2011 SCMR 925 (PLP)

TARIQ PARVEZ KHAN, J.

Nine persons including Muhammad Akram appellant were accused in case F.I.R. No. 224 dated 20-9-1998 registered at Police Station Tarkhani, District Faisalabad. Charge against them was made by Irshad Ahmad (P.W.11) for the murder of five deceased namely (1) Mst. Naziran Bibi, (2) Lal Din Khan (3) Mumtaz (4) Ijaz Ahmad and (5) Muhammad Sharif. They were also charged for causing injuries to Muhammad Aamer and Mushtaq Ahmad (P.W.10). Since we are seized of the appeal of Muhammad Akram appellant alone and facts given in the F.I.R. instant case are very lengthy for it is attributing individual role to different accused, we will confine the narration of facts given in the F I.R. to the extent of role given to the present appellant.

2. According to the F.I.R. and evidence of the two eyewitnesses, Muhammad Akram appellant is charged for causing death of Ijaz Ahmad deceased. He is alleged to have caused death by giving `kulhari' (hatchet) blow to Ijaz Ahmad on his clavicle region. According to the record, eight co-accused of the present appellant were tried separately and vide judgment dated 26-11-1999 were different sentences including death sentence to some of them. They filed Criminal Appeal No.1368 of 1999 before the Lahore High Court where they had challenged their convictions and sentences. It appears that pending their appeals, the present appellant who faced separate trial but vide judgment dated 24-5-2002 was awarded the sentences as given in detail at page 98 of the paper book wherein but for the murder of Ijaz Ahmad deceased he was awarded death sentence. On conviction recorded by the trial Judge appellant filed separate Criminal Appeal bearing No.900 of 2002 whereas Murder Reference No.63-T of 2002 was sent against him and was before the learned High Court for decision. The appellate Court at Lahore clubbed all the appeals and murder references as they had arisen out of single F.I.R. but as consequence of two different judgments. Learned High Court after discussing evidence of the prosecution accepted the evidence to be truthful and worth reliance. It was therefore, that the conviction and sentence of the eight co-accused were modified as given in detail in the impugned judgment of the Hon. High Court dated 18-5-2002. Since there were five deceased in this case. One of them was Muhammad Sharif father of Ashfaq Ahmad co-accused of the case, all the accused-appellants stand acquitted by the High Court for his murder because it was held that no evidence was led that Muhammad Sharif deceased was killed by the accused-appellants. Sentence awarded under section 7 of the Anti-Terrorism Act, 1997 was also set aside against all the appellants. Death sentence awarded to eight appellants in separate appeals were commuted to life imprisonment on the ground that one of the legal heirs of three deceased by the name Inayat Ali had appeared and waived his right of Qisas. Therefore, applying provision of section 309, P.P.C. death sentence awarded for the murder of Mst. Naziran Bibi and her two sons Mumtaz and Ijaz Ahmad was altered to life imprisonment. One of the accused by the name Ijaz Ahmad was however, acquitted by the learned High Court because of lack of connecting evidence.

3. It is argued before us that Muhammad Akram appellant has got no motive to commit the gruesome murder of five deceased as he is not related to the accused party but he has been involved because he is a servant of Ashfaq Ahmad his co-accused. An attempt was made to exonerate Muhammad Akram appellant with reference to postmortem report of deceased Ijaz Ahmad by stating that injury attributed to the appellant Muhammad Akram is not born out from the postmortem report.

4. We have heard learned Deputy Prosecutor-General, Punjab who stated that some of the co-accused of the appellant had filed Criminal Petitions before this Court which were dismissed, therefore case of Muhammad Akram shall also be dismissed on this ground.

5. Two eye-witnesses i.e. Arshad Ahmad (P.W.11) who is complainant of this case has appeared in the witness-box is fully supported by Mushtaq 'Ahmad (P.W.10) who was injured in the occurrence. Presence of Mushtaq P.W., on the spot cannot be doubted because of injuries on his person. Neither of the two P.Ws. have any enmity with Muhammad Akram appellant to falsely charge him in a case where five persons have been killed. Muhammad Akram is named in the F.I.R. to be armed with `kulhari' (hatchet) and has caused a blow to deceased Ijaz Ahmad hitting him on left side of the shoulder. As per medical evidence deceased Ijaz Ahmad had one oblique incised wound near left clavicle. Its inner end I was 3 cm above and outward to inner and left clavicle. Outer ends were 5 cm inward the tip of the shoulder. Therefore, eye-witness account given against Muhammad Akram appellant finds corroboration from the medical evidence. Muhammad Akram appellant remained an out law for more than one year which will lend additional corroboration to the ocular account. We, therefore, find that prosecution has brought home charges as were framed by the trial Court and his case is not distinguishable as far as remaining co-convicted accused are concerned. Therefore, this appeal is dismissed with clarification that sentence awarded to the appellant by the learned trial Judge for killing deceased Ijaz Ahmad has been converted into life imprisonment in the impugned judgment of the Hon. Lahore High Court because Murder Reference No. 63-T of 2002 filed against him was answered in negative. To the extent of this clarification, conviction and sentence of the appellant on all counts are maintained as was in the case of other co-accused as was held by Lahore High Court. N.H.Q./M-6/SC Appeal dismissed.