2007 PLP 1057 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.287/J of 2002 filed by Imtiaz appellant, who was convicted and sentenced by learned Additional Sessions Judge, Faisalabad vide judgment dated 26-7-2002 on two counts under section 302(b)/34, P.P.C. He was sentenced to death and directed to pay Rs.50,000 to the legal heirs of Maula Dad deceased, whereas he was sentenced to Rigorous Imprisonment for life for committing Qatl-i-Amd of Abdul Razzaq with further direction to pay Rs.50,000 to the legal heirs of Abdul Razzaq, deceased under sections 544-A, Cr.P.C.

2. It may be noted here, that legal heirs of Maula Dad deceased had entered into compromise with the appellant,, so this appeal to the extent of Maula Dad deceased and murder reference was decided by a Division Bench of this Court on the basis of compromise on 7-2-2006 and now this appeal is disposed of to the extent of Abdul Razzaq deceased.

3. Occurrence in this case had taken place on 16-9-1999 at about 3-00 p.m. while the matter was reported to the police on the same day by Liaquat Ali complainant (P.W.14) at 4-25 p.m. and the F.I.R. formal was recorded on the same day at 5-10 p.m. by Moharrar Police Station Bahlak although the distance between place of occurrence and police station was 20 kilometers.

4. Facts of the case as disclosed by Liaqat Ali complainant (P.W.14) are that on 16-9-1999 at about 12-00 Noon, he along with Muhammad Mirza, Aman Ullah, Abdul Razzaq (deceased) and Moula Dad (deceased) were sitting in front of their house under the shadow of trees. All of a sudden Muhammad Sher (since P.O) and Imtiaz present appellant while standing on metalled road towards the western side started aerial firing towards the complainant's party and on that both the deceased took out their licensed guns and resorted counter-aerial firing, whereupon the said accused went away towards their village Thatha Saika while resorting firing. At about 3-00 p.m. on the same. day, complainant along with Abdul Razzaq and Moula Dad deceased, Muhammad Mirza and Aman Ullah P.W. were going towards Pul Peeray Wala to lodge report of the said firing to the police and when they reached in the land of one Sher Muhammad, Muhammad Sher accused (Since P.O.) armed with rifle and Imtiaz accused armed with Kalashnikov emerged from the trees. Muhammad Sher (Since P.O.) raised Lalkara that on that day they would not leave Abdul Razzaq and Maula Dad alive, whereupon Abdul Razzaq and Moula Dad deceased started running. Muhammad Sher accused while chasing Abdul Razzaq deceased fired with his rifle at his left shoulder through and through, who fell down and Imtiaz accused followed Maula Dad deceased and fired straight with his Kalashinkov, which hit at both thighs of deceased Maula Dad through and through as well, who also fell down. Both the accused then ran away while resorting to firing from the spot towards their village. Abdul Razzaq died at the spot whereas Maula Dad whose legs had been smashed by firing was taken to Hospital but he succumbed to the injuries on the way to Hospital. Motive behind the occurrence was that 10/12 days prior to the occurrence accused Muhammad Sher (since P.0) had come to the village of complainant's party with intoxicating liquor and had created fuss and he was admonished by Abdul Razzaq and Maula Dad deceased over which he had got annoyed.

5. After registration of the formal F.I.R., the investigation of the case was taken over by Qadir Bakhsh, S.-I. (P.W.16), who reached at the spot conducted necessary investigation, then proceeded to hospital, prepared injury statement Exh.PE and inquest report regarding Abdul Razzaq deceased, also prepared injury statement Exh.PB and inquest report Exh.PC regarding Maula Dad deceased, he also secured blood-stained earth from the place of murder of Abdul Razzaq deceased vide memo. Exh.PK, also collected blood-stained earth from the place of murder of Maula Dad deceased vide memo. Exh.J, thereafter, the investigation was entrusted to Muhammad Razzaq, S.-I. P.W.17, who on 26-7-2000 arrested accused-appellant. After completion of remaining formal investigation, the accused was sent to face the trial.

6. At the trial, prosecution in order to prove its case produced 17 witnesses in all, thereafter, learned S.P.P. tendered in evidence report of Chemical Examiner Exh.PT, report of Serologist Exh.PU and closed the prosecution case, then, the statement of the appellant was recorded under section 342, Cr.P.C. in which he pleaded innocence.

7. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and , other relevant material available on record, learned counsel for the appellant submits that appellant did not share his common intention with Sher Muhammad co-accused (P.O.) who had caused the death of Abdul Razzaq deceased, that as far as, role of the appellant in the F.I.R. and before the learned trial Court was that he fired a shot with Kalashnikov, which hit Maula Dad deceased, that appellant filed Criminal Appeal No.287/J of 2002 along with Murder Reference No.629 of 2002 and in that case compromise was effected between legal heirs of Maula Dad deceased and the present appellant so he was acquitted by a Division Bench of this Court on the basis of that compromise. He further submits that as far as, murder of Abdul Razzaq deceased is concerned, he was convicted under section 302(b)/34, P.P.C. for the murder of Abdul Razzaq deceased. He submits that motive is not attributed to the, appellant, that he was falsely implicated with Sher Muhammad co-accused, who had caused the death of Abdul Razzaq deceased and still proclaimed offender.

8. On the other hand, learned counsel for the State submits that appellant shared his common intention with his co-accused Muhammad Sher (P.O) but a lenient view has been taken by the learned trial Court by not awarding the death sentence to the appellant. He supports the judgment of the learned trial Court.

9. I have heard learned counsel for the parties at a very great length and have also gone through the record with their able assistance. Occurrence in this case had taken place on 16-9-1999 at about 3-00 p.m. while the matter was reported to the police on the same day by Liaquat Ali complainant (P.W.14) at 4-25 p.m. and the F.I.R. formal was recorded on the same day at 5-10 p.m. by Moharrar Police Station Bahlak although the distance between place of occurrence and police station was 20 kilometers, it means it was a case of promptly lodged F.I.R. having taken place in broad-daylight. Liaqat Ali complainant (P.W.14) and Muhammad Mirza (P.W.15) are the eye-witnesses in this case. According to the F.I.R. appellant was armed with Kalashnikov while his co-accused Muhammad Sher (P.O) was also armed with Kalashnikov. Both of them while sharing their common intention committed the murder of two innocent persons, namely Abdul Razzaq and Maula Dad. For the murder of Maula Dad appellant was awarded death sentence but he entered into compromise with legal heirs of Maula Dad and on that basis a Division Bench of this Court acquitted him. As far as murder of Abdul Razzaq was concerned, he was awarded imprisonment for life, so now this matter was sent to this Court for disposal. He was proclaimed offender and this fact is borne out from the report under section 173, Cr.P.C. dated 26-10-1999 and according to the case diaries ultimately, he was arrested on 26-7-2000, so this fact also goes against him. Section 34, P.P.C. is fully applicable in this case, as he along with his co-accused Muhammad Sher (since P.O.) committed the murder of two innocent persons. No leniency can be shown. Resultantly, the appeal filed by the appellant is dismissed. The conviction and sentence recorded against him by the learned trial Court is maintained in toto. H.B.T./I-10/L Order accordingly.