' SYED HUSSAIN MAZHAR KALEEM, J.---The above titled appeals have been directed against the judgment passed by District Court of Criminal Jurisdiction, Kotli dated 13-9-2002, whereby Muhammad Arif and Muhammad Yaseen appellants were convicted under sections 324, 337, A.P.C.
And 13/20/65, A.A, however they were acquitted of the Charges under sections 302/341, A.P.C. While Hakam Dad accused-respondent was acquitted of the charges.
2. Brief facts leading to the background of the appeals are that a case under sections 302/324, 337,341/34, A.P.C. Was registered against the convict appellants and two others at Police Station, Kotli on the complaint of Raja Abdul Qayyum Khan. It was reported that on 17-7-1998, nephew of the complainant and Riasat Khan had some unpleasantness but the matter was resolved. On 19-7- 1998, at 6-30 a.m. The complainant and Abdul Khaliq left their houses in Carry Van of Adalat Khan.
As they came out of the gate, Tariq, Muhammad Arif and Muhammad Yasin sons of Riasat Khan stopped them. They asked Abdul Khaliq for his son Dawood insulting their father and his action in this regard Khaliq came out of the Suzuki Carry Van and replied that there was no dispute as the issue was resolved. The complainant also supported him on the point. In the meantime, Tariq accused fired a shot with Pistol which hit him at right side of his chest. Adalat Khan who also came out of the Vehicle was fired upon by Muhammad Arif which hit him at his chest. On hearing the sound of fires Abdul Ghafoor came at the place of occurrence and Muhammad yasin fired at his bally. Meanwhile Hakam Dad son of Bagh Ali came there and raised Lalkara that no one should go alive. Abdul Khaliq sucumbed to the injury. The accused persons fled away after committing the offence. The occurrence was stated to be witnessed by Muhammad Ghalib, Abdul Qudoos, companions of the complainant and other residents of the locality.
3. Muhammad Tariq accused absconded after commission of the offence, however, Muhammad Arif, Yaseen and Hakam Dad were arrested by the Police. The challan for commission of the offences under sections 302, 324, 341, 337/34, A.P.C. And 13/20/65, A.A. Was submitted against them before District Court of Criminal Jurisdiction, Kotli. On conclusion of the trial, the Court convicted Muhammad Arif and Muhammad Yaseen appellants.
' Muhammad Arif was sentenced 8 years' R.I. With a fine Rs,10,000 under section 324, A.P.C. 8 years'
R.I. Along with `Diyyat' Rs,1,00,000 for causing injuries to Adalat Hussain under section 337, A.P.C. And 2 months imprisonment under sections 13/20/65, Arms Act. Muhammad Yaseen was awarded 8 years' imprisonment under section 347 A.P.C. And 2 months' imprisonment under section 13/20/65, A.A,' however, they were acquitted of the charge under sections 302/341, A.P.C. While Hakam Dad accused-respondent was acquitted of the charges through the impugned order, hence these appeals.
4. Since both the appeals arise out of same order of the trial Court, therefore, these shall be disposed off through this common judgment.
5. Learned counsel for the appellant argued that the prosecution failed to prove its case against the convict-appellants. An enmity was prevailing between the parties due to which they were roped in a false case. Prosecution witnesses were closely related to the deceased. They were partisan and initnical towards the appellants and their family. The occurrence took place in a thickly-populated area but no independent witness was cited by the prosecution. Even witnesses of recoveries and seizers process were not associated from amongst respectables of the locality as required under law and those living at distant places, closely ielated to the deceased and the complainant were asked to join the proceedings. According to the learned counsel, the statements of the eye-witnesses were full of contradictions and the same were not corroborated by independent source. The recovery of incriminating articles was not worth consideration as the same did not support the ocular version.
' The learned counsel contended that the motive was not proved. Origin of fight and manner of occurrence were shrouded in mystery. Interested and inimical witnesses suppressed the true facts and concocted a story against the appellants. Three real brothers have been roped in a false case on account of enmity. He emphasized that the occurrence was not premeditated and there was nothing on record to prove that the convict shared intention with the principal accused. The trial Court disbelieved ocular version to the extent of allegation under section 302/34, A.P.C. Against the.
Appellants. Thus reliance on the same for recording conviction under section 324/ 337, A.P.C. And Arms Act was not legally correct. He further submitted that the prosecution story, being highly doubtful was not 'safe to be believed and the convict appellants were entitled to benefit of doubt, therefore, by accepting the appeal they may be acquitted of the charges and appeal filed by the complainant and heir of the deceased may also be dismissed.
6. On the other hand, it was argued that the occurrence took place during broad day light, identification of the accused persons was not in doubt who were nominated in promptly lodged F.I.R. The names of the prosecution witnesses were also given there. The time and place of incident were not disputed. Three crime empties of .30 bore pistol were seized from the place of occurrence.
It was proved during the trial that the deceased, Adalat Khan and Abdul Ghafoor suffered fire-arms injuries caused by .30 bore pistols. Postmortem report and Medico-legal Reports pertaining to the injured persons lend support to the ocular version which were corroborated by recovery of weapons of the offence at instance of the convict. Appellants. He further argued that prior to the occurrence Muhammad Dawood had an unpleasantness with the father of the convict appellants due to which, in furtherance of common intention they came at the place of occurrence and committed the offence. Learned counsel emphasized that the convict appellants and acquitted respondent were equally responsible for murder of Abdul Khaliq. Sufficient material to establish that they shared intention with the principal offender was brought on record and there was no justification to acquit them of the charge under section 302/34, A.P.C. Hakam Dad accused- respondent was also ascribed a specific role of raising Lalkara and his presence at the place of occurrence was proved. He was also a member of unlawful assembly thus, there was no justification to acquit him of the charges. The learned counsel submitted that prosecution successfully proved its case against the convict appellant. The role played by each of them was clearly described. They were equally responsible for committing the offence of murder and causing injuries to the prosecution witnesses, therefore, by accepting the appeal filed by the complainant, the sentence awarded to the convict appellants may be enhanced. The convict-appellants and Hakam Dad accused-respondent may also be convicted and sentenced under law.
7. The learned Additional Advocate-General supported the arguments advanced by the learned counsel for the complainant.
8. I have heard the learned counsel for the parties and gone through the record of the case.
9. The prosecution story as appears from the statements of eye-witnesses that on 17-7-1998, Dawood son of the deceased and Riasat Khan father of the convict- appellants had a dispute on the cutting of a poplar tree but the issue was settled. On 19-7-1998, at 6-30 a.m., the complainant along with Abdul Khaliq had just taken seat in Suzuki Carry Van of Adalat Khan while proceeding to his shop. When he came out of the gate of the house, he was stopped by Muhammad. Tariq, Muhammad Arif and Muhammad Yasin. They asked. Abdul Khaliq the brother of the complainant that his son Dawood insulted their father and what action he had taken in this regard. He replied that the matter had been settled amicably. In the meantime, deceased came out of the aforesaid van and asked them to refrain from creating trouble, upon this Tariq accused fired with .30 bore pistol which hit him at right side of his chest. Adalat Khan, also came out of the vehicle and was fired upon by Muhammad Tariq at his chest. On hearing the sound of fires, Abdul Gahfoor came at scene of occurrence and Muhammad Yasin fired with pistol which hit him at left side of his bally. At this stage Raja Hakam Dad Khan accused-respondent came there and raised Lalkara that he had arrived and nobody should be allowed to go alive. He was alleged for causing stick injury at the person of Abdul Qadoos.
10. According to the defence version on 19-7-1998 Muhammad Yaseen and Muhammad Arif were present in a Tailoring Shop. On hearing hue and cry they rushed towards their houses. There they saw Abdul Khaliq injured and was lying on the ground. Tariq and his mother were also injured. As Muhammad Yaseen came there, Ghafoor, Qudoos, Sikandar, Waqas and Shoaib started beating him with sticks. Ghafoor armed with a mouser inflicted injury on the head of Muhammad Yaseen with it. At this stage Muhammad Arif came there who was beaten by Qayyum, Sikandar and Ghafoor with sticks. P.W. Adalat was not injured and was armed with a stick. He inflicted injury on the head of Muhammad Yaseen. In the meantime, the residents of the locality came there and rescued them. Abdul Khaliq and Adalat who were injured, were shifted in a vehicle. Walayat Khan father and Fehmida Begum widow of the deceased were crying and abusing. They were accusing Abdul Qayyum for the occurrence and were saying that he instigated Abdul Gafoor for firing because of which Abdul Khaliq and Adalat Khan sustained injuries. Muhammad Yaseen and Muhammad Arif came at the Police Station to report the matter but they were arrested for the allegation of offence of murder of Abdul Khaliq. The above mentioned version was given by Muhammad Yaseen convict appellant while recording his statement in defence. D.W Mansoor Ahmad deposed that Hakam Dad accused-respondent was in his hop at the time of occurrence.
On hearing the sound of fires and cries they proceeded towards the place and saw a Suzuki taking the injured persons. Thereafter they came back to their shops.
11. It is interesting to note that Tariq accused absconded after the commission of the offence while the convict appellants did not make any attempt to register their version before any authority. The above mentioned plea was not taken by them during trial or at the time of their examination under section 342, Cr.P.C. Despite the claim that a number of people gathered at the place during the occurrence, no one was produced in defence. The claim of injuries at their person was not supported by any documentary or oral evidence and there was nothing on record in support of the statement of Muhammad Yaseen convict appellant.
12. The prosecution version was relied upon by the trial Court while convicting Muhammad Arif and Muhammad Yasin under sections 324/337, A.P.C. And C 13/20/65 Arms Act however, they were acquitted of the charge under section 302/ 34, A.P.C, while Hakam-Dad was acquitted of the charges.
13. I have carefully considered the impugned judgment in light of the evidence on record. It appears that F.I.R. Exh.P.B. Was lodged on the application Exh.P.A. made by Abdul Qayyum immediately after the occurrence, where names of the accused-persons, victims and eye- witnesses were mentioned. The details regarding motive, place of occurrence, weapons used for commission of the offence, origin of fight and manner of occurrence were also given in it. In support of the ocular version, incriminating articles such as crime empties D seized from the place of occurrence, .30 bore pistol and a stick recovered at the instance of convict-appellants and acquitted respondent were brought on record. The story was further supported by the Medico legal. Reports pertaining to the injured persons Exh.P.P, P.Q., P.U, P.S. And P.T. The prosecution case was successfully proved through the statement of eyewitnesses supported by incriminating material. It was evident that Muhammad Arif appellant fired with .30 bore pistol at Adalat Khan which hit him at right side of his chest, while Muhammad Yasin fired at Abdul Gahfoor which hit him at the left side of his bally. Thus, in my view, the trial Court arrived at the correct decision that Muhammad Arif and Muhammad Yasin appellants were responsible for firing and E causing injuries at the person of Adalat Khan and Abdul Ghafoor with .30 bore pistols. However, it was alleged that Hakam Dad caused injury with a stick to Abdul Qadoos by the eye-witnesses but according to their deposition he came at the place after the occurrence and raised Lalkara, additionally the allegation does not figure in F.I.R. Therefore, it cannot be ruled out that they might have exaggerated to this extent. In this view of the matter, the observation made by the trial Court in respect of Hakam Dad accused-respondent is correct and justified in law.
14. In view of the aforesaid Muhammad Arif was rightly convicted under sections 324/337-D, A.P.C.
And 13/20/65, A.A. The conviction and F sentence to Muhammad Yaseen appellant under section 324, A.P.C. Was also in accordance with law. However, the trial Court fell in error while convicting him under section 337-A of the A.P.C. The allegation against him was that he fired with .30 bore pistol at Abdul Ghafoor. Medical reports Exh.PS and Exh.PE show that the injury caused by him extended to the body cavity of the victim, thus it implies that it was Jaifahah and the case of the convict was covered by section 337-C of the A.P.C. The punishment for causing Jaifahah was 1/3 of the 'Diyyat' and imprisonment of either description which may extend to 10 years as Taa'zir under section 337-D, A.P.C, therefore, he is convicted under the said section and is awarded 8 years' R.I.
With 1/3 of the 'Diyyat' calculated as 1,00,000 by the trial Court at the time of convicting the appellant which shall be paid to Abdul Ghafoor.
15. The question which needs serious consideration is that whether the order of acquittal under sections 302/341/34, A.P.C. To the extent of convict appellants H was legally correct or not. It may be mentioned here that section 34, A.P.C. Lays down the principle of constructive liability.
' If several persons unite with a common purpose to do any criminal offence, all those who assist in the accomplishment of their object would be equally guilty. The foundation for constructive liability is the common intention animating the accused to doing of the criminal act and the doing of such act in furtherance of common intention to commit the offence.
16. In the present case the occurrence took place near the house of the deceased. The convict appellants and Tariq Mahmood accused (absconder) armed with .30 bore pistol came there from a distance of 246 feet. They stopped Cary Van of the victims and fired upon them. It was alleged that Abdul Khaliq died of fire-arm injury caused by Tariq Mahmood accused while convict appellants were found guilty for causing fire-arm injuries at the person of Adalat Khan and Abdul Ghafoor. It follows that they formed common intention to commit the offence. In the given circumstances the question that the occurrence was not premeditated and the convicts were not attributed any overt act towards the deceased or that no evidence regarding common intention was brought on record merits no consideration because the common intention is to be inferred from the facts and surrounding circumstances. It may further be added that in order to constitute an offence under section 34, A.P.C. It is not required that a person should necessarily perform any act with his own hand. If several persons have the common intention of doing a particular criminal act and if, in furtherance of that common intention all of them join together and aid or abet each other in the commission of an act, then one out of them may not actually, with his own hand, do the act, yet if he helps by his presence or by other act in the commission of an act, he would be held to have himself done that act within the I meaning of the said section.
17. In light of the facts listed above, I am convinced that offence was committed in furtherance of common intention. The convict appellants were qually responsible for stopping Cary Van and committing murder of Abdul Khaliq. Keeping in view over all circumstances of the case, Muhammad Arif and Muhammad Yaseen K are convicted and awarded 14 years' R.I. Under sections 302/34, A.P.C. And one month imprisonment under section 341, A.P.C. Each. The sentences shall run concurrently. They are also extended benefit of section 382-B Cr.P.C.
18. The upshot of the above discussion is that the appeal filed by convict appellants is dismissed while that of the complainant and legal heir of the deceased is accepted as indicated above.