' MUHAMMAD NAWAZ ABBASI, I.-- This single judgment will dispose of Criminal Appeal No,23 of 1997 and Criminal Appeal No,24 of 1997 filed by Muhammad Yousaf and Anees Ahmad alias Muhammad Umar appellants against their conviction and sentence along with. Murder Reference No,9 of 1997 sent by the Special Court established under Anti-Terrorism Act, 1997.
2. The appellants namely Muhammad Yousaf son of Suleman, resident of Chishtian, District Bahawalnagar, and Anees alias Muhammad Umar son of Abdul Ghani, resident of Karachi were tried for the charge under section 392, P.P.C. Read with section 302/34, P.P.C. By the learned Special Judge, Anti-Terrorism Court No,II, Multan, established under the Anti-Terrorism Act, 1997, for committing the murder of Azhar Ehsan deceased during the course of committing the offence of robbery on 24-9-1997 on a public road in the area of Police Station Kotwali, Multan.
3. The learned Special Court at the conclusion of the trial having found the appellants guilty of the charge convicted and sentenced them to death under section 302/34, P.P.C. And rigorous imprisonment for ten years with a fine of Rs,20,000 each under section 392, P.P.C. And in default of payment of fine to undergo simple imprisonment for one year each through judgment, dated 25- 11-1997.
The appellants have challenged their conviction and sentence through the above referred criminal appeals. The Special Court has sent Murder Reference under section :25(2) of the Anti-Terrorism Act, 1997, for confirmation of sentence of death awarded to them by the said Court. The above said appeals and the Murder Reference are proposed to be disposed of together through this single judgment.
4. The brief facts of the prosecution case as given in the F.I.R. And pleaded at the trial are that on 24-9-1997 at about 8-00 p.m. Azhar Ehsan deceased along with Ashfaq Ahmad complainant (P.W.2), Saadullah Khan (P.W.3) and Amar Ibrahim having gone to a fruit shop situated at Chungi No,8 LMQ, Multan, on the motorcycles were present outside the fruit shop to take lemons when they were intercepted by the appellants. Anees alias Muhammad Umar appellant snatching the key of the motorcycle from Azhar Ehsan handed over it to Muhammad Yousaf appellant, who occupying the driver seat was about to move with Muhammad Umar on the rear seat when Ashfaq, Amar Ibrahim and Saad Ullah intervened and simultaneously Azhar Ehsan deceased putting his hand on the handle of the motorcycle resisted them from moving whereupon Anees alias Muhammad Umar taking out pistol fired at Azhar Ehsan which hit on the right side of his neck. The complainant and the above-named eye-witnesses apprehended both the appellants at the spot with pistol.
Azhar Ehsan succumbed to the injury at the spot. Saadit Mehdi (P.W.9) Inspector/S.H.O., Police Station Old Kotwali, reaching at the spot took into custody the accused along with pistol and motorcycle and also recorded the statement (Exh.P.D.) of the complainant Ashfaq Ahmad, on the basis of which a case was registered through F.I.R. Exh.P.D./1 on the same day against the appellants.
5. During the spot inspection, the Investigating Officer prepared the injury statement Exh.P.B. And inquest report Exh.P.C. Of the deceased and despatched the dead body for post-mortem examination. He collected the blood-stained earth from the place of occurrence in a sealed parcel through memo Exh.P.G. A crime-empty of .30 bore pistol having recovered from the place of occurrence was taken into possession through Memo. Ex.h.P.H. A .30 bore pistol with four loaded bullets snatched by Ashfaq Ahmad complainant from Anees alias Muhammad Umar appellant was produced by him before the Investigating Officer at the spot. The weapon of offence with bullets and motorcycle belonging to the deceased were taken into possession vide Memos. Exh.P.E.
And Exh.P.F. Respectively.
6. The post-mortem examination of Azhar Ehsan deceased conducted by Dr. Qazi Abdullah Sabir C.M.O. Civil Hospital, Multan, on 25-9-1997 revealed the following injuries on the dead body:-
(1) A penetrating injury 1 x 1/2 cm. On left side of neck in front, 05 cm. From supra sternal notch, about 1.5 cm. From mid line with inverted margins wound of entry.
(2) An injury measuring 2 cm. x 1 cm. Going deep on right of chest in back 8 c.m. From posterior axillary line and 18 c.m. From mid line with everted margins wound of exit.
' The doctor opined that the death occurred immediately upon receipt of the injuries at spot.
' The Investigating Officer having completed the investigation challaned the accused to face trial under section 392 read with section 302/34, P.P.C.
7. The prosecution having produced ten witnesses in support of the charge placed reliance on the direct evidence of the ocular account furnished by Ashfaq Ahmad complainant (P.W.2), brother of the deceased and Saad Ullah P.W.3. The third eye-witness namely Amar Ibrahim, nephew of Saad Ullah was given up. The above-named witnesses narrating the facts of the case as incorporated in the F.I.R. Deposed that Anees appellant snatching the key of the motorcycle from Azhar Ehsan deceased handed over the same to Muhammad Yousaf his co-accused. The appellants after occupying their seats on the motorcycle were about to move, when Azhar Ehsan deceased resisted through putting his hand on the handle of the motorcycle, whereupon Anees alias Muhammad Umar extending threat fired at him, who sustaining the injuries expired at the spot. The witnesses have also confirmed the arrest of accused and recovery of pistol from Anees at the spot.
8. Muhammad Azhar Head Constable and Mushtaq Ahmad Constable deposed about the receipt of sealed parcels of .30 bore pistol, an empty and blood-stained earth from the Investigating Officer on the day of occurrence and later the delivery of the same to the office of Chemical Examiner, Lahore.
9. The appellants in their statements under section 342, Cr.P.C. Denying the allegations pleaded that the actual culprits namely Saif and Munir being not traceable, they were substituted as accused through false implication.
10. Learned counsel for the appellants contended (i) that the essential elements constituting an offence of robbery being missing, the charge under section 392, P.P.C. Was not proved; (ii) that the allegation of robbery being of doubtful character, the in charge under section 302, P.P.C. Was not proved beyond doubt. Learned counsel however, without seriously challenging the conviction emphasized that with the exclusion of application of section 392, P.P.C., the reason behind the fateful incident being not known, the offence would not fall under section 302(b) will be punishable under section 302(c), P.P.C.
11. Learned counsel appearing on behalf of Muhammad Yousaf appellant taking exception to the above arguments vehemently contended that as per prosecution story, Muhammad Yousaf appellant could not be burdened with the responsibility of murder. He contended that the act of firing at Azhar Ehsan deceased was an individual act of Anees alias Muhammad Umar and Muhammad Yousaf appellant having not shared the common intention to kill, his conviction under section 302, P.P.C. Is not sustainable.
12. Learned Assistant Advocate-General has argued that the taking place of murder of Azhar Ehsan during the course of committing robbery by the appellants being a collective act, both the appellants were equally responsible for the murder of Azhar Ehsan. He argued that the appellants making an attempt to commit robbery, committed murder, and, therefore, they were equally guilty of murder without proving common intention or knowledge and have been rightly convicted and sentenced.
13. We with the help of the learned counsel for the parties examined the record and also heard them at length. This is an established fact that the appellant after snatching the key of the motorcycle from the deceased made an attempt to run away from the spot with motorcycle but due to the resistance put by Azhar Ehsan, he was fired at by Anees alias Muhammad Umar appellant. The apprehension of the appellants with .30 bore pistol used by Anees alias Umar appellant in the occurrence by the P. Ws. At the spot and their production with motorcycle belonging to the deceased to the police at the place of occurrence is proved through the direct evidence of the witnesses who were accompanying the deceased. The appellants being stranger to the complainant party were not supposed to be involved in a false case through substitution for the actual culprits. The factual analysis of the case-and the evidence brought on record by the 'prosecution in proof of the allegation the charge stands proved against the appellants beyond doubt with the result that the findings of guilt of the appellants arrived at by the trial Court are unexceptional.
14. The contention of the learned counsel appearing on behalf of Muhammad Yousaf requires consideration. From the facts and circumstances of the case, it is crystal clear that the appellant Muhammad Yousaf was active to the act of snatching the motorcycle as an associate of Anees alias Muhammad Umar and in making an attempt of running from the spot. Thus, without independent proof of common intention, he being jointly responsible for the committing of robbery was guilty of an offence under section 392 P.P.C. Punishable with imprisonment for life or with rigorous imprisonment of ten years with fine. In the present case, the taking place of murder during the course of robbery an independent act of Anees Ahmad appellant constituted an offence under section 302 P.P.C. And was not included in section 392 or 394; P.P.C., as the case may be, as in the case of dacoity with murder punishable under section 396, P.P.C. Thus, giving benefit of the circumstances under which murder took place suggesting it an individual act of Anees alias Muhammad Umar appellant, we are not in favour of upholding the conviction and sentence of Muhammad Yuusaf under section 302, P.P.C. The same is accordingly set aside. However, the conviction and sentence of Muhammad Yousaf appellant under section 392, P.P.C. As awarded to him by the trial Court is maintained and Criminal Appeal No,23 of 1997 filed by said appellant with the above modification in the conviction and sentence is dismissed.
15. Learned counsel appearing on behalf of Anees alias Muhammad Umar argued that he being young man of 20 years of age is first offender and that he did not fire with the intention to kill Azhar Ehsan but the purpose being to avoid his spot apprehension and escape from the place of occurrence, it was a mitigating circumstance in his favour for the purpose of lesser punishment: We are afraid, the appellant while committing robbery when was put resistance by the deceased fired at him hitting on his neck with the intention to kill. The excuse that the fire was made with a view to avoid the arrest was not a valid ground to plead mitigation in favour of an offender of robbery. Anees alias Muhammad Umar appellant during the course of robbery took the' life of an innocent young person who put resistance to the commission of offence, therefore, he was not entitled to any leniency in the matter of sentence on the ground that the fire was made to escape froth the place occurrence. Further, the young age itself is no ground for lesser punishment in such cases. We, therefore, of the considered view that it being not a case of lesser penalty, the normal sentence of death awarded to Anees alias Muhammad Umar appellant is not interferable and consequently we maintaining the conviction of this appellant under section 302, P.P.C. Confirmed the Death sentence. We also maintaining the conviction and sentence of the appellant under section 392, P.P.C. Dismiss his appeal. The murder Reference to the extent of Anee alias Muhammad Umar is answered in affirmative.