Syed Hussain Mazhar Kaleem, J.--Above titled appeals have been directed against the judgment of District Court of Criminal Jurisdiction, Kotli dated 03-07-2008, whereby the appellants were convicted. Muhammad Rafique was awarded 10 years rigorous imprisonment under Section 324, A.P.0 and 5 years imprisonment under the Arms Act. Nazar Muhammad was sentenced to 14 years rigorous imprisonment under Sections 302, 109, A.P.0 while Khushi Muhammad, Muhammad Sharif, Muhammad Rashid and Muhammad Iqbal were acquitted of the charges. Since Muhammad Shafique (not before this Court) was convicted and awarded sentence of Visas' under Section 302, A.P.C, therefore, a reference under Section 374, Cr.P.C. and Section 31 of the Islamic Penal Laws Act, 1974 for confirmation of the sentence was also made by the trial Court.
2. Brief facts forming background of the appeals and the reference are that a case under Sections 324, 337,147,148,149, A.P.0 was registered at Police Station, Khuiratta on the complaint of Muhammad Mehfooz. It was reported that on 23-09-2001 at 11.00, a.m the complainant, his father and brother Muhammad Shabbir were ploughing their land with Tractor. Muhammad Shafique and Muhammad Rafique were armed with Kalashnikovs, Kdla with .30 bore pistol, Sharif with hatchet and Khushi Muhammad with stick came there. Nazar 'Muhammad raised lalkara, upon which Muhammad Shafique fired and caused injury at right side of chest of complainant's father. The others were alleged for reckless firing. The complainant by hiding himself behind the Tractor saved his life. The occurrence was stated to be witnessed by Muhammad Shabbir, Haji Muhammad, Muhammad Rashid and Muhammad Aslam. Motive behind the occurrence was the dispute over a piece of land between Muhammad Shafique, Muhammad Rafique and the victim. Later on Khushi Muhammad succumbed to the injury and Section 302, A.P.0 was added.
4. On completion of investigation, the Challan was submitted before District Court of Criminal Jurisdiction, Kotli. After necessary proceedings the Court decided the case in the aforesaid manner through the impugned judgment.
5. Feeling aggrieved, Muhammad Rafique and Nazar Muhammad filed appeal against the order of their conviction while the complainant also filed an appeal against the convict-appellants to enhance the sentence awarded to them by the Court below and to convict the acquitted- respondents wider Sections 302, 324, 147, 148, 149, A.P.0
6. Learned counsel for the convict-appellants and acquitted-respondents argued that due to dispute over a piece of land an enmity was prevailing between the parties, the said land was in the ownership and possession of Muhammad Rafique and other family members, the complainant party made trespass for forcibly taking possession of the said land, during trial the defence successfully proved the aforesaid fact and it was also admitted by the prosecution but the trial Court illegally did not rely upon this piece of evidence and by considering the revenue record neither properly produced by the prosecution nor tendered in the evidence, made observation regarding possession and ownership of the said land, thus the conviction based on the evidence which was not part of the record was against lawful justification. At the time of lodging F.I.R it was claimed that convict-appellants and others came at the place of occurrence while during trial the witnesses changed their position and deposed that they were fired upon from the Courtyard of the house and did not come at the spot. Muhammad Rafique was alleged for firing but admittedly he did not cause any injury to the deceased or the prosecution witness. Nazar Muhammad was attributed the role of raising lalkara but in view of the fact that convict-appellants and acquitted- respondents did not come out of the Courtyard of their house, the role ascribed to the convict- appellants was doubtful and Section 149, A.P.0 was not attracted, therefore, their conviction under Section 302, 109 or 149, A.P.0 was not lawful. The prosecution story was based upon the deposition of chance witnesses who had no justification about their presence at the spot at relevant time and were planted to make the case against the convict-appellants and others, moreover, they were related, interse and were also inimical. No independent corroborative material in support of the ocular version given by partisan witnesses was brought on record, recoveries were fictitious and were affected in presence of close relatives of the deceased, no respectable of the locality was asked to join the process, thus proceedings in this respect were violative of law. Weapon of offence allegedly recovered from Muhammad Rafique was not sent to Forensic Science Expert, thus it was of no help to the prosecution case. The evidence brought on record clearly indicates that the story was concocted and the whole family was involved in a false case. It was also not considered that being owner and possessor of the disputed land the convict-appellants and others had right of self-defence and of property. Particularly after arriving at the conclusion that Section 109, A.P.0 was not attracted in the circumstances, the Court below was not justified in convicting the appellants, therefore, the order of acquittal passed in favour of respondents may be maintained and by accepting the appeal filed by the convicts, they may also be acquitted of the charges.
7. On the other hand, it was argued that the occurrence took place during broad-day-light, identification, of the convict-appellants and others was not in doubt, F.I.R was lodged without any delay, names of the convict-appellants, acquitted-respondents and the prosecution witnesses were mentioned therein. The role played by each of them was described by the complainant, it was established that the deceased alongwith his two sons was ploughing the land. The convict- appellants and others came there and committed the offence, thus they were trespassers and aggressors. It was evident from the record that prior to the occurrence all of them assembled in the house of Muhammad Shafique and in order to execute the pre-arranged plan they committed the offence, thus all of them were equally liable for committing the murder of Khushi Muhammad.
Allegation of firing was proved beyond doubt and it was supported by post-mortem report, weapons of offences were recovered at instance of Muhammad Shafique, the convict-appellants and the acquitted-respondents, crime empties were also seized from the place of occurrence, Kalashnikov recovered from the principal offender alongwith crime empties was sent to Forensic Science Expert and a confirmative report Ex.PDD was also placed on record. Presence of the eye- witnesses at the spot at relevant time was established and it was not challenged. The trend of cross-examination shows that time and place of occurrence were not disputed, manner of occurrence was also admitted. Deposition of the prosecution witnesses was free from any contradiction, it was supported by circumstantial evidence brought on record in shape of post- mortem report and recovery of incriminating articles. The ocular version that Muhammad Shafique, the convict appellant and acquitted-respondents hatched a conspiracy and in order to execute the pre-arranged plan committed the offence of murder was proved, thus Section 149, was attracted and all of the offenders were equally liable to be convicted under Sections 302/149, A.P.C, therefore, by accepting the appeal filed by the complainant, the convict-appellants and acquitted-respondents may be punished accordingly.
8. We have heard the learned counsel for the parties and gone through the record of the case.
9. Since the appeals and the reference arise out of the same case, therefore, these shall be disposed off through this common judgment.
10. The prosecution's case was that land bearing Survey No. 1662/1 was in ownership and possession of the deceased. On the fateful day he alongwith his two sons was ploughing it with a Tractor. Haji Muhammad and Rashid came there to help him. Thereafter Shard Nazar Muhammad, Khushi, Kala and Rashid respondents came to the house of Muhammad Rafique and Muhammad Shafique. Aslam and P.W Rashid came at the spot. They met father of P.W complainant. At about 11.00 a.m. Shafique, Sharif, Rashid, Kala and Nazar Muhammad who were sitting in the Courtyard of the house of Muhammad Shafique and Muhammad Rafique, stood up. Shafique, Rafique and Rashid were armed with Kalashnikovs, Kala with 30-bore pistol, Sharif was carrying a hatchet while Khushi Muhammad was loaded with stick. They came towards the down corner of the Courtyard.
Nazar Muhammad raised lalkara by saying to kill Khushi Muhammad and his sons, upon which Muhammad Shafique targeted the deceased and caused fire-arm injury at his chest. Muhammad Shafique, Muhammad Rafique and Kala also fired at the complainant and his brother. They saved themselves by hiding behind the Tractor and a tree. P.Ws Muhammad Aslam and Rashid asked the offenders to stop firing. The, victim was shifted to hospital but he could not survive and succumbed to the injury.
11.In support of the above mentioned ocular version the prosecution examined 19 including 5 eye- witnesses out of 21 cited in Challan. Weapons of offence allegedly recovered at instance of the convict-appellants and acquitted-respondents, site-plan, post-morteth report, crime empties seized from the place of occurrence and Forensic Science Expert's report were also produced in the evidence.
12.Motive behind the occurrence was dispute over a piece of land. Though the prosecution claimed that the deceased was in possession of the said land but at the time of submission of Challan or during trial no evidence in support of it was brought on record, however, at a later stage Some documents were placed before the Court which were relied upon for recording the conviction. On the other hand, the defence also produced some documentary evidence including Khasra Girdawri Ex.DC showing that they were in possession of the disputed land. The trial Court while passing the impugned judgment failed to appreciate that even if the aforesaid evidence brought, on record by the defence was not reliable even than the documents produced by the prosecution were not worth, consideration as the same were not tendered in the evidence. The law is clear on the point that any evidence not tendered in the evidence cannot be read against an accused, besides the said documents do not establish that the complainant party was owner in possession of the disputed land. Another circumstance which could have resolved the issue was site-plan Ex. PS but unfortunately it also does not indicate that who was in possession of the land where the occurrence took place, thus the alleged motive was not proved.
13.At the time of lodging F.I.R, it was alleged that on the fateful day the deceased was ploughing his land. In the meantime, the convicts and others assembled in Courtyard of the house of Muhammad Shafique. Thereafter, they came into the disputed land and committed the offence but during trial the prosecution witnesses changed their position and alleged that after assembling in the house of Muhammad Shafique, they came towards the down corner of the Courtyard of his house from where Nazar Muhammad raised lalkara, upon which Muhammad Shafique fired at the deceased and caused injuries resulting into his death while Muhammad Rafique convict-appellant also fired but could not target any one The acquitted-respondents were not attributed any role in the occurrence.
14.The ocular version was that the convict-appellants and the acquitted-respondents assembled in the house of Muhammad Shafique, thereafter in prosecution of the common object they committed the offence. It may be mentioned here that the question of vicarious liability has to be considered in light of the peculiar circumstances of each case. Necessary ingredients for bringing case against an accused within the purview of Section 149, A.P.0 are that he was a member of unlawful assembly, each of them had the common object and the offence was committed in prosecution of some pre-arranged plan. In the present case, no circumstance establishing that an unlawful assembly was formed and all of them committed the offence in prosecution of common object was brought on record, thus it cannot be ruled out that they might have assembled in the house of Muhammad Shafique as a matter of routine but not to execute some pre-arranged plan, therefore, the question of committing the offence in prosecution of common object was doubtful.
In this view of the matter, individual role played by each of the alleged offenders in the occurrence was important for disposal of the case.
15.It may be stated here that the parties were inimical towards each other. The witnesses were closely related to the deceased, thus a careful scrutiny of their deposition was required. The eye- witnesses alleged Muhammad Rafique convict-appellant for ineffective firing with Kalashnikov. 13 crime empties from the place of firing and weapon of offence at his instance were shown to have been seized but surprisingly the articles were riot sent to Forensic Science Laboratory for expert opinion, thus independent corroborative material in support of the allegation against the convict- appellant was not available on record.
Similarly Nazar Muhammad convict-appellant was ascribed the role of raising lalkara but after considering the fact that a direct enmity was prevailing between Muhammad Shafique and the deceased it was hard to believe that any instigation was required in the circumstances. In this situation it cannot be ruled out that the eye-witnesses might have exaggerated and levelled the allegations against the acquitted-respondents and that of lalkara against the convict-appellant to rope them in the case.
16.The District Court of Criminal Jurisdiction, Kotli while deciding the case convicted Muhammad Shafique. He was sentenced to Visas' and a reference under Section 374, Cr.P.0 and Section 31 of the Islamic Penal Laws Act, 1974 was made by the said Court for confirmation of the sentence mentioned above. It is important to note that the said convict managed his escape from District Jail Kotli and did not file any appeal against the order of conviction, thus an important question required to be attended also came before the Court as to whether a reference against an convict absconding before consideration of the reference, could be disposed off on merits in his absence.
By now it is an established law that a reference submitted for confirmation of the sentence can be disposed off keeping in view the facts and law. Reliance is placed on "Mushtaq and three others Vrs. The State," (1989 P.Cr.L.J 2336) where it was held at Page 2342 in the following word: "Though Noor Hussain did not file an appeal. against his conviction and is still absconding, but his case is also before us under Section 374, Cr.P.C. for confirmation of death sentence. For the reasons, discussed above, we are not inclined to confirm the death sentence recorded against him, and while exercising powers under Section 376, Cr.P.C. set aside his conviction and, sentence."
In another case titled "Hayyat Bakhsh Vrs. State," (1981 SCM R 1), the Supreme Court of Pakistan in a full bench case dealt the proposition in the following manner at Page 17.
"If the convict decamps, he thereby forfeits the right of audience and the High Court would, in such situation, be competent to consider the case of confirmation of his death sentence and confirm the same even in his absence, the confirmation of course will have been on merits of the case."
Thus, it follows that the reference made by the Court below has to be disposed off on merits in accordance with law.
17.As said earlier that Muhammad Shafique convict was alleged for firing and causing injuries to Rhushi Muhammad resulting into his death. The deposition of eye-witnesses in this respect was confidence inspiring, weapon of offence was recovered, at his instance, The evidence against him was corroborated by post-mortem report and confirmatory Forensic Science Expert's report. It was established beyond doubt that fire made by him with Kalashnikov caused death of the deceased, thus he was rightly convicted and awarded 'sentence of Visas'.
18. Upshot of the above discussion is that appeal filed by Muhammad Rafique and Nazar Muhammad is accepted and they are acquitted of the charges resultantly that filed by the complainant against the acquitted-respondents and to enhance the sentence awarded to Muhammad Rafique and Nazar Muhammad is dismissed while reference made by District Court of Criminal Jurisdiction, Kotli under Section 374, Cr.P.C. and Section 31 of the Islamic Penal Laws Act, 1974 for confirmation of sentence awarded to Muhammad Shafique is accepted and sentence of Visas' awarded by the said Court is confirmed.