1. SALAHUDDIN PANHWAR, J.---Through this single judgment, I am going to decide both the above said Crl. Appeal (s), which have arisen out of single judgment dated 24.5.2010, passed by learned Additional Sessions Judge, Kandhkot in Sessions Case No.185 of 2008 (Re-State v. Abdul Ghafoor and others), whereby the respective appellants have been convicted as follows:-- 'Appellants Abdul Ghafoor, Mooso and Muhammad Ameen were convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life on two counts each for committing murder of deceased Zafrullah and Dost Ali and to pay Rs. 100,000/- each as compensation to the legal heirs of deceased Zafrullah and Dost Ali. They were also convicted under section 324, P.P.C. and sentenced to suffer RI for ten years each and to pay Rs.50,000/- each as compensation to the victims/ injured.
2. In addition to above, the appellant Mooso was also convicted:, `under Section 337-F(iii), P. P. C. for causing injury to injured Abdul Latif and sentenced to suffer RI for two years and to pay Rs.5000/- as daman amount to injured Abdul Latif.
3. While appellant Ameen was:-- 'convicted under Section 337-F(iii), P . P. C. for causing injury to injured PW Fida Hussain and sentenced to suffer RI for two years and to pay Rs.5000/- as damn amount to injured Fida Hussain.'
4. It was further ordered that in case of failure to pay compensation amount, the appellants shall have to undergo R.I for one year more. All the sentences were ordered to run concurrently. The benefit of Section 382-B, Cr.P.C. however, was extended to the appellants.
2. Precisely, prosecution case as depicted in FIR are that complainant party used to cultivate the lands of Shankar Lal situated in Deh Jamal; on which wheat crop was standing and near to the said land there were houses of accused Abdul Ghafoor and others. On 10.01.2008 it was about 11.00 a.m., the buffaloes of accused Abdul Ghafoor entered into said wheat crop, PW Haji Muhammad Nawaz took the buffalo from wheat crop, whom accused Hafeezullah started causing lathi blows whereupon complainant, his brother Dost Ali nephew Zafarullah, brothers Saindad, Abdul Latif, cousin Fida Hussain and nephew Karamullah forwarded ahead in order to rescue Muhammad Nawaz. It was further stated in FIR that meantime, accused Abdul Ghafoor armed with lathi, Jan Baig, Ali Baig, Yaseen, Gahi, Muhammad Ali, Mooso, Muhammad Ameen and Arz Muhammad, all by caste Jafferi, armed with Kalashnikovs came running from their houses. On their arrival accused Abdul Ghafoor instigated other accused to murder the complainant party, whereupon accused Jan Baig, Yaseen, Gahi, Muhammad, Ali Baig, Mooso Muhammad Ameen and Arz Muhammad fired upon Dost Ali, Zafarullah, Saindad, Latif, Fida Hussain and Karamullah, who all received injuries and fell down raising cries. Thereafter, all the accused went away towards Southern side while raising slogans and firing in air. Complainant party then noticed that Dost Ali had received fire arm injuries on left side of abdomen, Zafarullah had received fire arm injuries on lower part of his abdomen, they were bleeding and had died at spot, while PW Saindad had received fire arm injuries on his right thigh and left buttock, PW Abdul Latif had received two firearm injuries on his left thigh and one firearm injury on right thigh, PW Fida Hussain had received firearm injuries on left knee, PW Karamullah had received firearm injuries on right thigh and PW Muhammad Nawaz had received lathi injuries on left hand and shoulder. The complainant then arranged for conveyance and referred the injured immediately for treatment and then took dead-bodies of both the deceased to police station. Police referred the dead bodies to M.O for postmortem examination. The complainant thereafter buried both the deceased and after condolence, lodged FIR on the same date i.e. 10.01.2008 at 1750 hours.
5. 3.During the course of investigation, accused Abdul Ghafoor was arrested while remaining accused could not be arrested; after completing investigation, police submitted the challan/charge sheet. During pendency of the trial accused Muhammad Ameen and Mooso were arrested in some other case, who also joined trial. However, rest of the accused persons namely Hafeezullah, Ali Baig, Yaseen, Jan Baig, Gahi, Muhammad Ali and Arz Muhammad were declared proclaimed offenders.
6. 4.The prosecution, in order to prove the charge, examined: PW-1 ASI Nizamuddin at Ex.10 who produced FIR at Ex.10-A; PW-2 Tapedar Ali Hassan at Ex.12, who produced sketch of place of incident at Ex.12-A; PW-3 SIO Azizullah at Ex.13 who produced mashirnama of dead bodies, inquest reports, mashirnama of vardat, arrest and recovery at Ex.13-A to 13-G respectively; PW-4 Corpse bear PC Saddaruddin at Ex.14 who produced receipt of dead bodies at Ex.14-A; PW-5 M.O Faizullah at Ex.15 who produced provisional medical certificates, final medical certificates and postmortem examination reports of deceased at Ex.15-A to 5; PW 6 Complainant Ramzan at Ex.16; PW-7 Saindad at Ex.17; PW-8 Karamullah at Ex.18; PW-9 Haji Muhammad Nawaz at Ex.19; PW-10 Abdul Latif at Ex. 20; PW-11 Fida Hussain at Ex.21 and PW-12 Azizullah at Ex.22.
7. Thereafter, learned DDPP closed the side of prosecution case vide his statement Ex.23. 5.The statements of the appellants were recorded under Section 342, Cr.P.C. wherein they professed their innocence however, none of them examined himself on Oath nor led any evidence in defence, as provided under section 340(2), Cr.P.C.
8. 6.Learned counsel for the appellant Abdul Ghafoor has inter alia, contended that appellant is innocent and was falsely implicated in the instant case due to enmity; there are material contradictions which were not appreciated by learned trial Court properly; the appellant was admittedly an crippled person who even requires support to stand and move hence story, so knitted to rope the appellant, is baseless; no active role except that of alleged instigation is assigned to the appellant. The prosecution never established the charge against the appellant fairly and properly therefore appellant was/is entitled for benefit of doubt.
9. 7.Learned counsel for appellants Mooso and Ameen has inter alia contended that the case against these appellants was never established by the prosecution beyond shadow of doubts, therefore, it was never safe to convict the appellants; it was further argued that these appellants have not been alleged to have caused any injury to the deceased but the injuries, attributed to appellants, are against the witnesses which too have been declared within meaning of Section 337-F(iii), P.P.C. There are material contradictions which have not been appreciated and considered properly by the learned trial Court while convicting the appellants, therefore, it would serve the purpose of safe Criminal Administration of Justice if the appellants are given benefit of doubts.
10. 8.Learned APG has contended that ocular account is supported with medical and substantial evidence, hence impugned judgment is maintainable under the law.
11. 9.Heard and perused the record.
12. 10.Before going towards merits of the case, under the peculiar facts of the instant case i.e. prosecution story always required issue of 'common object' to be thrashed because where an incident is not premeditated or least appearing to be result of sudden flare-up then before awarding 'common' conviction the 'common intention/object' must be established beyond reasonable doubt. I would insist that 'common intention/object' since results into holding the one guilty of that act even which one has not done. A reference to Section 149 of the P.P.C., being relevant to the point, is made hereunder which is:-- 'Every member of unlawful assembly guilty of offence committed in prosecution of common object: If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
13. From plain reading of the above, it is clear that once the prosecution establishes that object of forming an assembly was 'common' or members of such an assembly "knew' what offence is likely to be committed in prosecution of that 'object' (formation of assembly) then no member shall be entitled to take an exception to what was committed by any of the members of that 'assembly'.
14. This, is prima facie an exception to general principle of law that 'one shall be punished for his own act/ omission' therefore, required ingredients must always be proved by prosecution before insisting the conviction with reference to 'common object / intention'. Reference can be made to the case of 'Muhammad Altaf v. State (2002 SCM R 189), wherein it is held that:--
9. In the light of the arguments addressed and in view of the factual aspect of the case it is proper and necessary to first determine whether in the circumstances of this case the prosecution has been able to prove the ingredients of section 149 P.P.C, and its application to the facts of the case.
15. As this section stands, its ingredients have to be established by the prosecution. The liability of each accused involved in a case can only be fixed if the common object of the assembly is first ascertained. In this case the motive which allegedly prompted the accused to launch their attack was a dispute between the deceased Ghulam Murtaza and P.W Asghar Ali on one hand and accused Mujahid Nawaz on the other over the pigeons.
16. The word 'knew' occurring in the second part of section 149, P.P.C. requires that this must be proved by tangible and sufficient evidence and not from conjectures and speculations that the offence was committed in prosecution of the common object of the assembly. It would, therefore, not be sufficient to show that the accused ought to have known or might have known and that they had reason to believe that the common object of the unlawful assembly was to commit murder. In this back ground it is not just and proper to hold that to avenge a trivial and insignificant incident over pigeon, the grandfather, their son and their grandson would form an unlawful assembly with the only object to commit murder. Therefore, in these circumstances section 149, P. P.0 cannot be made applicable and so every accused would be liable to punishment for the act committed by him during the attack.
11. Keeping in view above touch stone, relevant to state that there is no denial to the fact that case of the appellant Abdul Ghafoor is standing on different footing which even was admitted by the learned trial Court Judge at page-8 of the impugned judgment that:-- 'However, the case of accused Abdul Ghafoor is standing on a very different path to that of case of co-accused Muhammad Ameen and Mooso. At the very first it is admitted fact that accused Abdul Ghafoor is lame by one leg and he does walk with support of an artificial leg and also takes a stick with him in order to get support while walking.'
17. Therefore, I would discuss the case of the appellant Abdul Ghafoor first. The allegation against the appellant Abdul Ghafoor is that his buffaloes had entered into wheat crops, cultivated by the complainant and when PW Muhammad Nawaz, drove out the buffaloes, appellant Abdul Ghafoor instigated other Hafizullah to give lathi blows to him and on arrival of complainant party, the other accused persons also reached there armed with Kalashnikovs and they at instigation of appellant Abdul Ghafoor caused straight firing.
18. 12.The perusal of the entire available material, I found nothing on record that there had altercation of any hot words between PW Muhammad Nawaz and appellant Abdul Ghafoor when appellant Abdul Ghafoor allegedly saw PW Muhammad Nawaz driving the buffaloes out of wheat crops. The Investigating Officer of the case even spoke not a single word about damaged wheat crops or the buffaloes of appellant Abdul Ghafoor. The complainant in his cross-examination admitted that:-- 'At the time of incident there was no any grudge or ill will between us and accused persons.'
19. 13.This admission also eliminates chances of any premeditation hence the motive/ reason, on which the edifice of the prosecution rests, was/is prima facie missing or least never proved against the appellant Abdul Ghafoor though was specifically set-up. The prosecution in such eventuality is to suffer the consequence of such failure, reliance is placed on the case of 'Amin Ali v. State (2011 SCM R 323) wherein it is held that:-- 'In such a situation, their evidence is required to be carefully examined. Reliance is placed on the case of Noor Muhammad v. State (2010 SCM R 97) and at page 101 thereof it has been observed as under:-- "Thus, the prosecution has failed to prove the motive. It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1997 SCMR 214) that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali v. The State (1971 SCM R 432) it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of Ameenullah v. State (PLD 1976 SC 629) it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story'.
20. The witnesses of ocular account though have alleged role of instigation against the appellant Abdul Ghafoor for use of Kalashnikovs resulting into death of two persons and injuries of fire-arm to number of persons but they have not denied rather acknowledged that: i)the said appellant Abdul Ghafoor was crippled at time of incident and was not capable of moving freely even without artificial leg and stick; ii)there has not been any serious enmity between the parties; Therefore, the allegation of instigation against the appellant Abdul Ghafoor appears to be requiring strong corroboration which in the instant case are lacking. The FIR of the instant case was not promptly lodged by the complainant though he, having sent the injured to hospital, had reached at police station along with dead bodies which is evident from examination in chief of the complainant wherein he claims: 'I also arranged for other conveyance and brought dead bodies at Police Station Karampur where I lodged my report against the accused.'
14. The claim of lodging the FIR at police station on first arrival is an improvement because it was not so claimed in the FIR and even position shall become clear from cross-examination of the Investigating Officer (PW-3 SIP Azizullah) wherein he admits that:-- 'The dead bodies were brought at police station by the complainant party on a single cot on foot. I had asked complainant party first to register FIR and thereafter, the formalities would be completed but complainant said that he would lodged (lodge) FIR later on and first their should be disposal dead bodies and letter for treatment for injured therefore, 1 started proceedings of the case prior to registration of FIR.'
21. The said witness (Investigating officer) further admits in his cross-examination that:-- <i>'When I visited injured they were in the Wiranda of hospital on stratures. The injured at my visiting time were in senses and were in talking and speaking conditions but I do not record their statement at that time as the injured refused to give their statements at that time.' This prima facie is sufficient to establish that the FIR has not been recorded at the time it is claimed but it was lodged after considerable preliminary inquiry, including postmortem examination and visit of injured; till such time the complainant party prima facie did not record the FIR nor had introduced the names of accused persons, hence claim of widening of the net by the complainant party in result of consultation and deliberation cannot be ruled out.
22. Such attitude of the complainant and injured witnesses coupled with deliberate delay in reporting the incident at first available opportunity speaks volume of widening of the net else none was there to stop the complainant and witnesses to name the real culprits before the lapse of time when deliberation prevails over real facts. The complainant party though denied to have been at any annoyance or enmity against the appellant Abdul Ghafoor however the PW-8 Karamullah admitted in his cross-examination that:-- 'It is a fact that there were not good relations between accused Abdul Ghafoor and complainant over the matter of 'KARAP' there are strained relations.
23. The delay in reporting the matter at first available opportunity; refusal of witnesses (injured) to record their statements to I.O. and considerable delay in recording the FIR was always sufficient to widen the rope to involve appellant Abdul Ghafoor whom enmity at last came from mouth of one of the injured witnesses particularly when no active role is assigned to appellant except that of instigation without any corroboration or least a motive. Thus, I am not inclined to uphold the conviction against the appellant Abdul Ghafoor, particularly when such allegation of instigation is not backed / supported by any corroborative pieces of evidence and even the cause of dispute i.e. expelling buffaloes from wheat crop is not of such consideration to have motivated the appellant Abdul Ghafoor to instigate others for only object killing particularly when the complainant party even did not claim their arrival to be armed with any weapon or in a manner to have given rise to any apprehension to Appellant Abdul Ghafoor towards his life etc. In this back ground it is not just and proper to hold that formation of an unlawful assembly was with the only object to commit murder.
15. Now, I would revert to the case of appellant Mooso and Muhammad Ammeen. Since, it is already discussed that it was not a case of premeditation or planned actions / omissions but incident was allegedly result of sudden flare up, accrued from act of expelling buffaloes by PW Muhammad Nawaz. The appellants Mooso and Muhammad Ameen are not alleged to have caused any injury to the deceased persons but have been attributed role of causing firearm injuries to injured witnesses. It is case of prosecution that:-- 'Accused Mooso and Ali Baig made straight fire at Abdul Latif from which two fires hit to Abdul Latif on his legs and thigh'.
24. 'Accused Amin made straight fire at PW Fida Hussain which hit him on his leg and knee.
25. It is also a matter of record that these appellants have not been alleged to have any motive/consideration which could have been a justification for their being members of an assembly formed with no other object but to kill. To know the 'common object' I would like to examine the evidence (s) of witnesses of ocular account which is: Complainant Ramzan (Ex.16) In his cross-examination : 'All the accused were standing in a row and made firing from same distance. I was along with deceased and injured persons but I did not receive any injury. The accused made firing from Kalashnikov by way of single fire and not fired a burst at us.'
26. PW Saindad (Ex.17).
27. In his cross-examination: 'The house of accused Amin and Mooso is situated at the place of vardat near to it.
28. 'The accused had made single fire of Kalasnikov and not fired a bust (burst)
29. PW Karamullah (Ex.18)
30. In his cross examination: 'It is a fact that deceased Zafarullah and deceased Dost Ali were not hit by the fires made by accused Mooso and accused Amin.'
31. PW Haji Muhammad Nawaz (Ex.19)
32. In his cross-examination: 'The accused had fired at us from a distance of about (20) feet. Zafarullah and Dost Ali died soon after receiving fire arm injuries. The firing continued for about ten/fifteen minutes.'
33. PW Abdul Latif (Ex.20)
34. In his cross-examination : 'The fight continued for about of half of an hour. The firing at us was made from a distance of about 15/20 feet. The accused had not made any fire in the air.'
35. From above, it appears that all the witnesses of ocular account tried to stick with each other in respect of certain portion (s) of story however above stand of the witnesses of ocular account prima fade negates 'common object' of all because as per the witnesses of ocular account, all the accused persons, including appellant Mooso and Muhammad Amin, though had lined themselves up in the alleged row but since all the witnesses are categorically sticking with stand that: i)single fire was used with Kalashnikov and not burst; ii)specific role attributed to each of the accused persons; iii)seating of injuries and not repeating of fire; hence the witnesses themselves have denied the 'common object/intention' of all the members as each accused else all the accused persons, including the appellants, would have acted in same manner and fashion.
36. Further, at this point a reference to cross-examination of the PW Fida Hussain (Ex.21), being relevant is made hereunder: 'At the one and same time all the accused made firing at us. I cannot say whether it is impossible for a person that eight/ nine persons open firing at the one and same time at 05/06 persons to see that whose fire hit to which person, as deposed by me in my chief'.
37. The stand of the witnesses to have captured role of each accused persons when 8/9 persons were firing with Kalashnikovs at them was always improbable and speaks about deliberation and since as already discussed the FIR and even statements of witnesses were recorded after preliminary inquiry therefore, such illogical stand always carried a dent therein.
16. Be as it may, the allegation of the prosecution witnesses of ocular account was that of straight firing by 8/9 persons with Kalashnikovs which allegation was never finding support from recovery of the empties as it was eight (08) in number only. The PW Fida Hussain in his cross-examination stated that:-- 'All the accused collectively made about 200/250 fires in all but the fire made by each accused hit to each deceased and injured as deposed by me.'
38. The houses of the appellant Abdul Ghafoor and appellants Mooso and Muhammad Amin are also not adjacent to each other nor they (Abdul Ghaffor and Mooso) are not shown to be having any blood relation which could justify their such active role on call of the appellant Abdul Ghafoor which too on an insignificant matter of entering of buffaloes in crops which usually happen in villages, therefore, it was never safe to believe that the appellants Mooso and Muhammad Amin 'knew' the common object of the unlawful assembly, even if it is believed that they were members of such assembly, therefore, in these circumstances section 149, P.P.C. cannot be made applicable and so every accused would be liable to punishment for the act committed by him during the attack. Further, it would suffice to say that application of section 324, P.P.C. is always to be examined on gathering circumstances. In the instant case the appellants did not chose vital parts while making alleged injuries and there was not an allegation of repeating the firearm hence Section 324, P.P.C. was not rightly applied while convicting the appellants for such offence.
17. In the instant case, the roles, assigned or attributed to the appellants Muhammad Moosa and Muhammad Amin, are that of causing firearm injuries which were later declared as falling within meaning of Section 337-F(iii), P.P.C. which is punishable upto three (03) years and appellants have served out more than that.
39. In result of what has been discussed above, the appeal of the appellant Abdul Ghafoor is accepted; conviction awarded to him is hereby set-aside and was ordered to be released forthwith if not required in any other case/crime. However, as regard the appeal of the appellants Mooso and Muhammad Amin, I do not find application of section 149, P.P.C. hence conviction awarded to them under section 302, P.P.C. and section 324, P.P.C. were also set aside while that of causing injuries to injured as maintained.
40. These are the reasons for the short order dated 07.10.2015 whereby both the above appeal(s) were disposed of.