Muhammad Haneef, Muhammad Rafeeq, and Muhammad Shareef all real brothers, sons of Muneer Khan case Rajput, Residents of Okara Town, District Sahiwal have been convicted for the attempted murder of Pervaiz Iqbal committed by them in furtherance of a common intention and sentenced to varying terms of imprisonment under section 307/34, Pakistan Penal Code commensurable with the individual role they were found to have played in the commission of offence. The sentence imposed on them are as below
1. Muhammad RafeeqRigorous imprisonment for seven years.
2. Muhammad HaneefRigorous imprisonment for five years.
3. Muhammad Shareef ---Rigorous imprisonment for one years.
The accused have appealed to challenge their conviction and sentences.
2. Habeeb Ahmad complainant (P. W. 1), Pervaiz Iqbal, the injured witness (P. W. 2), a material cousin of the former and the appellants have their shops in Okara Town in the locality what is known as Chauri Gali. The shop of Mehraj Din intervenes the shop of Habeeb Ahmad (P. W. 1) and that of the appellants. On 4-I1-1975 at about 7-30 a.m. Habeeb Ahmad (P. W. 1) was setting his shop and had dusted a bag of chillys which offended Muhammad Shareef appellant. The appellant abused Habeeb Ahmad (P. W. 1). Rushed to his shop and caught hold of him from his collar. Pervaiz Iqbal (P. W. 2) whose shop ,is also nearby rushed to the shop of Habeeb Ahmad and reprimanded Muhammad Shareef that he should have some respect for elderly persons. Muhammad Shareef left away with a threat that he will teach them a lesson. After a short while Muhammad Shareef accompanied by his co-appellants who both were armed with knives again came to the shop of Habeeb Ahmad. Habeeb Abmad rushed inside the shop and the appellants also followed him.
Pervaiz Iqbal also rushed to the site to intervene. Muhammad Shareef appellant exhorted his brothers to catch hold of Pervaiz Iqbal for, be had abused him. Muhammad Rafeeq appellant caused two injuries to Pervaiz in the belly and in the left flank and Muhammad Haneef had given a blow to Pervaiz Iqbal in the shoulder with knives.
Muhammad Saleem, Abdul Hameed (P. W. 3/4) and several other shop--keepers of the locality had witnessed the incident. Pervaiz Iqbal who was injured seriously was removed to the hospital where he was examined by Dr. Shabbir Suleman (P. W. 8) who noticed following injuries on him .-
(1) A stab incised wound 1 1/2 ' x 1/4' in the lower part of left side of the abdomen 2' above the inguinal ligament.
(2) A stab incised wound --x 1/4' into stomach deep in front of the abdomen, 1f below the xipli sternum slightly towards the right and about 1J' above umbilicus. The food particles were coming out of the wound.
(3)An incised wound 1/2' x 1/4' x 1/2' on the front of right shoulder.
The injured had a feeble pulse 68 per minute and was in agony.
The injuries were caused by sharp-edged weapon, Injury No. 2 was declared grievous and dangerous to life while the remaining two injuries were kept under observation (P. F.). Clothes (P.
1/2) were taken off the person of Pervaiz Iqbal by the doctor which he had later produced before the Investigating Officer. (P. B.) Arrival of Pervaiz Iqbal in the hospital in a serious condition was also notified to the Police by the doctor at 8-45 a.m. Vied report (P. G.). After examination Pervaiz Iqbal was referred to District Headquarters Hospital, Sahiwal, for further treatment. It appears that the condition of Pervaiz Iqbal had worsened while on his way to Sahiwal and he was taken to Combined Military Hospital at Okara for treatment. After having secured report of Medical Examination of Pervaiz Iqbal, Habeeb Ahmad left for Police Station to report the occurrence and happened to meet Muhammad Yusuf Assistant Sub-Inspector (P. W. 9) during the way who recorded statement (P. A.) of Habeeb Ahmad at 10-00 a.m. And forwarded the same to Police Station where formal first information report (P. A./1) was entered by Muhammad Rafeeq Muharrir Head Constable.
Muhammad Rafeeq appellant (1) was arrested by Ibrar Hussain Shah Assistant Sub-Inspector (P.
W. 6) on 10-11-1975 and a couple of days later, knife P. 4) was recovered from his house at his instance vied Memo. P.
4. The remaining two appellants were arrested on 20-11-1975, Muhammad Haneef appellant had same day led to the recovery of knife (P. 3) from the house which was taken into possession vied memo P. C.
3. Habeeb Ahmad, Pervaiz Iqbal, Muhammad Saleem and Abdul Hameed (P. Ws. 1 to 4) are witnesses of occurrence. The next witness Nisar Ahmad (P. W. 5) is witness of recovery of knife (P. 3) attributed to Muhammad Haneef appellant. Khadim Hussain (P. W. 7) who was adduced to prove recovery of knife (P. 3) against Muhammad Rafeeq did not support the prosecution and was declared hostile. Dr. Shabbir Suleman who appeared 8th witness on the side of prosecution had in his evidence proved his report (P. F.) of examination of Pervaiz Iqbal. The remaining three witnesses are Police Officials who had held investigation in the case.
The appellants had in their statements under section 342, Criminal Procedure Code denied the charge as well as the recoveries alleged by the prosecution. Muhammad Haneef and Muhammad Shareef appellants had pleaded false implication due to their relationship with Muhammad Rafeeq. The latter admitted having caused injuries to Pervaiz Tqbal in exercise of right of self defence with a counter version that Habeeb Ahmad (P. W. 1) had dusted bag of chillys which had affected his father who was an old patient of asthma. The appellant forbade Habeeb Ahmad whereat the latter and Pervaiz 1qbal had assaulted him at his shop. Pervaiz lqbal had dealt him an injury in the head with a knife in his hand. The appellant picked up a small knife lying in the shop which was used for opening the bags and dealt injuries to Pervaiz 1qbal so as to save himself from further harm at his hands. A few documents DC, DD, DE, DF, DG and DH were tendered in defence which show that Muneer Khan father of the appellants had on 17-11-1975 filed a complaint (DD) against Habeeb Ahmad, Pervaiz Iqbal and two others for the offences under section 324/542, P. P.
C. With the allegation which confirmed the plea of self-defence raised by. Muhammad Rafeeq appellant in his statement. Process was issued to Pervaiz Iqbal alone to answer the charge under section 324, Pakistan Penal Code (DE). The complaint was on 6-10-1977 dismissed in default.
Revisions Application to challenge order of learned Magistrate was also dismissed on 3-11-1977 (DH).
4. Prosecution version was accepted by learned Magistrate with the finding that presence of the witnesses deposing to the occurrence at the site was natural. Muhammad Saleem and Abdul Hameed (P. Ws. 3/4) were independent witnesses. Evidence of all the four eye witnesses was free from material discrepancies, consistent, coherent and capable of inspiring confidence. This evidence was further corroborated by medical evidence and the recoveries attributed to Muhammad Haneef and Muhammad Rafeeq appellants. There was no evidence to support the defence version.
5, The allegations against the appellants set forth above are fully borne out by the statements of four eye-witnesses in the case. They have in their statements charged Muhammad Shareef appellant of having a quarrel with Habeeb Ahmad in the earlier incident of dusting of a chilly bag by the witness and shouting `Lalkara' in the second incident and the remaining two appellants for having dealt injuries to Habeeb Ahmad at his shop with knives in their hands, Pervaiz Iqbal (P. W. 2) was injured critically and he was required to be rushed to the hospital for timely treatment. Habeab Ahmad and Pervaiz Iqbal cousins inter se, and Muhammad Saleem (P. W. 3) who is also related to them could not be labelled as interested witnesses because there was no previous enmity between the parties who were neighbouring shopkeepers. The statement of Abdul Hameed (P. W.) was not open to any conceivable objection. The statement of Pervaiz 1qbal alone coupled with medical evidence was sufficient to answer charge against the appellants. In the circumstances of the case, delay of 21'hours in reporting the incident to the Police could not be treated so inordinate as to justify a doubt against genuineness of prosecution version.
6. Learned trial Magistrate had erred in relying on the recoveries against Muhammad Rafeeq and Muhammad Haneef. The point need not be discussed in detail as evidence of eye-witnesses did not require any corro--boration. As said above statement of Pervaiz Iqbal the injured witness and medical evidence furnished a firm basis for conviction of the appellants.
There is not an iota of evidence to lend a colour even to the defence version that Muhammad Rafeeq appellant alone was involved in the incident and his act of causing injuries to Pervaiz 1qbal was protected by exercise of right of self defence under section 96, Pakistan Penal Code.
7. It was rightly contended that the case of Muhammad Shareef appellant who was attributed `lalkara' only stands on a different plane and was distinguishable from that of the remaining two appellants, who had actually assaulted Pervaiz 1qbal (P. W. 2). Muhammad Shareef is a grown--up young man and was equally capable of actually participating in the occurrence as the remaining appellants. It is not easy to understand why Muhammad Shareef who had allegedly direct grievance against the complainant side and is said to have brought his brothers to the shop of Habeeb Ahmad to avenge his insult at the hands of Habeeb Ahmad and Pervaiz Iqbal had merely contented himself with raising shouts and had not raised even a little finger against the witnesses.
Muhammad Shareef is given benefit of doubt and acquitted at the charge. He stands discharged of his bail bond.
8. The further contention that the rule of vicarious liability provided under section 34, Pakistan Penal Code was wrongly applied in this case by learned Magistrate has a force in it. Muhammad Saleem (P. W. 3) had admitted that all the three appellants were present at their shop at the time of the first incident between Muhammad Shareef appellant and Habeeb Ahmad which belied the .Assertion that Muhammad Shareef appellant had brought the remaining two appellants from their houses after 15/20 minutes. In the circumstances, inference of common intention within the meaning of section.34 which implies a pre-arranged plan was not possible. The occurrence appears to have been the result of a sudden flare up. In any case, there could be a reasonable doubt if Muhammad Rafeeq and Muhammad Haneef appellants had community of intention for a murderous attacked on, Pervaiz Iqbal. The benefit of doubt regarding application of rule of constructive liability is also to be resolved in favour of the accused. Muhammad Rafeeq and Muhammad Haneef were, therefore, liable for their individual acts. The case against Muhammad Rufeeq appellant who was responsible for having caused injury No. 1 and 2 to Pervaiz Iqbal predominantly attracted the provisions of section 307. He could be safely saddled with the intention or at least the knowledge envisaged in that section. Conviction of Muhammad Rafeeq appellant for the offence under section 307, Pakistan Penal Code is maintained. I find from record that he had during the trial remained in the lock-up for one and a half year. Sentence of the appellant is reduced to five years with a fine of Rs. 2,000, in default further rigorous imprisonment for one year.
Muhammad Haneef appellant is guilty for the offence under section 324, Pakistan Penal Code as the injury attributed to him (No. 3) was declared simple. The said offence is punishable with maximum sentence of three years. The appellant has already served sentence of one and a half year. The sentence already undergone with a fine of Rs. 1,000, in default further rigorous imprisonment for six months should amply meet the demands of justice in his case. In the event of recovery, the entire amount of fine shall be paid to Pervaiz Iqbat under section 544-A, Criminal Procedure Code.
Appeal disposed of accordingly.