Criminal Miscellaneous No. 1 of 2010 Through the present petition the petitioner Akhtar Ahsan has prayed for suspension of his sentence.
2. The relevant facts for the disposal of this petition are that the petitioner along with his co- accused Dilawar Abbas, Shaukat Ali, Attique-ur-Rehman and Behzad were tried in a case bearing F.I.R. No.324 dated 24-12-2003 under section 302, 396, 459, 460, 337-A(ii), 337-L(2), 201, 120-B, 506 and 109, P.P.C., Police Station Saddar Burewala. After the conclusion of trial, the learned Additional Sessions Judge, Burewala vide his judgment dated 25-1-2010 to the extent of petitioner Akhtar Ahsan convicted and sentenced him for causing Qatl-eamd of Maqsood Ahmad under section 302(b).Read with section 460, P.P.C. To death and to pay Rs.2,00,000 as compensation to the legal heirs of the deceased or in default of payment of compensation to further undergo S.I. For six months. He was also convicted and sentenced for committing Qatl-e-amd of deceased Shahzad under section 302(b) read with section 460, P.P.C. To death and to pay compensation of Rs.2,00,000 to the legal heirs of deceased Shahzad or in default of payment of compensation to further undergo S.I. For six months. He was further convicted and sentence for committing Qatl-e-amd of deceased Iqbal under section 302(b) read with section 460, P.P.C. To death and to pay compensation of Rs.2,00,000 to the legal heirs of deceased Iqbal as compensation under section 544-A, Cr.P.C. Or in default of payment of compensation to further undergo S.I. For six months. He was also convicted and sentenced under section 396, P.P.C. For 10 years' R.I. With a fine of Rs. 50,000 or in default thereof to further undergo S.I. For three months. He was further convicted and sentenced under section 324, read with section 460, P.P.C. For the murderous assault on injured Naveed to 10 years' R.I. And under section 337-D read with section 460, P.P.C. To pay Arsh equal to 1/3 of diyat amount. He was further convicted and sentence under section 324 read with section 460, P.P.C. For launching murderous assault on injured Rauf and under section 337-D read with section 460, P.P.C. To pay 1/3 of Diyat amount as Arsh. All the sentences of imprisonment were ordered to run concurrently.
3. Feeling aggrieved by the above-said conviction and sentence passed against the petitioner he filed Criminal A. No.69 of 2010 and during pendency thereof has filed the instant Criminal Miscellaneous application for suspension of his sentence.
4. Learned counsel for the petitioner contended that it is a unique case in which the innocent person i.e. Petitioner has been convicted and sentenced to death on three counts, though, there is absolutely no evidence available against him. He further contended that the petitioner was involved on the basis of supplementary statement of complainant recorded after 5 years of the occurrence but during the trial there was nothing against the petitioner connecting him with the offence.
5. Learned D.P.-G. On the other hand frankly admitted that no evidence was available against the petitioner. However, he pointed out the evidence available on the record against the petitioner.
Learned counsel for complainant also admitted that the judgment suffers from infirmities but contended that the offence was heinous one and about one year has only passed after the impugned judgment, so it is not a proper stage to suspend the sentence of the petitioner.
6. Arguments heard.. Record perused.
7. Though, in the petition for suspension of sentence the deeper appreciation or reappraisal of evidence is not required but after going through the record we find it appropriate to mention some salient features of the case and evidence available against the petitioner. It may be mentioned here that from the complainant side two persons lost their lives namely Maqsood and Shahzad while the third deceased does not belong to complainant party. Allegedly he was member of dacoit group who committed the occurrence at the house of complainant. The occurrence is dated 24-12-2003. In the complaint it was alleged that six muffled faces persons armed with weapons entered into the house of complainant and during the said period the mask of one person was unveiled and he was identified as Muhammad Aslam Gujjar. Thereafter Maqsood, Rauf and Shahzad grappled with the accused and during this period the faces of other accused were also unveiled and Dilawar was also identified and then the deceased Maqsood took one dacoit into his "Jappah" upon which indiscriminate firing was made and the dacoit who was in "Jappah of Maqsood also received the injuries and the said injured dacoit disclosed his name to be Muhammad Iqbal (deceased) and further disclosed the name of his co-accused namely Tauqeer but thereafter he died without disclosing the names of his other co-accused. It is pertinent to mention here that the said Tauqeer whose name was disclosed by Muhammad Iqbal is the real brother of present petitioner Akhtar Ahsan. Nothing came on the record for the long 5 years from 2003 to 2008 against the present petitioner. It was on 14-5-2008 that Muhammad Maqbool made supplementary statement before the police to the effect that in the F.I.R. They had mentioned 6 accused who had entered into the house nominating 4 of them while two were unknown but some accused also remained out of the home and since the brother of complainant and his nephew had been murdered, so, he was unable to trace out the said unknown accused and now had come to know that out of the said unknown accused one was Akhtar Ahsan. It was on the basis of this supplementary statement recorded after 5 years of the occurrence that the petitioner was involved and so the petitioner was arrested in the case. The matter did not end here, one Naveed Ahsan filed Criminal Miscellaneous No.99-H-2008 in the High Court on 16-5-2008 for the illegal confinement of Akhtar Ahsan and the Baillif was appointed who raided the police station on 16-5- 2008 and found Akhtar Ahsan in the lock up but the S.H.O. Who was respondent No.2 took the stand that he was nominated through supplementary statement dated 14-5-2008 and so he has arrested the detenu Akhtar Ahsan and this court also observed vide order dated 19-5-2008 that Roznamcha No. 4 dated 13-5-2008 shows that respondent No.2 visited Kanganpur for the arrest of Tauqeer Ahmad brother of detenu who was nominated in the aforesaid case. However, the learned Judge in chamber in paras Nos.4 and 5 observed as under:-- "From the above facts it appears that respondent No.2 visited village Veerkay Police Station Kanganpur for the arrest of Tauqeer accused but he could not be arrested, therefore, he apprehended the alleged detenu to procure the arrest of his brother. On having clue about the habeas corpus petition he fabricated supplementary statement of the complainant and also recorded fictitious arrest of The detenu in the daily Roznamcha.
5. Since the alleged detenue has been found arrested in the afore-said case, therefore, the petition having become infructuous is accordingly disposed of. However, DPO Vehari is directed to inquire into the matter and take necessary action against the delinquent officials in accordance with Police Order, 2002."
8. It may be mentioned here that said order is available on record as Exh.DC/1. After the submission of challan now were to see that as to what evidence has been produced against the petitioner. The only evidence available against the petitioner is the statement of P.W.5 Muhammad Maqbool who complainant and statement of P.W.22 Muhammad Tussain, S.-I., who was the I.O. It is appropriate firstly to refer to the statement of P.W.5 Muhammad Maqbool to the extent of present petitioner. The only evidence by this P.W. To he extent of petitioner in his examination-in-chief is reproduced as under:-- "After that during investigation of case, Shaukat Malka and Ahsan Hassan resident of Veerkay, Kasur were also implicated by the police in the case and as a result of investigation they were challaned. My statement was also recorded by the police from time to time."
9. It may be mentioned here that Ahsan Hassan mentioned above is in fact the present petitioner Akhtar Ahsan. Now, according to this P.W.5 Akhtar Ahsan was implicated by the police in the case.
Similarly, in the cross-examination in the very beginning to the extent of petitioner He deposed as under:- "Shaukat Malka and Akhtar Ahsan during the course of investigation and as a result of Punchayat when they denied to produce any evidence in defence were challaned and accordingly were implicated in the case for their involvement in the crime."
10. Now this part of cross-examination shows that since in the punchayat the petitioner was unable to produce the defence for his innocence, so, he was challaned in the case. This the total evidence to the extent of P.W.5 Muhammad Maqbool available against the petitioner.
11. Now, we come to the statement of P.W.22 Muhammad Hussain, S.-I. To the extent of Akhtar Hassan he only deposed as under:-- "On 29-5-2008 as per my opinion the accused Akhtar Ahsan was found fully involved in the case."
12. During the trial the entire evidence available against the petitioner is as mentioned above. It may also be mentioned here that P.W.22 in the end of his examination-in-chief denied the suggestion that he recorded supplementary statement of complainant only to involve the petitioner and Shaukat Malka. Besides the above-mentioned evidence there is no other evidence connecting the petitioner with the offence. According to the complainant it was the police who involved the petitioner Akhtar Ahsan in the case and recording to the police i.e. Statement of P.W.22 in his opinion the petitioner was involved.
13. The last important aspect of the case is that how the learned trial Court convicted, and sentenced the petitioner. Perusal of impugned judgment shows that in Para-37 of the judgment, though, the plea raised by the defence counsel were mentioned but no specific reason had been advanced by the learned trial Court that on the basis of what evidence available on record he has convicted and sentenced the petitioner. Thus, after going through the entire record we are of the considered opinion that this is a fit case for the suspension of sentence and mere heinousness of offence is no ground to refuse this relief when apparently there is no evidence available against the petitioner connecting him with the offence. Accordingly, we allow this petition and as a result admit the petitioner Akhtar Ahsan to bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one lac only) with two sureties each in the like amount to the satisfaction of Deputy Registrar (I) of this court. The petitioner is directed to appear before this court on each and every date of hearing till the final decision of this appeal.
14. Before parting with this order, since we are of the considered opinion that to the extent of petitioner it was apparently a case of no evidence, so, we want to hear the learned Presiding Officer, who had convicted and sentenced him to death on three counts that as to how and on the basis of what evidence the petitioner had been convicted and sentenced as mentioned above.
Accordingly, we direct the Additional Registrar of this Bench to contact the said Presiding Officer and direct him to appear before us in the chamber in order to explain his order of conviction passed against the petitioner. He is directed to appear before us in chamber on 22-3-2011.