' SARMAD JALAL OSMANY, J.---Criminal Appeal No. 8-K of 2014 has been filed by appellant Shahid Zafar, Criminal Appeal No.9-K of 2014 has been filed by appellants Muhammad Tariq and Manthar Ali, Criminal Appeal No. 10-K of 2014 has been filed by appellants Muhammad Afzal and Baha-ur- Rehman and Criminal Appeal No. 11-K of 2014 has been filed by appellant Afsar Khan. These Appeals impugn the Judgment of the learned Sindh High Court in Special Criminal Anti-Terrorism Appeals No.6 to 9 of 2011 filed by the appellants against their conviction under section 302/34, P.P.C.
And 7(a) of the Anti Terrorism Act, 1997 by the learned Trial Court and subsequent sentence of death imposed upon appellant Shahid Zafar under Section 302(b), P.P.C. And 7(a) Anti-Terrorism Act 1997. The remaining appellants viz Muhammad Tariq, Manthar Ali, Muhammad Afzal, Baha-ur- Rehman and Afsar Khan were sentenced to imprisonment for life along with fine of Rs.2,00,000/- each and in default thereof, to further undergo S.I. For six months under the foregoing provisions of the law. Vide impugned judgment such convictions and sentences were upheld.
2. Briefly stated the Prosecution case is that on the fateful day viz. 8-6-2011 the complainant, Syed Salik Shah was informed at 5-30 p.m. By his mother that her son Sarfraz (complainant's brother) had a quarrel with someone in Shaheed Benazir Bhutto Park where police and rangers personnel were available. He then went to Police Station Boat Basin where S.I.P. Zulfiqar Ali duty officer informed him that a young person had been fired at by the rangers in a quarrel at the park which resulted in an injury and he had been taken to Jinnah Hospital. The complainant therefore went to the Jinnah Hospital and found his brother Sarfraz lying dead there in the emergency ward. It was alleged by the complainant in the F.I.R. Filed by him at 0030 hours on the next morning that the appellants were responsible for murdering his brother. As stated above the appellants were charged with such crime, convicted and sentenced by the Learned Anti Terrorism Court which was upheld by the learned High Court.
3. Mr. Khawaja Naveed Ahmed, learned Advocate Supreme Court appearing for the appellants has firstly submitted that the incident itself viz. The bullet injuries to the deceased caused by appellant Shahid Zafar in the presence of appellants Muhammad Tariq, Manthar Ali, Muhammad Afzal and Baha-ur-Rehman is not disputed at all but the circumstances in which the same was done would display that it was an act of self defence on the part of appellant Shahid Zafar and hence completely justifiable. According to learned Advocate Supreme Court the Section 342, Cr.P.C.
Statement of the appellant Shahid Zafar (who fatally shot and injured the Deceased) and appellants Muhammad Afzal, Baha-ur-Rehman, Muhammad Tariq and Manthar Ali (who were the other rangers personnel present at the scene) would abundantly establish that when the custody of the deceased, who had attempted to rob a couple in the park, was handed over by the guard of the park viz. Afsar Khan to the appellants, appellant Shahid Zafar had asked the deceased to put his hands up. However the latter did not do so and attempted to grab the rifle of appellant Shahid Zafar at which he in self defence fired twice and that too at the arm of the deceased. Consequently per learned Advocate Supreme Court there was no intention at all of the appellant Shahid Zafar to kill the deceased but he had only fired in self defence. As to the cases of the other appellants viz. Muhammad Afzal, Baha-urRehman, Muhammad Tariq, and Manthar Ali, learned Advocate Supreme Court has submitted that they had been convicted and sentenced under the theory of common intention which in the circumstances of the case was not at all proved by the Prosecution.
These appellants were mere by standers and did not do any overt or covert act whereby their common intention could be discovered or established by the Prosecution. As to the case of the guard of the park viz. Appellant Afsar Khan, learned Advocate Supreme Court has submitted that his role was only that of handing over of the deceased to the other appellants who were rangers personnel and consequently there cannot be any question of his sharing any common intention at all with any of the appellants as to the ultimate injuries caused to the deceased which resulted in his death.
4. Learned Advocate Supreme Court's next submission is that due to the prevailing law and order condition in Karachi i.e. Daily gang rapes, street crimes, dacoities, robberies and murders etc. The public has lost complete faith in the law enforcement agencies and in such situations when the accused is caught by them, he is usually either burnt, hanged or beaten to death. Consequently there was no question of any terrorism involved in the matter as in the first place life continued as normal at the park and as killing of alleged robbers etc. Has become a norm in Karachi therefore there was hardly any question that such an episode would cause terror in the hearts and minds of the public at large. Hence learned Advocate Supreme Court has submitted that the refusal of the learned High Court to accept the compromise applications filed on behalf of the appellants where the offence under Section 302 had been compounded was incorrect. In this regard learned Advocate Supreme Court's alternative argument is that in the case of appellant Shahid Zafar who had been sentenced to death, such penalty can be converted to that of life imprisonment in view of the compromise between him and the legal heirs of the Deceased per Muhammad Nawaz v. The State (PLD 2014 SC 383).
5. Mr. Saleem Akhtar, learned Additional Prosecutor General, Sindh has not opposed the arguments of Mr. Khawaja Naveed Ahmed, learned Advocate Supreme Court appearing for the appellants.
6. We have heard both the learned Advocate Supreme Court as well as the learned APG and also perused the record along with the DVD of the incident which is a part of the evidence.
7. It has come on the record through P.W. Muhammad Shahid who was a gardener at the said park that on the day of incident a person had given another person into the custody of the rangers and thereafter he heard two gun shots and saw the deceased lying injured on the ground and was bleeding due to the firing of rangers personnel. He further disclosed that looking at the incident he became afraid and left the place and when in the morning he watched the video clip with his family he was totally terrorized etc. The testimony of Muhammad Shahid has been corroborated in full particulars by PW Muhammad Ramzan who was also available at the crime scene being in- charge of the park. However the most important piece of evidence are the testimonies of cameraman Abdul Salam and Zahid Bhatti who recorded the DVD of the incident which has also been placed on the record. In order to satisfy our conscience and to do complete justice in the matter we have also seen such DVD in the Committee Room of the Court from which it is quite clear that one person had given a young boy, wearing a trouser and shirt, into the custody of the rangers personnel who were five in number. One of the rangers' personnel pointed his weapon at the young boy who started begging and pleading for his life by saying "Mujhey Nahi Maro" "Mujhey Nahi Maro". His hands were folded and he was beseeching not only the rangers' personnel who had pointed his rifle at him but all the other four rangers personnel who encircled him. Suddenly a voice was heard to the effect "Maro Maro" at which the ranger personnel pointing his weapon at the young boy, pulled his trigger twice at which the latter fell down on the ground with a cry and started screaming that I am dying and please take me to the hospital but the rangers just kept on standing there. It has come on the record that the incident occurred at around 5-15 p.m. On 8-6- 2011 whereas the Cheepa ambulance arrived at 5-45 p.m. Which reached the hospital at 6-00 p.m.
And the deceased died at 6-13 p.m. On the same say. Per the medico legal report of the deceased he had received a fire arm injury wound on the upper left forearm which exited on the medial part of the left forearm and a firearm punctured wound on the lower part of the left forearm which had exited again on the said lower part of the forearm and a firearm injury on the right thigh, another one on the left thigh which were both wounds of entry whereas there was another wound of exit on the left thigh. According to the doctor, who had performed the postmortem of the deceased he had died due to excessive bleeding. The incident itself is not denied by the appellants however as stated above the plea of appellant Shahid Zafar is that he fired in self defence as the deceased had tried to snatch his rifle. While the other appellants have totally denied the Prosecution case and say that they were performing their official duty and deceased died in an encounter. Such pleas totally falsify the evidence available on the record particularly the DVD of the incident whereas it is abundantly clear that the deceased, a young boy, was unarmed and he was begging for his life from the rangers personnel who had surrounded him i.e. The appellants at which one of them shouted "Mara Maro" and appellant Shahid Zafar pulled the trigger twice. To make matters worse the deceased was lying on the ground and was bleeding and again begging the appellants to take him to the hospital but they did not do so although their official mobile was available. They elected to call a private ambulance from Cheepa service who came to the place of incident in about half and hour and took another 15 to 20 minutes to reach the hospital where-after the deceased expired. This sequence of events abundantly display the common object and intention of all the appellants. The appellant Shahid Zafar deliberately and wilfully shot the deceased at the instigation of other appellants and let the deceased bleed to death without offering him any assistance at all. Hence in our view the common intention of other appellants viz Muhammad Tariq, Manthar Ali, Muhammad Afzal and Baha-ur-Rehman is abundantly clear from the facts and circumstances of the incident as well as the evidence placed on the record.
8. As to learned Advocate Supreme Court's contention that the incident could not be defined as an act of terrorism, we are quite clear in our minds that such a gruesome murder at the hands of a law enforcing agency would certainly create a sense of terror, insecurity and panic in the minds and hearts of those who were available at the scene and the entire public who had watched this DV D on air. In this regard a reference may be made to the definition of terrorism in Section 6(1)(b) of the Anti-Terrorism Act according to which this is the use or threat of action where the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society. In our opinion therefore such definition can be bifurcated into two i.e. Where the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sector where it creates a sense of fear or insecurity in society. Although the offence under consideration may not have been designed to coerce and intimidate or overawe the Government or a section of the public or community or sect but it certainly created a sense of fear' or insecurity in the society. What could be a more grievous and heinous crime then to shoot an unarmed young boy who was begging for his life and thereafter let him bleed to death despite his pleading that he should be taken to the hospital. This certainly did create a sense of fear and insecurity in the public at large and hence we are of the opinion that the appellants were correctly charged, tried, convicted and sentenced under Section 302(b), P.P.C. And section 7(a) of the Anti Terrorism Act, 1997.
9. Insofar as the compounding of the offences is concerned by the appellants reached through compromise with the legal heirs of the deceased, it would be seen that Section 7 (a) of the Anti Terrorism Act, 1997 is not compoundable and hence the learned High Court correctly dismissed such compromise applications. Even otherwise we are of the opinion that the cruel and gruesome murder of the deceased who had been begging for his life from the appellants certainly amounted to Fasad-Fil-Arz within the meaning of Section 311, P.P.C. And hence there could not be any question of acceptance of compromise between the parties. However having said as much we are also aware that in the case of Muhammad Nawaz (Supra) this Court had converted the sentence of death to that of life imprisonment under Section 7(a) of the Anti Terrorism Act 1997 where the legal heirs had compounded the matter with the accused as in the present case. Consequently we would partly allow Criminal Appeal No.8-K of 2014 by directing that the sentence of death imposed upon the appellant Shahid Zafar be reduced to life imprisonment. Criminal Appeals Nos.9-K and 10-K of 2014 are dismissed. Insofar as Criminal Appeal No.11-K of 2014 is concerned viz. Afsar Khan, it would be seen that his role was only confined to that of beating and handing over the deceased into the custody of the rangers personnel where-after the said incident occurred. Hence it cannot be said that he shared any common intention with the other Appellants of murdering the deceased and at the most therefore he could be convicted under section 337(2)(a) P.P.C. For which the maximum sentence is two years along with Daman under Section 337-A(i), P.P.C.
10. For all the foregoing reasons we vide short Order had disposed of these Criminal Appeals as follows:-- "For reasons to be recorded later, Criminal Appeal No.8-K/2014 (Shahid Zafar v. The State) is allowed only to the extent that the sentence of death imposed upon the appellant by the learned Anti-Terrorism court and upheld by the learned High Court under section 302(1), P.P.C. And 7(a) of the Anti-Terrorism Act, 1997 is converted to that of life imprisonment along with fine of Rs.100,000/- or S.I. For six months if the fine is not paid.
2. Criminal Appeal No 09-K/2014 (Muhammad Tariq and another v. The State) and Criminal Appeal No. 10-K/2014 (Muhammad Afzal and another v. The State) are dismissed.
3. Criminal Appeal No.11-K/2014 (Afsar Khan v. The State) is allowed to the extent that sentence of life imprisonment imposed upon the appellant Afsar Khan under section 302(6)/34, P.P.C. And sentence 7(a) of the Anti-Terrorism Act plus compensation etc. By the learned Anti-Terrorism Court and upheld by the learned High Court of Sindh is converted to that of conviction under section 337(2)(i), P.P.C. And he is sentenced undersection 337(A)(i) to two years' S.I. Along with Daman in the sum of Rs.100,000/-. If the appellant has already undergone this sentence, he shall be given his liberty if not required in any other case provided daman in aforementioned amount is paid to the legal heirs of the deceased."