ABDUL SAMI KHAN, J. - Appellants-Muhammad Aslam son of Muhammad Shafi and Hassan Zaheer alongwith Zaheer Shah and Muhammad Aslam alias Baggu were tried in case F.I.R. No. 219/2004, dated 23.04.2004 for offences under Sections 302, 324, 148, 149, P.P.C, registered at Police Station Farid Town, District Sahiwal by the learned Additional Sessions Judge, Chichawatini who vide judgment dated 31.08.2006, convicted Muhammad Aslam son of Muhammad Shafi, Zaheer Shah, Hassan Zaheer, Zaheer and Muhammad Aslam alias Baggu as under:- MUHAMMAD ASLAM SON OF MUHAMMAD SHAFI Under Section 302(b) of Pakistan Penal Code. DEATH sentence on two counts with a fine of Rs. 200,000/-, to be paid equally to the legal heirs of both the deceased.
HASSAN ZAHEER Under Section 324 of Pakistan Penal Code. Seven years' rigorous imprisonment with a fine of Rs. 10,000/-, in default thereof simple imprisonment for three months with benefit of Section 382-B, Cr.P.C.
HASSAN ZAHEER. MUHAMMAD ASLAM SON OFMUHAMMAD SHAFI. ZAHEER SHAH. MUHAMMADASLAM ALIAS BAGGU Under Section 148 of Pakistan Penal Code. Three years' rigorous imprisonment with benefit of Section 382-B, Cr.P.C.
2. The appellant Muhammad Aslam has challenged his conviction and sentence through Criminal Appeal No. 457 of 2006 titled as "Muhammad Aslam v. The State" whereas Hassan Zaheer has filed separate Criminal Appeal No. 458 of 2006 titled as "Hassan Zaheer v. The State" and Murder Reference No. 724 of 2006 titled as "The State v. Muhammad Aslam" has also been received from the learned Trial Court under Section 374, Cr.P.C, for confirmation or otherwise of the death sentence. Criminal Appeal No. 476 of 2006 titled as "Safdar Saeed v. The State etc." has also been filed by the complainant against Hassan .Zaheer, Muhammad Aslam son of Muhammad Shafi, Zaheer Shah and Muhammad Aslam alias Baggu. This judgment shall dispose of the appeals and the reference mentioned above.
3. Learned counsel for the appellant in Criminal Appeal No. 458 of 2006 titled as "Hassan Zaheer v.
The Stated submits that the appellant Hassan. Zaheer after serving his entire period of sentences has since been released, In this view of the matter Criminal Appeal No. 458 of 2006 has become infructuous and is disposed of accordingly.
4. The brief facts of the F.I.R. Ex.PU as narrated by Safdar Saeed complainant (PW.8) are as under:- That on 23.64.2004 at about 4.30 p.m. His nephew (Bhanja) Shahid AH parked his motorcycle in the street in front of his house. Hassan Zaheer and Muhammad Aslam son of Shafi accused come on a Carry Van which touched the motorcycle. Muhammad Aslam started abusing on which Shahid Ali came out of his house and slapped Muhammad Aslam on which Muhammad Aslam and Hassan Zaheer left the place extending threats to Shahid Ali PW. Thereafter, the complainant alongwith Asgher Ali, Muhammad Ashiq after getting this information were going to the house of their sister at about 5.30 p.m. Muhammad Aslam accused armed with .30 bore pistol, Hassan Zaheer armed with an iron hammer, Muhammad Aslam alias Baggu armed with .30 bore pistol, Abdul Ghani accused (since P.O.) armed with a sota and Zaheer Shah accused armed with a sota came there and they all raised lalkaras that they would teach a lesson for their insuIt upon which the complainant raised hue and cry and in the meanwhile Ali Ameer Shah, Kaswar Hussain and Nasir Shahzad PWs reached there. Muhammad Aslam accused fired with his pistol which hit on the abdomen of Muhammad Asghar (deceased) who fell down.
Ali Ameer Shah (deceased) tried to rescue him on which Aslam alias Baggu fired with his pistol which hit Ali Ameer Shah on his chest. Hassan Zaheer inflicted hammer blow which hit on the right, eye brew of Ali Ameer Shah. Abdul Ghani accused (since P.O.) gave a sota blow which hit on the index finger of right hand of the complainant. Naeem Ahmad PW also reached at the spot and Zaheer Shah accused inflicted sota blow which hit on his left eye. Abdul Ghani made a sota blow which hit at the head of Naeem Ahmad PW. Hassan Zaheer inflicted hammer blow on the head of Muhammad Asghar. Zaheer Shah inflicted sota blow to Ali Ameer Shah. The complainant party caught hold Hassan Zaheer and took into possession his iron hammer as well as pistol from Muhammad Aslam Bhatti. They took Asghar and Ameer Ali Shah to the hospital where Ali Ameer Shah succumbed to the injuries whereas Asghar Ali was admitted in the hospital. Later on Asghar Ali also died. According to complainant the occurrence was witnessed by Naeem Ahmad (PW.9)
Muhammad Ashiq, Nasir Shahzad (PW.10) and Kaswar Hussain PWs besides himself. The complainant went to the police station for registration of the case but on the way, Allah Ditta, S.I.
(PW.5) met him and he narrated the story to him. The complainant also produced pistol which was- snatched from Muhammad Aslam Bhatti accused and iron hammer snatched from Hassan Zaheer to the police. The complainant added that Muhammad Aslam alias Baggu came to the hospital and some one from the mob threw a brick on him due to which he was injured."
5. Allah Ditta, S.I. (PW.5), Muhammad, Islam, S.I. (PW.12) and Nawaz Ahmad, Inspector (PW.13) conducted investigation in this case. After the completion of investigation the challan was submitted against the accused.
6. At the inception of the trial, formal charge under Sections 302, 324, 148, 149, P.P.C, was framed against the accused. They denied the charge claiming trial. The prosecution examined as many as thirteen witnesses.
7. PW-1 Dr. Saeed Ahmad, Medical Officer, on 23.04.2004 at 9.00 p.m. Had medically examined Muhammad Asghar (deceased), at that time he was alive and after his death he conducted post- mortem examination on his dead-body and noted the following injuries:- 1-A. A lacerated wound of entry with inverted edges and slight blackening of the margin, deep going, present on the front, left side of abdomen, 5 cm super lateral to the umbilicus and 2 cm to the left side of anterior medium plane of the body, 1 cm x1 cm.
1-B. A lacerated exit Wound, everted margins 1.5 cm x 1 cm present on the back of abdomen at right lumbar region, 3 cm to the right side of posterior midline.
7. An incised wound 4 cm x 1 muscle deep, present on the top left side of head, 13 cm above the left ear.
According to medical officer injuries No. 1-A and 1-B and 2 were ante-mortem and injuries No. 1-A and 1-B were caused by fire-arm. Injury No. 2 was caused by sharp-edged weapon. The cause of death was injuries No. 1-A and 1-B which resulted into massive haemorrhage and death and were sufficient to cause death in the ordinary course of nature. According to him death occurred at 7.35 p.m. On23.04.2004 and probable time between death and postmortem examination was one hour and twenty minutes. Ex.PB is the correct carbon copy of the post-mortem examination report.
8. On the same day at 9.30 p.m. He also conducted post-mortem examination on the body of Ali Ameer son of Mushtaq Shah and found the following injuries:-
(1) A lacerated wound 2 cm x 1 cm x muscle deep present on the right side of forehead just above right eyebrow.
(2) An abraded swelling 2 cm x 1 cm on the right infra orbital area of face.
(3) A lacerated wound of entry 1 cm x 1 cm x deep going with inverted margin and mild blackening on the margin was present, 3 cm infra medial to the left nipple and at 7'0 Clock position.
According to the medical officer all the injuries were anti- mortem, injuries Nos. 1 and 2 were caused by blunt weapon and injury No. 3 was with fire-arm. Injury No. 3 had resulted into haemorrhage and cardiology shock and was sufficient to cause death in the ordinary course of nature. The probable time elapsed between injuries and death was immediate and between death and post-mortem was approximately less than ten hours. Ex.PE is the correct carbon copy of the postmortem examination report.
9. The medical officer had also medically examined Safdar Saeed complainant injured, Muhammad Naeem injured P.W., Muhammad Aslam son of Wali Muhammad injured (accused), Muhammad Aslam son of Shari injured (accused) and Hassan Zaheer injured (accused) on the same day i.e. On 23.04.20104 injured in the abovesaid incident.
10. PW-5 Safdar Saeed is the complainant of the case and also injured during the incident. He has narrated the facts as mentioned in the F.I.R. Ex.PU. PW-9 Muhammad Naeem is also injured witness of the incident. P.W.11 Naseer Shahzad is an eye-witness of the incident. They have fully supported the prosecution version and corroborated the version of complainant. Allah Ditta, S.I. (P.W.5), Muhammad Islam, S.I. (P.W.12) and Nawaz Ahmad Inspector (P.W.13) had testified about the investigation conducted by them. Rest of the evidence is more or less formal in nature and needs not be discussed.
11. Dr. Waseem Safdar, Surgeon District Headquarter Hospital, Sahiwal was examined as C.W.1. He had medically examined Muhammad Aslam son of Muhammad Shafi (accused/appellant) and Muhammad Aslam son of Wali Muhammad (accused) and found them unconscious. Both the injured were referred to General Hospital, Lahore due to their serious conditions.
12. Statements of the accused were recorded under Section 342, Cr.P.C, on the conclusion of the prosecution evidence. They denied the allegations levelled against them by the prosecution. To question as to why this case against him and why the P.Ws, deposed against him, Muhammad Aslam (appellant) stated as under:- "It is a false case. The PWs are related inter se and also with the deceased and are partisans. They have made false statements against me and my co- accused to support their concocted version of the occurrence. They were not present at the spot at the time of occurrence. The PWs have fabricated their injuries to show their presence at the spot. "
The convict/appellant did not opt to appear under Section 340(2), Cr.P.C, nor produced any witness in his defence.
13. At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions, learned Trial Court proceeded to convict and sentenced the appellant Muhammad Aslam son of Shafi and his co-accused as mentioned in paragraph No. 1 of this judgment.
14. Learned counsel for the appellant stressed that the occurrence is not so as depicted by the prosecution in its case. Learned counsel for the appellant argued that motive part of the story related to Shahid Ali (P.W.7) but during later incident he held nowhere figured. According to learned counsel if the accused had any grudge they had to go to the house of Shahid Ali (PW.7). He submits that injuries on the person of injured P.W. Is not a seal of truth. He strenuously contended that the prosecution has failed to prove the case beyond shadow of doubt and the evidence so produced is not confidence-inspiring and is not worthy of credence. Learned counsel submits that the complainant has suppressed his on role and role of his companions (PWs.) in the occurrence.
The injuries inflicted on the person of Muhammad Aslam son of Wali and Muhammad Aslam son of Muhammad Shafi are not mentioned by the complainant in the F.I.R. Both the accused received serious injuries on the vital parts or their bodies i.e. Head, not explained by the prosecution. Both the injured were medically examined before examination of the injured PWs. And post-mortem of the deceased. The motive alleged by the prosecution has not been proved so the prosecution must suffer. According to learned counsel the complainant and his companions are the aggressor in this case and they have inflicted serious injuries on the person of Muhammad Aslam (appellant) and Muhammad Aslam Baggu. They remained unconscious and were referred to General Hospital, Lahore where they remain admitted and this fact has been suppressed by the prosecution, It was argued that the injuries on the person of both the deceased is the result of one fire shot which was fired from weapon of the complainant and complainant after joining hands with the I.O. Has twisted the facts and shifted the blame upon the appellant, this fact has been admitted by the doctor who had conducted post-mortem examination upon the dead-bodies of the deceased who had categorically stated that the injuries on the person of both the deceased could be the result of one fire shot, It was argued that the injured PWs have been disbelieved to the extent of acquitted accused so their testimony cannot be relied upon while convicting the appellant. The prosecution evidence has been evaluated by two different judicial officers in the first instance during the trial of Muhammad Aslam (appellant) and letter on during the trial of co-accused Abdul Ghani. It was argued that the recovery was planted upon the appellant in order to strengthen the prosecution case. The empties were kept in police station for a considerable long period and no explanation has been offered by the prosecution as to why the empties remained in the police station. The report of Forensic Science Laboratory is of no help to the prosecution as weapon of offence and empties were sent to the Forensic Science Laboratory after the arrest of the accused.
Learned counsel argued that it is a free and sudden fight which erupted between the parties and in such-like situation every body is liable for his on act and extreme penalty of death is not warranted.
15. The learned counsel for the complainant as well as learned Additional Prosecutor General have opposed the submissions made by learned counsel for the appellant and submitted that the matter was reported to- the police without element of deliberations and consultations and it is a case of prompt F.I.R. The learned counsel further submits that the parties to the occurrence were known to each other before the incident and question or mistaken identity does not arise in this case. Safdar Saeed complainant (P.W.8) and Muhammad Naeem (P.W.9) were injured during the incident and inspite of lengthy cross-examination, the defence failed to demolish/dislodge their presence from the spot. Learned counsel further submits its that the prosecution case stands proved from all corner against the appellant, the ocular account is fully corroborated by the prosecution witnesses, post-mortem examination of the deceased and MLC of the injured P.W.8 Safdar Saeed complainant and P.W.9 Muhammad Naeem, It was argued that case of the prosecution is further fortified by the report of Forensic Science Laboratory which reveals that weapon of offence recovered from Muhammad Aslam (appellant) matched with the empty recovered from the place of occurrence, It was argued that the learned Trial Court has erred in law by giving benefit of doubt to Muhammad Aslam Baggu whereas according to prosecution evidence he has been attributed fire-arm injury on the chest of Ali Ameer which is borne out from the post-mortem examination report and there is no occasion for the Trial Court to acquit him.
Lastly it has been prayed that the appeal of the convict/appellant may be dismissed and the Murder Reference may be answered in affirmative and Hassan Zaheer, Zaheer Shah, and Muhammad Aslam alias Baggu should also be convicted under Section 302, P.P.C, as they are vicariously liable in this case and should have been handed down maximum punishment of death.
16. We have heard the learned counsel for the parties as well as learned Additional Prosecutor General at length and have scanned the record of the case with their able assistance.
17. Occurrence in this case took place at 5.30 p.m. On 23.04.2006 and the matter was reported to the police on the same clay at 6.20 p.m. Whereas F.I.R. (Ex.PU) was recorded at 6.30 p.m. This F.I.R, not only contains names of the accused and witnesses but also reasons behind the occurrence, It has been observed by us that the injured were taken to the hospital immediately after the occurrence as is evident from the medico-legal reports. Statement of Safdar Saeed complainant injured (P.W.8) was recorded by Allah Ditta, Sub-Inspector (P.W.5) at Chowk Comprehensive School MuItan. Safdar Saeed complainant injured (P.W.8), Muhammad Naeem injured (P.W.9) and Naseer Shahzad (P.W.10) in a nutshell ascribed the role of firing to the appellant. However, all the three witnesses have been disbelieved by the Trial Court qua the co-accused of the appellant but the appellant was found guilty of the charge on two counts. According to the prosecution story an altercation took place half an hour before the main occurrence between Shahid AM and Muhammad Aslam Bhatti (appellant) as Shahid Ali parked his motor cycle in the street which struck with the Carry Van of Muhammad Aslam (Appellant) and in this occurrence there was exchange of slap between Shahid Ali and Muhammad Aslam (appellant) and his co-accused, It has been observed by us that both the parties indulged in a free fight in which both the parties received injuries including the appellant and his co-accused Muhammad Aslam alias including the appellant and his co-accused Muhammad Aslam alias Baggu. Muhammad Asghar Ali (deceased) and Ali Ameer (deceased) were shifted to the hospital for treatment but could not survive and breathed their last after some time in the hospital. The prosecution in order to prove its case produced Sardar Saeed-complainant injured (P.W.8), Muhammad Naeem injured (P.W.9) and Naseer Shahzad as eye-witnesses or the occurrence who furnished ocular account. The ocular account furnished by them is corroborated by the medical evidence as well as recovery of weapon of offence empties from the spot, the result whereof was positive report by the Forensic Science Laboratory.
18. After going through the entire evidence we have no option but to conclude that the complainant had not approached the Court with clean hands and highlight the role of the other side, In such-like cases it is duty of-the Court that grain be separated from the chaff, It has been observed by us that the injuries on the person of Muhammad Aslam (appellant) was suppressed by the prosecution. However, the prosecution has tried to explain the injury on the person of Muhammad Aslam Baggu by stating that he received injuries in the hospital when he brought Muhammad Aslam co-accused in the hospital for medical treatment and that some one from the mob injured him by throwing brick but the explanation furnished by the prosecution is highly improbable and unbelievable as both the accused were seriously injured and were referred to General Hospital, Lahore due to serious head injury and in unconscious condition, It reveals from the record that they remain admitted in the General Hospital, Lahore for treatment;
19. It was argued on behalf of the appellant that injuries on the persons of both the deceased is the result of one fire shot and this fact has been admitted by Dr. Saeed Ahmad who conducted the post-mortem examination upon the dead-bodies of the deceased while appearing as P.W.1 that the injuries on the person or both the deceased could be the result of one fire, so it is possible that the same bullet which pears through body of Asghar Ali deceased and then stuck the other deceased Ali Ameer and both died at the spot, It has been noticed by us that led bullet recovered by the doctor from the body of Ali Ameer deceased during postmortem examination has never been sent to the office of Forensic Science Laboratory and the prosecution has failed to give any plausible explanation as to why the spent bullet recovered from the body Ali Ameer deceased was not sent to the Forensic Science Laboratory.
20. In this case there is another aspect of the case which cannot be overruled, that on the basis or similarly ocular evidence, the co-accused of the appellant were acquitted by the learned Trial Court by disbelieving the prosecution evidence, as such conviction on capital charge of the present appellant cannot be upheld, unless the prosecution has succeeded in furnishing independent corroboration to the ocular account which has already been partly disbelieved by the learned Trial Court, It is pertinent to mention here that the prosecution has failed to produce the motor-cycle and Carry Van as the motor cycle stuck with Carry Van. Furthermore the motive has also been disbelieved by the Trial Court. We have also taken into account very carefully the fact that admittedly there is no previous enmity between the parties. However, the prosecution has proved its case as far as the appellant is concerned. The occurrence took place all of a sudden in which both the parties received injuries and unfortunately two persons from the prosecution side lost their lives, as it is a sudden light, so every body is liable for his on act, therefore, the question or vicarious liability does not arise in this case.
21. As discussed above that this a sudden fight, in which Muhammad Aslam (appellant) had also suffered serious injuries on vital part of the body i.e. Head. Now the question remains whether the case is covered under Section 302(b), P.P.C, as held by the learned Trial Court or Section 302(c), P.P.C., we are of the view that this is not a case which attracts the provisions of Section 302(b), P.P.C, but the case is covered under the provisions of Section 302(c), P.P.C. We accordingly set aside the conviction of the appellant under Section 302(b), P.P.C, and convict him under Section 302(c), P.P.C, and sentenced him to 14 years' R.I. On two counts with benefit of Section 382-B, Cr.P.C. The sentence of fine and the sentence of imprisonment in default thereof awarded to the appellant by the learned Trial Court is, however, maintained. Resultantly, Criminal Appeal No. 457 of 2006 is partly allowed.
22. Death Sentence is not confirmed and Murder Reference is answered in the negative.
23. For the reasons discussed hereinabove, Criminal Appeal No. 476 of 2006 having no force is hereby dismissed.