ZAFFAR HUSSAIN M]RZA, J.---The three appellants were tried by the learned Sessions Judge, Nawabsbah for an offence under section 302 read with section 34, P. P. C. For committing the murder of one Muhammad Hassan Baladi. Appellants Wali Muhammad and lsso were also tried for an offence under section 13(d) of the West Pakistan Arms Ordinance, 1965. for being in possession of unlicensed fire-arms and ammunition. The learned Sessions Judge, by his judgment dated 30- 6-76, convicted all the appellants of the offence under section 302 read with section. 34, P. P. C and sentenced appellant Wali Muhammad to death, while awarding a sentence of imprisonment for life to the other two appellants. Appellants Wali Muhammad and Isso were also convicted under the Arms Ordinance and awarded R. I. For two years' each.
2. All the appellants challenged their convictions and sentences in appeal and the case of appellant Wali Muhammad was also referred for confirmation of the death sentence to the .High Court of Sind, Karachi. By judgment dated 21-9-77 the High Court dismissed the appeal preferred by the appellants and confirmed the sentences awarded to them, including the death sentence awarded to appellant Wali Muhammad and upheld their conviction.
3. Aggrieved by this judgment, the appellants sought Leave to Appeal before this Court and this Court by its order dated 9-5-79 granted Leave on the ground that this is a fit case in which the re- appraisal of evidence was necessary to ensure of the same has been analysed by the High Court in accordance with the well settled principles relating to the appreciation of evidence in criminal cases. In particular, the following grounds of attack regarding the appraisal --f evidence. Which were raised before the High Court and repelled, were considered to require re-examination:- "(1) that the F. I. R. Of occurrence had been lodged after considerable delay for which, however, no reasonable explanation was forthcoming;
(2) that the evidence of the eye-witnesses, namely, Sobho and Jewan was unconvincing, as P. W.
Sobho had made no mention in the F. I. R. That after having killed Muhammad Hassan Baladi with fire--arms, the petitioners were chased and apprehended over a distance of about two furlongs by the silt-clearing party engaged on the Abran Minor;
(3) that the eye-witnesses, owing to the admitted blood-feud existing between them and the petitioners, were not only hostile to the petitioners, but their evidence was inconsistent with the medical evidence;
(4) that the eye-witness-account furnished by P'. Ws. Sobho and Jewan was discrepant with each other in material particulars;
(5) that no reliance could be placed on the report of the Fire-Arms Expert, because the empties and weapons of offence had been sent to him by the Investigating Officer after considerable delay for which no satisfactory explanation was available on record; and
(6) that the evidence of P. Ws. Muhammad Khan and Malook, who as incharge of the silt-clearing- party, claimed that they had arrested the petitioners, after giving them a chase, could not possibly serve as satisfactory corroborative evidence of the two eye-witnesses, as prior to this case they had filed against them criminal cases."
4. The case of the prosecution is that on 26-1-74, at about 6-00 in the morning, deceased Muhammad Hassan Baladi left his village Rahim Khan Baladi, along with his brother-in-law and partner-in-business Sobho and their relations Piaro and Jiwan, in order to take their cattle to Kazi Ahmad for sale. When they reached near Nabi Bux Lakho Village at about noon time, the deceased was fired upon by appellants Wali Muhammad and Isso who were respectively armed with a gun and a rifle. It is alleged that the said appellants were waiting in ambush along with appellant Rajo, who was armed with a hatchet, in the nearby rapeseed field. As a result of the firing Muhammad Hassan collapsed and died on the spot. The companions of the deceased raised cries and ran for their lives. It so happened that a number of persons were engaged in silt-clearing operation at Abran Minor. On hearing the gun reports, those persons pursued the culprits. Sobho, however, left immediately for Naushero Feroze Police Station, where he lodged the F.
1. R. The same day at 6-15 p. m. The motive for the murder is said to be the fact that deceased had killed Mehro Baladi, maternal uncle of appellant Wali Muhammad, some 14-15 years before the incident. The murder of the deceased was, therefore, an act of retaliation on the part of the appellants.
5. Reverting to the narration of the events that occurred at the scene of offence, it may be stated that the party engaged in the silt-clearing including Muhammad Khan and Malook, who chased the culprits were able to apprehend the appellants at a little distance from the scene of offence.
They secured a single-barrel gun from appellant Wali Muhammad, along with 25 live and two empty cartridges. From appellant Isso a rifle was secured. Nothing, however, was secured from appellant Rajo. The apprehended culprits are then stated to have expressed their apprehension that if they were handed over to the custody of the complainant party, they would be killed and requested that they be handed over to the Police or to some Zamindar. They were, therefore, taken to the bungalow of Ahmed Khan Jatoi and produced before his Kamdars Muhammad Hashim and Muhammad Hassan along with the articles secured from their possession.
6. This case was investigated by S. H. O. Agha. Mir, who accompanied the first informant Sobho to the scene of offence, reaching there by sunset time. At the scene of offence, the dead body of Muhammad Hassan was still lying, and the S. H. O. Was informed that the three culprits had been captured and taken to the bungalow of Ahmed Khan Jatoi. The S. H. O. Went over there and took the custody of the three appellants from Muhammad Hashim and Muhammad Hassan. He also received the articles secured from the culprits. On the same night, the S. H. O. Recorded the statements of Muhammad Malook, Muhammad Khan, Muhammad Hashim, Jiwan arid Piaro. On the following morning, he was led to the rapeseed field near the scene of offence by appellant Rajo and pointed out a hatchet which was not blood-stained. From the scene of offence, he secured two empty shells of bullet, one empty '12 bore cartridge, three wads, seven pellets, the Ajrak of the deceased and blood-stained earth, which were duly sealed. After some further investigation, the S. H. O. Returned to the police station along with the appellants, where he lodged F. I. Rs. Against appellants Wali Muhammad and Isso under section 13(d) of the West Pakistan Arms Ordinance, 1965, for being in possession of unlicensed fire-arms. The gun, rifle and empties secured from the appellants as well as those recovered from the scene of offence were sent to the Ballistic Expert for examination and report. The case was then sent up for trial to the Court.
7. At the trial, the prosecution relied upon the ocular testimony furnished by first informant Sobho and P. W. Jiwan and the corroborative evidence provided by the fact of the apprehension of the appellants practically on the spot, motive and the recovery of weapons from them. As to the first, reliance was placed on the testimony of P. Ws. Muhammad Khan, Muhammad Malook and Muhammad Hashim. Muhammad Khan was the hart of Rais Ghulam Mujtaba Jatoi, Muhammad Malook was a Zamindar and Muhammad Hashim was the Kamdar of Rais Ahmed Khan Jatoi. P. Ws.
Muhammad Khan and Muhammad Malook were in charge of the two different parties of workers who were engaged in the silt-cletring operation. They testified to the fact that they had chased and apprehended the appellants and recovered a gun, 25 cartridges, and an empty cartridge from appellant Wali Muhammad, another empty cartridge which was lying near appellant Wali Muhammad and a rifle from appellant Isso. They also deposed that they took the appellants along with the articles seized from them and handed over their custody to P. Ws. Muhammad Hashim and Muhammad Hassan, Kamdars of Ahmed Khan,Jatoi, As to the main incident, the ocular testimony was furnished by first informant Sobho and P. W. Jiwan. The trial Court believed the testimony of the witnesses as confirmed by the afore-mentioned corroborative evidence and found the appellants guilty.
8. The appellants pleaded their innocence at the trial and alleged false implication by the P. Ws.
Who were said to be inimical to them. The leading statement in their defence was given by appellant Wali Muhammad, who gave the details of the alleged enmity. He stated that a case of theft of a gun, was pending against Muhammad Hashim, father-in-law of deceased, filed by Sadik his maternal aunt's son. Karim Bux, brother of P. W. Muhammad was convicted in a case filed by his cousin Sajjan. Appellant had himself filled a case of robbery in which Suleman Doongah, cousin of P. W. Malook, nephew of P. W. Muhammad Hashim, was convicted and sentenced to 7 years.
9. In the High Court, on the contentions incorporated in the leave granting order of this Court, as reproduced above, the evidence was carefully reassessed in great detail and the learned Judges rejected each one of them. The learned Judges came to the conclusion that the guilt of all the three appellants had been established beyond any reasonable doubt and upheld their convictions.
10. We have carefully gone through the evidence on record with the assistance of the learned counsel for the appellants. It has been contended before us, on behalf' of the appellants, firstly that the account of the incident giver, by the eye-witnesses is highly improbable and unbelievable, and, therefore, it will be unsafe to base convictions of the appellants on a capital charge on such evidence. It was firstly argued that the place chosen by the appellants to execute their murderous plan was highly inconvenient, since admittedly there were a good number of people were present in the close proximity of the place of their hiding in the rapeseed filed, while working on silt- clearance. According to the counsel, it was more natural for them to have selected a secluded place to avoid the presence of witnesses or the possibility of their apprehension on the spot.
Secondly, it was urged, that the episode of arrest and apprehension of the appellants at the spot is highly doubtful, as circumstances indicate that if true the same must have been accomplished almost immediately after the incident and yet such an important fact does not find mention in the F.
1. R. Additionally it was submitted that P. Ws. Malook and Muhammad who deposed, as to the fact of the arrest of the appellants, cannot be relied upon as they are not independent witnesses since there were cases pending between the appellants' party and their party. The way the investigation was conducted was also criticised by the learned counsel appearing for appellants. In this regard, it was said that the arrest of the appellants was effected by S. H. O. Agha Mir at 10 p. m., although he reached the scene of the crime at sunset time. Then the rnashirnama of the scene of occurrence was prepared by him on the next morning, also the crucial investigation was carried out at the otak of Ahmed Khan Jatoi. It was further urged that medical evidence is inconsistent with the ocular evidence. Finally, learned counsel argued that no part has been assigned to appellant Rajo in the whole transaction, except that he was seen in the company of the other two appellants at the time of the incident.
11. Now, there is nothing in the cross-examination of witnesses that the path taken by the deceased anal his companions, passed through any desolate place, but in any case, there could be many reasons for the appellants to choose this place, as for instance the rapeseed field may have provided them good cover for ambush, from where the victim could be shot from a close range.
The question of non-mention of the factum of arrest of the culprits at the spot in the F. I. R. Has received due consideration by the learned Judges of the High Court, and it has been held that, this does nut detract from the testimony of the complainant in veracity and reliability. It has been stated: "That the F.
1. R. Specifically mentions the pursuit of appellants by the `Chair' (persons who were engaged in the silt operation). Furtw7A more, we do not see how the omission from F. I. R. Of apprehensions of appellants would have served the purpose of the complainant or in any way furthered the case of the prosecutionif in fact the appellants were apprehended while complainant was still at the vardat."
There is no reason to disbelieve the evidence of the S. H. O. That when he reached the otak of Ahmed Khan, soon after he arrived at the scene of the incident and took the appellants in custody at the otak of Ahmed Khan. There is nothing in the cross-examination of witnesses, even suggesting that the appellants were arrested from their houses and brought there, for being handed over to the Police. As regards P. Ws. Muhammad Khan, on account of his disclaimer as to any knowledge about his brother's conviction, in a case of robbery filed by the cousin of appellant Wali Muhammad, the learned Judges of the High Court assumed that Sajjan was probably related to the said appellant but were of the opinion that this by itself, is not sufficient to discard his evidence as unworthy of credit, a9 the fact of the chase is mentioned in the F.
1. R. The enmity alleged against the other witness of the chase and arrest of appellants, P. M' Muhamm Malook, was not established on record. Accordingly, he is a disintereste witness and his evidence establishes the fact of arrest of the appellants, andthe recovery of crime weapons and other incriminating articles from their, possession, soon after the incident.
12. For the aforesaid reasons, I find no force in the contention that the prosecution evidence is unreliable or that improbabilities render the version of the prosecution unworthy of credit. On an overall consideration of the evidence as a whole, it seems to me that P. Ws. Sobho and jiwan are o natural witnesses and are witnesses of truth, their testimony is corroborated by evidence of motive, fact of arrest and recovery of incriminating articles, including crime weapons, the report of the Ballistic Expert and testimony of P. Ws. Muhammad Khan, Malook and Muhammad Hashim.
13. As regards the contention that medical evidence does not accord well with the evidence of eye- witnesses, it was argued that there are as many as 8 wounds of entry of gunshots and no injury with a blunt weapon or sharp-cutting weapon. Witnesses have stated that the culprits fired 2 or 3 shots and appellant Rajo gave blows to the deceased with blunt side of the hatchet. But I agree with the view of the learned Judges of the High Court that the last-mentioned fact, does not render the entire evidence of the eye--witnesses unreliable, on the principle of falsus in uno falsus in omnibus, which has long since been abandoned by our Courts. There is nothing wrong in this manner of approach to the appeasement of evidence. It is clean from the medical evidence that the deceased received injuries with shots fire from a shot-gun and there is nothing unusual in 2 or 3_ shots causing 8 injuries with pellets from such number of shots. 1, therefore, find no force E in this contention as well.
14. In view of the aforesaid, I am of the firm view that the guilt of appellants Wali Muhammad and Isso, has been proved beyond all reasonable doubt and their conviction is well-founded. However, the complicity of appellant Rajo remains to be considered.
15. The eye-witnesses have stated that appellant Rajo was seen armed with hatchet in the Company of the other two appellants, at the time of the incident when the latter fired at the deceased and ran along with them when they were being chased. He was also arrested along with the other appellant and subsequently pointed out his hatchet in the field of repeseed. In their examination-in-chief, the two eye-witnesses assigned no part to Raj in the commission of the offence. However, in the cross-examination, complainant Sobho stated that after the deceased fell down on receiving gun shot injury, Rajo inflicted blows to him with back side of hatchet, . An P. W.
Jiwan merely stated that he gave the deceased blows with hatchet. There is no medical evidence in support of this assertion, as the deceased f was found to have received only gunshot injuries.
Clearly, therefore, the two eye-witnesses were exaggerating their version and were at pains. To attribute to appellant Rajo active part in the commission of the offence. I the F.
1. R. No such assertion was made by the complainant. On theother hand, P. Ws. Muhammad Khan and Malook stated clearly that when the appellants were apprehended by them they found Rajo empty-.,landed. The Investigating Officer P. W. Agha Mir, as already stated, arrested the appellants on the day of occurrence and according to him Rajo produced the hatchet from the rapeseed field which had no blood marks on it.
16. From the aforesaid, it clearly appears to me that the appellant did not participate in the actual killing of the deceased, nor used any weapon at any time, even for the purpose of warding off the pursuers. The net effect of the evidence on record appears to be that he was in the company of the other two appellants and ran away from the scene along with them and was apprehended at the spot. The hatchet which is said to have been pointed out by him does not connect him with the offence as there are no marks of blood or other incriminating circumstances and, therefore, the fact does not materially corroborate his complicity in any manner.
17. The question is whether his mere presence in the company of the other two appellants, is sufficient to hold him vicariously liable for the acts of the other two culprits? Of course, the question whether a particular accused shared the common intention with his co-accused who directlyacted in the commission of the offence, would depend upon the facts of each case and in a given set of circumstances, an accused person may by his me presence help in the commission of such acts As observed by Hamoodur Raliman, C. J. (as he then was) in Rasool Bakhsh v. State (1):- "the question thus resolves itself into this, namely, as to whether the person sought to be made constructively liable did do anything with an intention to co-operate in the offence, if so, he is liable."
In Hasan Din v. Muhammad Mushtaq (2), mere presence of the appellant on the spot was considered not sufficient to attract section 34, P. P. C. Similarly in Hasan v. State (3), the learned Judges expressed the view that mere presence would not be sufficient for application of section 34, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention.
18. Appellant Rajo in his statement before the Court of Session, denied that he pointed out the hatchet to the Police and alleged that it had been foisted upon him and asserted that he had been falsely implicated by the complainant as his father's sister had eloped with the said appellant's father. The learned Judges of the High Court, with regard to the allegation that appellant Rajo inflicted blows with his hatchet which was not supported by medical evidence, expressed the view that this part of the testimony of the two witnesses was a misstatement. In my opinion, in view of the foregoing discussion, appellant Rajo is entitled to the benefit of doubt as no overt and on his part has been established so far as the commission of the offence I B concerned. It cannot be said with certainty whether he shared the common intention of the other two appellants to murder the deceased and there are n other circumstances indicating any pre-0oneert between them.
19. In the result, I would uphold the convictions and sentences recorded against appellants Wali Muhammad and Isso, and dismiss their appeals. The appeal of appellant Rajo is, however, accepted and his conviction is set aside. He shall be released from custody, if not required in any other case.
(1) PLD 1970 SC 316 (2) 1978 .S CM R 49
(3) 1969 5N R 454