MAQSOOD AHMAD Versus THE STATE

BASHIR A. MUJAHID, J .---Maqsood Ahmad son of Arif has challenged judgment dated 14-6-2002 .passed by learned Judge Anti -Terrorism Court, Faisalabad, whereby he was convicted and sentenced as under:--

Under section 302(b), P. P. C. and under section ATA, 1997.

Death sentence on two counts, and to pay compensation of Rs.20,000 under section 544-A, Cr.P.C. to be apportioned by the legal heirs of the deceased Zahoor. In default 6 months' S.-I. Under section 7 ATA he was also directed to pay fine of Rs.20,000 and in default to suffer further S.I.' for six years.

Under section 334, 337-R, P.P.C.

10 years' R.I. with Diyat of Rs.50,000 on two counts. If realized to be paid to the injured Naseer and Zulfiqar. In default of 'payment to suffer 3 years S.-I. or till realization of Diyat amount whichever is earlier.

Under section 337-F(iii), P.P.C.

Two years' R.I. with daman of Rs.10,000 on two counts. If realized to be paid to Dollan and Imtiaz or in default thereof to suffer further sentence for three years or till realization of Daman whichever is earlier.

Under section 7(C) ATA, 1997.

10 years' R.I. with a fine of Rs.10,000. In. default thereof to undergo S.I. for two years.

2. Brief facts of the case are that F.I.R. No.217 of 2000 was registered on the statement Exh.PJ of Shekeel Ahmad P.W.8 at Police Station Jaranwala District Faisalabad, recorded by Khalid Inspector, P.W.14 at Civil Hospital, Jaranwala 9-45 p.m. alleging therein that on 17-3-2000 at 7-00 p.m., the complainant and his brother Naseer Ahmad were sitting in their Baithak and their brother Zahoor was standing in the door of Baithak to go for some work. All of sudden Muhammad Aslam armed with Kalashnikov, Umar Hayat with .222 rifle, Murtaza with Kalashnikov, Shaman also with Kalashnikov, Tariq alias Dona with rifle and Maqsood also with rifle arrived there. Electric light inside and outside the Baithak were on. Muhammad Aslam raised lalkara to the effect not to spare alive Zahoor and his brother. Umar Hayat fired twice with his rifle at Zahoor which hit the left side of his belly. Shaman then fired at Zahoor. It hit his left elbow, Umar Hayat again fired which hit the left upper arm of Zahoor who fell down towards inside the Baithak. Maqsood fired on fallen Zahoor which hit his left wrist. Tariq fired with his rifle at Zahoor which hit near his left armpit. Shaman fired at Zahoor which landed at nose. Aslam and Murtaza then kept on firing with their Kalashnikovs to spread panic in the area. The complainant ran towards the door, opening his house when Naseer, his brother was fired by Murtaza with his Kalashnikov. It hit his leg. Zahoor and Naseer sustained serious injuries. Then all the accused fired intensively to spread terrorism and fear. At that time Umar Hayat and Anwar P.Ws. were also present in the complainant's house to witness the occurrence. The accused then went towards Bazar while firing. When they reached near the Baithak of Akram. Imtiaz was coming from the front side Tariq fired which hit his left leg of Imtiaz who fell down and Doni fired at him which hit his left leg. This occurrence was seen by Abbas and Mushtaq Upon hearing the reports of the fires Mst. Dollan wife of Sarang came out. She was fired at with his Kalashnikov by Shaman. It hit at her back and she fell down. The second fire was shot by Umar Hayat which hit on her left flank. This occurrence was seen by Umar Hayat and Akram. Then the accused Aslam while firing went to the house of Zulfiqar and forced him out of house, on gun-point. He was taken toward canal side and made to lie on the ground. Umar Hayat, Murtaza, Shaman and Maqsood with their respective weapon fired at legs of Zulfiqar which hit his thigh and legs. Upon the reports of fires and hue and cry of the injured the accused fled away. This occurrence was committed on the abetment of Ahman and Mulla. The complainant took the injured to Jaranwala Hospital and got them medically examined. The dead body of Zahoor was lying on the spot.

3. The reason behind the occurrence was that 4-5 years prior Arif Sanbal, the brother of Aslam was killed. The accused suspected that Zahoor was also involved in the murder of Arif Sanbal. The injured revealed the occurrence to the complainant. The latter presented MLCs to the Investigating Officer. It was also revealed to him by Iqbal and Umar Hayat P. Ws. that they were in pursuit of the accused who snatched official rifle of Iqbal while 'said Iqbal alongwith Muhammad Anwar was coming to Police Station Lundianwala on duty having recorded this statement, Muhammad Khalid Inspector read it over to the complainant Shakeel who signed this statement as token of its correctness.

4. After registration of case, investigation was undertaken by Inspector Khalid P.W.14, who arrived at the spot and prepared the injury statement of the dead body of Zahoor Ahmad deceased through memo. Exh.PF and inquest report Exh.P.G. on 18-3-2000. He took, into possession last worn-clothes of the deceased after post-mortem examination through memo. Exh.P.K. On the same day Aslam and Murtaza co-accused were killed in police encounter within the limits of Police Station Satiana and case F.I.R. No.87 of 2000 was registered in this regard. He after necessary formality got declared Umar Hayat, Shaman alias Shami, Tariq and Maqsood (appellant) as proclaimed offenders. After completion of investigation, he submitted the challan.

5. Maqsood Ahmad appellant was confined in District Jail Sheikhupura wherefrom he was summoned to face the trial in this case.

6. The trial Court framed the charge which was denied by the appellant and he claimed trial.

7. At the trial prosecution in order to prove its case produced 15 witnesses in all. Medical evidence was furnished by Dr. Ahmad Nawaz Saleemi P.W.1 who on 17-3-2000 conducted medico-legal examination of Mst. Dolat Bibi, Zulfiqar son of Taj Din and Dr. Tahir Mahmood P.W.2, CMO THQ Hospital, Jaranwala on 18-3-2000 conducted post-mortem examination on the dead body of Zahoor Ahmad deceased.

8. Ocular account was furnished by Shakeel Ahmad' P.W.8 complainant of the case, who narrated the version of the F.I.R. and motive for the occurrence. Apart from Shakeel Ahmad, P.W.8, Mst. Dollan Bibi injured witness was examined as P.W.9, Zulfiqar P.W.10, Naseer Ahmad P. W.11, and Imtiaz P. W.12 who were eye witnesses of the occurrence and they were also injured in the same incident at the hands of the accused party. They supported the prosecution case. The remaining witnesses are of formal nature and need not to be discussed.

9. The prosecution evidence was closed by tendering in evidence the report of Chemical Examiner as Exh.P.R. and that of Serologist Exh. P.R./1.

10. The statement of appellant was recorded under section 342, Cr.P.C. He denied the allegations and claimed innocence and false involvement. In reply to question No.13 as to why this case against him and witnesses have deposed against him, he replied as under:--

"I am innocent. This case is false. I was challaned because of collusion between the police and complainant side. I had intimacy with co-accused or enmity with the complainant side due to suspicion, I have been inducted in this case."

11. The trial culminated into conviction and sentence as mentioned above, which has been challenged through Criminal Appeal No.1796 of 2002 while trial Court has sent Murder Reference No.69-T of 2002 for confirmation of death sentence. Both the matters are being disposed of by this single judgment.

12. Learned counsel for the appellant in support of this appeal has argued that there is no motive alleged by the prosecution against the appellant; that the injury attributed to Maqsood Ahmad is on wrist which is a non-vital part of the body, therefore, it is not a case of capital punishment; that the Investigating Officer has admitted this fact that the appellant is a resident of far-flunged area and not of the locality and has no connection with the co-accused, no enmity has been alleged against him; that statements of injured P.Ws. were recorded after three days of the occurrence and by placing reliance on "Syed Saeed Muhammad Shah and another v. The State" (1993 SCMR 550), it has been argued that these statements cannot be relied upon. It has been further argued that blood-stained earth was sent to the office of Chemical Examiner after 16 days of the occurrence. The case against the appellant is doubtful and he is entitled for acquittal.

13. Conversely, the appeal has been opposed by the learned State counsel, who has supported the impugned judgment.

14. Heard. Record perused.

15. The occurrence took place at 7-00 p.m. on 17-3-2000 and Exh.P.J. the statement of Shakeel Ahmad P.W.8 was recorded on the same day at 9-45 p.m. wherein the appellant has been specifically nominated in the F.I.R. The injury attributed to the appellant has been fully corroborated by medial evidence. His participation in the occurrence cannot be doubted as four prosecution witnesses were. injured in the same occurrence namely Mst. Dollan Bibi P.W.9, Zulfiqar. P. W.10, Naseer Ahmad, P. W.11 and Imtiaz P. W.12, and they fully implicated the appellant for commission of crime. They have no previous enmity for false implication of the appellant. The complainant in his cross-examination has stated that appellant had friendly relations with his co-accused, as they remained together in jail previously, therefore, even if the appellant is resident of some other village is immaterial. He came alongwith his co-accused duly armed at the place of occurrence and resorted to firing. He shared common intention with his co-accused. therefore, the argument of learned counsel that he caused only fire shot on the non-vital part of the deceased is immaterial as he is vicariously liable to death of Zahoor Ahmad deceased and causing injuries to the P.Ws. He was also declared proclaimed offender which also corroborates/strengthen the prosecution case.

16. After deep re-appraisal of evidence, we are convinced that the prosecution case has been proved against the appellant beyond any shadow of doubt, therefore, this appeal is dismissed, conviction and sentence recorded against the appellant is maintained.

17. Murder Reference is answered in affirmative.

H.B.T./M-1750/L Appeal dismissed.