AFSAR Vs. STATE

JUDGEMENT

(1.) Heard Sri Pradeep Kumar Mishra, Amicus Curiae, Sri Deepak Mishra, Learned A.G.A. appearing for the State and perused the record.

(2.) This Criminal Jail Appeal No. 1671 of 2008 has been filed against the judgment and order dated 18.1.2008 passed by the Additional Sessions Judge, Fast Track Court No.1, Rampur, in Sessions Trial No. 316A of 1999 (State Vs. Afsar), whereby the appellant Asif has been convicted under Section 307 IPC and awarded punishment of ten years rigorous imprisonment with a fine of Rs. 2000/- and in default of payment of fine six months additional rigorous imprisonment.

(3.) As per the FIR, the prosecution case is that the appellant alongwith co-accused Asif were selling smack at Chah Khazana Khan intersection where shop of maternal uncle of the first informant Zafar Khan, is situated. Zafar Khan objected to the selling of smack and pursuant to this dispute, on 25.02.1995 at about 12:00 noon, there was exchange of hot talks between appellant-accused and one other co-accused on the one hand and Zafar Khan (injured) on the other and both the accused gave threat, that whosoever creates hurdles in their work, would be eliminated from their way. Due to this enmity, on 26.02.1998, at about 12:30 p.m., when the first informant Ibrar Khan (PW-1) was standing with his maternal uncle Zafar Khan close to the mosque, located at Chah Khajana Khan intersection, the appellant with other co-accused Asif, Zamil Ahmed, and Yusuf Miyan @ Achhan armed with pistols in their hands reached the spot in prosecution of their common intention to kill Zafar Khan and thereafter, all the four accused fired upon Zafar Khan with their pistols with an intention to kill, by which, Zafar Khan became injured and fell down. The first informant, other shopkeepers and passers-by ran away from there to save their lives by shutting their shops; an atmosphere of insecurity engulfed the area and all the four accused fled away from the spot with pistol in their hands saying that whosoever would come in their way, would not be spared. This occurrence was witnessed by Siraz Khan (PW-4), Hemant and Asfaq Khan etc.