' KHALIL-UR-REHMAN RAMDAY, J.---Saif Nadeem Electro (Pvt.) Limited (hereinafter called the respondent-purchaser) filed a suit in the Court of the learned Senior Civil Judge, Lahore seeking performance of the sale agreement dated 7-1-1989. The suit was filed on 30-4-1990. Aziz Ahmed and others (hereinafter-called the owners) did not deny the execution of the said sale agreement but pleaded that it was the said respondent-purchaser who had defaulted in payment of the balance amount of consideration and had consequently failed to secure the execution and registration of the requisite sale-deed.
2. During the pendency of this suit, one Muhammad Ramzan (hereinafter called the rival- purchaser) also filed a suit in the Court of the same learned Senior Civil Judge against the same owners, seeking specific performance of a sale agreement dated 28-3-1990 allegedly, executed by the said owners in favour of the said rival-purchaser with respect to the same land. When Saif Nadeem Electro came to know of the filing of the said suit by the said rival-purchaser, they made an application praying that they be impleaded as a party in the Said suit filed by the said Ramzan rival-purchaser, which application was allowed whereafter both the said suits were consolidated and tried together.
3.. As a result of the said trial and through a consolidated judgment dated 20-10-2004, the suit of Saif Nadeem Electro purchaser was decreed. The said purchaser was directed to deposit the balance amount of sale price within thirty days and the owners were directed to execute the sale deed in its favour failing which the said purchaser was declared entitled for the execution and registration of the requisite sale deed through the process of Court. Through the same judgment, the suit filed by the rival-purchaser Ramzan was partly decreed but only to the extent of return of the earnest money paid by him to the owners and with respect to the remaining part of the relief, the said suit was dismissed.
4. The owners of the land as also the above-mentioned rival-purchaser filed Regular First Appeals before the Lahore High Court which were all dismissed through a consolidated judgment dated 19- 4-2006 passed in Regular First Appeal No,462 of 2004.
5. The owners and the said rival-purchaser are now before us through various petitions questioning the said concurrent findings of the two courts.
6. We have heard the learned counsel for the petitioners and have also perused the record with their assistance.
7. Besides the admission of the owners regarding execution of the sale agreement dated 7-1-1989 (Exh-P.4) in favour of Saif Nadeem Electro, it had been found from the evidence adduced by the said purchaser that it had successfully established the execution of the said document through Muhammad Akhtar and Maqbool Ahmed, P.W.2 and P.W.5, respectively, who were the marginal witnesses of the said document as also through the testimony offered by Mr. Mushtaq Butt, Advocate (P.W.3) who had scribed the same. On the strength of the testimony of Muhammad Ashraf (P.W.1) who was a representative of the National Bank of Pakistan, it had also been concurrently found that the said Saif Nadeem Electro had paid Rs,9,50,000, as earnest money, to the owners through Exh.P.l, Exh.P .2 and Exh.P.3.
8. Analysing the testimony of Shahnawaz (P.W.6) who was allegedly the stamp vendor and the scribe of the agreement in favour of the rival-purchaser; the testimony of Hassan Muhammad Naqvi (P.W.7) who claimed to be a marginal witness of the said sale agreement (Exh.P .W.1/1) and the statement of Bilal Ahmed (P .W.8) who had appeared as the attorney of the said Ramzan rival- purchaser, both the Courts had found that the rival-purchaser had neither been able to prove the execution of the sale agreement in question dated 28-3-1990 allegedly executed by the owners in his favour nor could the said rival-purchaser prove the payment of earnest money with respect to the said alleged transaction. Both the Courts also found that the admission of the owners vis-a-vis the execution of the above-mentioned sale agreement in favour of the rival-purchaser namely, Muhammad Ramzan or their admission regarding receipt of Rs,21,09,270 as earnest money, could be pressed into service only against the owners and not against Saif Nadeem Electro who had specifically claimed that the said alleged sale agreement was a result of the collusion between the owners and the said Ramzam and that the said claim had been set up only to defeat the rights which had accrued to the said Saif Nadeem Electro.
9. Vis-a-vis the minority of one of the co-owners, namely, Siddique, the two Courts were again unanimous in declaring, and rightly so that the agreement on his behalf had been executed by his mother who was the de facto guardian who had been, subsequently, specifically appointed by the learned Guardian Judge as the de jure guardian of the said minor especially .For the purpose of sale of the land in question in favour of Saif Nadeem Electro and with respect to which sale, the said learned Guardian Judge had even granted permission to the said guardian.
10. The learned counsel for the petitioners i,e, for the owners of land and for the rival-purchaser could not point out any illegality in the said concurrent findings nor could it be shown to us that the said findings were based on misreading of any evidence or suffered from non-reading of any part thereof. The only other ground canvassed by Mr. Shahzad Shaukat, the learned Advocate Supreme Court for the owners was that the suit filed by Saif Nadeem Electro Limited had been unauthorisedly filed as no resolution of the company was placed an record authorizing its Chairman to file the same. When confronted with the issues framed at the trial, the said learned counsel admitted that no issue stood struck vis-a-vis the said question nor had any such issue ever been claimed by the owners-defendants. In this view of the matter, this submission of the learned Advocate Supreme Court was misplaced.
11. Having thus examined all aspects of the matter, we find no merit in these petitions which are accordingly dismissed. Leave refused.
12. Before we part with this order, we would like to bring on record that C.P.L.As. Nos.1227-L and 1228- L of 2006 had been filed by one of the above-mentioned co-owners, namely, Muhammad Siddique who was a minor at the time of filing of the suits in question. These petitions had been filed by Mr. Tanvir Ahmed, Advocate-on-Record and Mr. Tariq Munir Malik, the learned Advocate Supreme Court appears to have been engaged to assist this Court on his behalf. No one, however, appeared to prosecute these petitions which petitions are accordingly dismissed for non-prosecution which is only a technical dismissal for non-prosecution because, as would appear from the above, the merits of the case vis-a-vis all the owners had been presented before us at some length and we had examined the said merits relating to all the owners, in some depth.
Petitions dismissed.
2011 $ C M R 925 [Supreme Court of Pakistan] Present: Mian Shakirullah Jan, Rahmat Hussain Jafferi and Tariq Pervez Khan, JJ MUHAMMAD AKRAM---Appellant versus THE STATE---Respondent Criminal Appeal No, 272 of 2009, decided on 5th January, 2010.
(On appeal from the judgment dated 18-5-2004 of the Lahore High Court, Lahore passed in Criminal Appeal No, 923 of 2002 and Murder Reference No, 63-T of 2000).
Penal Code (XLV of 1860)- --S. 302(b)---Qatl-e-avid---Appraisal of evidence---Complainant was fully supported by the injured witness, whose presence on the spot could not be doubted because of injuries on his person---None of the said two witnesses had any enmity with the accused to falsely charge him in the case, where five persons had been killed---Accused was named in the F.I.R. To be armed with a hatchet and he had caused a hatchet blow to the deceased on the left side of his shoulder--- Medical evidence had corroborated the ocular testimony---Abscondence of accused for more than one year had further corroborated the eyewitness account---Prosecution had brought home the charges against the accused, whose sentence of death had already been converted into imprisonment for life by the High Court---Appeal of accused was dismissed in circumstances. [p.
9281 A, B, C & D Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.
Syed Ali Imran, D.P.-G., Punjab for the State. Date of hearing: 5th January, 2010.
' 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 awarded 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 tiled 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 All 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 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.