' MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No,159-J/03 (Muhammad Afzal v. The State); Criminal Appeal No,304/03 (Muhammad Yasin v. The State) and Murder Reference No,172/03 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Muhammad Afzal appellant, as they arise out of the same judgment, dated 30-1-2003 passed by the learned Additional Sessions Judge, Camp at Central Jail, Faisalabad, whereby appellants were awarded the following sentences:--
(1) Muhammad Afzal Appellant.
Under section 302(b)134, P.P.C. to death for causing murder of Ashiq Hussain with a compensation of Rs,50,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. In default whereof to further undergo S.I. For six months.
Under section 324/34, P.P.C. to ten years and a fine of Rs,25,000 for attempt to commit murder of Babar Butt P.W. In default whereof to further undergo six months imprisonment.
Under section 337-F(vi), P.P.C. for causing hurt to Babar Butt P.W. To seven years' imprisonment and a Daman of Rs,10,000.
Under section 324/34, P.P.C. to seven years' imprisonment for attempt to murder Malik Pervez P.W.
And a fine of Rs,10,000 in default whereof to further undergo six months' imprisonment. The sentences of imprisonment of the said appellant were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was extended to him.
(II) Muhammad Yasin Appellant:-- Under section 302(b)/34, P.P.C. to imprisonment for life for causing murder of Ashiq Hussain with a compensation of Rs,25,000 to be paid to the. Legal heirs of the deceased under section 544-A, Cr.P.C.. In default whereof to further undergo S.I. For six months.
Under section 324/34, P.P.C. to ten years and a fine of Rs,10,000 for,attempt to commit murder of Malik Pervez P.W. In default whereof to further undergo three months imprisonment.
Under section 337-A(ii), P.P.C. for causing injury to Malik Pervez P.W. To five years imprisonment and Arsh according to its value at that time for each injury.
' The sentences of imprisonment of the said appellant were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was extended to him.
' Benefit of doubt was extended to co-accused Muhammad Arshad and he was acquitted from the charge.
2. Brief facts of the case, as given by P.W.9 Malik Muhammad Pervez complainant in the F.I.R.
(Exh.PM) are that on 14-3-2000 at about 1-00 p.m., a quarrel took place between P.W.11 Shabbir Shah and Muhammad Afzal appellant in which the said P.W., caused a fire-arm injury to appellant Muhammad Afzal, the matter was patched up through a Punchayat but appellant Afzal bore a grudge and had been advancing threats to the said Shabbir Shah P.W. Who repeatedly requested the complainant for a reconciliation with appellant Afzal. It was alleged in the F.I.R. That the complainant approached the said appellant's close relative P.W. Muhammad Tufail (given up) for effecting a compromise in the matter who promise to visit Afzal's house within one or two days but stated that the complainant would also accompany him. It was further alleged by the complainant that on the fateful day i,e, 14-3-2000, the complainant along with P.Ws. Muhammad Tufail, Shabbir Shah, Babar Butt and Ashiq Hussain (deceased) reached Mohallah Dastgeerpura at Faisalabad through Wagon owned by P.W. Tufail and after reaching there, the complainant and said P.W.
Babar Butt remained sitting in the said vehicle whereas Ashiq Hussain (deceased), Shabbir Shah and Muhammad Tufail went into the house of appellant Afzal and, in the meanwhile, appellant Afzal armed with .222 rifle, appellant Yasin armed with. 12 bore pump action and acquitted accused Arshad empty-handed, came out of the house of Yasin appellant raising Lalkaras that they would not leave them alive, whereafter, appellant Yasin made two straight fires at the complainant hitting at his right arm inside near the elbow and at the wrist of his left arm, appellant Muhammad Afzal made a straight fire with his .222 rifle at P.W. Babar Butt which landed at the knee of his left leg and went through and through who fell down. It was also stated in the F.I.R. That then appellant Afzal made a straight fire at Ashiq Hussain (deceased) who was sitting in the Baithak along with other P.Ws. Which hit his left flank who fell down. As per complainant, P.W. Shabbir Shah tried to close door of the said Baithak but both the appellants fired from outside the window of the Baithak in question and as a result of the said firing, P.W. Muhammad Tufail was injured. It was also stated in the F.I.R. That Ashiq Hussain (deceased) succumbed to the injuries at the spot while the injured P.Ws. Were taken to the hospital.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the accused, charge was framed to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution produced as many as 12 P.Ws. During the trial. The appellants/accused were examined under section 342, Cr.P.C. They opted not to depose on Oath as required under section 340(2), Cr.P.C. Appellant Muhammad Afzal and acquitted to-accused Muhammad Arshad opted to produce their defence evidence and produced D.W.1. Muhammad Tufail (given up P.W.). All the accused, in answer to questions as to why the case was against them and why the P.Ws. Had deposed against them, narrated the occurrence but in a different manner.
However, the learned trial Court convicted and sentenced the appellants as detailed above.
5. Learned counsel for the appellants contend that the F.I.R. In this case was got registered after deliberations and consultations because the Police Station is admittedly at a distance of one and a half kilometers from the place of occurrence but despite that the F.I.R. Was lodged after three hours with an unexplained delay; that the motive alleged by the prosecution is not proved because dispute between appellant Afzal and Shabbir was resolved way back in the year, 1992 through a compromise which fact has been admitted by P.W.9 Malik Muhammad Pervez; that both the appellants were not present at the spot at the time of occurrence and as a matter of fact, the deceased and the other injured-P.Ws. Received injuries at the hands of the "Mohallandars" as the P.Ws. Had gone to the house of one Muqaddas Bibi who was residing in the house of Khalida and Abida, with a mala fide intention as P.W.9 Malik Muhammad Pervez had developed illicit intimacy with the said Muqaddas Bibi; that the P.Ws. Are interested and inimical towards the appellants and the version put forth by the defence that they received injuries at the hands of Mohallandars is more probable and confidence inspiring in the circumstances of the case because even one injured P.W. Muhammad Tufail (given up) whose name was mentioned in the F.I.R. Appeared as D.W.1. And supported the defence version.
6. Learned counsel further contend that recovery of weapon from appellant Muhammad Yasin is of no avail to the prosecution case because nobody has appeared to state that he took the weapon of offence and the crime empties to the office of the Forensic Science Laboratory; that both the items, as per report of the Forensic Science Laboratory (Exh.P.W.), were received in the Laboratory on the same day i,e, 10-5-2000, therefore, the said positive report of the Laboratory is inconsequential and that no recovery was effected from appellant Muhammad Afzal.
7. Learned counsel, while advancing arguments, submit that there are material contradictions amongst the statements of the prosecution witnesses regarding their physical conditions after sustaining injuries coupled with the fact that they were examined privately.
8. Learned counsel while concluding the submissions, submit that the prosecution story is highly improbable while the version set out by the appellant is convincing one as during the course of hearing of bail petition of acquitted co-accused Arshad, certain affidavits were sworn by the P.Ws.
Whereby he was exonerated which fact casts serious doubts about the veracity of the prosecution story as well and that the appellants are entitled to acquittal on that score.
9. On the other hand, the learned Additional Prosecutor-General assisted by learned counsel for the complainant contends that the prosecution has proved its case against the appellants beyond any shadow of doubt by producing convincing, confidence-inspiring and trustworthy ocular account which finds support from the medical evidence, the evidence of recovery and crime empties; that all the P.Ws., from whom two are admittedly injured P.Ws., are truthful witnesses who have given a true account of the occurrence; that the complainant set the law into motion despite the fact that he was injured in the incident and the F.I.R. Was lodged promptly and there is no delay in its lodging as contended by the learned counsel for the appellants; that it was a daylight occurrence, so, no question of mistaken identity or false implication arises; that the learned trial Court has rightly believed the ocular account; that the injuries on the persons of P.W.9 Malik Muhammad Pervez, P.W.10 Babar Butt and D.W.1. Muhammad Tufail (given up P.W.) have not been denied or disputed by the appellants side; that these witnesses were examined at the DHQ Hospital Faisalabad before 2-00 p.m. On the same day, whereas, as per F.I.R., the occurrence took place at 1-00 p.m, therefore, it cannot be argued that there was any delay in reporting the matter to the police; that the injuries sustained by the deceased and the injured P.Ws. Clearly suggest that two weapons of different bores were used in this occurrence; that the medical evidence is in line with the ocular account; that P.W.10 Babar Butt is the most natural and independent witness of the occurrence as his presence at the spot is not disputed either by the prosecution or the defence; that he, in his statement, has identified both the appellants as perpetrators; that though the testimony of a single witness is sufficient for maintaining a conviction on a capital charge but in this case three P.Ws. Appeared as eye-witnesses; that the site Plan (Exh.PG/1) also supports the prosecution case as at point 7 there are marks of bullets; that the defence plea has been discarded during the course of investigation and even Afzal appellant remained absconder for about 8/10 months; that even otherwise, substitution is a rare phenomenon; that no independent D.W. Has been produced by the defence to substantiate the defence plea; that D.W.1. Muhammad Tufail is not the reliable witness as he hails from the brotheri of the appellants and his testimony is liable to be discarded and that the appeals filed by the appellants are liable to be dismissed.
10. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.
11. The occurrence in this case took place on 14-3-2000 at about 1-00 p.m, the matter was reported to the police at Emergency Ward of Civil Hospital, Faisalabad, at about 4-00 p.m. By P.W.9 Malik Muhammad Pervez, the formal F.I.R. Was recorded at about 4-30 p.m. And the distance between the Police Station and the place of occurrence was about 1-1/2 kilometers.
12. The prosecution case, as set out in the F.I.R. Was that the complainant along with other P.Ws., had gone to Faisalabad to effect a compromise between P. W.11. Shabbir Shah and appellant Muhammad Afzal. When they reached outside the house of Afzal appellant, the complainant along with P.W.10. Babar Butt remained in the vehicle whereas the other P.Ws., namely, P.W.11. Shabbir Shah and P.W. Muhammad Tufail (given up) went to the house of appellant Muhammad Afzal. There, firing started the wherein P.W.9. Malik Muhammad Pervez and other P.Ws. Received injuries while Muhammad Ashiq (deceased) lost his life, whereas, the defence version is that as a matter of fact, P.W.9. Malik Muhammad Pervez/complainant had developed illicit relations with Muqaddas Bibi, wife of appellant Fazal, he had come to abduct her, upon which, Mohallandars and neighbourers had gathered there and as a result of the firing of the Mohallandars injuries were received by the P.Ws. While Ashiq died.
13. First of all we would like to see whether the prosecution case, in the given circumstances, is probable or not or whether the prosecution has proved its case against the appellants beyond any shadow of doubt.
14. Though it is a day time occurrence qua which ocular account was furnished by injured P.W.9.
Malik Muhammad Pervez and P.W.10. Babar Butt who were admittedly examined in the hospital on the same day before 2-00 p.m., therefore, existence of injuries on their persons has led us to believe their presence at the place of occurrence and receiving injuries in the same occurrence at the hands of the appellants. But, simultaneously, if the story of the prosecution is taken as a whole, it partly does not appeal to common sense that these persons would go from Sialkot to Faisalabad for effecting a compromise and it appears that the prosecution has not told the whole truth. But the fact remains that the fight took place between the parties at the spot which has been admitted by both the parties but in different manners.
15. There is no independent corroborative piece of evidence in this case as recovery allegedly effected at the instance of appellant Muhammad Yasin is of no avail to the prosecution because empties recovered from the spot and weapon of offence, recovered at the instance of the appellant Muhammad Yasin, were sent to the office of the Forensic Science Laboratory on the same day i,e, 10-5-2000 as is clear from the report of the FSL (Exh.P.W.) and the possibility of having fired those empties from the said weapons cannot be ruled out coupled with fact that no witness stepped forward to state that he took these articles to the Forensic Science Laboratory, therefore, no reliance can be placed on the said report of the Forensic Science Laboratory (Exh.P.W.) as its incriminating value is destroyed. In this regard reliance is placed on Jehangir v. Nazar Farid and another (2002 SCM R 1986) and Muhammad Younas Khan v. The State 1992 SCM R 545.
16. The plea raised by the defence qua the manner of occurrence is that it were the Mohallandars/neighbourers who had caused injuries to the injured P.Ws. Including loss of life of Muhammad Ashiq deceased which plea is highly improbable because, none has appeared from the Mohallandars or neighbourers before the Court to substantiate this plea coupled with the fact that the defence failed to discharge the onus rested on its shoulders as required under Article 121 of the Qanun-e-Shahadat Order, 1984 as it is settled law that the burden to prove the plea is on the party who raises it. Moreover, it is the defence version that the complainant side had come for abduction of Muqaddas Bibi, so, they were carrying weapons in their hands but, surprisingly, none from the accused side or from the Mohallandars or neighbourers received injuries at hands, therefore, we may observe here that in such like cases the parties do not generally come out with the true story because each party tries to minimize its own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inference that properly flow from the evidence and circumstances of the case. Reliance is placed on Syed Ali Beopari v. Nibaran Mollah and others (PLD 1962 Supreme Court 502).
17. From the circumstances narrated above, we have noted that according to the prosecution case put forth by the complainant of the case, namely, P.W.9 Malik Muhammad Pervez, was that he, along with P. W.10. Babar Butt, was present in the vehicle outside the house of Afzal appellant when the firing started, therefore, it is not known as to how firing started and what exactly happened prior to the occurrence. In such a situation, we are of the considered view that it is a case of sudden fight and provisions of section 34, P.P.C. Would not attract because mere presence of a person at the spot does not necessarily attract the said provision of law and vicarious liability cannot be visited unless there is some strong circumstance to show common intention which is very much lacking in this case. Reference is made to the verdict of the Hon'ble Supreme Court of Pakistan in the case of Hassan Din v. Muhammad Mushtaq and 2 others 1978 SCM R 49. To further fortify our view, reliance is also placed on Muhammad Yaqoob Sub-Inspector v. The State (PLD 2001 SC 378), wherein, at page 383, the learned august Court was pleased to observe as under:-- ...It was held few decades earlier by this Court which still holds the field that 'it is well-established that a common intention pre, supposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis. (1955) SCR 1083, (1955) Cr.L.J. 572)".
' The afore-referred view was reiterated in a latest judgment of the Hon'ble Supreme Court of Pakistan in the case of Shakeel and 5 others v. The State (PLD 2010 Supreme Court 47), wherein, at page 59, the Apex Court has been pleased to observe as under:- "....It is worth-mentioning that 'to have some intention independently each other is not to have common intention. Common intention requires a pre-arranged plan. There must be a prior meeting minds. (emphasis provided). Several persons can simultaneously attack a man may have the same intention, namely, the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention as there was no prior meeting of mind to form a prearranged plan. In a case like that each would be individually liable for whatever injury be caused but none could be convicted for the act of the other vicariously (PLD 1956 SC Ind. 176)".
18. So far as role of appellant Muhammad Yasin concerned, we have noted that the said appellant is not attributed any injury on the body of the deceased, therefore, in view of the guidance sought from the above quoted case, his conviction under section 302(b)/34, P.P.C., for the murder of Ashiq deceased, is set aside and is acquitted from the said charge of murder. However, Yasin appellant is attributed injuries on the persons of P.W.9 Malik Muhammad Pervez and P.W.10. Babar Butt which finds support from the medical evidence, therefore, his convictions and sentences under sections 324 and 337-A (ii), P.P.C., as awarded by the learned trial Court, are hereby maintained and shall run concurrently while benefit of section 382-B, Cr.P.C. Is extended to the said appellant.
19. As far as Muhammad Afzal appellant is concerned, we have noted that he fired a shot at Muhammad Ashiq deceased which landed on his flank which finds support from the medical evidence, therefore, his conviction under section 302(b), P.P.C. For the murder of Ashiq is hereby maintained. He is also attributed a fire-arm injury on the person of P.W.9. Malik Muhammad Pervez, therefore, his convictions and sentences recorded by the learned trial Court under sections 324 and 337-F(vi), P.P.C. Are also maintained.
20. However, while coming to the quantum of sentence awarded to the appellant Muhammad Afzal, we are of the view that there are two mitigating circumstances in this case, firstly, he did not repeat the injury on the person of the deceased and, secondly, it is not known as to what exactly happened at the spot prior to the occurrence, therefore, his sentence of death is converted into imprisonment for life. The sentences are directed to run concurrently and benefit of section 382-B, Cr.P.C. Is also extended to the said appellant. In the case of Mirza Zaheer Ahmad and another v.
State and others 2003 SCM R 1164 the Hon'ble Supreme Court was pleased to convert the sentence of the death into imprisonment for life as it was a case of single shot, while, in the case of Zubaida Begum v. Muhammad Tariq Alias Billu and others (2002 SCM R 1397), Muhammad Tariq v. The State (2004 SCM R 783), Navid Akhtar and others v. Muhammad Saeed Khan and another (2004 SCM R 1469), Muhammad Ibrar v. The State (2006 SCM R 1175) and Latif Ullah v. The State (2007 SCM R 994), the incident took place at the spur of the moment and was not a pre-planed, was considered to be a mitigating circumstance.
21. In view of what has been discussed above, Criminal Appeal No,159-J/03 (Muhammad Afzal v.
The State) and Criminal Appeal No,304/03 (Muhammad Yasin v. The State) are partly allowed and disposed of accordingly.
' Murder Reference is answered in the Negative and sentence of death is Not confirmed.