' SHAHID ANWAR BAJWA, J.---F.I.R No,105 of 1995 was recorded at Police Station, Pano Akil, on 26-8- 1995 at 3-00 a.m. For an incident alleged to have occurred an hour and half earlier. Complainant stated that after taking their meals and tethering their cattle complainant, his father, his uncle and his brother went to sleep. They were woken up by noise and saw four persons standing in the house amongst the cattle. Amongst them were both the appellants, both armed with guns. Two co- accused were also armed one with a gun and one with a hatchet. They were found untethering the cattle. Complainant party raised cries and tried to catch the intruders. Accused went out of the door and the complainant party followed them. Father of the complainant, deceased, Sadoro was in front. Outside the door another two co-accused were found standing with guns. The culprits asked the complainant party not to follow them. It is alleged that appellant Roshan Ali directly fired from his gun which hit his father and he fell down. Fire reports attracted others. Seeing them the accused went away. Father of the complainant was found dead and thereafter F.I.R. Was lodged.
2. At the trial, Dr. Ghulam Yasin appeared as P.W.1, complainant Bashir Ahmed as P.W.2, brother of the deceased Bahawal as P.W.3, son of the deceased Rasheed Ahmed as P.W.4, mashir ofrecovery Quwwat Ali Shah as P.W.5, rnashir of vardat Ameer Bux as P.W.6, tapedar Fida Hussain as P. W.7 and.
I0 Haji Mitha Khan as P. W.8. Thereafter the statement under section 342, Cr.P.C. Was recorded and vide impugned judgment dated 28-4-2010 the present two appellants were convicted and sentenced to death. They were also ordered to pay fine of Rs, One lac in equal shares. They wee further convicted under section 511 read with section 380, P.P.C., for attempt. To commit theft of cattle, to imprisonment of one year and to pay fine of Rs:5,000. Co-accused Rahmatullah alias Rahmoo was acquitted by granting him benefit of doubt. These appeals have been filed to challenge and impugn the judgment dated 28-4-2010.
3. Mr. Ghulam Shabir Dayo, learned counsel for appellant Rustam, made the following submissions:-
(1) Case of appellant Rustam is identical to case of acquitted co-accused Rahmoo because Rustam did not fire. He is also alleged not to have resorted to any firing though he is alleged to have gun and the gun in question has never been recovered.
(2) There has been no evidence whatsoever that there was any planning for murder and if at all any murder took place it took place at the spur of the moment. Therefore, punishment of death in any case could not have been justified. Learned counsel submitted that preplanning and knowledge is necessary for offence under section 148, P.P.C. He relied upon Mir Dad v. The Crown (1969 SCMR 419), Muhammad Ramzan v. State (2006 MLD 1785), Fakir Muhammad v. State (2006 MLD 867), Haji v. State '(1976 SCMR 20) and Falak Sher v. State (2008 PCr.LJ 837).
4. Mr. Riaz Ahmed Soomro, learned counsel for appellant Roshan Ali made the following submissions.:-
(a) The appellant could not have been alleged to have fired from gun because the injury is stated to be a bullet injury and a .12 bore cartridge has been recovered.
(b) The sketch/map of the place of vardat cannot be relied upon because the incident occurred on 26-8-1995 and the map was prepared on 25-4-2003 and that too at the instructions of the complainant.
(c) Learned counsel referred to evidence of P.W.3 and submitted that the witness had stated that he saw absconding co-accused Pehlwan armed with gun outside the house and therefore it created doubt as to who fired the fatal shot.
(d) Learned counsel referred to evidence of P.W.4 where in cross-examination he stated that police came at 5-15 a.m. And police remained at the place of vardat for two hours but, then he stated that dead body was shifted to hospital at about 3 a.m: Learned counsel contrasted it with statement of P.W.3 who stated that dead body was shifted to hospital at 7 a.m. And they reached - hospital at 9 a.m. He submitted that who shifted the dead body and at what time is not stated.
(e) Learned counsel submitted by referring to mashirnama of vardat which does not mention any bulb in the light of which the accused could have been identified.
(f) Nothing has been recovered from the appellant.
(g) It is an unseen incident and the appellant has been implicated on the basis of enmity.
' He relied upon Muhammad Arif v. State (2006 PCr.LJ 1827), Yousaf Shah v. Ghulam Jan Khan (1975 SCMR 464), Ghulam Mohammad v. State (1976 PCr.LJ 1402) and .Mirza v. The Crown (PLD 1952 Lahore 609).
5. Mr. Zulfiqar Ali Jatoi, learned Deputy Prosecutor-General, submitted that incident took place inside a house and it was a natural consequence of the action which the appellant planned to commit. He, submitted that the contradiction in the times is not material because there has been a time period of seven years between the incident and recording of evidence. .Incident occurred in 1995 and evidence was recorded in 2002. He submitted that in murder, cases death sentence can be awarded even if there is no recovery because recovery is only supporting piece of evidence. He relied upon Muhammad Nadeem v. State (2011 SCMR 872). He lastly submitted that in the injury it has been stated that blackening and charring has been caused and submitted that in case of gun wounds such occurs when the distance is not more than three feet. He relied upon (PLD 2003 SC 786) in this regard.
6. We have considered the submissions made by the learned counsel and have also, gone through the record as well as the case-law cited at the bar.
7. We will first take up case of appellant Rustam. In the F.I.R. It is alleged that appellant Rustam 'was part of the four member gang who trespassed into house, of the complainant and tried to steal cattle and when the household members tried to catch hold of them, he along with others went out and when they were chased by the family members, there was no allegation against appellant Rustam that he' grappled with any of the chasers or fired at the deceased. Therefore, from the F.I.R.
It appears that he just put his tail between his legs and tried to run away as fast as he could and thus escaped. P.W.2 the complainant deposed exactly in the same terms. Though Rustam is alleged to have been armed with a gun, in the F.I.R. As well as in the statement by P.W.2 there is no allegation against appellant Rustam of even ineffective firing. Learned counsel rellied upon Falak Sher's case (supra). The case of the prosecution was that as the complainant party brick batted him, he ran-to the village. Thereafter Falak Sher and co-accused fired from the rifles. The complainant party returned the fire. Upon intervention by neighbours the parties were disengaged.
Thereafter. One Tahir Mahmood went to the roof to get cots and he was still on the stairs when Falak Sher and a co-accused being armed with guns were present on roof of the adjacent house; co-accused gave lalkara; Falak Sher fired at Tahir Mahmood. Co-accused Amjad Mukhtar also fired at the other two persons but they were not injured. A Division Bench of the Lahore High. Court observed that co-accused Amjad Mukhtar was only alleged to have made ineffective firing and as per defence version he had not participated in the occurrence. Possibility of false implication could not be ruled out. Appeal was accepted.
8. In Muhammad Ramzan's case (supra), it was observed that a very large net had been spread in the case and even mother of the accused was involved. Those who had not caused any injury were acquitted. In Mir Dad's case (supra), case of the prosecution was that deceased and his brother were joint owners of a piece of land in which appellant had half share. By mutual arrangement the parties were in possession of their specific portions of land but appellant claimed some more land which deceased Sahib Dad refused to yield. A quarrel took place and the appellant threatened to teach a lesson to his brothers. On the day of occurrence the appellant and his party came armed with two guns, a sword, some hatchets and danda and attacked Sahib Dad and his companions.
As a result Sahib Dad was killed and his eight companions were injured. The honourable Supreme Court observed as under:-- "Section 149 is divided into two parts, (a) an offence committed by a member of an unlawful assembly in prosecution of the common object of the assembly, (b) an offence which a member of that assembly knew to be likely to be committed in prosecution of the said common object. In the present case the evidence discloses that the object in view was to teach a lesson to Sahibdad and the other brother of the appellant (F.I.R. And P.W.2); this, in my opinion, implies the causing of hurt merely which at the most could include grievous hurt, but not the causing of death. We have next to see whether the appellant knew death was likely to be caused in prosecution of the common object of the assembly. In this connection one cannot overlook the fact that the account of the occurrence as given by the prosecution witnesses could not have been considered to be satisfactory by the Courts below as' thirteen out of the fourteen accused had been acquitted and even with regard to the appellant, who alone was convicted, his conviction under section 148 had been set aside. No doubt the question of knowledge is primarily a question of fact,. But it is a matter by no means free from difficulty. Upon a careful consideration of all the facts and circumstances of the case, I do not think it safe to convict the appellant under section 304, Part-II by the application of the principle of constructive liability. I would accordingly allow the appeal to this extent only that the conviction and the sentence under section 304, Part-II/149 will be set aside, but in other respects the appeal will be dismissed, in the result the convictions and sentences under sections 325/149 and 323/149, P.P.C., stand." (underlining supplied)
9. In the present case as far as offence under section 302, P.P.C. Against appellant Rustam is concerned, that is not proved and the reasons are three fold: none of the witnesses has uttered a single word regarding common intention of committing murder and has implicated Rustam in this regard; secondly, it is stated that as soon as hakal was given Rustam and the other co-accused ran out. Had there been any preplanning to commit murder they would not have run; thirdly, after they ran out it became a sort of situation where everybody was relying on agility of his heels.
Rustam ran away without firing either in the air or at anyone else. Had he intended to commit murder or had there been common intention to commit murder he would not have just run away but would have stopped and then tried to throw back the pursuers. Therefore his conviction under section 302, P.P.C. Cannot be maintained
10. As far as his conviction under section 380, P.P.C. Read with section 511, P.P.C. Is concerned, the position is different. All the, witnesses have been unanimous that all the four persons came inside the house and when the residents woke up they found them untethering the cattle. The eye- witnesses P.Ws.2, 3 and 4 have clearly stated in this regard. They were cross-examined by the counsel for Rustam and no question regarding this aspect was asked Mashirnama of place of vardat (Exh.23-A) states that there were pegs in the courtyard for tethering the cattle. There were visible marks of entering and coming on the wall. Therefore, as far as offence under section 380.
P.P.C. Read with section 511, P.P.C. Is concerned, the prosecution has successfully established its case against the appellant Rustam. Therefore, conviction and sentence on that charge is maintained.
11. As far as appellant Roshan is concerned, in the F.I.R. It is alleged, just like Rustam, that he was part of the gang and just like Rustam he along with others was untethering the cattle and just like Rustam upon hakal being given by the residents, he along with others escaped. Thereafter, in the F.I.R. It is stated that he, directly fired fromhis gun which hit father of the complainant who fell down.
Medical report states that there was a lacerated punctured wound 3 cm in diameter with inverted margins with blackening and charring on front of, centre of abdomen near umbilicus and there was a corresponding wound of exit 4 cm in diameter with averted margins on back of left, side of abdomen. It is alleged that appeilant Roshan was armed with a gun. The medical evidence is therefore corroborated by the ocular evidence as far as weapon is concerned.
12. Since there has been blackening and charring, distance between the barrel of-the gun and the body of the deceased, according to Modi's (page 722, 23rd edition) would be 1 to 3 feet when a single aperture with irregular and lacerated edges is made and distribute and scorch as they move through the internal tissues and the skin surrounding the wound is blackened and scorched.
Learned counsel for the appellant submitted that the appellant is alleged to have been armed with a gun but there was a bullet wound. This is not borne from the medical as well as ocular evidence.
There is no evidence that it was a bullet wound. P.W.2 stated that deceased Sadoro was ahead of him when the appellant fired with gunshot and hit him and stated that accused was at a distance of 10 paces when he fired at his father. P.W.3 described it as 4/5 paces. P.W.4 also stated the distance to be 4/5 paces. P.W.7 in the map prepared by him described the distance between the point where dead body was found to be lying and point at which the accused was stated when he fired as .10 feet. Now the situation in which the incident occurred was that the accused was running, Sadoro was following him and rest of the complainant party was behind Sadoro, according to map by tapedar 7 feet behind Sadoro. In order to fire the accused must have turned back and fired and during all this Sadoro must have kept running. Therefore, the statement regarding distance cannot be 'treated as accurate. Moreover, the map was prepared by the tapedar 8 years after the incident and that too at the pointation of the other prosecution witnesses. Therefore, not much reliance can be placed at the map prepared by the tapedar. All this indicates that when the fire took place, it was from a short distance, therefore, as far as the arm used and the distance from which it was fired, the prosecution case is fully supported.
13. Learned counsel for the appellant Roshan referred to evidence of P.W.3 where he had stated that he saw accused. Pehlwan armed with a gun available outside the house Pehlwan has been acquitted by the trial Court. Even P.W.3 has clearly stated that it was the appellant Roshan who fired gunshot on the deceased. Therefore; if Pehlwan was present outside it does not shake story of the prosecution against appellant Roshan.
14. Learned counsel for the appellant next contended regarding discordance in time as to when the police reached the place of vardat and when dead body was shifted to the hospital. It need not be emphasized that the time stated by the police in different documents by them is more often than not out of their desire to show their. Efficiency. Be that as it may, the learned counsel has failed to demonstrate as to how the fundamentals of the story of the prosecution i,e, entering into the house by the gang, attempt to steal cattle, hakal by the inmates, running away by the gang and fatal shot on Sadoro by the appellant Roshan is shaken by the fact that as to when the police reached where and when the dead body was shifted where.
15. As far as contention of learned counsel that nothing has been recovered from the appellant is concerned, recovery is only a corroborative piece of evidence and presence of it or absence of it cannot F lead, give all the other facts and evidence, to either conviction or acquittal. Similarly, if the mashirnama of place of vardat did not mention the bulb, it does not create doubt because mashirnama of the place of vardat was prepared at 0515 hours on 26-8-1998 and in the month of August at 0515 hours there is ample light and the bulbs are normally not on. In any case no question in this regard was asked from the mashir when he appeared for his evidence.
16. Result of the above discussion is that prosecution has successfully established its case beyond a shadow of reasonable doubt against appellant Roshan for offence under section 302(b), P.P.C.
And as far as under section 511 read with section 380, P.P.C. Is concerned, for the reasons stated in respect of appellant Rustam, the offence has been proved against appellant Roshan also.
17. This brings us to the question of sentence. At the time when G statement under section 342, Cr .P.C. Was recorded on 21-12-2009 appellant was 35 years of age and therefore at the time the incident occurred on 26-8-1995 he would be 20/21 years of age. Therefore, he was a young man still at the threshold of his youth. Moreover, his first instinct was to run away. Therefore, there was no previous design or intention to commit murder. There is no previous criminal record. Considering young age of the appellant and the above factors justice would he served if sentence of death is converted into imprisonment for life.
18. Result of the above discussion is that while conviction of appellant Rustam under section 302(b), P.P.C. Is set aside as the prosecution has failed to prove case against him. , his conviction under section 511 read with section 380, P.P.C. Is maintained. Conviction of appellant Roshan under section 302(b), P.P.C. As well as under section 511 read with section 380 maintained. However, sentence under section 302(b), P.P.C. Is modified from death to imprisonment for life. In other respect the sentence is maintained. The reference is answered in the negative.