' SYED HUSSAIN MAZHAR KALEEM, J.--- Above titled appeals have been directed against the judgment passed by District Court of Criminal Jurisdiction, Kotli on 8-1-2005, whereby the appellants were convicted under sections 302, 324, 337, 34, A.P.C. And 13/20/65, Arms Act.
2. Necessary facts for disposal of the appeals and the reference are that a case under sections 302, 324, 337 and 34, A.P.C. Was registered at Police Station, Khuiratta on the complaint of Ibrar Ahmad. It was reported that on 7-10-2004 at about 1-00 p.m. Ahsan Sardar and Ateeque Ahmad came to Roli Galli Stop and sat in a wagon to go to Dhannah, there Israr Ahmad alias Dawood appellant had a dispute with Ahsan Sardar over a passenger seat in the wagon but the matter was resolved by passengers and when they arrived Sarhota Bazaar the accused appellants again tried to attack the deceased but the passengers intervened and settled the issue, however, the accused threatened Ahsan Sardar for consequences. The deceased reached home at about 3-30 p.m. It was alleged that Israr Ahmad and Nasir Khan appellants after due deliberation with common intention came there to take revenge and called the victim from his home near the shop of Ghulam Nabi. The complainant and his brother also followed the victim. They noticed Ahsan Sardar and the accused persons exchanging hot words. In the meantime Israr Ahmad appellant took out his pistol and fired at Ahsan Sardar which hit him at left side of face and he fell down. The complainant rushed to hold the victim, upon which Nasir appellant raised Lalkara and the accused fired two more shots which hit the complainant at his right arm and leg. Nasir Khan appellant fired at Waqar Ahmad and caused injuries at his chest. The accused persons ran away after commission of the offence. Ahsan Sardar succumbed to the injuries while on his way to District Headquarter Hospital, Kotli. The occurrence was stated to be witnessed by the complainant, Israr Ahmad, Waqar Ahmad, Zahoor Ahmad and others. Motive was the unpleasantness, which took place at Roli Galli and Sarhota Wagon Stop. After completion of investigation, the challan was submitted before District Court of Criminal Jurisdiction, Kotli. On conclusion of trial, the Court convicted the appellants. Israr Ahmad was awarded sentence of "Qisas" under section 302, A.P.C., 10 years' R.I. With Rs,20,000 fine under section 324, A.P.C., 5 years' R.I. With Rs,50,000 Daman under section 337-F(vi), A.P.C. And 5 years' S.I. Under the Arms Act. Nasir Khan was sentenced to life imprisonment under section 302/34, A.P.C., 10 years' R.I. With Rs,20,000 under section 324, A.P.C., 5 years' R.I. With Rs,1,40,000 Arsh under section 337-D, A.P.C. And 5 years' simple imprisonment under the Arms Act through the impugned judgment. Hence these appeals and the reference.
3. Learned counsel for the convict appellants argued that the prosecution failed to prove its case beyond doubt. Eye account given by the witnesses suffered from inherent impiobabilities, inconsistencies and contradictions. Motive was also unnatural and illogical. F.I.R. Was lodged after preliminary investigation and version given by the complainant was artificial, self-contradictory and concocted. The prosecution witnesses were inter se related and inimical towards the appellants, their testimony was not corroborated by independent evidence. The witnesses shown to be present at the place of occurrence were deliberately excluded in order to strengthen the concocted story. Recovery of weapons of offence was fake and invalid, testimony of the attesters shows that the evidence was false, frivolous and inconsistent. There was no proof to establish that the weapon recovered from Nasir appellant was used in the occurrence as the same was not sent to Forensic Science Expert. The allegation of sharing common intention was baseless, frivolous and it was not proved, there was nothing on record showing premeditation or indicating that the convict appellants accompanied each other and came at the place of occurrence to commit the offence. Origin of fight and manner were shrouded in mystery. The appellants also suffered injuries during the occurrence but the same were suppressed by the prosecution. It was clear from the record that .9 mm pistol was also used in the occurrence which indicates that a free fight took place between the parties, thus, plea taken by, the defence that both the parties indulged in firing, was proved and at least it was established that version given by the prosecution. Was not wholly truthful. The trial Court misconstrued, misread and misinterpreted the evidence against appellants, the impugned judgment suffered from inherent legal and factual defects as such was liable to. Be set aside, therefore, by accepting the appeals the appellants may be acquitted of the charges.
4. On the other hand, it was argued that the occurrence took place during broad-daylight, report was lodged without any delay. Names of the convict-appellants and prosecution witnesses were mentioned in it, motive was proved, presence of the convict appellants, prosecution witnesses and the deceased at place of occurrence at the relevant time was not disputed. Eye-witnesses gave true account of the incident. The convicts were alleged for killing Ahsan Sardar and causing injuries at the persons of prosecution witnesses. The allegations were proved by the eye-witnesses and same were corroborated by post-mortem report, injury reports pertaining to the prosecution witnesses and recovery of weapons of offence. Injuries found at the person of the appellants were explained by the prosecution, the defence version was fake and was concocted to create doubt in truthfulness of the prosecution story. No substantial material in support of the claim of defence was brought on record. The prosecution successfully prove that due to unpleasantness which took place at Roli Galli Wagon Stop the appellants came at the place of occurrence and committed the offence. They shared intention, both of them were vicariously liable for committing murder and causing injuries to the prosecution witnesses. Eye account was confidence-inspiring, despite lengthy cross-examination the witnesses stood at touchstone of the test and defence failed to obtain anything favourable. The prosecution proved its case beyond any doubt, the trial Court rightly appreciated the evidence and convicted the appellants, however, fell in error while awarding lesser punishment of life imprisonment to Nasir Khan appellant. He shared common intention with the principal accused, thus, was equally responsible for committing murder, therefore, by accepting the appeal filed by complainant Nasir Khan appellant may also be awarded death sentence.
6. Since all the appeals and the reference arise out of same order, therefore, these shall be disposed off through this common judgment.
7. I have heard the learned counsel for the parties and gone through the record of the case.
8. The prosecution case was that on 7-10-2004 Ahsan Sardar and Israr Ahmad appellant had an unpleasantness at Roli Galli and Sarhota Wagon Stops due to which at 3-30 p.m. The convict appellants with intention to commit the offence came at the place of occurrence. They asked Irfan Bashir to call the victim near shop of Ghulam Nabi. On receiving the message the deceased left home. The complainant and his brother also followed him and when arrived at the place of occurrence, saw the convict appellants and the deceased exchanging hot words. In the meantime Israr Ahmad appellant took out his pistol and fired at Ahsan Sardar, P.W. Ibrar Ahmad tried to hold his brother, upon which Nasir Khan appellant raised Lalkara and the accused fired two more shots which hit Ibrar Ahmad at right shoulder and leg. Nasir Khan appellant also fired and caused injury at the chest of P.W. Waqar Ahmad. Ahsan Sardar succumbed to the injury while on his way to hospital.
9. Plea taken by the defence was that Israr Ahmad appellant sitting in a wagon, when arrived at the place of occurrence, the deceased and other members of the complainant party forcibly dragged him out and started beating. Nasir Khan appellant who came there in another wagon tried to rescue him but was also beaten by the complainant party. During the occurrence P.Ws. Waqar Ahmad and Israr Ahmad brought .9 mm gun and .30 bore pistol from their P.C.O. And started firing.
P.W. Waqar Ahmad caused fire-arm injury to Nasir appellant and it was alleged that due to his firing the deceased and P.W. Ibrar Ahmad also suffered injuries while fire made by P.W. Israr Ahmad hit P.W. Waqar Ahmad and Israr Ahmad convict appellant also sustained injury during the occurrence. At the time of their examination under section 342, Cr.P.C. The convict appellants repeated the above mentioned story.
10. The material brought on record by the parties in support of the above mentioned versions was 5 crime-empties of .30 bore pistol seized from the place of occurrence, weapons of offence recovered at instance of the convict appellants, post-mortem report, medico-legal reports pertaining to the injured prosecution witnesses and the convict appellants..30 bore pistol allegedly recovered from Nasir Khan appellant was not sent to Forensic Science Expert for examination, however, report pertaining to the weapon seized from Israr Ahmad convict appellant was made available while the defence placed a copy of letter written by Director Forensic Science Laboratory to Superintendent Police, Kotli. The trial Court disbelieved the defence plea and by placing reliance on prosecution evidence convicted the appellants under sections 302/324, 337, 34, A.P.C. And the Arms Act.
11. It may be mentioned here that initial burden to prove case against an accused lies upon the prosecution particularly in case of two versions, it becomes more important to bring unshattered and credible evidence to diminish the value of defence plea and discard all possibilities and probabilities of the defence version being true. An accused is not bound to lead direct or indirect evidence in support of his plea and can establish the same, through the circumstance appearing in prosecution evidence. It may also be added here that in murder cases the prosecution evidence should not only appear to be true account of the occurrence but must convince and satisfy conscience of a Judge that the material is sufficient for capital punishment because any expression of doubt or remote chances of defence plea being true suggests acquittal or lesser punishment.
12. It was interesting to note that according to the prosecution case five crime-empties of .30 bore pistol were seized from the place of occurrence and parcel No,4 was prepared which was sent to Forensic Science Expert for examination. Letter No,49/41, dated 23-10-2004 addressed by Director Forensic Science Laboratory, Lahore to S.P. Kotli shows that three out of 5 empties in the parcel were of .9 mm bore and the Investigating Officer was asked to attend his office for clarification of the bore of crime-empties, it was suppressed by the prosecution, however, on direction of the trial Court the same was placed on record by D.W. Muhammad Aslam Khan, Senior Clerk, S.P. Office, .Kotli. Surprisingly during trial Forensic Science Expert's report Exh.P.DD. Showing that five crime- empties seized from the place of occurrence were fired from .30 bore pistol recovered at instance of Israr Ahmad appellant was placed on record but it was silent about three crime-empties of .9 mm bore found in parcel No,4 and does not indicate that what sort of clarification of Investigating Officer gave to Director Forensic Science Laboratory which convinced him to prepare the report.
13. It was observed by the trial Court that the convict appellants were vicariously liable for committing the offence. It may be mentioned here that section 34, A.P.C. Requires a pre-concert or pre-arranged plan. The explanation of such pre-concert could be established even by an act performed by individual after completion of the crime but some evidence showing meeting of minds or pre-planning is necessary for conviction. In the present case, Nasir Khan appellant claimed that he came to Dhannah for hiring a wagon and saw the complainant party beating Israr Ahmad appellant, he intervened to rescue him and suffered fire-arm injury at the hands of P.W.
Waqar Ahmad. No evidence to prove that prior to the occurrence the convict appellants met each other or they came at the place of occurrence together was brought on record, premeditation or pre-concert to commit the offence was not established during trial. Nasir Khan appellant was not attributed any overt act towards the deceased, thus, any circumstance indicating that the common intention developed at spur of the moment was not available on record.
14. During examination under section 342, Cr.P.C. Nasir Khan appellant alleged that P.W. Waqar Ahmad fired at him and caused injury at his left arm. The explanation given by the prosecution was that while running away from the place of occurrence Israr Ahmad accused fired with .30 bore pistol which hit the co-accused. As per deposition of the P.W. Doctor, Nasir Khan appellant was hit from backside with fire-arm weapon, thus, in light of the statement explanation given by eyewitnesses that Israr Ahmad appellant was responsible for causing injury to Nasir Khan appellant was incorrect. It may be added further that according to defence version initially a scuffle took place, Israr Ahmad appellant also claimed injury at his shoulder which was confirmed by P.W. Doctor but was not explained by eye-witnesses or the Investigating Officer.
15. The evidence on record shows that Israr Ahmed convict appellant and the deceased had an unpleasantness at. Roli Galli and Sarhota Wagon Stop which provoked him for commission of the offence, later on the parties faced each other at the place of occurrence, hot words were exchanged, Israr Ahmed appellant fired with .30 bore pistol and caused death of Ahsan Sardar, he also caused fire-arm injury to P.W. Ibrar Ahmed at his right arm and leg while Nasir Khan convict appellant caused injury with .30 bore pistol at the chest of P.W. Waqar Ahmed, thus, they were rightly convicted, however, the trial Court failed to appreciate that the offence was not committed in furtherance of common intention, abrasion at the shoulder of Israr Ahmed convict appellant confirms that a scuffle took place prior to the main occurrence, presence of three crime-empties of .9 mm bore in the parcel sent to Forensic Science Expert suggests that the possibility of use of same bore pistol in the occurrence cannot be ruled out. Nasir Khan convict appellant suffered fire- arm injury. The explanation given by the prosecution was not satisfactory and it implies that the prosecution version was not wholly truth, therefore, conviction under section 34, A.P.C. And sentence of Qisas was not warranted in the circumstances.
16. In light of the facts listed above, the order of conviction under sections 324, 337, A.P.C. And the Arms Act passed against both the appellants is maintained while sentence of life imprisonment awarded to Nasir Khan appellant is set aside and by modifying the impugned judgment sentence of Qisas awarded to Israr Ahmed appellant under section 302, A.P.C. Is altered into life imprisonment. Benefit of section 382-B, Cr.P.C. Is also extended to the convicts.
17. Upshot of the above discussion is that appeals filed by the convict appellants are accepted in the terms indicated above while that of the complainant is hereby dismissed and the reference is not confirmed.