1. ' AVM FARIWICH, 3.-Ziaul Hassan, Riazul Hassan, All Hussain, Din Muhammad and Muhammad Hussain absconder were tried in the Court of Mr, Nafees Ahmad Bajwa, Additional Sessions Judge, Faisalabad, for the murder of Chiragh son of Gulab Din, attempted murders of Muhammad Ashraf (P. W. 10), Msr. Ghulam Fatima (P. W. 13), Muhammad Latif (P. W. 14), Sadaqat Ali (P. W. 15) and Sultan, Nizam Din, Zainab, Abdul Aziz, Muhammad Afzal and Mst. Maqbool Bibi (not produced) besides the offences of criminal trespass and rioting while being armed with deadly weapons. The learned trial Court vide judgment and order dated 5th November, 1977 recorded the following convictions and sentences :- ' All the four appellants namely, Ziaul Hassan, Riazul Hassan, Ali Hussain and Din Muhammad to one year's R. I. Each under section 148, P. P. C.
(2) Ten years' R. I. Each and a fine of Rs, 2,000 each in default one year's R. I. Under section 449, P. P.
2. C,
(3) All the four to ten years' R. I. And a fine of Rs, 2,000 each, in default one year's k. I. Under section 307/149, P. P. C. For the attempted murder of the above-mentioned ten persons.
(4) Riazul Hassan and Din Muhammad appellants to imprisonment for life and a fine of 2,000 each and one year's R. I. In default under section 302/149, P. P. C. For the murder of Chiragn deceased.
(5) Ziaul Hassan and Ali Hussain appellant were sentenced to death and a fine of Rs, 2000 each in default one year's R. I. Each under section 302/149, P. P. C. For the murder of Chiragh son of Gulab Din.
3. ' The fine imposed on the count of murder, if realized, has been directed to be paid to the heirs of the deceased and the fine, if realized, on the count of attempted murders of the injured P. Ws. Has been directed to be paid to the injured in equal shares.
4. ' The sentences of imprisonment awarded to each of the appellants have been directed to run concurrently.
5. ' The case has been referred to this Court under section 374, Cr. P. C. For the confirmation of the sentences of death, while the convicts have preferred this appeal impugning the convictions and sentences both of which are being disposed of together by this judgment.
2. The occurrence took place on 28th April, 1974 at about 8 a. m. In the house of Muhammad Hussain complainant (P. W. 9) in Chak No, 152/R. B., six miles from Police Station Chak Jhumra, District Faisalabad. F. I. R. (Exh. P. B./2) was lodged by Muhammad Hussain (P. W. 9), grandson of Chiragh deceased, at 11-30 a. m. The same day. This was recorded by Ataullah Khan Sub-Inspector (P. W. 16).
3. The prosecution version apparent from the evidence, succinctly stated, is that on the evening preceding the incident the four appellants and their co-accused Muhammad Hussain absconder were seen standing outside the house of the complainant. Since they were people of ill repute, Muhammad Younas (P. W. 11) forbade them from standing there. The accused declined. This led to exchange of-abuses and grappling. The accused felt insulted and to avenge the insult, all the five of them by a preconcert came armed with guns and murdered Chiragh, maternal grandfather of Muhammad Younas P. W. And injured ten close relations of the complainant.
6. ' The precise incident of murder is described in the following manner :- ' At about 8 a.m. On 28th April, 1974 Muhatninad Hussain (P. W. 9) along with Muhammad Ashraf (P.
7. W. 10), Muhammad Younas (P. W. 11), Mst. Salima Bibi (P. W. 12), Mst. Ghulam Fatima (P. W. 13), Muhammad Latif (P. W. 14) and Sadaqat Ali (P. W. 15), alongwith given up P. Ws. (who are close relations) were sitting in the house in connection with the ailment of Mst. Salima Bibi, wife of the complainant, when all of a sudden the five accused named above and armed with .12 bore guns entered the courtyard of the house and raised a lalkara that not a single person would be left alive.
8. Ali Hussain fired a shot on Muhammad Ashraf (P. W. 10) which hit him in the stomach. Muhammad Hussain absconder fired second shot on Muhammad Ashraf P. W. Which hit him on the legs. Ali Hussain fired another shot which hit Chiragh deceased In the stomach. Then Muhammad Hussain absconder and Ziaul Hassan fired a shot after one another hitting Chiragh deceased in the right and left thighs, stomach and the flank. The firing had attracted Nizam Din (who died before his evidence could be recorded), Muhammad Latif son of Nizam Din and Muhammad Hussain son of Sultan. Mst. Maqboolan aged 12/13 years a neighbour, was already present in the house.
9. Muhammad Younas ran for his life and took refuge inside the kotha whereupon all the accused indulged in indiscriminate firing on all the persons present there which resulted in injuries to Sultan, Nizam Din, Mit. Zainab Bibi, Mst. Fatima, Abdul Aziz, Muhammad Afzal, Sadaqat, Latif and Mst.
10. Maqbool Bibi. Nizam Din died before his evidence could be recorded. Met. Maqboolan was given up as won over, while the other injured (not produced) were given up as unnecessary. Chiragh deceased, however, died at the spot, The ocular account is furnished by Muhammad Hussain (P. W.
11. 9) grandson of the deceased, P. W. 10 Muhammad Ashraf (injured witness) uncle of Muhammad Hussain (P. W. 9), P. W. 11 Muhammad Younas, cousin of Muhammad Hussain (P. W. 9), Mst, Salima Bibi (P. W. 12) wife of Muhammad Hussain (P. W. 9), P. W. 13 Mst. Ghulam Fatima (injured) aunt of Muhammad Hussain (P. W. 9), Muhammad Latif (P. W. 14) an injured person and wholly independent and disinterested witness and Sadaqat Ali (P. W. 15) also injured and a close relative,
4. All the four appellants were arrested on 3rd May, 1974 by Ataullah Khan Sub-Inspector (P. W. 16).
12. Ziaul Hassan accused on 10th May 1974 led to the recovery of gun (Exh. P. 11) and five live cartridges (Exh. P. 12/1.3) which were taken into possession vide Memo. Exh. P D/4. This recovery Memo. Was attested by Abdul Majid (P. W. 8) besides Ataullah Khan Sub-Inspector (P. W. 16). The other attesting witness Zafar Iqbal was given up.
13. ' On the same day, Ali Hussain led to the recovery of gun (Exh. P. 9) and four live cartridges (Exh. P.
14. 10/1-4) which were taken into possession vide Memo. Exh. P, D./3. Same witnesses have attested this recovery Memo.
15. ' On the same day Riazul Hassan accused led to the recovery of gun (Exh. P. 15) and three live cartridges (Exh. 16/1-3) which were taken Into possession vide Memo. Exh. P. D./6 and the same witnesses have attested this recovery Memo.
16. ' On the same day Din Muhammad accused led to the recovery of gun (Exh. P. 13) and two live cartridges (Exh. P. 14/1.2) which were taken into possession vide Memo. Exh. P. D./5 and the same witnesses have attested this recovery Memo.
17. ' Since no empty was recovered from the spot, these recoveries are not of much consequence and the learned trial Court vide Paragraph 16 has rightly treated the same to be of no corroborative value.
5. Dr. Iqbal Ahmad Javed (P. W. 2) on 29th April, 1974 at 7 a. m., conducted the post-mortem examination on the dead body of Chiragh and found the following injuries on it :-
(1) Eleven fire-arm wounds of entrance on the front of the abdomen at scattered places, each 1/4k x 1/4' deep into the abdomen.
(2) A fire-arm wound of entrance on the front of the left side of the chest about 11" below the left nipple, 1/4"x 1/4" deep into the chest.
(3) A fire-arm wound of entrance on the front of the right side of the chest about 5" below the right nipple, The wound was 1/4" x 1/4" deep into the chest.
(4) A fire-arm wound of entrance on the medial side of the right arm, about 1/4" below the right arm pit, 1/4" x 1/4".
(5) A fire-arm wound of entrance 1/4" x 1/3" x skin deep on the front of middle of the right arm.
18. (6)A fire-arm wound of entrance on the back surface of the right arm 1/8' x 1/8" x skin deep about 4.1/2" above the point of right elbow.
(7) Twenty-two fire-arm wounds of entrance each about 1/4" x 1/4" x skin deep on the front medial and latter aspect of the right thigh.
19. (8)Five fire-arm wounds of exit on the back surface of the right thigh and also on the medial side, (9)Eight fire-arm wounds of entrance on the front, medial and latter aspect of the left thigh, each about 1/4" x 1/4" x skin deep.
(10) A fire-arm wound of entrance 1/4" x 1/4" x skin deep on the right side of the scrum.
(11) A firearm wound of entrance on the middle of back surface of the right forearm 1/4" x 1/4" x skin deep.
(12) Three fire-arm wounds of entrance on the back surface of the right little finger each 1/4" x 1/4" x skin deep.
(13) A fire-arm wound of entrance on the middle phalanx on back surface of right index finger 1/4" x 1/4" x skin deep.
20. ' In the opinion of the doctor, death occurred due to shock and hemorrhage resulting from injuries Nos. 1 and 3, which were sufficient to cause death in the ordinary course of nature. All the injuries were caused by a fire-arm. Probable time between injuries and death was immediate and between death and post-mortem examination about 23 hours.
21. ' Dr. Abdul Halim Sahota on 28th April, 1974 at 5-30 p. Tn. Examined Muhammad Ashraf (P. W. 10) and found the following injuries on his person :-
(1) Two punctured wounds near each other above and below on the anterior of left thigh middle part 1/6" x 1/6" x 1/4" each.
(2) Punctured wound 1/6" x 1/6" x 1/6" on the right thigh middle part anteriorly.
(3) Punctured wound 1/6" x 1/6" x 1/4" medial side of right calf,
(4) An abrasion 1/4" x 1/4' on the dorsum of right big toe on the distal part. An abrasion 1/4" x 1/6" on the dorsum of right big toe middle part.
(6) Punctured wound 1/6'x 1/6' x not probed on the left pettellar surface,
(7) Punctured wound 1/6' x 1/6' x skin deep on the dorsum of little finger.
(8) Two punctured wounds near each other 1/6' x 1/6" x on the right supra pubic region.
(9) Punctured wound 1/6" x 1/6' on the right groin near the route of scrotum.
22. (10)Punctured wound 1/6" x 1/6' on the left iliac fossa near groin.
23. (11)Punctured wound 1/6" x 1/6' on the right shoulder.
24. (12)Punctured wound 1/6' x 1/6' x 1/3' on the left biceps lower part.
25. ' The duration of the injuries was 6 to 9 hours. Injuries Nos. 4 and 5 were declared as simple.
26. ' Dr. Tuba' Ahmad Javed (P. W. 2) on 28th April 1974, at 9-35 p.m. Examined Sadagat Ali (P, W, 15) and found the following injury on his person :-
(1) A circular lacerated wound of fire-arm of entrance on the front of the chin, slightly on the right side of the midline, 1/8' x 1/8" x skin deep.
27. ' The injury was simple caused by a fire-arm within the duration of one day.
28. ' The same doctor on the same day at 10 p.m. Examined Mst. Ghulam Fatima (P. W. 13) and found the following injury on her person :-
(1) A circular lacerated wound of entrance 1/8' x 1/8" on the front right side of abdomen in lower portion.
29. ' The injury was simple in nature caused by a fire-arm within the duration of one day.
30. ' On 30th April 1974 at 11-30 a.m. The same doctor examined Muhammad Latif (P. W. 14) and found the following injury on his person :-
(1) A fire-arm wound of entrance on the front of the left of the chest about 3" below the left nipple, 1/8" x 1/8' x only superficially skin deep.
31. ' The injury was simple in nature caused by a fire-arm within the duration of three days.
32. ' Sultan (not produced) had five circular lacerated injuries on his person, Nizam Din 110 fgur such injuries on his person, Muhammad Afzal had one simple injury, Abdul Aziz had one simple injury, Mst. Magool Bibi one simple injury and Mst. Zainab had also one simple injury on her person.
33. ' The medical evidence clearly establishes that fairly large number of shots had been fired.
6. The appellants have raised the plea of denial simpliciter, but have made a suggestion that there was a talk in the village that on the day of occurrence when a storm was growing, there was a fight between Sikandar, Muhammad Husain absconder in this case and some others on the one side and Ghulam Rasul, Muhammad Husain P. Ws. And others on the other side in which the parties exchanged firing. The dispute between them was over the demolition of a wall. The above suggestion is given by Ziaul Hassan appellant in answer to question No, 9 and is reproduced in extenso "I produce attested copies of the F. I. R. Exh. D. E., attested copy of the challan Exh. D. F., Exh. D. F./1-3, attested copy of the summon Exh. P. G. Showing Latif P. W. Was a P. W. In a case under section 307/'48/149, P. P. C. On the report of Nazir Ahmad son of Noor Din Kashmiri resident of Chak No, 152/12B against Muhammad Sadiq and four others. I have no personal knowledge of the occurrence, but it was a talk of the village that on the day of occurrence when a storm was growing, there was a fight between Sikandar, Muhammad Husain absconder in this case and some others on the one side and Ghulam Rasul, Muhammad Husain P. Ws. And others on the other side in which the parties exchanged fire. The dispute between them was over the demolition of a wall. We appeared before the police and narrated the above facts. There were brickbats present at the place of occurrence. We have been falsely implicated in this case as Muhammad Hussain, the absconding accused is said to have good relations with me."
34. ' The other appellants have adopted the same line.
7. Mr. M. B. Zaman, the learned counsel for the appellant cognizant of the weight and quality of the ocular evidence has not challenged the convictions of the appellants, but has primarily argued for the conversion of the death sentence of Ziaul Hassan and Ali Hussain appellants to one of imprisonment for life. He has contended :
(1) That the prosecution has given a very weak motive for such an attack. There is something more which has been kept back from the Court, in particular, the immediate cause of the attack was shrouded in mystery, and that the alleged incident of the preceding evening between Muhammad Yunas p. W. And the accused does not sound true for the reason that Muhammad Yunas, though present at the time of the incident, has not received any injury ;
(ii) that the prosecution has given an exaggerated account of the incident. The version that nearly 20/25 shots were fired is not believable ; and lastly
(iii) that the learned trial Court had awarded imprisonment for life to Riazul Hassan and Din Muhammad appellants on the ground that they were not attributed the fatal shots. In. The context of the indiscriminate firing in such an attack, it would not be possible to establish with certainty the fatal shots qua the assailant and as such, the case of Ziaul Hassan and Ali Hussain appellants was at par with that of Riazul Hassan and Din Muhammad appellants and, therefore, their penalty of death also merited to alteration of a sentence of imprisonment for life.
8. No doubt, on the face of it in normal circumstances the motive appears to be not too strong for such an attack, but human reactions differ from person to person. Some people pocket an insult, while some people feel offended over very trifle matters. A Badamsh is very sensitive to a challenge to his awing posture or authority as an uncrowned king of the area, as his very existence is raised on the foundation of his notoriety. We have in evidence that the appellants and their co-accused Muhammad Hussain absconder were people of ill repute and it is described in the F. I. R. "(41 j6- Uj c.:.A4.". We have in evidence that Muhammad Yunas (P. W. 11) had two young sisters aged 20 and 24 years, respectively, in his house. It was, therefore, natural on his nail to take objection to their standing outside his house. The version of Muhammad Yunas P. W. That on his objection the accused abused him and he replied in the same way and that they also grappled one another, besides abusing one another, and that his mother and his uncle Muhammad Hussain son of Sultan All intervened and separated them, sounds to be a truthful account of the incident, though we cannot rule out the possibility that on considerations of family honour Muhammad Yunas may have stopped short of stating his actual suspicions of the appellants being present outside the house on a purpose of following his young sisters or keeping an eye on them. Withholding of this aspect, even if true, would not help the appellants in any manner. We accept it that on account of bad reputation of the appellants and there being young women in the house Muhammad Yunas P. W. Objected to the presence of the appellants outside their house and this led to an exchange of abuses, grappling etc. And the appellants may have felt insulted and they avenged the insult in such a dastardly manner, ' There is no other reason or motive suggested for an attack on the complainant party. Therefore, we believe that the incident of the preceding evening referred to above, whatever its worth, is the cause of attack on the complainant party.
35. ' We are inclined to believe that the 'above-referred incident was very much felt by the appellants, they boiled over the matter throughout the night, planned the manner of avenging the insult and the very next morning, while armed with guns, they entered the house of the complainant party and made this massacring attack. There was nothing immediately preceding the attack and nothing in this regard has been withheld from the Court as suggested by the learned counsel for the appellants.
36. ' We attach no importance to the argument of the learned counsel that Muhammad Yunas P.W.
37. Escaped without a scratch, even though he was the person who had objected to the presence of the appellants outside his house, indulged in abuses and grappling etc. And thereby insulted the appellants. Muhammad Yunas P.W. And other witnesses have explained that as soon as the appellants opened the fire, he took shelter behind the wall, which was meant for household effects and that thereafter he ran into the room and took shelter there. He escaped the firing aimed at him and the pellets instead hit the wall and an almirah in the room where he took shelter. The reason for Chiragh deceased having received most of the fire shots appears to be that he being a very elderly person and unconcerned with the previous incident, instead of running away, may have thought it prudent to talk to the assailants and dissuade them froth their intentions.
38. ' In the case reported as Muhammad Shari) v. Muhammad laved (1) it was observed :- "In a case of broad daylight occurrence like this, where all the accused were specifically mentioned in a promptly lodged report and the version disclosed therein received full support from the medical evidence, it would not be necessary to look for corroboration and even excluding the evidence of motive or that of recoveries, the rest of the evidence wuuld be good enough to bring home the guilt to the accused."
39. ' Similarly, in Abdul Hakeem v. The State (2) their Lordships were pleased to observe :- "The contention of the learned counsel for the appellants that the motive is weak is of no consequence. Even if the motive is weak, there is direct evidence on the record to show that the appellants were responsible for the murder of the deceased."
40. ' 'We, therefore, accept and rely on the motive as alleged by the prosecution.
9. The learned counsel for the appellants has referred us to the testimony of the injured witness Muhammad Ashraf (P.W. 10) where he states that all the guns with the accused persons were single barrel guns and that every one of them had fired several times and that 20/25 fires were shot by the accused persons and further that some of these fires bit the injured persons, while the other shots hit in the wall. The learned counsel has argued that this certainly is an exaggerated version of the incident and despite all that not a single empty had been recovered from the spot and that there was no evidence that any of the appellants collected the empties from the spot.
41. ' It will be difficult for us to imagine that in such a dastardly attack any one could have stood out counting the exact number of fires. Immediately on the opening of the attack each person present there would have run for his life and taken' some cover and in a confused and puzzled manner witnessed the incident, primarily concerned with his own safety, from behind a cover or the scene of his own refuge. In the confusion and excitement of a fatal attack it is usually not possible to count down with exactitude the number of shots or the number of injuries. Nor would we expect the witnesses taking note of the appellants' conduct in throwing the
(1) PLD 1976 SC 452 (2) 1977 SC M,R 225 ' empties at the spot or picking them thereafter or straightaway placing them in their pockets.
42. ' In the case in hand since a large number of people were present in the house and there were rooms as well as the walls for taking refuge, the assailants of the deceased who bore the main brunt, had been taken note of. The analysis of the medical evidence makes it clear that the injuries suffered by the deceased and the ten injured persons are not the result of one, two, three or four shots. Certainly many more shots had been fired.
43. ' The learned counsel has further contended that in such an indiscriminate firing it would not have been possible to identify each of the assailants firing shots vis-a-vis the victim and, therefore, the learned counsel has referred us to the cases reported as Sadiq Ali v. Abdur Rashid etc. (I), Mir Alam etc. v. The State (2) Sarfraz etc. v. The State (3), Muhammad Khan v. The State (4) and Sibtain Shah etc. v. The State (5) for the argument that the sentence of the two appellants, condemned to death, be reduced to one of imprisonment for life for the reason that the fatal shot could not be discerned.
44. ' As observed by the Supreme Court of Pakistan in Rab Nawaz's case (6) each case proceeds on its own facts and more particularly so a criminal case.
45. ' Sadiq Ali's case referred to by the learned counsel for the appellant is distinguishable on facts. The Supreme Court has declined to interfere with the order of the High Court reducing the death sentence to life imprisonment on the following basis "In view of the conflict between the oral and the medical testimony it is difficult to attribute specifically any of the injuries to a particular appellant, Mahand Bakhsh appellant is stated to have fired twice, but five empties are linked with his gun, Rehmat son of Khuda Bakhsh is said to have fired one rifle shot but none of the injuries has been established to have been caused by that shot.
46. We are, therefore, of the view that the distinction of fatal and non-fatal injuries as drawn by the learned trial Court in awarding the sentence will not be safe or proper criterion. This is a case where the fatal shots cannot be attributed to any of the appellants and they are all deserving of similar treatment. Since three of them have been awarded the sentence of imprisonment for life, it will be discriminating against the other three if their sentences of death are not reduced to one of imprisonment of life."
47. ' The factual position in the case in hand is in contra-distinction of the case referred to above. The ocular evidence consistently attributes the injuries on the person of the deceased to the shots fired by Ziaul Hassan, Ali Hussain appellants and Muhammad Hussain absconder and the same is fully corroborated by the medical evidence. The evidence of these
(1) 109 SCMR 15 (2) 1971 P Cr. L J 5
(3) 1971 P Cr. L J 205 (4) 1975 P Cr. L J 153
(5) 1978 P Cr. L .1 490 (6) PLD 1974 SC 87 ' natural and disinterested (P. W. 14 Muhammad Latif) witnesses is inherently true and consistent with the circumstantial evidence.
48. ' In the same case i,e, Sadiq Ali's case their Lordships have reaffirmed the principle of "constructive liability" in the following terms :- "The plain language of this section (149, P.P.C.) would show that it deals with the liability of every member of an unlawful assembly if in the prosecution of the common object of that assembly an offence is committed or such as the members of the assembly know to be likely to be committed in prosecution of the object. If these ingredients are proved then every member of the said assembly would be guilty of the said offence regardless of whatever role they had played in that connection."
49. ' Similarly, Sibtain Shah's case is distinguishable on facts. In the cited case both the accused were armed with sticks and there were only two contusion marks and two abrasions on the person of the deceased and from the evidence it was not clear who gave to solitary fatal injury. It is obvious from the facts in the cited case that every person using ordinary stick cannot be burdened with a positive intention of causing such injury which would be sufficient in the ordinary course of nature to cause death, Therefore, their Lordships had to bear this aspect in mind and while recording the conviction under section 302, P.P.C. On the principle of "constructive liability" were quite justified in giving the benefit of lesser penalty when the assailant of the solitary fatal injury by a stick was not established beyond reasonable shadows of doubt. In the case in hand, the medical evidence clearly establishes that a large number of shots had been fired resulting in the death of one and injuries to ten, which is a confirmatory circumstance qua the number of the alleged assailants.
50. ' Similarly, the other cases cited by the learned counsel for the appellants are distinguishable on facts.
10. Mst. Salima Bibi (P.W. 12) wife of Muhammad Husain (P.W. 9) was in the family way and had started bleeding two days prior to the incident and later gave birth to a dead child of a few days less than nine months pregnancy. It was for this reason that Mst. Zainab, a midwife: and her son Muhammad Ashraf (P.W. 10) were in attendance in her house at the time of the incident and for the same reason the other family members had collected there. Muhammad Latif (injured P.W.) a wholly independent witness also visited the house on hearing about the condition of Muhammad Hussain (P.W. 9). The fact that Mst. Salima Bibi P.W. Was in the family way and had started bleeding since about two days prior to the incident and that she gave birth to a dead child is not challenged by the defense. In this view of the matter, the presence of family member Mst. Zainab midwife and her son Muhammad Ashraf an injured P.W. And neighbours was very natural and all the P. Ws.
51. Namely, Muhammad Husain. Muhammad Ashraf, Muhammad Yunas, Mst. Salima Bibi, Mst. Ghulam Fatima, Muhammad Latif and Sadaqat Ali are natural witnesses in the circumstances of the case.
52. Out of these witnesses, Muhammad Ashraf, Mst. Ghulam Fatima, Muhammad Latif and Sadaqat All are injured which injuries are by gunshots and there is not even a suggestion that any of the injuries on any of the witnesses was self-suffered. None of these witnesses has any reason to falsely implicate the appellants or substitute them for the real assailants who would have been certainly identified in such a broad daylight occurrence. The testimony of any one of these witnesses, and to be more particular, any one of the injured witnesses or the independent witness Muhammad Latif, by itself, without any further corroboration, I sufficient to uphold the convictions of the appellants. In this case, the principle enunciated by the Supreme Court of Pakistan in Roshan v. The State (I) and Muhammad Sharif v. Muhammad Javed (2) would be applicable.
53. ' A half-hearted suggestion in defence that there was a talk in the village that on the day of occurrence when a storm was growing there was a fight between Sikandar, Muhammad Hussain absconder and some others on the one side and Ghulam Rasul, Muhammad Hussain P.Ws. And others on the other side in which the parties exchanged fires, is not worth any consideration. We see no reason for the P.Ws. To have spared the real assailants and instead to have substituted the appellants. One person has died and ten persons have received gunshot injuries. The complainant party could have conveniently implicated Sikandar etc. As well if they were the real assailants.
54. Nothing is brought on record to show that the appellants had any greater enmity with the complainant party which should have persuaded them to implicate the appellants rather than the actual murderers.
55. In the case in hand, all the eye-witnesses are natural witnesses, have no reason to falsely implicate any of the appellants and each of them has positively attributed to Ziaul Hassan and All Husain appellants and Muhammad Husain absconder fire shots on Chiragh deceased. Their assertion is corroborated by the medical evidence. There is no ambiguity about the assailants of Chiragh deceased. All the appellants by pre-concert in a determined manner had come armed with l2 bore guns and indulged in firing. The community of purpose is fully established and in the incident they had caused gunshot injuries to Chiragh deceased and to ten others and there is no mincing of the matter about the intentions of the assailants. It is just a matter of prudence and good luck that the ten injured ran for their lives and took cover and refuge behind the wall or inside a room. We are of the opinion that the principle enunciated by the Supreme Court in Noor Muhammad v. The State
(3) is aptly applicable to the particular circumstances of this case. Their Lordships have been pleased to observe as follows :- "Once the community of intention to murder stands established, the question of the fatality of injuries would be wholly irrelevant. Where the interest of justice is at variance with consideration of consistency, the former must prevail and merely on that pretext we would not repeat the mistake committed by the High Court, as two wrongs would not make one right."
(1) PLD 1977 SC 557 (2) PLD 1976 SC 452
(3) PLD 1979 SC 507 Bearing the aforesaid observations in mind, we would not attach arty-importance to the consideration that the learned trial Court has awarded only imprisonment for life to Riazul Hassan and Din Muhammad appellants and in fact, we are not in agreement with the view taken by the learned trial Court in this regard, but these appellants are lucky that neither the State has flied any State appeal nor the complainant a revision for the enhancement of the sentence of Riazul Hassan and Din Muhammad to one of death which is the normal penalty. Since the occurrence relates to the year 1974 and the sentence was passed in the year 1977, and the responsibility of these two appellants for the murder of Chiragh, is one on the basis of "constructive liability", we are refraining from issuing notice to them for the enhancement of sentence, though we have given a, very serious consideration to this question, ' In this view of the matter, the learned counsel for the appellants was well advised in not challenging the convictions of the appellants and lay. Ing stress on the reduction of the sentence of Ziaul Hassan and Mi Hussain appellants..
56. ' The learned counsel has referred us to the case reported as Sher Muhammad v. Muhammad Hayat etc. (1) for the reduction of the sentence of Ziaul Hassan and Ali Hussain appellants on the ground that there being no previous enmity, the matter had flared up only on account of Muhammad Yunas taking objection to the standing of the appellants in front of his house for reason of their being "The cited case is distinguishable on facts. The accused in the cited case were sitting out. Side their own baithak and the deceased had gone to the scene of incident and initiated the quarrel by blaming the accused for molesting the womenfolk of the other village and their Lordships were of the view that such an accusation in its own nature was a humiliating accusation especially when coupled with abuses and the possibility of mishandling of situation by the deceased and some heat of passion could not be ruled out and for this reason the High Court had reduced the sentence of death to life imprisonment. Their Lordships in the Supreme Court did not interfere with the view taken by the High Court as it was neither arbitrary nor baseless, nor such as to warrant an interference by the Supreme Court.
57. In the case in hand, the appellants were standing outside the house of Muhammad Yunas P. W.
58. They were, according to the prosecution, people of ill repute. Muham Tied Yunas P. W. Hid two young sisters in his house and, therefore, he was perfectly justified in asking them to move away. It was the refusal of the appellants which led to the exchange of abuses and grappling. The appellants cannot be permitted to take advantage of their own conduct w rich is unbecoming of a gentleman. Nor0 in principle anyone call be permitted to raise the plea of provocation which ha himself seeks. The appellants by standing in front of the door of Muhammad Yunas P. W. Were themselves responsible for inviting an, objection. Secondly, in the cited case, the incident flared up and then and there, the murder took place, while in the case in hand, the appellants had the entire night at their disposal and instead of cooling down, they spent the same in planning the attack.
59. ' Similarly, the case reported as Ghulam Abbas v. The State (2) a Single Bench case from the Lahore High Court cited by the learned counsel
(1) 1979 SC MR 210 (2) 1978 P cr. L .1' 905 ' for the appellants, is distinguishable on facts. In the cited case the deceased had taken exception to the appellant's singing obscene song while passing through the street and after exchanging abuses the appellant had whipped out a knife from his pocket and stabbed the deceased fatal in the chest. As pointed out earlier, the case in hand is entirely distinguishable on facts. Same is the position in regard to the other cases cited by the learned counsel for the appellants.
11. Summing up the correct legal position, we would rely on the observations made in Shaheb Ali v.
60. The State (1) :- "If several persons combine to destroy one human life dastardly and with a deliberate design with no extenuating circumstances to mitigate the offence of any one of them, the long arm of the law, according to its dictates, must reach all of them sternly and remorselessly in an equal manner."
61. ' In the same judgment their Lordships were pleased to observe : "If on the facts of a given case, law and justice demand a heavier' toll for the extinction of a single life at the hands of more than one culprit, it has to be exacted."
62. The aforesaid principle has been reiterated in the cases referred to above and the main submission of the learned counsel that the two appellants Riazul Hassan and Din Muhammad having been awarded imprisonment for life by the learned trial Court and for that reason the sentence of Ziaul Hassan and Ali Hussain appellants be altered to the same, is well answered by the Supreme Court in Muhammad Sharif v, Muhammad Javed cited above in the following terms :- "Coming now to the facts and circumstances of the instant case, I find that even if the trial Court had erred in awarding the lesser sentence to Nisar accused against which two revisions one by the State and the other by the complainant were moved before the High Court, it would have been more appropriate to rectify the error by enhancing the sentence of Nisar to death rather than reducing instead the death sentence of Jeda Tedi and Latif and repeat the same mistake on the pretext of equal ity of treatment."
12. In the light of what has been stated above, we are fully convinced of the prosecution case as well as the implication of each of the appellants. We are of the view that their convictions and sentences are well merited and their appeal deserves dismissal. Accordingly, we maintain the convictions and sentences of the appellants recorded by the learned trial Court and dismiss the appeal. We confirm the sentence of death awarded to Ziaul Hassan and Ali Hussain appellants by the trial Court. ,