ZAFFAR HUSSAIN MIRZA, J.--This is gin appeal by Special Leave from the judgment and order dated .15-4-79 passed by a Division Bench -of the High Court of Sind upholding the convictions of appellants Mohammad Mustafa and Mohammad Umer under section 302/34, P. P. C. And sentence of life imprisonment awarded to each of them by the trial Court. The sentence of fine of Rs.,2,000 each imposed on the appellants was also upheld.
2. The appellant Mohammad Mushtaq is the son and appellant Mohammad Umer is the son-in- law of Yaqoob who owned a house at Anjuman Colony at Karachi close to the house occupied by him along with his family. Yaqoob rented out the aforesaid house to deceased Aslam. In the events that happened, Yaqoob desired to have the rented house to be vacated immediately but Aslam was not prepared to do so and wanted sometime for the reason that his wife Mst. Naseem Akhtar was expecting delivery in the near future. On the fateful day, 1. e. 12-10-76 at about 8-00 p.m. Aslam is stated to have taken Mohammad Yousuf, the informant and P. Ws. Sher Jang and Abdur Rehman with a view to request Yaqoob to give him two months' time for vacating the house. The said P. Ws.
Called Yaqoob, his sons Mohammad Amir and Mustafa and his son-in-law Mohammad Umer from their house. There appeared to have then ensued parleys between the parties on the request for the extension of time until 9-15 p.m. When Yaqoob is stated to have lost his temper and demanded Aslam to vacate the house immediately. Saying so Yaqoob entered the house of Aslam and picking up a wooden table threw it outside the house in the street apparently with a view to forcibly evict Aslam. There was a scuffle between Yaqoob and Aslam who tried to stop him (Yaqoob) from entering the house again. In the meantime, while Yaqoob was attempting to enter the house again P. W. Mst. Naseem Akhtar suddenly closed the iron door and in the process Yaqoob received some injuries. Thereupon Yaqoob, his sons Amir and Mustafa and his son-in-law Umer belaboured Aslam with fist blows and fell him on the ground. It is the case of the prosecution in the F.
1. R. That Yaqoob, Mustafa and Umer caught holdAslam while Amir went running to his house and brought a churri (knife A with which he inflicted a number of injuries to Aslam. Aslam attempt to escape from the clutches of the assailant but collapsed after few steps an succumbed to his injuries. Yousuf then went to Baldia Police Station a about 9-30 p.m. And lodged the report.
3. After recording the report, S. H. O. Saleh Mohammad accompanied the informant to the scene of occurrence from where he secured the blood--stained knife which was lying on the ground and also secured the dead body of deceased Aslam lying 50 paces away from the scene of occurrence. The appellants were then arrested along with Yaqoob and Amir. The clothes of Amir and Mustafa were found to be stained with blood and were secured under a mashirnama. After further usual investigation, the case was sent up for trial before the Court. The appellants were tried along with Yaqoob and Amir by the learned IIIrd Additional Sessions Judge, Karachi.
4. The plea of the present appellants before the trial Court was that they were not present at the scene at the time of the occurrence and that they took no part in the incident. They further pleaded their innocence and alleged false implication on account of their relationship with Yaqoob.
5. The learned Additional Sessions Judge accepted the oral testimony of witnesses produced by the prosecution as truthful and trustworthy which according to him was sufficient to establish the guilt of the accused, although, in his view, there was also sufficient corroborative evidence on record. However, as regards accused Yaqoob, the learned trial Judge on examination of the ocular testimony, made the following observation.
"There is no doubt that ocular testimony of complainant P. W Mohammad Yousuf and P. W. 7 Mst.
Naseem is discrepant and contradictory as regards the specific part assigned by them to accused Yaqoob and the evidence of P. W. 2 Sher Jhang and P. W. 5 Rehman L is silent in this regard as they.
Have not assigned any specific role Y to accused Yaqoob and it is difficult to hold with any certainty as to what role, if any, was played by him in the commission of the above crime.
Accordingly the learned Additional Sessions Judge acquitted accused Yaqoob giving him the benefit of doubt and convicted the remaining three accused including the present appellants under section 302 read with section 34, P. P. C. He awarded accused Amir, as the principal offender, the death penalty and the present appellants were awarded the lesser sentence of imprisonment for life.
6. The High Court, as already stated, upheld the convictions of the appellants and co-accused Amir, but, the reference for confirmation of death sentence was not accepted which was reduced to life imprisonment.
7. All the three convicts then came up before this Court and sought Special Leave to Appeal. By order dated 27-5-80 this Court, however, dismissed the plea of co-accused Amir and granted Leave to Appeal to the present appellants in order to examine the question whether the appellants, in the circumstances of this case, can be held to have shared the common intention with the main culprit.
8. Now the prosecution case rests upon the testimony of four eye--witnesses, namely, informant P.
W. 1 Yousaf, P. W. 2 Sher Jhang, P. W. 5 Abdur Rehman and P. W. 7 Mst. Naseem. By way of corroboration reliance was placed on the testimony of P. W. 4 Fazal Ahmed, recovery of blood- stained churri from accused Amir and securing of blood stained clothes from the person of Mustafa and Amir, besides the evidence of motive and injuries found on the person of the deceased. The trial Court. As pointed out earlier, believed the testimony of the main witnesses in coming the conclusion that the present appellants were constructively liable for the acts of the principal accused in inflicting the fatal blows to the deceased. Sneaking with respect, the learned Judges of the High Court glossed over the question of the complicity of the present appellants in regard to the main incident as there is hardly any discussion in the judgment of the High Court regarding the applicability of section 34, P. P. C. The question was disposedin the following manner :- "Amir went to the house and brought a knife while the others caught bold of him (deceased), knowing fully well, as to what would be the consequences. Mr. Shaikh cited a number of authorities showing absence of common intention, but the same will not be relevant, in the circumstances of this case. I am clearly of the opinion that case under section 302 P. P. C. Has been made out against appellant Amir, and under section 302 read with 34, P. P. C. Against the other two appellants."
9. Now the question that requires consideration is whether in the consideration brought on the record, the prosecution has established the fact at the present appellants had the common intention to commit the murder deceased Aslam. For this purpose it is necessary to examine and assess relevant part of the evidence adduced at the trial. P. W. 1 Yousuf has pct used Mustafa and Umer started beating deceased Aslam. Accused emir went running inside his house and immediately camp out with a Jlurri' in his hand. At the time when he returned accused Yaqoob, Mustafa and Umer had fallen deceased Aslam on the around and sheld him there while accused Amir, stabbed deceased Aslam with churri.
P. W. 2 Sher Jhang, on the other hand, deposed "Thereafter accused Amir, Umer and Mustafa caught hold of deceased Aslam and started beating him and he fell down on the ground. In the meantime accused Amir went inside his house and immediately came out with a churri in his hand and inflicted chum injuries to deceased Aslam.
Deceased Aslam tried to escape but was also attacked from behind by accused Amir and he fell down after covering a distance of about 15 yards." Again P. W. 5 Abdur Rehman similarly deposed as under :- "Aslam also wanted to catch hold of accused Yaqoob when accused Umer, Mustafa and Amir held him and threw him on the ground. Accused Amir went inside his house and brought a churri and inflicted blows on the left side of chest, stomach and at the back of the right ear. Sher Mang and one another intervened and Aslam got up and started running towards Bus Stop No. 4: When Aslam tried to run away, accused Amir inflicted two churrl blows on his back. Aslam went a distance of about 15 or 16 yards and then fell down."
Finally P. W. 7 Mst. Nasim, the wife of the deceased stated :- "I then went to the window and from there I saw that accused Umer, Amir and Mustafa had fallen deceased Aslam on the ground and were beating him with fists. At that time accused Yaqoob shouted to the other three accused that they should kill deceased Aslam on which accused Amir went in his house and brought a churri and immediately attacked deceased Aslam with churri. I could see him inflicting four churri injuries on the front part of his body. Deceased Aslam tried to run and save himself and accused Amir inflicted two injuries on his back. Deceased Aslam running after a few paces fell down."
It will thus appear that the role assigned to the appellants by the eye-witnesses of the incident except for P. W. 1 Yousuf, is that upon Yaqoob receiving an injuries by the sudden closing of the door by P. W. Nst. Naseem, the appellants grappled with the deceased and after giving him fist blows fell hi on the ground. It is at this stage that accused Amir went to his house an brought the knife with which he inflicted the fatal blows to the deceased. There is thus the sole word of P. W. 1 Yousuf that when accused Ami returned with a knife and was inflicting injuries with it, the appellan along with Yaqoob held down the deceased. Even P. W. Mst. Naseem, who is the widow of the deceased, did not go as fat at to allege that the appellan were holding the deceased at the time accused Amir was inflicting injury on him. The overwhelming part of the prosecution evidence itself, therefore does not attribute any overt act on the part of the appellants to suggest that Robby had added or assisted the main accused to facilitate the commission offence. The fact cannot be overlooked that P. W. 1 Yousaf who was the informant is himself a Police Constable posted at Baldia Police Station and is the step-father of P. W. Mst. Naseem. His sole testimony on this particular, aspect of the case cannot, therefore, be preferred as against to evidence of the other three eye-witnesses.
10. The circumstances on record on an overall view of the account of the incident indicate that in the course of discussion between the two parties on the question of vacating the rented premises, Yaqoob seems to have Flared up and in a fit of temper started throwing the household effects from the house of the deceased which led to a scuffle between the accused party and deceased Aslam after further intensity was added to the already charged situation on account of the old man receiving an injury as a result of the slamming of the door. It is natural to except deceased Aslam to resist the attempts of Yaqoob and to prevent him from forcibly vacating the house in his occupation. It is not the case of the prosecution that the accused party bad come prepared for using force with the object of taking over possession C of the house and there is no direct or other evidence of a pre-concert in this regard. Even according to the prosecution version the complainant party had initiated the move for a discussion to press their request for postponement of the date for surrendering the possession and parleys seem to have go on in a peaceful atmosphere for some time. There is thus no question of the appellants or for that matter even the principal accused Amir initially havin the intention of killing Aslam or using force for achieving their object. Admittedly none of the accused party was armed in the beginning.
11. As was postulated by this Court in the case of Rasool Bakhsh v. State (PLD 1970 SC 316), order to bring a case within the ambit of section 34, P. P. C., it is necessary that some overt act or acts must be established to lead to the inference that the participators in the crime acted in pre-concert or under some pre-arranged plan, although it was pointed out, that this does not mean that every participant in the crime must be shown to have committed the same kind of act. The question always is whether the person sought to made constructively liable did do anything with an intention to cooperate in the offence, for, if he did so he would be then so label, After giving careful consideration to the facts and circumstances of this case, we have reached the conclusion that in the present case there is no reliable evidence to show this. In addition to the circumstances already discussed above, the consistent version of all the eye-witnesses is that the deceased was able without the assistance of his companions to extricate himself from the on sleight of the assailant after receiving a few injuries and actually walked away over a distance of 15-16 yards in the course of which he was once again attacked by convicted accused Amir. This clearly shows that he was not being held down on the ground by the appellants otherwise an already seriously injured person could hardly be expected to have himself released from their grip and rise from the ground to walk away. Having regard to these circumstances. It is reasonable to conclude that the act of killing the deceased was an F individual and independent act of accused Amir for which the appellants cannot be held constructively liable as they do not seem to have shared his intention.
There are no other circumstances to support the constructive liability of the appellants. As regards the bloodstains allegedly found on the clothes of the appellants, besides the fact that Yaqoob had received injury from which he had bled, which may have been the source of the stains, this piece of evidence by itself is not sufficient to form the basis of conviction of the appellants for the main offence.
12. The matter, however, does not conclude here. The question still remains as to whether on the facts established on record the appellants a guilty of any other offence. In this regard, it may be stated that all the eye witnesses have consistently supported the case of the prosecution that the present appellants had belabored the deceased and fell him down on the ground, after Yaqoob received injury in the course of his attempt to enter th house of the deceased. There, is, the reform sufficient evidence to hold the appellants guilty of the offence under section 352 read with section 34, P. P. C. We would accordingly alter the convictions of the appellants from the offence under section 302/34, P. P. C. To that under section 352/34, P. P. C. They are awarded a sentence of 3 months' R. I. Each. However, in view of the fact that the appellants have already undergone imprisonment for over a period of one year since the date of their convictions, we consider that the propor--tionate part of the sentence already undergone by the appellants shall sufficiently meet the ends of justice and no further sentence of imprisonment or fine is, therefore, awarded to them.
The fine if already recovered shall be refunded.
13. In the result, we set aside the convictions of the appellants under section 302/34 P. P. C. That shall be altered to the ones under section 352/34, P. P. C. As stated above. The appeal is allowed to this extent. The appellants shall be released from custody if not required to be detained in any other, case