2004 PLP 935 (YLR)

Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 SC 668; Adil Bashir v. The State 2003 SCMR 407 and Riaz Hussain v. The State 2001 SCMR 1779 ref. Ch. Muhammad Yaqoob Sidhu for Petitioner. Sardar Muhammad Latif Khan Khosa for the Complainant. S.D. Qureshi for the State. Rifat Iqbal petitioner seeks suspension of his sentence of life imprisonment awarded to him alongwith his co-accused on four counts under section 302(b) read with section 109, P.P.C. by the learned Additional Sessions Judge, Gujranwala on 29-5-2002.

2. Briefly the facts of the case are that Nazir Ahmad son of Inayat Ali complainant lodged F.I.R. at Police Station Tatlay Aali stating therein that he was resident of Mongeke and was cultivator and his sister Ruqayya Bibi was married with Muhammad Ashraf son of Muhammad Din, caste Jat Virk; that there was a dispute of his brother-in-law Muhammad Ashraf with his sanguine brother Muhammad Akbar and other nephews regarding land; that on 25-4-2000 after receiving message from his brother-in-law Muhammad Ashraf, complainant went to village Wandalan Virkan in the house of Muhammad Ashraf and after having dinner went to the roof of Baithak of their house alongwith Muhammad Aslam brother of Muhammad Ashraf, his brother-in-law and were talking with each other. He further stated that Muhammad Ashraf and Mst. Ruqayya Bibi also came on the roof and told them that Adil Shakeel son of Muhammad Aslam and Ijaz Ahmad son of Muhammad Ashiq had told them that on the same date Muhammad Akbar, Rifat Iqbal (petitioner), Pervaiz Ahmad, Shahzad alias Mithoo, Nisar Ahmad, Muhammad Nawaz, Iftikhar Ahmad and Jamshed alias Sheedoo accused all residents of Wandalan Virkan were sitting on their Dera and hatching a conspiracy about the murder of family of Muhammad Ashraf and that they were very disturbed after hearing this news and for this reason they have summoned him; that complainant stated before them that Muhammad Akbar accused and his sons cannot do this cruel act; that he told them that he will talk to the accused in the morning that his sister and Muhammad Ashraf his brother-in-law went to the courtyard of their house and lied there with their children while he and Muhammad Aslam slept on roof of the house; that at about 2-30 a.m. in the night they woke up after hearing the voice of foot steps, they saw in the courtyard of the house in the light of bulb that Jamshed accused armed with .30 bore pistol, Shahzad alias Mithu armed with Bughda, Nisar Ahmad with .12 bore gun entered into the house from the Dera of Rifat Iqbal accused after scaling over the wall into the house of Muhammad Ashraf; that Jamshed alias Sheedoo and Nisar Ahmad alongwith their weapons stood on both sides of cots of Muhammad Ashraf, his wife and his children pointing their arms towards them; that Shahzad alias Mithu inflicted four Bughda injuries on the person of Muhammad Ashraf, his head, forehead, face and jaw; that sin the meanwhile his sister woke up, Nisar Ahmad fired with his .12 bore gun which hit her on her abdomen and shoulders, Shahzad alias Mithu again inflicted Bughda injuries turn by turn on the person of his sister which hit on her face, neck and left hands; that Shahzad alias Mithu also inflicted Bughda injuries on the person of Ayesha Ashraf aged 12/13 years on her neck, there Irfan Ahmad son of Muhammad Ashralf was trying to get up but Jamshed accused inflicted three fire-arm injuries with his pistol which hit him on his waist, Nisar Ahmad fired with his gun which hit on his left hand, then Shahzad alias Mithu inflicted 2/3 injuries with his Bughda on the person of Irfan on his head, then Shahzad alias Mithu reached near the cot of Imran son of Muhammad Ashraf and in view of the complainant inflicted 3/4 Bughda injuries on the head and face of Imran. In the meanwhile Uzma Ashraf and Misbah Ashraf daughters got up and ran towards the residential room from their cots, then Shahzad alias Mithu inflicted many l5ughda injuries on the person of Uzma Ashraf which hit on her chest, back, abdomen and right knee; that she fell in the room after receiving the injuries while Misbah Ashraf reached in the room and chained the room from inside; that due to fire and their' noise many persons of the village woke up while Shahzad alias Mithu and other two accused opened the outer door of the house of Muhammad Ashraf where Muhammad Nawaz and Iftikhar Ahmad sores of Muhammad Akbar accused armed with fire arm weapons were present; that all the accused went away while firing; that the and Muhammad Aslam went down from the roof of the house and saw that Muhammad Ashraf, Ruqayya Bibi, Irfan Ahmad and Uzma Ashraf had died due to the injuries; that Imran Ahmad and Ayesha Ashraf were grievously injured. The occurrence was witnessed by the complainant, Muhammad Adam and Misbah Ashraf but due to fear of the accused they could not go out of their house and early in the morning he sent Imran and Ayesha injured to Civil Hospital, Kamonke and left Muhammad Aslam with dead-bodies and reached the police station. He further alleged in the F.I.R. that the occurrence took place at the instance of Muhammad Akbar, Rifat Iqbal and Pervaiz Ahmad and due to their conspiracy and abetment alongwith other five accused for the purpose of getting land from his brother-in-law.

3. During investigation Muhammad Akbar, Rifat Iqbal (petitioner) and Pervaiz Ahmad who allegedly abetted the co- accused were found innocent. Investigating Officer applied to the Court for their discharge but Court declined to agree with him. However, on the basis of statement of Ijaz P.W.9 and Adil Shakeel P.W.10 closely related to the complainant that they heard the conversation of conspiracy, the trial Court convicted Muhammad Akbar, Rifat Iqbal and Pervaiz Ahmad under section 302(b), P.P.C. read with section 109, P.P.C. and sentenced them to imprisonment for life on four counts. Jamshed son of petitioner, Nisar and Shahzad his brothers were awarded death sentence. His other brothers, namely, Muhammad Nawaz and Iftikhar Ahmad were sentenced to life imprisonment. Their appeal against conviction is pending in this Court. Petitioner has applied for suspension of sentence.

4. Ch. Muhammad Yaqoob Sidhu learned counsel for the petitioner contends that the petitioner was found innocent during the investigation. Allegation against him, his co-accused Muhammad Akbar and Pervaiz Ahmad is of abetment. Son of the petitioner` Jamshed alongwith his brothers Nisar and Shahzad has been awarded death sentence. Muhammad Nawaz, Iftikhar and Pervaiz Ahmad alongwith his father Muhammad Akbar were sentenced to life imprisonment on four counts. The entire family has been roped by the complainant in the case. He was neither present at the place of occurrence nor is attributed any other role except abetment. The allegations against the petitioner and Muhammad Akbar whose 'sentence has been suspended by this Court on 31-3-2003 are identical. The said order was challenged by the complainant in the Honourable Supreme Court through Criminal Petition for Leave to Appeal No.258-L of 2003 but the same was maintained on 10-6-2003. The rule or consistence demands that his sentence be also suspended till the disposal of the appeal. He has relied upon Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 Supreme Court 668.

5. Sardar Muhammad Latif Khan Khosa learned counsel for the complainant, on the other hand, submits that four persons, namely, Muhammad Ashraf, Ruqayya Bibi, Irfan Ahmad and Uzma Ashraf were brutally murdered by the convicts while Imran Ahmad and Ayesha Ashraf were grievously injured. Petitioner, his father Muhammad Akbar and his brother Pervaiz Ahmad are guilty of abetment of aforesaid murders, therefore, the sentence of the petitioner may not be suspended. He further argued that the merits of the case cannot be examined by this Court while considering the application for suspension of sentence by relying upon Adil Bashir v. The State 2003 SCMR

407. The opinion of the Investigating Officer after recording of conviction is immaterial in view of the law laid down by the Honourable Supreme Court in Riaz Hussain v. The State 2001 SCMR 1779. He lastly argued that Muhammad Akbar was granted bail primarily on the consideration of being a man of 80 years of age, therefore, case of the petitioner is not at par with him.

6. Heard. Record perused. Trial Court relied upon the evidence of P.W.9 and P.W.10 in convicting the petitioner, Muhammad Akbar and Pervaiz on the charge of abetment. Both the P.Ws. are closely related to the complainant and deceased. Their evidence was not relied upon by the Investigating Officer and he declared them innocent. After conviction the opinion of the Investigating Officer in view of Riaz Hussain's case referred above cannot be given any weight but the fact remains that case of petitioner and Muhammad Akbar is at par except the age factor. The alarming facts of the case are that two brothers of the petitioner have been awarded death sentence and three life imprisonments. His son Jamshed has also been sentenced to death. Father of petitioner Muhammad Akbar was also awarded life imprisonment. The entire family was convicted whereas according to the F.I.R. Jamshed, Nisar and Shahzad caused injuries to the deceased and the P. Ws. Muhammad Nawaz and Iftikhar were seen at the time; the accused fled away from the place of occurrence. Muhammad Akbar, Pervaiz and petitioner were not present at the place of occurrence. All the three were found innocent by three Investigating Officers and a discharge report was submitted for approval of the Court but the same was declined. We cannot appreciate the evidence at this stage in view of Adil Bashir's case refereed above but the salient features of the case cannot be ignored altogether. Muhammad Akbar's case is at par with the petitioner except that he was aged about 80 years. The other aspects vis-a-vis the allegation or abetment, award of death sentence to his son Jamshed, his two brothers and life imprisonment to the remaining three brothers are similar. The Honourable Supreme Court in the case of Abdul Aziz Khan Niazi v. The State PLD 2003 Supreme Court 668 observed that the case of co-accused with similar allegation stand at par to each other and that being not distinguishable from the other on merits in the light of rule of consistency petitioner will also be entitled to the concession or bail. We are of the considered view that the case of the petitioner is also most at par with that of Muhammad Akbar whose sentence has been suspended by us and upheld by the Honourable Supreme Court.

7. In the light of the discussions made above, sentence of the petitioner is suspended subject to his furnishing bail bonds in the sum of Rs.2,00,000 (rupees two lacs) with one surety in the like amount to the satisfaction of the trial Court. N.H.Q./J-100/L Sentence suspended.