' RAUF AHMAD SHEIKH, J.---Muhammad Razzaq appellant has assailed the judgment dated 31-10- 2008 passed by Mr. Sohail Ikram, learned ASJ, Attock, in case F.I.R. No 79 dated 2-4-2007 under sections 302/342/447/148/149, P.P.C. At Police Station Fateh Jang, whereby he was convicted under sections 302(b)/34, P.P.C. And sentenced to life imprisonment, He was further ordered to pay a sum of Rs,1,00,000 as compensation under section 544-A, Cr,P,C, to the heirs, of the deceased failing which he would undergo' S.I. For six months. He was also convicted under section 342, P.P.C., and sentenced. To one year R.I. And a fine of Rs,3,000 and in default to undergo S.I. For one month. He was given the benefit of section 382-B, Cr.P.C. It was ordered by the learned trial Court that both the sentences would run concurrently.
2. Briefly stated the prosecution version as set forth in the F.I.R. (Exh.PN) recorded on the statement of Muhammad Afzal son of Sher Dil, Caste Awan, resident of Qutbal, are that their land entered in Khasras Nos.877, 878, 1267 and 1268 situated in the revenue estate of Qutbal is on the road side in the North of the main road where they have constructed a Haveli and two rooms where he, his brother Shaukat Hayat and their mother's brother's son Sajjad used to sleep in the night for watch.
On the preceding night also he, Shaukat Hayat and Sajjad slept in the room constructed in the Eastern corner. At about 5-30 a.m. In the morning Muhammad Razzaq appellant along with Usman armed with Kalashnikov, Masood Ahmad and 4/5 other persons who could be identified on face to face meeting suddenly entered in the room and overpowered them. They forcibly removed them to adjacent Dhoke of Mustafa towards East at a distance of 40/50 yards and took them in the vacant room situated towards road side and tied their hands. Their remaining accomplices started demolishing their house and walls. They confined them in the room and left one white bearded person aged about 50/55 years on their guard. Shaukat Hayat complainant's brother untied his hands with struggle on which the person on guard started hurling abuses on which scuffle and grappling started between him and Shaukat Hayat. It was about 7-00 a.m. When Muhammad.
Razzaq empty handed, Muhammad Usman armed with Kalashnikov, Masood Ahmad empty- handed again arrived there on Pajero Vehicle with breakfast for their accomplices. The grappling, scuffling and exchange of abuses were going on between the said person and Shaukat Hayat.
Muhammad Razzaq and Usman armed Kalashnikov broke open the door and came inside. On entering in the room, Razzaq exhorted Usman that he should make fire on Shaukat and Usman made straight fire with Kalashnikov, which hit Shaukat Hayat on left side of his chest. He made second fire, which hit his own bearded accomplice. Shaukat died at the spot. Razzaq, Usman and Masood took their injured accomplice and fled away after chaining the door from outside. The complainant and Sajjad untied their hands and came out through the window after breaking the pane. Regarding motive, it was alleged that the land of Muhammad Razzaq appellant entered in Khasra No,879 was behind their land, he sold it and wanted to give the possession of their land to the purchaser on which there was a dispute between them and Muhammad Razzaq and for this grudge, Muhammad Razzaq, Usman and Masood and their other accomplices after consultation with each other put them under illegal confinement and caused Qatal of Shaukat Hayat.
3. After investigation, the appellant and his co-accused,, Masood Ahmad, Muhammad Aslam and Gulab Shah were challaned whereas their co-accused Usman became fugitive from law and was declared as proclaimed offender. They were charged under sections 302/427/342/ 148/149, P.P.C.
They pleaded not guilty and claimed trial. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant as above whereas his co-accused Masood and Gulab Shah were also convicted under section 342, P.P.C. And were sentenced to one year's R.I. And a fine of Rs,3,000 each whereas Muhammad Aslam was acquitted.
4. The appellant has assailed the conviction recorded and sentence awarded to him through Criminal Appeal No,303 of 2008. The complainant has also filed an appeal under section 417(2), Cr.P.C. (Criminal Appeal No,325 of 2008) regarding acquittal of Masood Ahmad and Gulab Shah with a prayer that they may be convicted and sentenced under sections 302(b)/427/447/148/149, P.P.C. As both these matters are inter-connected so they are being decided together through this single judgment.
5. I have heard the arguments advanced by Sardar Muhammad Ishaq Khan, Advocate, learned counsel for the appellant, Mr. Sadaqat Ali Khan, Advocate, learned counsel for the complainant and learned D.P.G. For the State and have also carefully perused the record with their able assistance.
6. Sardar Muhammad Ishaq Khan, Advocate, learned counsel for the appellant has contended that only proverbial Lalkara is attributed to the appellant and his plea regarding false implication due to the fact that he did not sell the land to the complainant and sold it to sons of one Abdul Malik is plausible and made out from the record so conviction recorded and sentence awarded to him are not sustainable. In support of the contention raised, reliance is placed on Abdul Hameed v. The State (2008 PCr.LJ 768), Muhammad Latif v. Muhammad Hanif and 2 others (1989 SCM R 1105) and Khalid Mahmood and others v. State (1998 PCr.LJ 901). It is also urged that the ocular account furnished by the P.Ws. Suffers from discrepancies, improbabilities and weaknesses so the same cannot be relied upon. It is also urged that there was contrast between the ocular account furnished by the P.Ws and medical report qua the injuries sustained by Gulab Shah so the ocular account could have not been relied upon in recording the conviction. In support of the contention raised reliance is placed on Ghulam Murtaza v. The State (2008 M LD 958), Khizar Hayat and others v. The State and others (2009 M LD 325) and Saeed Akhtar and others v. The State (2000 SCM R 383).
It is also urged that no direct evidence of conspiracy and reliable evidence regarding instigation is available so the learned trial Court erred in convicting the appellant. Reliance is placed on Khadim Hussain and others v. The State and others (2007 PCr.LJ 886).
7. Controverting these arguments, learned counsel for the complainant has contended that Muhammad Razzaq appellant was the person with whom there was a dispute over piece of land in lawful possession of the complainant and litigation was going on so he had the motive. It is urged that it was not a case of proverbial Lalkara simplicity rather the appellant brought his co-accused, abducted the complainant, deceased and others per force to the Dera of Mustafa, confined them there, asked his accomplices to demolish the house and walls, came back to provide breakfast and when saw scuffle between the deceased and Gulab Shah, he gave him command to make the fire on which the fire was made, which took life of an innocent young man and also caused injury to Gulab Shah who was removed by the appellant and others, It is stated that the appellant was the main character and responsible for this occurrence so he was responsible for each and every offence committed under section 34, P.P.C. In support of the contention raised, reliance is placed on Fayyaz Hussain Shah v. The State (2002 SCM R 1848), Shoukat Ali v. State and Afzal PLD 2007 SC 93 and Afzal and another v. The State (2007 SCM R 315). It is urged that the relationship of the prosecution witnesses with the deceased or the complainant is not ipso facto a ground to ignore their evidence and the intrinsic value is to be kept in view. Reliance is placed on Sahib Khan v. The State (2008 SCM R 1049) and Dilbar Masih v. The State (2006 SCM R 1801). It is urged that dispute over .Land by itself was not sufficient to falsely implicate the appellant and leave the actual culprits as no close relative of the deceased would do it. It is contended that the evidence of the P.Ws. Was rightly relied upon by the learned trial Court. Reliance in this respect is placed on Khizar Hayat v.
Imtiaz Ali Khan and 2 others (2004 SCM R 845) and Munir Ahmed v. The State (2001 SCM R 241).
8. Muhammad Afzal (P.W.10) and Muhammad Sajjad (P.W.11) have categorically stated that Muhammad Razzaq empty-handed, Muhammad Usman (P.O.) armed with Kalashnikov, Masood Ahmad accused along with 4/5 persons entered in their room, overpowered them and forcibly took them at a distance of 40/50 yards in the Dhoke of Mustafa situated on the Eastern side. They further stated that Muhammad Razzaq and others again came there and on seeing the scuffle between Shaukat Hayat and Gulab Shah, Muhammad Razzaq asked Usman to fire on Shaukat and due to his fire Shaukat died. Both these witnesses have given plausible explanation of their presence in their Haveli. The minor differences in their statements as pointed out by the learned counsel for the appellant are result of passage of time and natural phenomena. Both these witnesses had no enmity to depose falsely against the appellant. It is contended by the learned counsel for the appellant that the appellant had alienated his land situated in Khasra No,879 and had no concern with it at the time of occurrence so there was no reason for him to involve himself in the murder which might be result of dispute between the complainant with someone else. It is true that as per entry in the Register of Rights, he had alienated his land on 15-3-2007 but the motive as stated by the complainant is that after the sale, he wanted to hand over the possession of the land owned by the complainant party, which was in different Khasra numbers and was on the road side. It is clear from the cross-examination on the P.Ws. That there was claim and counter-claim regarding the land situated on the road side. The mere sale of the land would not absolve the appellant of the liability, which is otherwise proved through cogent evidence. It has then been argued that Pajero Jeep was not owned by the appellant as no inquiry was made from the office of the ETO and this fact was also not considered by the learned trial Court, which alone was sufficient to disbelieve the prosecution version. The use of the Pajero Jeep would not show that it was ever claimed by the prosecution that the same belonged to the appellant. By any stretch of imagination, it does not prove that the strong ocular account is false.
9. It has then been argued that the medical evidence is in vast contrast with the ocular account so the same could have not been relied upon as it lacked credence. Dr. Asad Iqbal (P.W.2) had conducted the autopsy on the dead body of the deceased Shaukat Hayat and found the following injuries on his person:--
(1) A lacerated wound of fire-arm measuring 6 x 6 c.m. x in going on the left scapular region. 18 c.m.
Below from the left Aeromion process 13 c.m. Lateral and behind from left mid axillary line with margins inverted, surrounding area clear.
(2) A lacerated wound of fire-arm measuring 2 cm x 1 cm x out going on the right side of chest. 7 cm lateral and slightly below right nipple.
He had further opined that the time between the death and postmortem was 2 to 6 hours, The post-mortem was conducted on 2-4-2007 at 10-30 a.m. The time, seat of injury and nature of injury provide necessary corroboration to the prosecution version.
10. The main stress has been made on statement of P.W.3 whereby he stated that injury sustained by Gulab Shah accused was caused with blunt weapon. It is urged that according to P.Ws., he had sustained an injury with fire-arm and as such their evidence be discarded. The learned counsel for the complainant has contended that the accused had himself submitted an affidavit before the Magistrate wherein he had admitted that he had sustained injury with fire-arm. Neither the said affidavit has been proved nor the witness has been confronted with the same but the statement of P.W.3 shows that the patient had himself given history of sustaining the injury through fire-arm. It is also stated by the Doctor that he could not give duration of the injury due to infection and as such it appears that either he had tried to give concession to the accused persons or due to the condition of the injury he could not exactly ascertain the weapon used. Anyhow medical evidence adduced by Dr. Asad Iqbal (P.W.2) who conducted the autopsy of the deceased fully corroborates the ocular account and as such the ocular account cannot be disbelieved.
11. It is established on the record through cogent, reliable, trustworthy and confidence-inspiring evidence that the appellant along with his accomplices over powered the complainant, deceased and others, forcibly removed them to the Dera of Mustafa, put them under confinement and when he came back, he saw scuffle and then exhorted his co-accused to make fire, which took life of Shaukat Hayat deceased. It was broad daylight occurrence where the matter was reported to the Police just after one hour and 40 minutes although the distance between the Police Station and the place of occurrence was 11 Kilometres. The motive is established against the appellant. He facilitated his accomplices, led them and took active part in the occurrence. He was sharing common object and was responsible for each and every offence committed at the spot. In this respect reliance is placed on case law reported as 2002 SCM R 1848, PLD 2007 SC 93, 2007 SCM R 315. The case law cited by the learned counsel for the appellant reported as 1998 PCr.LJ 901, 1989 SCM R 1105 and 2008 PCr.LJ 768 is not applicable on the facts of the present case. The impugned judgment is based on proper appraisal of the evidence. The learned trial Court evaluated each and every aspect in its true perspective and arrived at correct conclusion. The conviction recorded and sentence awarded are unexceptionable.
12. The learned trial Court while acquitting the respondents of Criminal Appeal No,325 of 2008 from the charge under sections 302/ 427/447/148/149, P.P.C. Has given cogent reasons and the judgment to this extent also is neither perverse nor illusory.
13. For the reasons supra, both the Criminal Appeals are without merits and are accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.