1. ' The above captioned reference and two appeals pertain to the one and same judgment of District Criminal Court, Bhimber dated October 21st, 2004, therefore, these shall be disposed of through this single judgment.
2. ' The precise facts giving rise to reference and the appeals are that a case under sections 302/324, 341/109 and 337/34-F, A.P.C. Was registered against the appellants Waheed Iqbal, Yasir, Peeran Ditta and Fazeelat Bibi at Police Station Bhimber.
3. ' Briefly stated the prosecution case, as unfolded in the F.I.R., is that Muhammad Afz'al, complainant, moved, an application before the Station House Officer, Police Station Bhimber, on 16-7-2004 stating therein that he, along with Nasir Iqbal, son of Talib Hussain, and Yasir son. Of Bashir Ahmed resident of Gohra Khairan was coming from Cheryawala after performing the prayer of Jumma.
4. They stepped down from the bus at bus stop Bersali. They were going towards their homes. At about 5-00 p.m., when they reached at Kass Nullah Bersali, they found Waheed Iqbal son of Ghulam Rasool sitting in front them. Yasir, son of Said Rasool was coming from the backside. Yasir, son of Said Rasool starting firing with the intention to murder the complainant. His fire hit on the left arm of the complainant. At the same time, Waheed Iqbal and Yasir also started firing on Nasir Iqbal. Due to this tiring, Nasir Iqbal died on the spot. Another unknown person was also accompanying the accused persons, who was having a stick in his hand. This occurrence was witnessed by Younus, son of Talib Hussain, Yasir, son of Bashir Ahmed and many other persons. The cause of occurrence was that the accused were having strained relations with Nasir Iqbal. Prior to it, a compromise took place between them, but the accused persons murdered Nasir Iqbal. The occurrence was committed on the abetment of Peeran Ditta and Fazeelat Bibi.
5. ' On this application, a case was registered. After registration of the case, the police went on the place of occurrence and prepared inquest report Exh.P.L. Injury sheet of Muhammad Af'zal complainant was also prepared. The police sent dead body of Nasir Iqbal (deceased) for postmortem to District Headquarters Hospital Bhimber. Injured Afz'al was also referred to Doctor.
6. The doctor found following injuries on the dead body of Nasir Iqbal (deceased):-- "Injury No,1. Oval wound 2 c.m. Long on front of left side of chest. 2 c.m. Medial to mid clavicular line in the 5th intercostals space, margins inverted. Blackening around wound present, but no tattooing present. No exit wound present.
7. ' Injury No,2. Entry wound oval in shape 2 can. Long on back of left side of chest margins inverted wound present 3 c.m. Inferolateral to left subscapular margins. No exit wound present.
8. ' Injury No,3. Entry wound oval wound 2.5 c.m. Diameter on inferolateral portion of mid of left arm, blackening and tattooing present around the wound. Margin inverted, exit wound present on medial side of left arm upper most part 2.8 c.m. Margins averted.
9. ' Injury No,4. Bullet causing injury No,3, after exit from medial side of left arm caused wound 2.5 c.m.
10. On axilla upper most part (lateral part of chest) oval in shape bullet without penetrating chest slipped away after striking 4th rib in the left side.
11. ' Injury No,5. Lacerated wound on chin right side, deep, irregular margins, 3 c.m. Long.
12. ' Injury No,6. Incised wound on forehead right side 3 c.m. Long, horizontal, margins shape, skull bone not exposed.
13. ' Injury No,7. Incised wound 0.4 c.m. Long, on upper eye lid, right side, superficial.
14. ' Injury No,8.
15. 0.4 c.m. Incised wound on lower eye lid, right eye, superficial.
16. ' One bullet is recovered from lower most portion of right thoracic cavity, second bullet recovered from subcutaneous fat in 4th I.C.S. In mid clavicular line on right side. Piece of bullet recovered from behind the sternum.
17. ' According to the doctor, the cause of death was rupture of heart, due to bullet causing injury No, 1.
18. Injuries Nos.1, 2, 3 and 4 were firearm injuries. Injury No,5 was caused with a blunt weapon and injuries Nos.6, 7 and 8 with a sharp-edge weapon. The doctor also examined Muhammad Afzal and found following injuries on his body:-- "Injury No,
1. Oval wound (entry wound) 1.3 c.m. Length on anterior portion of left deltoid muscle near angle of axilla (anterior) margins inverted. No blackening or tattooing. Red blood oozing.
19. ' Injury No,2. Oval wound for exit 1.8 c.m. Length and posterior lateral portion of lower margin of deltoid muscle."
20. ' The police went on the spot and recovered clay and pebbles from the place where the dead body was lying and papered a recovery memo. Exh.P.D. The police also recovered two empties of .30 bore pistol from the place of occurrence and prepared a recovery memo. Exh.P.E. The police recovered another empty from where Yasir Iqbal, son of Said Rasool was firing' and prepared a recovery memo. Exh.P.F. On 17-7-2004, the C.M.O. Bhimber, after conducting the post-mortem, handed over Shalwar, Shirt and Banian stained with blood to the police in presence of Abdul Jabbar and Nazir Ahmed. Recovery memo. Exh.P.C. Was prepared by the police. On 22-7-2004, Abdul Qayyum Patwari, prepared the site plan along with the explanation Exh.P.J. On 28-7-2004, the police recovered a .30 bore pistol at the instance of accused-Yasir Iqbal from his house situated in Gohra Khairan and prepared a recovery memo. Exh.P.G. On the same day, the police also recovered a .30 bore pistol at the instance of Waheed Iqbal from his house and prepared recovery memo. Exh.P.H. On 28-7-2004, the police prepared site plans of the places from where pistols were recovered at the instance of accused Waheed Iqbal and Yasir. Both the pistols were sent to Forensic Science Laboratory Lahore, from where report has been received and is placed on the record as Exh.P.P. Blood-stained clay and pieces of stones, clothes, Shalwar and Shirt were also sent to Chemical Examiner who submitted his report which is Exh.P.Q. After completing investigation, the police submitted challan before District Criminal Court, Bhimber against the accused persons. The trial Court, after completion of the trial, awarded death sentence to Waheed Iqbal under section 302, A.P.C. Besides the sentence of Diyat amounting to Rs,1,12,310 and 7 years' imprisonment for the offence under section 337-A, and sentence of Daman amounting to Rs,20,000. The amount of Diyat and Daman shall be paid to the heirs of the deceased. However, he was acquitted from the charge under section 341, A.P.C. Yasir was awarded sentence of life imprisonment under sections 302 and 34, A.P.C., sentence of Arsh amounting to Rs,1,12,310 under section 324, A.P.C. And sentence of 7 years' imprisonment was also awarded to him. Remaining accused-persons were acquitted from the charge. A reference has been submitted by the District Criminal Court for confirmation of death sentence while Waheed Iqbal and Yasir have filed appeal against the sentence awarded to them. Third appeal has been filed by the father of the deceased for enhancement of the sentence awarded to Yasir and against the acquittal of Peeran Ditta and Fazeelat Bibi.
21. ' Ch. Jahandad Khan, the learned counsel appearing for the convict-appellants contended that the lower Court has wrongly awarded sentence to 'the convict-appellants. The prosecution has failed to prove its case beyond any doubt. He submitted that in the F.I.R., it was stated that Waheed Iqbal, son of Ghulam Rasool, was sitting in front of the deceased while Yasir son of Said Rasool was coming from the backside. Whereas' in the Court, it has been stated that Yasir was sitting on a well.
22. The learned Advocate further submitted that Afz'al has deposed that he remained for about 4 or 5 days in the hospital, while medical report did not contain as such. He submitted that Yasir Bashir P.W. Deposed that Waheed came out from the Haveli of Sarwar while Muhammad Younus P.W.
23. Deposed that Waheed came out from the gate of the house of Iqbal. According to the complainant, accused-Waheed was sitting in bushes in front of Nasir Iqbal. These contradictions, lead to the conclusion that these witnesses have not seen the occurrence. It was next contended by the learned counsel that even post-mortem report and the medical report are contrary to the story of the prosecution. He submitted that according to the prosecution, empties were sent to the Fire-arm Expert through Muhammad Yaqoob constable but he did not appear as witness before the trial Court. The person through whom the clay and cloths were sent to Chemical Examiner also did not appear as witness, therefore, it cannot be said that the aforesaid pistols, clay and cloths were sent to Fire-arm Expert and Chemical Examiner respectively. It was further contended by the learned Advocate that doctor has stated that Nasir Iqbal was unable to walk after sustaining injuries while according to the prosecution story, he walked up to the house of Raja Liaquat Ali and died there. He further submitted that Afz'al deposed that Waheed was sitting on a "Thara" and Yasir was behind them, while, in the Court, he deposed that accusedWaheed Iqbal was hiding behind the bushes in the Nullah. The learned Advocate submitted that lower Court has wrongly awarded death sentence to Waheed Iqbal and life imprisonment to Yasir, therefore, the judgment of the Court below is not sustainable.
24. ' While controverting the arguments of the learned counsel for the convict-appellants, the learned Advocate appearing for the complainant and State, argued that judgment of the lower Court to the extent of Waheed Iqbal is perfectly legal. He submitted that Waheed Iqbal was sitting in the way. Haveli of Muhammad Iqbal is also situated in the Nullah, therefore, the contradiction, pointed out by the learned Advocate for the convict-appellant that one witness has deposed that Waheed Iqbal was sitting in the Nullah in bushes and the other witness deposed that he came out from Haveli of Iqbal, is not contradictory because Haveli is in the Nullah, therefore, there is no contradiction. The learned Advocate submitted that there is complete unition among the eye- witnesses and it has been proved by the prosecution beyond any doubt that convict-appellants have committed the slay of Nasir Mehmood and have injured Muhammad Afz'al. They committed the instant occurrence with a preplanning, therefore, did not deserve for any leniency. He further stated that as the case of Yasir is concerned, the lower Court has wrongly awarded life imprisonment to him. Yasir participated actively in the occurrence. He fired bullets at Afz'al and Nasir Iqbal. His liability was more than the convict-Waheed Iqbal. The lower Court was legally required to assign reason for awarding life imprisonment to convictYasir while no justification has been given by the lower Court. The learned Advocate submitted that normal sentence for murder is death; while awarding life imprisonment to an accused of murder, reasons must be recorded by the trial Court and no such reasons have been recorded in the instant case. The learned counsel further submitted that the lower Court has wrongly acquitted Peeran Ditta and Fazeelat Bibi while according to the prosecution, there was sufficient evidence against these two accused persons, as the murder was committed on their abetment.
25. ' I have heard the learned counsel for the parties, perused the record and have given my utmost thought to the respective arguments advanced by the learned counsel for the parties.
26. ' In the instant case, there were three eye-witnesses out of whom Muhammad Afz'al was an injured witness. He appeared before the trial Court on 2-10-2004. He deposed that on 16-7-2004, he along with Nasir and Yasir came from Charyawala, after performing Jumma prayer. They boarded on the bus which was going to Kot Jamel. They stepped down from the bus at Bersali stop. They were going towards their homes, they saw Yasir sitting on a Thara of a well, while Waheed was coming towards them from the side of "Kass". He turned to the backside. Yasir was behind them. Yasir fired a bullet at him which hit on his left arm. Yasir fired another bullet on Nasir which hit on the backside of Nasir. Waheed also fired two bullets on Nasir. Nasir ran towards the backside and said while running away that we have been murdered at the instance of Peeran Ditta and Fazeelat Bibi. Nasir fell down near the house of Raja Liaqat. The convict-Waheed reached there and fired another bullet and also inflicted 3 or 4 injuries with the butt of pistol out of which, one injury was inflicted on the chin, other on the eye and one on the forehead. This occurrence was witnessed by Yasir, son of Muhammad Bashir and Younus. After two or three minutes of the occurrence, many people assembled there. Anwar and Shahbaz took him away to Bersali Bus Stop. A Hiace wagon was coming from Dhader side, Anwar and Shahbaz stopped the Hiace wagon and took him to the police station. At police station, he gave an application on -which the case was registered.
27. ' Yasir Bashir also appeared as a Witness. He deposed that on 16-7-2004, he along with Nasir and Afz'al was coming after offering Jumma prayer towards his home. When they reached near "Kass" from Bersali Bus Stop, Waheed (convict-appellant) suddenly appeared. He was armed with a pistol. Afz'al looked towards backside. Yasir, son of Said Rasool, fired a bullet upon him which it on his left arm. Yasir fired second bullet which hit Nasir. Meanwhile Waheed fired two bullets on the chest of Nasir. During this, he ran towards west side. Nasir also ran towards backside and fell down near the gate of Raja Liaqat. Waheed ran behind him. Waheed fired another bullet at Nasir who had already fell down. Waheed also inflicted injuries on his face with the butt of pistol. After it, the convict-accused ran towards west side. This occurrence was witnessed by Afz'al, Younus and him.
28. ' Muhammad Younus, appeared as a witness on October 6, 2004.
29. ' He deposed that on 16-7-2004, at 5-00 p.m., he was going to Bersali Bus Stop. Nasir, Yasir and Afz'al were coming from Bersali. Yasir, accused was behind them. Yasir (accused) fired a bullet which hit on the left arm of Afz'al. He fired second bullet which hit on the backside of Nasir. Waheed (accused) fired two bullets from the front side of Nasir which hit on his chest. Nasir fell down near the gate of Raja Liaqat. Waheed went there and fired another bullet on Nasir, who had already fell down. Waheed inflicted injuries with the butt of pistol to Nasir. Waheed and Yasir ran away. He reached near Nasir who was unconscious. Waheed used to visit the house of Shehnaz. Nasir restrained him from doing so. When Nasir ran away after sustaining injuries of bullets, he was saying that we have been murdered at the instance of Peeran Ditta and his wife.
30. ' Nazir Ahmed appeared as a witness on October 5, 2004. He stated that on 16-7-2004, he was at his home when Ilyas told him that Nasir has been murdered. He went along with him on the motorcycle on the place of occurrence. Nasir was lying. Afz'al was injured. Police came there. Police recovered clay from the place where dead body of Nasir was lying and put it into a bag of cloth and prepared a parcel and obtained his signatures. The parcel was opened in the open Court, he saw the clay and stated that it was the same clay, which was recovered form the place where dead body of Nasir was lying. After it, he along with police, went to Nullah from where police recovered two empties and prepared a parcel and recovery memo. He witnessed the recovery memo. And put his signatures Exh.P.E./1. Both the empties were seen by him in the Court and stated that these were the same, which were recovered from the place of occurrence. One empty was recovered from the south eastern side of the Nullah. A separate parcel was prepared which was opened in the open Court and he identified the empties. A recovery memo. Was also prepared which contained his signatures Exh.P.F./1. He further stated that on 27-7-2004, Talib gave him an information that police will come on 28-7-2004 so he should remain present at his residence. So, he came to Ghuhra Khairan There were about four or five persons of the police along with the accused-persons. The police went to the house of Yasir accused. He and Iqbal were also accompanying them. Yasir handed over the pistol to the police, after picking it out from the box of tin, and stated that it is the pistol, with which he has murdered Nasir and injured Afz'al. A parcel and a recovery memo. Of the pistol were prepared. Parcel was opened in the open Court and he identified the pistol. Another pistol was also recovered from the house of Waheed at his instance in presence of Nazir Ahmed and Muhammad Iqbal. Muhammad Iqbal also appeared as a witness and narrated as such in the Court. Both the pistols, along with the empties, were sent to the Fire- arm Expert. According to the Fire-arm Expert, the empties were fired from these pistols.
31. ' In this case, there were three eye-witnesses namely (i) Muhammad Afz'al, (ii) Muhammad. Younus and (iii) Yasir Bashir. Now the question emerges whether there is complete concordance among these three witnesses or there are such major contradictions between the statements of the aforesaid eye-witnesses, which lead to the conclusion that they have not witnessed the occurrence. As the contradiction pointed out by the learned counsel for the convict-appellants is concerned "that Afz'al and Yasir Bashir stated that Waheed (convict-appellant) fired two bullets on the chest of Nasir Iqbal while Nasir Iqbal sustained only one injury on his chest as is clear from the post-mortem report", it has no substance. Muhammad Afz'al, in his statement, nowhere deposed that Waheed fired two bullets on the chest of Nasir. Afz'al only stated that Waheed fired two bullets on Nasir. He has nowhere stated that Waheed fired these bullets on the chest of Nasir. Although, according to the postmortem report, Nasir sustained one bullet injury on his chest but as the statement of Muhammad Afz'al is concerned that two bullets were fired, it is a minor contradiction, because, while appreciating the evidence, one has to consider that when the first bullet was fired on Muhammad Afz'al and he sustained injury on his arm, after it, it was impossible for him to count the bullets fired by Waheed on Nasir. He must be endeavoring for saving his own life instead of counting the bullets fired by Waheed (convict-appellant). It is impossible for a human being that after sustaining fire-arm injuries and feeling apprehension to his life to count the bullets fired by the accused persons on his companion. Therefore, if at all, he has stated that two bullets were fired by Waheed convict-appellant), even then, it comes within the minor contradiction. Minor contradictions and discrepancies are quite natural in a murder, because everybody want to save his own life during such-like occurrence.
32. ' As Muhammad Younis witness is concerned, he did not depose as such. He clearly stated that Waheed (accused-appellant) fired at Nasir Iqbal which hit on his chest. He nowhere deposed that Waheed fired two bullets. According to the aforesaid three eye-witnesses, when they got off from the bus at Bersali Bus Stop and started proceeding towards their homes, near "Kass" Yasir convict- appellant fired a bullet which hit on the right arm of the complainant Afz'al, then he fired second bullet which hit on the backside of Nasir Iqbal. Waheed fired from the front side which hit on the chest of Nasir Iqbal (now deceased). Nasir ran away and fell down near the house of Raja Liaqat.
33. Waheed reached there and fired a bullet with the pistol on him and also inflicted injuries with the butt of pistol on the chin, eye and forehead of Nasir. There is complete unition among all the three eye-witnesses regarding:--
(1) place of occurrence; (2) manner of occurrence and; (3) time of occurrence.
34. ' As the contention of the learned counsel for the appellant is concerned that Muhammad Afz'al, during the course of cross-examination, deposed that Waheed was sitting behind the bushes of "Saroot" and "Akk", while Yasir Bashir deposed that Waheed came out from the Haveli of Sarwar and Younis deposed that he came out from the gate of Iqbal. It has also no substance, because, in the same "Kass" house of Sarwar and Iqbal are situated, therefore, it is also a minor contradiction. No conclusion can be drawn from these contradictions.
35. ' As the next contention of the learned counsel for the appellant is concerned that after sustaining injury No,1, it was impossible for Nasir (now deceased) to walk. It has no substance for the reason that it is not a universal principle, it is just an opinion of the doctor, which varies from man to man because the individuals vary in their reaction to injury. Even in some cases, it was seen that a person after sustaining injury on the right temple perforating brain and exiting temple, victim was in a position to sit and answer the questions 9 hours after shooting. Though subsequently succumbed to the injuries. In some cases, a man who sustained a shot in his heart by a pistol bullet could walk half a mile before he collapsed. This view finds support from Parikh's Textbook of Medical Jurisprudence and Toxicology page 301. For proper perception of the matter, I would like to reproduce the, relevant portion which is as under:-- "Individuals vary in their reaction to injury. It is possible for a bullet to pass through important organs without killing and some times without stopping the person from performing physical or volitional acts. Unless there is gross destruction of the brain or cardiovascular system, some physical activity is possible in many cases. While the explosive effect of the bullet wounding at appropriate distance is well known, yet there may be clean perforating wounds without much destruction in the trajectory through the body which according to Taylor may be in the range beyond 500 yards. Recovery is reported to have been complete after through and through head wounds. In a pistol shot through the right ten-pie perforating the brain and exiting on the left temple, the victim was in a position to sit and answer question 9 hours after the shooting, though he subsequently, succumbed to the injuries. A man who got shot in his heart by a pistol bullet could walk half a mile before he collapsed. Strassmann reports five cases of gunshot injury to the heart, where the victims were engaged in various activities which lasted up to 20 minutes after the wounding. A victim of 0.32 calibre bullet penetrating his heart, lung and liver fell to the ground, pulled out his gun and shot the assailant in the chest. He died 20 minute later."
36. ' The aforesaid view clearly shows that this principle varies from man to man, therefore, doctor's opinion was not so definite, because the! Reaction of bullet injuries vary from man to man.
37. ' It would not be out of place to mention here that in the instant case, presence of Muhammad Afz'al, complainant, could not be denied, because he sustained injuries during the instant occurrence. He has clearly deposed that convict-appellants fired bullets on him and (now deceased) Nasir Iqbal.
38. ' It is also pertinent to note that in the instant case, the occurrence took place at 5-00 p.m. While F.I.R. Was lodged after half an hour and the distance of the police station from the place of occurrence was 9 miles, therefore, F.I.R. Was lodged promptly, hence no question arises for any concoction or false attribution. Immediately after sustaining! Injury, Afz'al went to the police station and lodged the F.I.R., therefore, it could not be said that he has substituted the accused or the F.I.R.
39. Was lodged after the advise or with consultation of some person. This view finds support from 1975 PCr.LJ 44, 2004 PCr.LJ 584 and PLD 1976 SC 53.
40. ' As the contention of the learned counsel for the appellant is concerned that detail was not mentioned in the F.I.R. About the injuries inflicted upon the deceased and the F.I.R. Simply contained that. Yasir fired at complainant while Waheed and Yasir fired bullets at Nasir Iqbal and it did not contain as to on which part of the body the bullets were fired, has no substance, because F.I.R. Is not a substantive piece of evidence. It is just a document for bringing the. Investigating Agency in the to operation, therefore, it could be said that if details have not been mentioned in the F.I.R., it shall not make any difference. This view finds support from PLD 1977 SC 259.
41. ' As the next contention of the learned counsel for the appellant is concerned that Muhammad Younus was the real brother of the deceased, therefore, his evidence could not be relied upon, it has also no substance, because mere relationship of the witnesses with the deceased is no ground, unless and until their enmity with the accused persons is proved or it does not inspire confidence and is of not convincing quality. This view finds support from PLD 1983 SC (AJ&K) 211, relevant observation is at page 218 which reads as under:-- "The evidence of P.Ws. Could not be rejected merely on the ground of relationship. Conviction can be based on the evidence of even interested witnesses provided of course it is otherwise of a convincing quality. It is indeed correct to say that while considering such evidence Court should be on its guard and would conduct the appraisal of the evidence with utmost care and caution. If on careful appraisal it is found of a quality on which safe reliance could be placed it will not then be necessary to look for the further confirmatory evidence. Corroboration as observed in Muhammad Sharif v. The State PLD 1978 SC (AJ&K) 146 is not to be insisted upon as a rule of law.
42. In each case the evidence of a witness has to be evaluated on merits and if it rings true in the context and circumstances of case free from any fault and un-contradicted by any cogent circumstances emerging from case it must be relied upon as the basis for conviction without corroboration."
43. ' In the instant case, no enmity with the accused-persons, even, was suggested to the aforesaid three eye-witnesses during the course of cross-examination. There is nothing on the record, on the basis of which it could be said that these three eye-witnesses were inimical to the accused- persons. There is complete unition among the aforesaid three eye-witnesses regarding the:--
(1) place of occurrence; (2) manner of occurrence; and (3) time of occurrence.
44. ' There is no such contradiction between the aforesaid witnesses on the basis of which it could be said that they have not witnessed the occurrence. According to the aforesaid three eye-witnesses, Yasir fired a bullet with an intention to commit murder on Muhammad Afz'al which hit on his right arm. Yasir fired second bullet on Nasir Iqbal which hit on his backside of chest. This version of the aforesaid three eyewitnesses finds corroboration from the medical report of Muhammad Afz'al and post-mortem report of Nasir Iqbal. According to the medical report of Muhammad Afz'al, he sustained following injuries:-- "Injury No,1. Oval wound (entry wound) 1.3 c.m. Length on anterior portion of left deltoid muscle near angle of axilla (anterior) margins inverted. No blackening or tattooing. Red blood oozing.
45. ' Injury No,2. Oval wound for exit 1.8 c.m. Length and posterior lateral portion of lower margin of deltoid muscle."
46. ' According to the post-mortem report, Nasir sustained following injury:-- ' Injury No,2 Entry wound oval in shape 2 c.m. Long on back of left side of chest margins inverted wound present 3 c.m. Inferolateral to left subscapular margins. No exit wound present.
47. ' The aforesaid medical report of Muhammad Afz'al and postmortem report of Nasir Iqbal corroborates the version narrated by the eye-witnesses. It is crystal clear that Yasir, son of Said Rasool inflicted injuries with an intention to commit the murder. He caused injuries to both the victims, therefore, under section 34 of A.P.C., he was equally responsible for the murder of Nasir Iqbal and also inflicted injury, on the person of Muhammad Afz'al.
48. ' According to the version of the aforesaid three eye-witnesses, Waheed inflicted injuries on the chest of Nasir Iqbal (now deceased) and Nasir Iqbal ran away from the place of occurrence and fell down near the house of Raja Liaqat; then Waheed chased him and fired another bullet on him and also inflicted injuries with the butt of pistol on the chin, forehead and eyes of Nasir Iqbal. This version of the aforesaid three eyewitnesses also finds corroboration from the post-mortem report.
49. According to the post-mortem report, first injury with the bullet was sustained by Nasir Iqbal on his chest and he also sustained other injuries narrated by the aforesaid three eye-witnesses. The post- mortem report and the medical report fully corroborates the version adopted by the I aforesaid three eye-witnesses. Three crime-empties were recovered from the place of occurrence in presence of Nazar Muhammad and Muhammad Iqbal, who appeared as witnesses. There is complete unition between these two witnesses about the recovery of empties from the place of occurrence. There is no contradiction between them regarding the place, time and manner of recovery. Subsequently, after arrest of the accused persons, one pistol was recovered at the instance of Yasir (accused-appellant) from his house and a map of the house and place from where it was recovered was also prepared which is Exh.P.N. The other pistol was recovered from the house of Waheed on his instance in presence of Muhammad Iqbal and Nazar Muhammad. Both the aforesaid persons appeared as witnesses and there is complete concordance among them about the recovery of the pistols. As the contention of the learned counsel for the appellant is concerned that they were closely related to the accused persons and no respectable witness of the locality has been cited as witness of the recovery. It has no substance for the reason that it is not necessary that only respectable persons of the locality may be cited as witnesses. The society in which we are living, most of the people of it are not ready to become a witness, therefore, there is no alternate with the police but to cite them as witness. Mere relationship is no ground for discarding their evidence unless and, until their enmity is proved with the convicts-appellants.
50. Nazar Muhammad and Muhammad Iqbal have no enmity with the convict in this case. Even during the course of cross-examination, no enmity was suggested to them, therefore, there is no doubt about the recovery of the pistols at the instance of both the accused persons. The recovery of the pistols at the instance of the accused persons is proved by the prosecution beyond any reasonable doubt. The empties recovered froth the place of occurrence and both pistols were sent to Fire-arm Expert. According to the report of Fire-arm Expert, these empties were fired from these pistols. The blood-stained clay and the cloths of the deceased were recovered by the police which were also sent to the Chemical Examiner. According to the report of Chemical Examiner, these were stained with the blood. From the aforesaid evidence, it has been proved by the prosecution beyond any doubt that Waheed Iqbal and Yasir have committed the murder of Nasir Iqbal and have inflicted injuries to Afz'al with the common intention.
51. ' As the motive is concerned, it was also proved from the evidence of Talib Hussain and Muhammad Asghar Ali. Talib Hussain! Stated that Nasir Iqbal used to restrain Waheed from visiting the house of Shahnaz Akhtar due to which Waheed wanted to finish him. Muhammad Asghar Ali deposed that on July 12, 2004, he came to the house of Zulfiqar after hearing the noise, Fazeelat Bibi, Robina and Waheed were pelting stones on Nasir. It was stated by them that Nasir is the cause of quarrel. Nasir told him that Waheed use to come to the house of wife of his brother. He restrained him, upon which, they are pelting stones on him.
52. ' It flabbergasts me that the lower Court has held that the offence under section 341, A.P.C. Was not proved against the present convict-appellant. While it was proved beyond any doubt because when Nasir and Afz'al reached in the "Kass Nullah" then Yasir fired from the backside and Waheed was sitting in front of them so he started firing from the front side, hence the way was blocked by both the N assailants, therefore, offence under section 342, is also proved against them.
53. ' The lower Court has held that the offence under section 302 is proved against the convict- appellant while the lower Court has awarded death sentence to Waheed Iqbal and sentence of life imprisonment to Yasir son of Said Rasool.
54. ' Now the question emerges whether there was any reason for awarding life imprisonment to Yasir son of Said Rasool when it reached on the conclusion that he has committed the offence of murder. No reason has been given by the lower Court while awarding lesser sentence to Yasir son of Said Rasool. It was enjoined upon the lower Court to record the reason for awarding the sentence of life imprisonment to Yasir son of Said Rasool.
55. ' It is well-settled principle of law that in a murder case, normal sentence is death and while awarding the death sentence, the Court has not to record any reason; but in case the Court warts to award lesser sentence, then it has to record reason. In the instant case, no reason has been given while awarding lesser sentence to Yasir son of Said Rasool, while he was equally responsible for the murder of Nasir Iqbal.
56. ' Now the next question arises whether in the instant case, a criminal act was committed by both the convict-appellants in furtherance of their common intention, as envisaged in section 34 of Azad Penal Code? Section 34 clearly conveys that if two or more persons commit an act jointly, it is just the same as if each of them had committed individually. This view finds support from:--- ' (1) 1991 M LD 1676 (2) 1977 SCM R 340 and (3) AIR 1958 SC 672.
57. ' It is pertinent to note that when once it is proved that the convict persons had common intention to commit the crime, then, it is immaterial that what part has been played by whom; because the law pertaining to vicarious liabilities is, that those who stand together must fall together. No one of the accused persons, who committed the crime with common intention, be allowed to raise the plea that role played by him was insignificant. This view finds support from Haji Khan and 2 others v. The State and others 1991 PCr.LJ 2110. The relevant observation is as under:- "It may, therefore, be stated that once it is found that the three convicts had common intention to commit the crime, it is immaterial as to what part was played by whom. Section 34, P.P.C. Clearly lays down that when a crime is committed in furtherance of common intention of several persons, each one of such persons would be liable for the offence, as if he alone, had perpetrated it.. The very purpose of this provision of law is to create joint liability for those who indulge in the organized commission of crime. In the nature of things, it cannot be said of certain, the exact part of each one of several convicts/appellants acting with common intention and object. In such cases the moral culpability of each is clear and identical and once a criminal act is done with common intention by several persons each one of them would be criminally liable as if he alone, had done the act. If it were otherwise, and Courts were required to apportion each man's liability according to his overt act, conviction in almost every case of organized crime would become most difficult and, perhaps an impossibility and criminal minded elements in society would feel greatly encouraged to join hands to the concerted criminal acts. Therefore, the law as to vicarious liability is that those, who stand together, must fall together. None of these who make commission of crime, a common cause, can be allowed to raise plea that he was nearly present at the place of crime or that the part assigned to him was insignificant. The under-mentioned decisions of the Honourable Supreme Court will, perhaps, be sufficient to illustrate the point:--
(1) Haji and others v. The State 1976 SCM R 20, (2) Wali Muhammad and another v. The State PLD 1982 SC 55 and (3) Ghulam Qadir v. The State PLD 1960 SC (Pak.) 254.
58. ' It is well-settled principle of law that principle of vicarious liability cannot be invoked unless and until common intention and object is proved. This view finds support from:--
(1) 1990 PCr.LJ 1067 and (2) 1986 PCr.LJ 2085.
59. ' The fundamental condition for attracting section 34 of Azad Penal Code is that the accused persons should have common intention R and have participated in the crime in furtherance of their common intention. When all of them participated in the occurrence with a common intention; then they shall equally be guilty of that act. This view finds support from the case titled. Khadim Hussain and another v. The State 1980 PCr.LJ 654. The relevant observation reads as under:--- "Before entering into discussion an this point, we would like to consider the question of application of section 34, P.P.C. In this case. The trial Court applying the principle of 34, P.P.C., has held that the appellants "came there holding pistols in their hands, which leads to an inference that they came prepared to use them and they actually used them while firing. Khadim Hussain accused injured the deceased with proved fatal. Rehmat Ali accused simultaneously fired at Berkat Ali P.W. But he escaped. Their act of firing sufficiently indicated that they had common intention to kill them.
60. Section 34 of P.P.C. Is, therefore, attracted to the case" and consequently convicted them both under sections 302/34, and 307/34, P.P.C. And sentenced to death and ten years' R.I. Each respectively. Section 34 simply recognizes a common sense principle that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. The reason why all are deemed guilty in such cases is that the presence of and accomplice affords encouragement, protection and support to the person actually engaged in the commission of the offence. Section 34 operates only when it is found as a fact that the criminal act done by any individual is in furtherance of the common intention' Section 34 required to conditions: (i) the accused must be present at the scene of occurrence and this must be coupled with actual participation; and (ii) there must be a pre-concert or pre-arranged plan. The question is how the common intention is to be determined. The simplest method to prove it is by direct evidence of conspiracy. Failing the first method, resort must be had to other circumstances evidencing community of interest. Proof of circumstances which necessarily lead to inference or the incriminatory facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis. In the present case applying the above principle we find that both the appellants came armed with dangerous weapons like pistols and in fact they participated actively and both of them fired at Berkat Ali P.W. And Shahmat deceased, as a result thereof Shahmat died while Berkat Ali P.W. Escaped luckily. The conduct of the appellants in this case will be relevant. They not only fired in the first instance but when P.W.15 Berkat Ali and Shahmat deceased have received one injury ran for their lives, the two appellants pursued and gave them chased. When Shahmat fell down on the Pacca road, they further continues chasing Berkat Ali (P.W.15) and was apprehended by the three police constables, Gulfraz, Asghar Ali and Maula Bakhsh (P.Ws.4, 5 and 6) and were disarmed at the time of their apprehension. It is also relevant to point out that when Gulfraz Head Constable (P.W.4) apprehended Rehmat appellant, the later exhorted Khadim appellant to fire at Gulfraz but before he could do that the other two constables, Asghar Ali and Maula Bakhsh apprehended him and disarmed him.
61. ' From the above facts the inference which can be easily drawn is that both the appellants shared common intention and that it was a designed and pre-planned murder. It has been held in Bahar v. The Crown PLD 1954 FC 77; Hidayatullah and another v. The State PLD 1971 Kar. 817 that inference of common intention may be drawn from the conduct of the assailants, their participation in the commission of the crime and from circumstances such as the character of, the attack, the nature of injuries inflicted and the nature of the weapon employed. It was held in Shamsher and another v.
62. The State 1973 SCM R 69:-- "The existence of or formation of a common intention within the meaning of section 34 of Pakistan Penal Code is not generally susceptible of direct proof and has to be inferred from the attending circumstances of the crime. Where, therefore, the evidence was that the accused as well as the absconder fired at the deceased in quick succession, it was held that this shows unmistakably that they were acting in furtherance of their common intention to cause the death of the deceased".
63. In the light of above principle enunciated in the afore-quoted authorities, the application of section 34, P.P.C. Is fully attracted to the facts of the present case. The evidence on record has established the participation of the two appellants in crime and that they acted in pre-concert and both joined together in the commission of the murder."
64. ' The question regarding the common intention is a question of fact and it has to be determined according to the circumstances and facts of each case. Common intention may be inferred from the circumstances disclosed in the evidence. Intention is a mental condition and is to be determined from the facts and surrounding circumstances of the case. One cannot always expect a direct evidence in each case in order to determine the common intention regard must be had to all the acts done by the accused persons. Now, in the instant case, both the convict-persons, with a pre-planning sat in the way from where the deceased Nasir Iqbal and Afz'al have to pass. Waheed Iqbal was sitting on the front side while Yasir was cn the backside. First Yasir fired a bullet at Muhammad Afz'al which caused injury to him then he fired a second bullet at Nasir Iqbal which hit on the backside of the chest of the deceased, therefore, the act committed by Yasir leads to the conclusion that he was having a common intention with Waheed Iqbal to commit the murder of Nasir Iqbal (deceased). Nasir was facing firing from both sides i,e, (front and back), therefore, it cannot be said that Yasir was not liable for the murder of Nasir Iqbal. He was equally responsible as he was firing from the backside, so that Nasir Iqbal and Afz'al may not run towards the backside.
65. ' Both the convict persons committed the murder of Nasir Iqbal and inflicted injuries to Afz'al with pre-planning. They were armed with the pistols. One was sitting on front side and the other on the backside of the deceased and the injured witness. They started firing from both the sides, therefore, both are responsible for the murder and injuries of Afz'al.
66. ' It stultifies me that in the instant case, the lower Court has awarded sentence of life imprisonment to Yasir while Yasir played an active role in the occurrence, therefore, was equally responsible under section 34 of the A.P.C. For commission of offence.
67. ' As the contention of the learned counsel for the complainant regarding the implication of Peeran Ditta and Fazeelat Bibi is concerned, it has no substance. Although, the learned Advocate referred some evidence, according to which, one day before occurrence, they heard Peeran Ditta and Fazeelat Bibi while saying Waheed to finish Nasir; but it does not inspire any confidence. Even otherwise, it did not find corroboration from any evidence, therefore, the contention of the learned counsel for the complainant is without any substance. If at all, they heard, then why they did not inform the police.
68. ' The upshot of the above discussion is that appeal filed by Waheed Iqbal and Yasir has no substance which is hereby dismissed. The appeal filed by the complainant Talib Hussain is partly accepted, the sentence of life imprisonment awarded to Yasir is enhanced to death sentence.
69. Apart from it, a further sentence of one month is awarded to both the convict-appellants under section 341, A.P.C. The reference made by the learned Sessions Judge is accepted and sentence of death awarded by him is confirmed. 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.