' KHALID ALI Z. QAZI, J.--- This judgment will dispose of Criminal Appeal No,62 of 2007 filed by the above-named appellants, who were convicted vide judgment dated 16-8-2007 delivered by learned VIth Additional Sessions Judge, Larkana, in Sessions Case No,500 of 2002 in Crime No,60 of 2002 of Police Station Hyderi, under sections 302, 337-A(i), (ii), 337-F(v), and 34, P.P.C. And sentenced as under:--
(1) Under section 302(b), P.P.C.--- to life imprisonment as Tazir and to pay fine of Rs,50,000 each to be paid to the legal heirs of deceased Zamir Hussain.
(2) Under section 337-A(i), P.P.C.--- to one year's R.I. And to pay Daman of Rs,5000;
(3) Under section 337-A(ii), P.P.C.---to two years' R.I. And to pay Arsh of Rs,25,000;
(4) Under section 337-F(v), P.P.C.--- to two years' R.I. And to pay Daman of Rs,10,000;
(5) It was ordered that the amount of Daman and Arsh be paid to the injured P.W. Aijaz Ali as compensation. It was further ordered that if the accused/appellants failed to pay Daman and Arsh amount, they shall not be released until and unless the same realized under Section 337-Y, P.P.C. As well as 337-Y(2), P.P.C. Is complied with.
(6) Benefit of Section 382-B, Cr.P.C. Was extended to them and the sentences were directed to run concurrently.
2. Occurrence in this case had taken place at 1g45 hours on 22-11-2002, at a distance of 2 kilometers from Police Station Hyderi, Larkana while the matter was reported to the police by Sudheer Ahmed Exh.13 at 2050 hours on4the same day and formal F.I.R. Exh.13-A was recorde'd by A.S.-I. Shafiq Ahmed Abro, Exh.19.
3. Briefly stated the facts of the case are that at 6-45 p.m. On 22-11-2002 when the complainant along with his brothers, namely, Zamir Hussain and Aijaz Ali were sitting at Jamali's Hotel for taking tea, Latif son of Taryal duly armed with gun, Saindad son of Taryal armed with Gun, Gulsher son of Buxial with hatchet and Ashiq son of Mumtaz Ali with stick, all by caste Kalhoro, residents of Hussaini Mohalla, Larkana, came there, accused Saindad pointed his gun at Zamir Hussain and challenged him that you had exchanged harsh words in the street, today you will not be spared, then Zamir Hussain tried to run away from the hotel but accused Saindad fired from his gun straightly at Zamir Hussain, which hit him on his waist, the accused Gulsher and Ashiq caused hatchet and stick blows to P.W. Aijaz Ali. Injured were shifted to hospital for medical treatment where Zamir Hussain succumbed to injuries and expired at 2035 hours on 22-11-2002.
' The motive alleged was that on last third day from the date of incident at night time there had become exchange of harsh words between Zamir Hussain deceased aged about 20 years and Latif Kalhoro and others over matter of crossing through street to which Latif Kalhoro and other accused threatened the complainant party. The accused persons due to this grudge, they have committed the murder of Zamir Hussain and injured Aijaz Ali.
4. Fida Hussain Sangi S.-I. P.W.18 Exh.20 took up the investigation. He on receipt of F.I.R. No,60 of 2002 under section 302, P.P.C. On 22-11-2002 went to the CMC Hospital where the dead body of the deceased was lying, prepared such Mashirnama and inquest report, Exh.16-A and Exh.16-B, then proceeded to the place of incident, secured one empty cartridge of gun from the place of incident along with bloodstained earth, the same were sealed on the spot as Article 20-D. He prepared Mashirnama of Vardat Exh.16-C and returned from place of Vardat to Police Station and received F.I.R. No,61 of 2002 in which complainant Saindad was involved in present F.I.R. No,60 of 2002, therefore, he arrested him at Police Station and prepared such Mashirnama Exh.15-A, prepared Mashirnama of injuries of P.W. Aijaz Exh.16-D and recorded his statement under section 161, Cr.P.C., arrested both accused Gulsher and Ashiq from Casualty Ward of CMC Hospital, Larkana through Mashirnama Exh.16-E. Thereafter, Fida Hussain SIP handed over police papers to SIO Naimatullah Jatoi of Police Station Hyderi for further investigation. During his examinationin-chief in trial Court P.W.18 produced the Chemical Report of bloodstained earth from place of incident of deceased Zamir Hussain as Exh.20-A and also produced case property viz. One material of bloodstained earth, clothes as Articles Nos."B" and'"C" respectively and one empty cartridge (unsealed in open Court) as Article 20-D.
5. Naimutullah Jatoi S.-I.P. Exh.18 took up the investigation on 28-11-2002 and received final M.C. Of postmortem on 27-11-2002 regarding the dead body of deceased Zamir Hussain. On the same day he produced the P.W/injured Aijaz before the Court of IIIrd Civil Judge and Judicial Magistrate, Larkana, for recording statement under section 164, Cr.P.C. On 1-12-2002 during interrogation accused Saindad led police party to his house and produced one DBBL gun along with its licence, the weapon used in the offence vide Mashirnama Exh..16-F. Accused .Gulsher also produced the hatchet used in offence Exh.16-D Accused Ashiq also produced Lathi vide Exh.16-H. He received report of Ballistic Expert Exh.18. He sent report to D.P.O., Larkana for cancellation of licence of accused Saindad for DBBL gun. After completion of formal investigation, accused persons were challaned to face the trial.
6. At the trial, prosecution in order to prove its case produced 10 witnesses in all. The learned DDA tendered in evidence reports of the chemical Examiner Exh.20-A, Ballistic Expert report Exh.18-A and closed the case of prosecution. The accused persons in their statement under section 342, Cr.P.C.
Pleaded not guilty and have not produced any defence witness, but only accused Saindad has produced true copy of F.I.R. No,61 of 2002 dated 22-11-2002 lodged at 2120 hours with Police Station Hyderi as Exh.23-A, under sections 337-A(ii) and 337-F(i) P.P.C. Against Aijaz, Zamir and Uris.
However, after conclusion of the trial, all the accused persons were convicted and sentenced as stated above.
7. Mr. Syed Abdul Rasheed Shah, the learned counsel for appellants, has contended that complainant Sudheer lodged the F.I.R. On 22-11-2002 with delay of 2 hours and on the same day accused/appellant Saindad lodged counter F.I.R. Against P.W. Aijaz, deceased Zamir Hussain and others at 9-00 p.m. No any person from Jamali's hotel was cited as witness. P.W. Uris has been shown as witness in F.I.R., but he has not been cited as witness in this case. He further contended that no independent witness has been produced as the complainant Sudheer Ahmed and P.W.
Aijaz are brothers of the deceased, therefore, appellants are entitled for benefit of doubt. He further added that the complainant party had attacked upon the accused sitting in the Jamali's hotel and thereafter deceased Zamir Hussain sustained bullet injuries at the hands of some unknown persons. Mr. Rashid Shah further contended that the motive is not proved by the prosecution. He contended that under the facts and circumstances of the case appellants may be awarded lesser punishment.
8. Mr. Naimatullah Bhurgri , the learned counsel appearing for the State, has supported the impugned judgment on the ground that accused. Saindad caused firearm injury to deceased Zamir Hussain, whereas co-accused Gulsher and Ashiq gave hatchet and Lathi injuries to P.W. Aijaz.
The prosecution witnesses have fully supported the prosecution case. All the accused came at place of incident with common intention duly armed with the weapons to kill the complainant party, because the deceased Zamir Hussain had used harsh words with the accused party prior to the incident.
9. I have heard learned counsel for the parties and have gone through the record with their able assistance.
10. The case of prosecution is based on the following pieces of evidence:---
(i) Ocular evidence consisting of complainant Sudheer Ahmed as Exh.13 and injured P.W. Aijaz Ali as Exh.14.
(ii) Motive;
(iii) Recovery;
(iv) Medical evidence.
' The Complainant Sudheer Ahmed Exh.13 has deposed that on the day of incident he along with his brothers Zarnir (deceased) and P.W. Aijaz (injured) were sitting at the hotel of Jamali in. Hussaini Mohallah, Ayoub Colony, Larkana for taking the tea. It was 6-45 p.m. When accused Latif son of Turial armed with gun, accused Saindad armed with gun, accused Ashiq having Lathi and accused Gulsher armed with hatchet came there. Accused Saindad challenged saying that three days back harsh words used in between them (accused party) and us (complainant party), therefore, they will not spare us. (complainant party). Accused Saindad challenged the Zamir Hussain (deceased) not to spare him. Deceased Zamir Hussain came out from the hotel, where accused Saindad fired upon his brother deceased Zamir Hussain, which hit him on back side of his body, accused Lateef fired from his gun in the air. He had deposed that he along with his brother Aijaz Ali came out from the hotel and saw accused Ashiq Ali and Gulsher who caused hatchet and Lathi blows to his brother Aijaz Ali. He raised cries which attracted the people of Mohalla and thereafter he brought his brothers Zamir Hussain (deceased) and Aijaz Ali P.W. Injured to Casualty Ward of CMC, Hospital, Larkana, where his brother Zamir Hussain succumbed to the injuries and expired just after their reaching at Hospital. The P.W. Injured Aijaz Ali Exh.14 has deposed in his examination-in-chief that it was 6-40 p.m., accused Lateef armed with gun, accused Saindad armed with gun, accused Gulsher armed with hatchet and accused Ashique having Lathi came at Jamali's hotel. Accused Saindad challenged the deceased Zamir Hussain saying that he has exchanged harsh words with him over passing the street, hence they would not spare. Zamir Hussain tried to escape but accused Saindad fired upon him from his gun, which hit him on the back side of the body, resultantly his brother fell down and then expired in hospital. Accused Gulsher and Ashiq caused him P.W. Aijaz hatchet and Lathi blows, the blood started oozing from his injuries to which complainant Sudheer Ahmed raised cries, to which Uris Kalhoro and other people of the Mohalla reached at the place of incident. He remained under treatment at CMC Hospital, Larkana for 10 days as his arm was broken and had sustained injuries at his head. He deposed that accused Lateef lodged F.I.R. Against him and also police arrested him and kept at Police Station Civil Lines, Larkana for 10 days. His statement under section 161, Cr.P.C. As well as 164, Cr.P.C. Was recorded.
11. It is well settled proposition of law that in invoking the provisions of section 34, a furtherance of a common intention is a condition precedent for convicting each of the persons who took part in the commission of a crime, and the mere fact that several persons took part in a crime, in the absence of a common intention is not sufficient to convict them of that crime. It is not sufficient for joint responsibility for an offence under this section that offence actually committed was likely to occur as a result of the several persons acting together; but that the existence of common intention being the sole test of joint responsibility, it must be proved what the common intention was and that the common act for which the accused were to be made responsible was acted upon in furtherance of that common intention. It is also well settled proposition of law that the presumption of constructive intention must not be readily applied or pushed too far. We are aware that a pre- concert in the sense of a distinct previous plan is not necessary to be proved and that common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Reference can be made to the cases of (1) Mst. Zohra Bibi and another v. The State 2005 YLR 1490, (2) Muhammad Zaroof v. The State 2001 M LD 1339, (3) State v. Waheed Iqbal 2005 PCr.LJ 1348, (4) State v. Azizullah 2004 PCr.LJ 1710, (5) Muhammad Rafique v. The State 1989 PCr.LJ 43 and (6) Pervez v. Khan Bahadur 1982 SCM R 337.
12. From the perusal of the F.I.R. Evidence of P.Ws. And the material available on the record, I find no reason to come to the conclusion that all the appellants shared the common intention to commit murder of Zamir Hussain. Apart from want of any strong motive to justify such an intention there is a more significant fact which clearly negates the sharing of a common intention by all the appellants to kill the deceased Zamir Hussain. Both the P.Ws./eye-witnesses have consistently deposed that Lateef appellant who was armed with a gun made fire in the air and none received any injury from his firing. Same is the allegation against Gulsher and Ashiq who were armed with hatchet and Lathi and they gave blows to P.W. Aijaz. All these three appellants have taken meticulous care to use their weapons on each occasion which would certainly detract from the intention to kill or the sharing on their part of such an intention. In the circumstances, I am inclined to think that there was no community of intention among the assailants to kill Zamir Hussain deceased for which Saindad, appellant alone could be held responsible who directly fired from his gun at deceased Zamir Hussain. But this does not mean that Ashiq who wielded a stick caused injuries to P.W. Aijaz, Lateef armed with gun and Gulsher armed with hatchet did not at all share a common intention with the co-accused who were not only armed with deadly weapons like gun, hatchet and stick who actually used them in the fight with serious consequences. Keeping in view with circumstances of the case and particularly the background of three days earlier exchange of harsh words, the fact that all of them came fully armed two with deadly weapons to attack Zamir Hussain deceased and P.W. Aijaz would clearly show that common intention was not only confined to causing injuries but something beyond it. Having already excluded the sharing of the common intention to kill Zamir Hussain, I am of the view that the community of intention extended to causing of grievous injuries to the members of the complainant party.
13. As regards the precise nature of the offence committed by Saindad, I am clearly of the view that having directly fired from his gun at Zamir Hussain from a distance of 10/20 feet, the consequences of the likelihood of the fire shot to cause death was thus fully within his knowledge and as such case falls within the purview of section 302, P.P.C., I would, therefore, hold him guilty under section 302(b), P.P.C. And maintain the sentence of life imprisonment already awarded to him. The conviction and sentences of the other appellants, namely, Lateef, Gulsher and Ashiq Ali under section 302/34, P.P.C. Are not justified and are accordingly set aside.
14. Ashiq Ali appellant gave a stick blow on the head of P.W. Aijaz which was declared grievous as
(1) Shajjah-i-Madihah, (2) Shajjah-iKhafifah and (3) Jurh Ghayr Jaifah Hashirnah. Having already come to the conclusion that the community of intention between the appellants extended to the causing of injuries, I would maintain the conviction and sentences of all under sections 337-A(i), 337-A(ii), 337-F(v) and 34, P.P.C. The sentences awarded to Saindad appellant shall run concurrently.
15. The appeals are partly accepted to the extent indicated above.