MIAN BURHANUDDIN KHAN, J.-Gul Nawaz and Sher A.I accused/appel--lants were tried under section 302/34 read with section 307/34, P. P. C. For committing the murder of their co-villager Fazalur Rabman by firing at him in furtherance of their common intention and also for attempting on the life of Shirin Jan, P. W. 2 on 11-2-1976 at about 3 p.m. In the limits of village Begokhel lying at a distance of 7 miles from Police Station, Lakki Marwet. Both the appellants were found guilty under section 302/34, P. P. C. And sentenced to death by the learned Additional Sessions Judge, Bannu at Lakki. They were also fined Rs. 1,000 or in default to one year R. I. And also to suffer 7 years' R. I. Under section 307;34, P. P. C. And a fine of Rs. 500 or in default, six months' R. I. Amount of fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation vide judgment dated 30-10- 1977.
2. The two convicts filed appeal before the Peshawar High Court and death sentence for confirmation also came up before the High Court. The appeal was rejected and death sentence was confirmed vide judgment of the learned High Court dated 22-3-1978.
3. The accused appellants then filed a petition seeking leave to appeal against the judgment of the High Court and leave was granted by this Court vide order dated 2-5-1979 on the ground that the two eye-witnesses namely Shirin Jan, P. W. 2 and Ghulam Ahmad, P. W. 3 are closely related to the deceased. If the prosecution relied on a motive to show hostility between Fazal Rahman deceased on the one side and Gul Nawaz accused on the other side, then the witnesses who belong to the family of the deceased can also be said to nourish the same grudge or hostility as the deceased had. In the circumstances the conviction of the accused on the sole evidence of related and inimical witnesses was not justified ; that Gul Nawaz accused was alleged to have fired at Shirin Jan P. W. 2 and not at the deceased Fazal Rahman and in the circumstances the conviction of Gul Nawaz under sec--petition 302 read with section 34 was not warranted by law. Similarly Sher A.I accused is alleged to have fired at Fazal Rahman deceased and as such his conviction under section 307/34, P. P. C. For causing simple injuries to Shirin Jan P. W. 2 cannot be sustained.
4. According to the prosecution story given in the F. I. R. By Shirin Jan P. W. 2 is that he, alongwith his brother Fazal Rahman deceased and father Bara Khan and Ghulam Ahmad P. W. 3 were sitting in the Chowk (Hujra-common sitting place), when in the meanwhile Mir Nawaz absconder, armed with a Mohati shot-gun, Sher A.I armed with a D. B. Shot--gun and Gul Nawaz, armed with a S. B.
Gun, came there. Mir Nawaz and Sher A.I fired one shot each at Fazal. He (complainant) ran towards the deceased when Nawaz Gul fired at him which hit him on his right elbow-- The deceased Fazal Rahman, after the receipt of injuries, fell to the ground and died. The occurrence was witnessed by Bara Khan (not produced) and Ghulam Ahmad, D. W. 3.
5. Motive given by the complainant in the F. I. R. Is .That some time prior to the occurrence Fazal Rahman and Mir Nawaz and Gul Nawazi accused, exchanged firing but the matter was patched up by the respectable of the village and on this account the accused committed the present crime.
6. Syed Munir Ahmad Shah, P. W. l I then S. H. O., P. S. Lakki, after recording the F. I. R. Exh. P. A. And preparing the injuries sheet of Shirin Jan, went to the spot and prepared the injury sheet Exh. P. F.
And inquest report Exh. P. C. In respect of the deceased, and sent the dead body for post-mortem examination. He again visited the spot the following morning and prepared the site plan Exh. P. B.
With foot-notes ; took blood-stained earth, blood--stained sand and 7 card-boards Exh. P. 2 ; completed the investigation ; searched for the accused who was not available and submitted a challan under section 512, Cr. P. C. Read with sections 302/307/34, P. P. C. Sher A.I, accused was arrested by D. S. P. Abdul Jalil Khan on 8-6-1976 and was handed over to the Police incharge of the investigation and Gul Nawaz accused was arrested by the Police on 31-8-1976. Mir Nawaz is still absconding.
7. Dr. Chiragh Hussain, P. W. 1, conducted the post-mortem examination and found following injuries on the body of Fazal Rehman deceased:- "(1) An inlet wound 1/2" x 1/2' on the front, on the area of last left rib, 4' lateral to midline.
(2) An outlet wound 1" x 1' on the back, on the last left rib 3" away from the midline. This is outlet wound of wound No. 1. The direction of the wound is from above downward.
(3) An inlet wound 1/2' x 1--- on the lateral side of left forearm 6' below the elbow joint.
(4) An outlet wound to inlet wound No. 3 on the medial aspect of the left upper arm, size 1' x 1" as 2" above the left elbow joint. The direction of the wound is from below upward."
8. Shirin Jan, P. W. 2 and Ghulam Ahmad P. W. 3 gave ocular account of the occurrence. Shirin Jan confirmed the report earlier made by him and added that some months before the occurrence Gul Nawaz, accused/ appellant, wanted to make friendship with him and had come to his house for immoral purpose, but be informed his brother Fszal Rahman deceased and other relatives about the intention of accused Gul Nawaz as a result of which a cross firing had taken place between the deceased and the accused/ appellant.
9. Learned counsel for the appellants contended that the scene of occurrence is a chowk which is frequented by the public but the prosecution failed to produce any independent witness to corroborate the testimony of the two eye-witnesses who are closely related to the deceased; that the medical evidence belies the statements of these witnesses because according to the doctor the deceased could have sustained all the injuries by a single shot and the learned counsel pointed out the relevant portion of the doctor's statement reading as follows :- "In case the wounds have been caused by shot-gun, then it is also possible that both of the wounds might have been caused from single fire shot."
Lastly the learned counsel contended that the prosecution has not established that the two appellants had the common intention 'of committing the murder of Fazal Rahman because had it been so Gul Nawaz, who had the reason to retaliate,should have fired at the deceased instead of firing at Shirin Jan, P. W. 2 and it is also in evidence that he stayed behind at a considerable distance from Sher A.I and Mir Nawaz (absconder) and thus it would be illogical to convict Gul Nawaz for the murder of Fazal Rahman or to hold Sher A.I responsible for the attempt to murder Shirin Jan, P. W. Learned counsel emphasized that Sher A.I bad no enmity with the deceased whatsoever and his participation in the commission of the crime is highly doubtful and in all possibilities he has been implicated on account of his relationship with Gul Nawaz accused ; that the earlier firing case had been patched up by the interference of the elders of the village. It is therefore, obvious that the. Prosecution has not been able to establish any motive for the crime.
10. We have examined the contentions raised by the learned counsel and find that the place.
Where the crime was perpetrated is not a common crossing of the village but the chowk is normally a sitting place for the male members of the family who have their houses around it (the chowk). Therefore, it is no valid reason to- discard the testimony of the witnesses produced at the trial. However, the defence cannot assail the testimony of Shirin Jan, P. W. Who sustained injuries in the same transaction. His statement is consistent with. The other circumstances surrounding the scene of occurrence. We also consider that this is a case where all the accused had the common intention or also there was no reason to come t:) the spot together and fire at the deceased and the P. W. Which is the sequence of the same event, and, therefore, each one of them would be jointly liable. The essence of the principle of joint liability under section 34 in doing of a criminal act is to be found in the existence of common intention animating the accused leading to the doing of a criminal act "to invoke the aid of section 34 successfully it must be shown that the criminal act complained against, was done by one of the accused persons in the furtherance of the common intention of all ; if this is shown then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone". Mehboob Shah v. Emperor (AIR 1945 P C 118). To fix the guilt of each of the several accused under this section, there must be participation in the act with common intention, although different accused might have taken different parts.
11. Referring to the medical evidence we are sure in our mind that the deceased was hit with two separate and distinct shots as the locale of injury would show that he had inlet wound J' x f in dimension on the area of last left rib with an exit on the back of the left rib 3' away from the midline and another inlet wound ----- x ----- on the internal side of the left forearm 6' below joint. This wound is larger wound of entry and could only be caused by a separate shot. This entry had an exit at the upper arm of the side of 1/2' x 1'. The physical fact remains that the Investigating Officer recovered about seven cardboard discs which would indicate that more than two shots were fired which clearly tally with the ocular testimony of the two eye-witnesses. This is also on record that the two accused appellant absconded after the commission of the crime. There was no reasonable explanation forthcoming for this in their statement all that they stated was that they kept themselves away for fear of Police. The upshot of the discussion is that the appellants have been rightly found guilty under, section 302 and accordingly convicted.
12. However, the sentence of Gul Nawaz requires examination. It is in evidence of the two eye- witnesses that he did not fire at the deceased in spite of the fact that be was equally armed like the two other accused. He fired a shot on Shirin Jan though he had the common intention with the other accused but the death of the deceased was not caused by his hand directly. Therefore, on considering this fact, alter his death sentence to life imprison--ment and fine of Rs. 10,000 (Rs. (ten thousand only) or in default to suffer 9 years' R.
1. And another sum of Rs. 1,000 (Rs. One thousand only) as compensation under section 544-A, Cr. P. C. Or in default, six months' R.
1. The entire amount of fine and compensation, if recovered, to be paid to the heirs of the deceased.