1. AHMAD RAZA GILANI, J.---Muhammad Tariq alias Tari son of Muhammad Sharif, Muhammad Ilyas son of Abdullah, Muhammad Ishtiaq son of Abdullah, Muhammad Sharif son of Lakhmir and Muhammad Afzal son of Lakhmir were booked in case FIR No.658 dated 22.11.2009, under section 302 read with sections 148, 149, P.P.C., Police Station Saddar, Vehari and were charged as under:- "First, that you accused Ishtiaq Ahmad, Muhammad Ilyas, Muhammad Tariq, Muhammad Sharif and Muhammad Afzal on 22.11.2009 at about 7.00 a.m. while you were armed with deadly weapons formed an unlawful assembly in the area of Chak No.36/WB P.S. Saddar Vehari in furtherance of your common object committed rioting. Thus you have committed an offence punishable under section 148, P: P. C. which is within the cognizance of this court.
2. Secondly, that you accused on above said date, time and place after forming unlawful assembly committed Qatl-i-amd of Mst. Rehmat Bibi in furtherance of your common object thus you have committed an offence punishable under section 302, P.P.C. read with section 149, P.P.C. which is within the cognizance of this Court.
3. Thirdly, that you accused on above said date, time and place while you were armed with deadly weapons committed Qatl-iamd of Mst. Shahnaz Bibi in furtherance of your common object. Thus you have committed an offence punishable under section 302/149, P.P.C. which is within the cognizance of this Court.
4. Trial court vide its judgment dated 27.07.2010 found as under:- i) Muhammad Tariq alias Tani, appellant was found guilty for the murder of Mst. Shahnaz Bibi, accordingly convicted and sentenced under section 302(b), P.P.C. as Ta'zir and was awarded death sentence. He was also directed to pay compensation of Rs .1 ,00 ,000/- to the legal heirs of Mst.
5. Shahnaz Bibi under section 544-A, Cr.P.C. and in default whereof imprisonment for six months.
6. Trial court held that section 34, P.P.C. is not applicable in case of -Muhammad Tariq as he only fired one shot at the deceased Shahnaz Bibi and did not repeat any other fire on Shahnaz Bibi or Rehmat Bibi-deceased ladies. ii) Muhammad Ilyas, appellant was convicted under section 302(b), P.P.C. and sentenced to life imprisonment for causing injury to Mst. Rehmat Bibi, deceased. He was also directed to pay compensation of Rs.1,00,000/- under section 544-A, Cr.P.C. to the legal heirs of Mst. Rehmat Bibi, deceased and in default whereof imprisonment for six months. iii) Muhammad Ishtiaq, appellant was convicted under section 302(b) P.P.C. and sentenced to life imprisonment for causing injury to Mst. Shahnaz Bibi, deceased. He was also directed to pay compensation of Rs.1,00,000/- under section 544-A, Cr.P.C. to the legal heirs of Mst. Shahnaz Bibi, deceased and in default whereof imprisonment for six months.
7. Trial court vide the same judgment acquitted Muhammad Afzal and Muhammad Sharif by' extending them benefit of doubt. It was further held by the trial court that unlawful assembly is not proved from the facts and circumstances of the case, hence the offence under section 148, P.P.C. is not attracted.
2. The appellants have challenged their convictions and sentences through Criminal Appeal No1081/2010 and the learned trial court after awarding death sentence to Muhammad Tariq alias Tani, appellant, for confirmation has forwarded Murder Reference No.17/2010.
8. Muhammad Afzal, complainant of the case has challenged the acquittal of co-accused- Muhammad Afzal and Muhammad Sharif sons of Lakhmir through Criminal Appeal No.964/2010 and is seeking enhancement of sentence awarded to Muhammad Ilyas and Muhammad Ishtiaq by filing Criminal Revision No.408/2010 respectively.
3. Brief facts of the case as alleged in the written statement (Exh.PB) are as under:- {{URDU TEXT}}
4. We have heard the learned counsel for the appellant, complainant, learned Deputy Prosecutor General and have gone through the record with their assistance.
5. To prove the guilt of the appellants, the prosecution has furnished ocular account through PW- 6/complainant and PW-7 Mureed Hussain. Lady Dr. Shama Shafiq, WMO who conducted postmortem examination on the dead bodies of Mst. Rehmat Bibi and Mst. Shahnaz Bibi, deceased appeared as PW-3 and the investigation of this case was conducted by Abdul Jabbar, SI (PW-9).
9. Other witnesses are of formal nature.
6. It is apparent on the record that deceased Shahnaz Bibi was married to Muhammad Tariq alias Tari, appellant but later on was divorced. She was issueless and her father has already died. She was not having any sister and brother and was residing with her mother Rehmat Bibi, deceased.
10. The motive behind the occurrence was that both the deceased ladies wanted to get possession of the land which was inherited by them but was in possession of Muhammad Sharif, father of Muhammad Tariq appellant.
7. It is noticed that the legal heirs of Mst. Shahnaz Bibi deceased had compromised with Muhammad Tariq and Muhammad Ishtiaq and in this regard their statements were recorded by the learned Sessions Judge, Vehari on 08.3.2012. Whether to discard or accept that compromise, the Hon'ble Supreme Court in case reported as Naseem Akhtar and another v. The State (PLD 2010 SC 938) has laid down guidelines which are as follows:- "....Thus, the object requiring leave from the Court as per the clear intention of the legislature is neither meaningless nor purposeless and it cannot be construed that while considering the compromise plea, even of a compromise which is lawfully entered, by free consent of the legal heirs, the Court, should act in a mechanical manner and allow the same as a matter of course or routine; should sit as a silent spectator or to conduct as a post office simpliciter and affix a judicial stamp upon it.
11. Rather it is the duty and the prerogative of the Court to determine the fitness of the case for the endorsement and sanction of the compromise and in appropriate cases, where the compromiser and offender is directly or indirectly beneficiary of the crime; the offence is committed or is caused thereof, for an obvious object of grabbing the property of the deceased by the compromiser, through his off spring, who may ultimately benefits himself (the offender) as well, the Court may refuse to give an effect go such a deal, especially coupled with the scenario when the offence is gruesome, brutal, cruel, appalling, odious, gross and repulsive which causes terror and sensation inthe society"
12. The said compromise does not meet the above criteria in the background of the motive which resulted in the death of two innocent ladies just for the sake of grabbing their lands, therefore, we are not inclined to accept that compromise.
8. Occurrence took place in the morning at 7.00 a.m. on 22.11.2009 in a broad day light and FIR was got lodged at 9.10 a.m. on the date of occurrence. Post mortem of Mst. Shahnaz Bibi, deceased was conducted at 3.40 p.m., therefore, we find that post mortem was conducted within reasonable promptitude which is indicative of the fact that the prosecution witnesses did not consume time for fabrication of the story and narrated the true facts in FIR. There is nothing brought on record by the defence that the eye-witnesses PW-6 Muhammad Afzal and PW-7 Mureed Hussain were inimical or interested witnesses against the accused side, therefore, possibility of their false implication in the case is ruled out. Both the eye-witnesses were consistent regarding the manner of occurrence in particular PW-7 Mureed Hussain whose residence is just one kanal from the place of occurrence.
13. Lady Dr. Shama Shafiq, Woman Medical Officer, DHQ Hospital, Vehari conducted the post mortem examination of both the deceased ladies Rehmat Bibi aged 70 years and Mst. Shahnaz Bibi aged 35 years. On the person of Mst. Rehmat Bibi, three incised wound were noticed whereas on the person of Mst. Shahnaz Bib, deceased there is firearm injury as well as incised wound. Firearm injury has been attributed to Muhammad Tariq alias Tani, appellant and medical evidence is found supporting the ocular account. Muhammad Ishtiaq, appellant has been assigned the role of given Toki blow to the deceased Mst. Shahnaz Bibi which is also getting support from the medical evidence. The third appellant is Muhammad Ilyas who gave two Toki blows- to the deceased Rehmat Bibi according to the ocular account and in this regard too we find the medical evidence supporting the said ocular version.
9. Reading the evidence of both the eye-witnesses PW-6 Muhammad Afzal and PW-7 Mureed Hussain leaves no doubt that all the appellants while armed with firearms and other weapons entered the house of deceased ladies and committed the murder of both. In this backdrop trial court findings that section 34, P.P.C. is not applicable in the case of Muhammad Tariq, is not justified in view of the evidence produced by the prosecution and also not supported by law. It is observed that while applying sections 34, 149 or 114, P.P.C. which resemble on certain points, the trial court often frame defective charge. To have clarity as to the application and scope of the above said provisions, it would be appropriate to reproduce these provisions as under:- Section 34, P.P.C.:- Acts done by several persons in furtherance of common intention.---When a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone.
14. Section 149, P.P.C.:- Every member of unlawful assembly guilty of offence committed in prosecution of common objection.---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.
15. Section 114, P.P.C.:- Abettor present when offence is committed.--- Whenever any person, who if absent would be liable to be punished as and abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.
10. Generally there is misconception that whenever the number of offenders exceed five, provisions of section 149, P.P.C. will apply. In fact distinction in both the said provisions does not lie in the numbers, provisions of section 34 will be attracted, even there are more than five offenders provided they all have done criminal act in furtherance of common intention of all. Intention and object are two different expressions having different meanings. In case reported as Barendra Kumar Ghosh v. The King-Emperor (AIR 1925 PC-1) distinction was drawn as follows:- Section 149 is specific offence and deals with the punishment of that offence alone. It postulates an assembly of five or more persons having a common object, viz., one of those named in section 141 (R. v. Sabed Ali, 11 Beng. L. R. at P. 359), and then the doing of acts by members of it in prosecution of that object. There is a difference between object and intention, for, though their object is common, the intentions of the several members may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action, which is the leading feature of section 34, is replaced in section 149 by membership of the assembly at the time of the committing of the offence. Both sections deal with combinations of persons, who become punishable as sharers in an offence. Thus they have a -certain resemblance and may to some extent overlap, but Section 149 cannot at any rate relegate section 34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not in itself deserving of separate treatment at all.
16. As to Section 114, it is a provision which is only brought into operation when circumstances amounting to abetment of a -particular crime have first been proved, and then the presence of the accused at the commission of that crime is proved in addition; (Abhi Misser v. Lachmi Narain 27 Cale 566). Abetment does not in itself involve the actual commission of the crime abetted. It is a crime apart. Section 114 deals with the case, where there has been the crime of abetment, but where also there has been actual commission of the crime abetted and the abettor has been present thereat, and the way in which it deals with such a case is this. Instead of the crime being still abetment with circumstances of aggravation, the crime becomes the very crime abetted.
17. The section is evidentiary not punitory. Because participation de facto (as this case shows) may sometimes be obscure in detail, it is established by the presumption juris et de jure that actual presence plus prior abetment can mean nothing else but participation. The presumption raised by section 114 brings the case within the ambit of Section 34.
18. In the said judgment it was held, "Read together, these sections are reasonably plain. Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance o a common intention, each person is liable or the result of them all, as if he had done them himself, for "that act" and "the act" in the latter part of the section must include the whole action covered by "a criminal act".
19. In this case each appellant has been individually charged with murder and there is proof that his hand caused the injury to the deceased. For the forgoing discussion, we are of the view that provisions of section 34 are fully attracted in the facts and circumstances of the case.
20. 11.Now coming to the charge framed against the appellants, it transpires that the appellants were charged under section 148 read with 149, P.P.C. and no charge was framed under section 34, P.P.C.
21. In this regard two provisions of Code of Criminal Procedure are relevant, provisions of section 535, Cr.P.C. deals with the situation where there is a complete absence of a charge and section 537 where an error or omission in a charge is noticed. Where there is no charge, it is for the court to determine whether there is any failure of justice and in adjudging whether any prejudice to the appellants have been caused, firstly it would be relevant to refer the evidence and thereafter to examine that the appellants had an opportunity to put defence against the evidence being produced in the trial. In the whole evidence from the day one each appellant individually has been assigned role of active participation in the commission of murder of both the deceased ladies and in the evidence they had got every opportunity to nullify such allegations. So it can't be said that even if charge was not framed under section 34 holding the present appellants liable for the commission of criminal act in furtherance of their common intention, would in any way will prejudice the appellants, therefore, we hold all the appellants liable in the commission of the crime in view of section 34, P.P.C. To substantiate the above findings it would be helpful to refer the case reported in Willie (William) Slaney v. State of Madhya Pradesh (AIR 1956 SC 116) as under:- "Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.
22. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant."
23. 12.Provision of section 423, Cr.P.C. confers powers on the Appellate Court while disposing of the appeal and the relevant is provision of section 423 subsection 1(b), Cr.P.C. In the said provision, the Appellate Court decides the appeals preferred against the convictions by the convict, and it would be advantageous to reproduce the said provision which is as under:- 423 Powers of Appellate Court in disposing of appeal.
24. (1)(b):- In an appeal from a conviction (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retired by a Court of competent jurisdiction subordinate to such Appellate Court or sent for trial, or (2), alter the finding, maintaining the sentence, or, with or without altering the finding reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence but, subject to the provisions of the section 106, subsection (3) not so as to enhance the same;"
25. Though in the said provisions, the appellate court can alter the finding, maintaining the sentence but the question is whether the appellate court while deciding the appeals against convictions is independent and can pass any order disregarding the other provisions of Code of Criminal Procedure in Chapter XXXI relating to appeal, reference and revision. Answer to said query is in negative. While entertaining appeal against convictions, the appellate court can't reverse the finding of acquittal until and unless there is any appeal filed against the acquittal, and also the appellate court can't enhance the punishment awarded to the convict by the trial court which falls within the exclusive domain of the court while exercising its revisional jurisdiction under section 439, Cr.P.C. The word alter the finding "are not defined in Code of Criminal Procedure". The expression "alter the findings" was defined in the case reported as Shera and 6 others v. The Crown (PLD 1954 Federal Court 141) as under:- "alter" is a less radical expression and means "change" in form, without changing the underlying character of the things to be changed."
26. It was held in the said case that; "the words "alter the finding" cannot be taken to have been used in an unrestricted sense. The Appellate Court can alter the findings only if it maintains the sentence or reduces it. It cannot isolate the words "alter the finding" and completely ignore the qualifications which make the alteration possible, that is, it must maintain the sentence or reduce it."
27. While altering the finding, sentence passed by the appellate court should not be such that could be termed as enhancement of sentence. It was held in case reported as Subba Goundan v.
28. Emperor (AIR 1930 Madras 193), whether the sentence passed by the Appellate Court after altering the finding is enhanced one, for determination the proper test is that the appellant/convict considers it heaviour sentence than the earlier one passed by the trial court. In case reported as Legal Affairs, Bengal v. Hossein Ali and another (AIR 1938 Calcutta 439) where the accused was found guilty under section 363 and 498, Penal Code but was sentenced under section 363, P.P.C. alone by the Magistrate to Rigorous Imprisonment for one year and six months each and no separate sentence was awarded under section 498, P.P.C. On appeal, the Sessions Judge found the accused guilty under section 498 but not under section 363. Here the question arose as to what sentence was to be passed, it was held that the Sessions Judge had jurisdiction under section 423, Cr.P.C. to alter the finding of the lower court and to pass appropriate sentence under section 498 subject to the limit of one year and six months which the Magistrate had imposed.
29. 13.Recently in a case reported as Zafar Iqbal v. The State (PLD 2015 Supreme Court 307) where the appellant was charged under section 302(b), P.P.C. and 7(a) of Anti-Terrorism Act, 1997 but the appellant was convicted under section 7(a) of Anti-Terrorism Act, 1997 dropping the charge under section 302(b), P.P.C. at the time of pronouncement of judgment. It was noticed by the Hon'ble Supreme Court that at the time of occurrence Anti-Terrorism Act, 1997 had not been promulgated so the provision could not have been invoked by the trial court as was made clearly in section 38 of the said Act, that the offender would be punished under the law at the time the offence was committed. Here, the question arose for consideration was whether as a consequence of the said error the trial was vitiated and was materially defective. It was held in the said case that as the appellant knew what he was being charged for and was also charged under both the said provisions of law, the conviction under section 7(a) of Anti-Terrorism Act, 1997 was set aside but altered to 302(b), P.P.C. as no prejudice could be pointed out to have been caused to the appellant.
30. This case also indicates that the conviction under section 302(b), P.P.C. which was altered from section 7(a) of Anti-Terrorism Act, 1997 is not enhanced punishment under the law. In case of conviction under section 302(b), P.P.C. the appellant can enter into compromise with the legal heirs of the deceased but this window of opportunity is not available to the appellant in case his conviction under section 7(a) of Anti-Terrorism Act, 1997 is maintained. Secondly, had the appellant been convicted under section 7(a) of Anti-Terrorism Act, 1997 the appellant was not entitled to remissions under the law which in case of his conviction under section 302(b), P.P.C. will be granted to the appellant.
31. 14.Appellant Muhammad Tariq alias Tani was arrested on 18.01.2010 and pistol 30-bore was recovered from him during investigation on 29.01.2010 but it is noticed from reading the report of Forensic Science Laboratory that crime empties which have been found wedded with the pistol recovered from the appellant were sent to the Forensic Science Laboratory on 25.11.2000 much earlier than the arrest of Muhammad Tariq alias Tani so this piece of evidence corroborates prosecution case as to the active participation of the appellant Muharnmad Tariq alias Tari in the commission of the brutal murder of two innocent ladies. Even otherwise when the ocular version is uniform and confidence inspiring, having no il-will to drag the appellants in this case, evidence supportive or corroboratory in nature do not carry much significance in such situation.
32. 15.In the light of the discussion made above, now we conclude that appellant Muhammad Tariq alias Tari against whom there is direct motive attributed to kill the deceased ladies but the learned trial court gave its clear findings that qua Muhammad Tariq alias Tani the provision of section 34, P.P.C. are not attracted and was awarded death sentence only to the extent of murder of Mst.
33. Shahnaz Bibi, deceased. There is ample evidence available on the record incriminating Muhammad Tariq alias Tari in the murder of both the deceased lady but in absence of appeal by the State or the complainant, we can't hold Muhammad Tariq alias Tari appellant guilty for the murder of Mst. Rehmat Bibi, deceased as by doing this we will exceed our limits while deciding the appeal against conviction filed by Muhammad Tariq alias Tani, appellant.
34. Case of Muhammad Ishtiaq appellant is also not distinguishable from the case of Muhammad Tariq alias Tari who was awarded life imprisonment under section 302(b), P.P.C. for causing injury to Mst. Shahnaz Bibi, deceased who also while acting in furtherance of common intention of co- appellants participated the incident, who should have also been convicted and sentenced for the murder of Mst. Rehmat Bibi but the fact remains that we are deciding the appeal against conviction, and no appeal against his acquittal from the charge of murder of Rehmat Bibi is before us.
35. 16.As far as case of appellant Muhammad Ilyas is concerned who was awarded life imprisonment under section 302(b), P.P.C. for causing injury to Mst. Rehmat Bibi, deceased, here also the trial court should have held him guilty under section 302 read with section 34, P.P.C. for the murder of Mst. Shahnaz Bibi. The trial court also reached to the findings that the facts and circumstances of the case, offence under section 148, P.P.C. is not attracted which is too erroneous and in this regard the evidence and material brought on the record, the trial court misconceived the provision of section 34, P.P.C. while framing the charge with the result that said provision was not incorporated in the charge. Though the provisions of section 34 do not make out an offence but its consequences are very grave and wider, however, no appeal against his acquittal from the charge of murder of Mst. Shahnaz Bibi is before us.
36. 17.For what has been discussed above, Criminal Appeal No.1081 of 2010 filed by all the three appellants is dismissed with the modification that since the legal heirs of deceased-Mst. Shahnaz Bibi have compromised with Muhammad Tariq alias Tari, appellant, taking it as a mitigating circumstance which upholding conviction awarded to him under section 302(b), P.P.C., his death sentence is converted to life imprisonment. Murder Reference No. 17 of 2010 is answered in Negative. Benefit of section 382-B, Cr.P.C. is also extended to all the three appellants. However, compensation under section 544-A, Cr.P.C. awarded by the trial court payable by all the three appellants to the legal heirs of deceased shall remain intact. Muhammad Ilyas and Muhammad Ishtiaq, appellants are on bail, they shall be taken into custody to serve out their remaining sentence.
37. 18.As regards Crl. Appeal No.964/2010 filed by the complainant against acquittal of Muhammad Sharif and Muhammad Afzal, we find that the reasoning advanced by the trial court for acquittal of both the said respondents do not call for interference. The trial court after appreciating each and every piece of evidence have acquitted them by extending benefit of doubt, relying on the principle of sifting grain from chef, therefore, this appeal having no force, is dismissed. Likewise, Crl. Revision No.408/2010 for enhancement of sentence of Muhammad Ilyas and Muhammad Ishtiaq, respondents, for the reasons given in the Crl. Appeal No.1081/2010, this criminal revision is also dismissed.