three parts. The first part related to the offence of dacoity allegedly committed in the Post Office, Satellite Town, Gujranwala but to the extent of charge under section 392, P.P.C. The appellant was acquitted for failure of prosecution to'bring any evidence on record in proof thereof. The second part of the occurrence related to the murder of Azhar Imam, constable who along with Iqbal Hussain, constable (P.W.12) on receiving wireless message regarding the occurrence of dacoity in Post Office, Satellite Town, Gujranwala while chasing the accused when made an attempt to stop the rickshaw of the accused, they started firing at them from rickshaw as a result of which Azhar Imam, constable, was hit and died at the spot. The third part commenced when accused after committing the murder of police constable, ran away in another rickshaw and a police party having encircled them, exchanged firing with them as a result of which Zaigham Abbas co- accused of the appellant, was killed whereas appellant escaped from the spot.
4. Learned counsel vehemently contended that except the sole statement of Muhammad Iqbal, a place constable, no other evidence was brought on record to connect the appellant with the commission of offence, therefore, it was not safe to place reliance on the sole statement of the police official to convict the appellant on capital charge and forcefully argued that as per prosecution version the accused made firing from inside the rickshaw, therefore, it was not a case of individually liability to hold the appellant responsible for the murder. In the alternative, the learned counsel argued that it being not known that who was individually responsible for fringing at the deceased, the extreme penalty of death to the appellant was not justified.
5. Learned counsel for State on the other hand, has argued that the murder was committed in the transaction in which appellant and his co-accused after committing dacoity, escaped from place of occurrence in a rickshaw and on interruption by the police officials, they opened firing at them as a result of which a police constable was hit and died at the spot. He argued that it being a case of joint liability, the appellant would equally share the responsibility of murder.
6. Muhammad Iqbal, complainant, who along with the deceased constable, on a motorcycle, chased the rickshaw in which the appellant in company of deceased accused was boarded, was most natural witness, who has identified the appellant at the spot as well as in the Court and similarly, Muhammad Arshad, rickshaw driver, also identifying the appellant in Court, stated that the accused present in Court and his deceased companion while boarded in his rickshaw, were chased by two police officials on motorcycle whereupon the accused started firing at them from rickshaw and in consequence thereto Azhar Imam a police constable, was hit and died at the spot.
In the light of factual position explained by the two eye-witnesses, the joint liability of the appellant was clearly established and he being equally responsible for the murder was rightly convicted under section 302(b), P.P.C. The acquittal of appellant from the charges under sections 392/324, P.P.C. For deficient evidence, would not reduce the value of prosecution evidence on the charge of murder of police constable.
7. The detail scrutiny of evidence with the help of learned counsel for the parties, would not suggest any misreading or non-riding of evidence or any other legal or factual infirmity in the conclusion of the two Courts regarding guilt of the appellant. The learned counsel laid much stress on the question that in absence of specific evidence of sharing common intention to commit the murder, the conviction on the murder charge, on the basis of general allegation, was not justified. It may be pointed out that the intention to commit the crime can be gathered from the circumstances which may prevail at the spur of moment in re-action to the happening of some incident and except in a premeditated occurrence, it is difficult to procure direct evidence to prove intention of a person for committing crime rather the intention is to be inferred from his act and conduct. The common intention within the meaning of section 34, P.P.C. Can be proved through direct or circumstantial evidence or may also depend upon the nature of an act done or motive possessed and a joint action of more than one person itself, is an evidence of common intention. In the present case the appellant and his co-accused armed with pistols, fired at the police constable and even if the deceased did not Sustain injury at the hands of appellant, the act of firing at the police officials itself was strong evidence of sharing the intention to commit the crime. The common intention generally involves the element of common motive, pre-plan preparation and action pursuant to such plan but sometimes, the commons intention may also develop at the spur of the moment or during commission of offence. In the present case appellant and his co-accused may not have the motive to kill the police constable but while making their escape in a rickshaw when realized that they were being chased by the police constables on a motorcycle, they started firing at the police officials in consequence to which, one police constable lost his life. The act of accused of direct firing at the police constable would definitely provide sufficient proof of common intention and joint liability of the murder.
8. The upshot of the above discussion is. That since charge against the appellant stood proved beyond reasonable doubt, therefore, no exception can be taken to the finding of the trial Court as well as High Court regarding his guilt. However, it being not known that who was individually responsible for the murder of deceased, the extreme penalty of death to the appellant may not be justified. Consequently, we while maintaining the conviction of appellant under section 302(b), P.P.C., convert the sentence of death awarded to him into imprisonment for life with direction to pay rupees one lac as compensation to the legal heirs of the deceased. He will also be entitled to the benefit of section 382-B, Cr.P.C.
9. With the above modification in the sentence, this appeal is partly allowed.