' INAYAT ELAM KHAN, J.-Muhammad Iqbal son of Muhammad Ayub, Iftikhar Hussain son of Azizur Rehman (appellants) alongwith their co-accused Mir Afzal son of Suleman and Sarwar son of Khalilur Rehman residents of village Kaag Police Station Haripur were jointly tried by the Additional Sessions Judge, Abbottabad at Haripur for having committed the murder of Muhammad Riaz son of Afsar their co-villager on 19-3-1980 at 11-45 a. m. In the Chowk of Central Jail Bazar Haripur. The learned Additional Sessions Judge vide order dated 31-5-81 while acquitting the co-accused, convicted the appellants under section 302/34, P. P. C. And each of them was sentenced to imprisonment for life and a fine of Rs, 5,000, or in default whereof to further 2 years' R. I. Each. Out of the fine if realized half the amount was directed to be paid to the heirs of the deceased as compensation.
2. The prosecution case as disclosed at the trial in the statement of Kala Khan (P. W. 6) is that he was an employee of T. I. P. At Haripur. On the day of occurrence during the interval, he was sitting in the hotel of one Munshi Khan situated in Jail Bazar. Many persons were sitting inside and outside the hotel and in the meantime deceased Riaz came with a shot-gun from the Jail side. Riaz (deceased) fired as Azizur Rehman father of Iftikhar Hussain (appellant) with the shot-gun who was hit and fell on the ground. At that time Muhammad Iqbal (appellant), Sarwar and Mir Afzal were also sitting in the hotel. Sarwar and Mir Afzal caught hold of the deceased whereas Iftikhar Hussain (appellant) snatched the gun from him and gave him blows with the butt of the gun.
Muhammad Riaz (deceased) started bleeding and in the meantime Muhammad Iqbal (appellant) fired with a pistol at him. .The deceased ran towards the railway station followed by the accused.
He (Kala Khan P. W. 6) then narrated the occurrence to Karam Dad (P. W. 5) who met him in Adda Darband. In cross-examination he stated that in an earlier criminal case of robbery he appeared as a witness on behalf of the complainant party. He stated that he was employed in the T. I. P. And his working hours were from 6-00 a. In. To 2i p. m. The recess period was from 11.00 a. m. To 11.30 a. m. He denied the suggestion that he has not witnessed the occurrence.
' Syed Maazam Shah S. H.
0. (P. W. 7) was present in Tehsil courts, on receiving information of the occurrence he rushed to the spot and found Karam Dad present at the spot who lodged the report (Exh. PA/1) which was later on incorporated in F. I. R. (Exh. PA). The cross case vide F. I. R. No, 71 (P. W. 7/D-1) was also registered by him at the instance of Munshi Khan the hotel owner. By that time Muhammad Riaz (deceased) had been carried to the Hospital so he went there and prepared his injury sheet (P. W. 7/1) and inquest report (P. W. 7/2) and sent the dead body to the mortuary for post-mortem examination.
He prepared the site plan (Exh. PB) and picked up some blood-stained earth (Exh. P. 5) from the place near the cattle-shed of Haji Ashraf Khan where the dead body was lying. The bloodstained clothes of the deceased having cut marks (Exhs. P 2 to P 4) were taken into possession by him vide memo. (Exh. PG). A sealed phial containing pieces of lead taken out from the body of the deceased was also taken into possession vide Memo. (Exh. PF). He arrested the accused and after completion of the investigation submitted challan in Court.
4. Doctor Shafiq Ahmed (P. W. 1) performed the post-mortem examination on the dead body of Muhammad Riaz (deceased) aged 22/24 years on 19-3-1980 at 2.45 p. m. And found the following:- External Examination:
(1) A fire-arm inlet wound about 1/6' diameter at the right sternal border and 5th intercostal space.
(2) Laceration top of skull 11 (1/4)x iff scalp deep.
(3) Laceration left skull, 1' x its x scalp deep.
(4) Laceration back of the skull 1" x iw (1/4) x scalp deep.
Internal Examination.
Scalp, thorax walls, pericardium heart, stomach were injured. Brain, membrane and spinal cord not injured. Muscle of the scalp and chest wall injured.
' He stated that the deceased otherwise was healthy and died of haemorrhage and shock due to the injuries to vital organ like heart due to fire-arm.
' He mentioned that the deceased died instantaneously. Injury No. 1 was described as sufficient in the ordinary course to cause the death of the deceased. He proved the post-mortem report (Exh.
PC) and the pictorial (Exh. PC) which were in his handwriting and correct. He also examined Azizur Rehman (deceased) in the cross case F. I. R. No, 71 dated 19-3-80 and found the following:- ' A fire-arm inlet wound 1" diameter on the back at the 10th dorsal spine. Corresponding 6 outlet wounds each about (1/4)f" diameter on the right side of the front of the chest.
5. Karam Dad (P. W. 5) in his report (Exh. PA) had stated that on the day of occurrence at about 1.30 p. m. He -was present in Adda Darband where he came to know that his nephew Muhammad Riaz has left with a shot-gun towards Haripur bazar. He came there in search of him but in the meantime Muhammad Zarin and Kala Khan informed him that Muhammad Riaz his nephew has been murdered in Jail Bazar, Haripur by Muhammad Iqbal, Sarwar and Iftikhar Hussain and that they had witnessed the occurrence. On getting information he left for the Hospital at Haripur where the dead body of his nephew was lying. The motive alleged by him was blood feud between the parties.
6. The prosecution case mainly rests on the eye-witness account furnished by Kala Khan (P. W. 6), Medical evidence and the motive. The learned trial Court by placing reliance on the eye-witness account given by the Kala Khan (P. W. 6) and the corroborative evidence has based the conviction thereon.
7. The background giving rise to the present occurrence is that in the report (Exh. P. W. 7/3) lodged on 13-10-1979 in Police Station, Haripur, Iftikhar Hussain (appellant) and one Muhammad Zaman were charged for the murder of Akhtar Zaman brother of Muhammad Riaz (deceased), as Akhtar Zaman allegedly abducted the sister of Iftikhar Hussain (appellant). In the said murder case on the date of the present occurrence 1. e. 19-3-1980, Iftikhar Hussain and Muhammad Zaman were acquitted by the Sessions Court and it appears that in order to avenge the murder of his brother Akhtar Zaman, Muhammad Riaz (deceased) armed with a shot-gun went to the hotel of Munshi Khan where Iftikhar Hussain, soon after his release from the Jail, was sitting alongwith his father Azizur Rehman and others for having tea etc. Muhammad Riaz (deceased) having seen them sitting in the hotel fired and killed Azizur Rehman. According to the evidence, Iftikhar Hussain (appellant) snatched away the gun from him and inflicted blows on his head with the butt of the gun. But in the meantime Muhammad Iqbal a relative of Iftikhar Hussain took out a pistol and fired at the deceased causing his death.
8. The learned counsel for the appellants urged that Kala Khan (P. W. 6), the only eye-witness in the case, was not reliable as in the first instance he had informed Karam Dad (P. W. 5) that the murder was committed by Muhammad Iqbal, Muhammad Sarwar and Iftikhar Hussain by firing at the deceased but later on in the Court statement he has charged only Muhammad Iqbal for causing the death of the deceased by firing at him. That he being an employee of T. P. At Haripur could not have been present at the time of occurrence i. e. At 11-45 a. m. Because the period of his recess was from 11.00 a. m. To 11.30 a. m. That he has stated the deceased to have been fired at in front of the hotel whereas the dead body of the deceased was found lying at Point No, 5 shown in the site plan which was at a distance of 201 paces away and the deceased having sustained injury in the heart was incapable of running that distance particularly when according to the doctor the deceased died instantaneously. That no blood was found in front of the hotel nor any trail of blood was found between Points Nos. 4 and 5 shown in the site plan. That Kala Khan was a. Partisan of the complainant side as he had appeared as a witness in an earlier criminal case on their behalf. It is also urged by the learned counsel that section 34, P. P. C. Was wrongly applied, the occurrence being a sudden affair without premeditation, Iftikhar Hussain (appellant) was not vicariously liable for the death of Muhammad Riaz (deceased). The other objection of the learned counsel was that in the earlier report lodged by the Munshi Khan regarding the murder of Azizur Rehman the present incident is also mentioned and therefore the present F. I. R. Being a statement to the police during the investigations would be inadmissible in evidence. It is also argued that one Zarin Khan whose name was mentioned in the F. I. R. As an eye-witness and Munshi Khan in whose hotel the occurrence took place have not been examined and thus an adverse inference is to be drawn against the prosecution.
9. No doubt the only eye-witness in the case is Kala Khan (P. W. 6) as Zarin Khan mentioned in the F.
I. R. And Munshi Khan the hotel owner have not been examined. But having gone through his evidence we feel that he has spoken the truth. There is no reason to discard his evidence which otherwise inspires confidence and he being an independent and disinterested witness having no motive of his own to falsely implicate the appellants. Muhammad Zarin and Munshi Khan were abandoned at the trial as having been won over by the accused. Even otherwise it appears that Munshi Khan was least interested as he did not bother to go to the Police Station and it was only when the Investigating Officer came to his hotel that he lodged the report in the cross case. May be he avoided to give evidence due to fear of the accused and did not want to earn their enmity by appearing as a witness against them. Kala Khan (P. W. 6) in his Court statement did not mention Muhammad Zarin as an eye-witness to the occurrence. He was mentioned as any eye-witness by Karam Dad in his report but Karam Dad himself has not seen the occurrence.. The argument that in the F. I. R. Lodged by Karam Dad three persons were named including Muhammad Iqbal (appellant) to have fired at the deceased is without any force for the reason that F. I. R. Is not a substantive piece of evidence and Karam Dad himself not being an eye-witness, was not in a position to provide correct particulars of the incident. Whatever he stated was allegedly conveyed to him by Kala Khan but Kala Khan in his evidence attributed the role of firing only to Muhammad Iqbal (appellant). May be due to enmity Karam Dad wanted to involve as many people as he could for the killing of the deceased who was his nephew. Moreover, the learned counsel himself argued that the F. I. R. In the present case was in the nature of a statement to police during investigation and thus on the basis of the said argument it can be excluded from consideration. About the evidence of Karam Dad (P. W. 5) suffice it to say that his evidence is based on the information allegedly conveyed to him by Kala Khan (P. W. 6). Admittedly Muhammad lqbal, Sarwar and Iftikhar Hussain were present at the time of the occurrence and had taken part in beating the deceased.
Their names may have been mentioned by Kala Khan to Karam Dad but Karam Dad may have taken it in a different sense thinking that all of them have fired and killed the deceased,
10. The learned counsel for the appellants relied on Mumtaz-ud-Din v. The State , to contend that the evidence of Kala Khan being the solitary eye-witness should not be relied upon. In the cited case it was observed by the Honourable Supreme Court that although conviction can be based on the evidence of a solitary eye-witness but as a rule of prudence, Court do not base conviction on the evidence of such witness; unless the eye-witness is absolutely reliable or unless his evidence is corroborated by reliable evidence. It may be mentioned that the evidence of Kala Khan in the case inspires confidence and we find nothing which may detract from his veracity. He is an independent and disinterested witness and there is no reason why he should falsely substitute Muhammad Iqbal (appellant) for the real culprit. His evidence that Muhammad Iqbal (appellant) fired with a pistol at the deceased and Iftikhar Hussain (appellant) gave blows on the head of the deceased with the butt of the gun stands corroborated by medical evidence which shows one fire-arm injury or the chest and three lacerated wounds on the scalp of the deceased. If Kala Khan was a false witness he could have attributed the fire-arm injury to Iftikhar Hussain (appellant) who had direct enmity with Muhammad Riaz and whose father having been killed in his presence it was natural for him to have retaliated and killed the deceased Muhammad Riaz. It is evident that Iftikhar Hussain (appellant) was set free from Jail immediately before the occurrence and he was not supposed to carry any weapon on his person, whereas Muhammad Iqbal may be carrying a weapon, who, being a relative, had gone to receive Iftikhar Hussain on his release from the Jail. Therefore, it appears that Kala Khan was not wrong in saying that the deceased was fired at and killed by Muhammad Iqbal (appellant). The argument that Kala Khan being an employee of T. I. P. At Haripur could not have been present at the time of occurrence at 11-45 a. m. As his recess period ended at 11.30 a. m. Is without substance because, being an employee of a Factory he may have availed of his recess a few minutes longer. Moreover it is not a must that the occurrence took place exactly at 11.45 a. m. It may have occurred a few minutes earlier. The learned counsel in support of his argument that the deceased having sustained the heart injury was incapable of running relied on Muhammhd Aslam. The Crown , wherein the Hon'ble Supreme Court keeping in view the circumstances of the case observed that in view of the medical evidence that the deceased died instantaneously it was doubtful to believe that .The victim after receiving the injury to the heart shouted the name of her assailant. But in the case in hand the possibility cannot be excluded that after receiving the heart injury the deceased, being a young man of 22/24 years, may have run for a few paces in desperation and fallen at the place where his body was found. Modi in his Medical Jurisprudence (Twelveth Edition) at page 235 says "a few cases have been recorded in which the victims are able to perform some act as that of walking or climbing requiring some exertion, and survived for some hours or days after receiving very grave injuries, which would ordinarily have proved rapidly fatal". On page 236 the case of Collector Commilla is reported who was shot by a1 2 girl with a .45 revolver, while he was standing on the threshold of his office and on the left of his Sub-Divisional Officer. He fell against the Sub-Divisional Officer and said "I am hit", then turned and ran through the office up through the dining room into the pantry and shut the folding doors before he fell dead on the floor. Post-mortem examination showed that the bullet had gone through the heart and out into the right lung. This circumstance, therefore, would not detract from the eye- witness account furnished by Kala Khan (P. W. 6), The mere fact that Kala Khan had appeared as a witness in some robbery case on behalf of the complainant would not make him an interested witness. His evidence on the point, that it was Muhammad Iqbal (appellant) who fired at and killed the deceased whereas Iftikhar Hussain had given blows on the head of the deceased with the butt of the gun is consistent with medical evidence.
11. From the facts stated above, it appears that the plea of grave and sudden provocation can justifiably be advanced on behalf of the appellants. The appellants alongwith Azizur Rehman and others were sitting in the hotel when Muhammad Riaz (deceased) duly armed with a gun arrived and in their presence Azizur Rehman father of Iftikhar Hussain (appellant) was done to death. The conduct of Muhammad Riaz (deceased) was such as would have caused the loss of self-control and infuriated the appellants to the extent to retaliate by resorting to violence. Thus it is obvious that the appellants having lost the power of self-control had acted under grave and sudden provocation. The provocation caused by Muhammad Riaz (deceased) was not only sudden but also grave. Azizur Rehman was the father of Iftikhar Hussain and a relative of Muhammad Iqbal (appellants). Iftikhar Hussain after disarming the deceased started giving blows on his head with the butt of the gun and Muhammad Iqbal took out the pistol and fired at the deceased. Regarding the question whether both the appellants shared common intention in causing the death of Muhammad Riaz (deceased) it appears that Muhammad Iqbal (appellant) all of a sudden took out the pistol and fired at the deceased. There is nothing to show that Iftikhar Hussain had the knowledge that Muhammad Iqbal was carrying a pistol or that he would use it in the occurrence.
Thus shooting by Muhammad Iqbal being his individual act, Iftikhar Hussain would not be constructively liable. In Yusaf v. The State , it was held that:- "It is well-settled proposition of law that in invoking the provisions of section 34 a furtherance of a common intention is a condition precedent for convicting each of the persons who take part in the commission of a crime, and the mere fact that several persons took part in a crime in the absence of a common intention is not sufficient to convict them of that crime .It is also well-settled proposition of law that the presumption of constructive intention must not be readily applied or pushed too far."
' In Ali Muhammad v. The State , it was held that "the two appellants, namely, Ali Muhammad and Soomar were convicted under section 202/34, P. P. C. And sentenced to death. The deceased was, however, killed only by Ali Muhammad with a pistol which was concealed under his "ajrak" and he fired it after pulling out the same therefrom. Soomar was carrying a hatchet in his hand and was brandishing the same to ward off pursures. There was no evidence against Soomar that he had knowledge that Ali Muhammad was carrying a pistol or that he would use it with tragic consequences. It was on the facts held, by a Division Bench consisting of S. A. Mahmcod and Raymond, JJ. That the shooting by Ali Muhammad was his individual act and that Soomar could not be held constructively liable for the same".
12. The learned Assistant Advocate-General also frankly conceded that the occurrence having been taken place at the spur of the moment and' being a sudden affair, the question of Iftikhar Hussain sharing common intention with Muhammad Iqbal in killing the deceased,' would not arise unless there is evidence that Iftikhar Hussain promoted Muhammad Iqbal to fire at and kill the deceased.3 4
13. Having given or thoughtful consideration we have come to the conclusion that section 34, P. P. C.
Cannot be applied as both the appellants would be responsible for their individual acts. Having found that both of them had acted under grave and sudden provocation, the offence committed by Muhammad Iqbal (appellant) would be covered by section 304, Part I, P. P. C. And the offence committed by Iftikhar Hussain (appellant) would fall under section 335, P. P. C. No doubt the injuries on the head of the deceased have not been described as grievous by the doctor but it is obvious that the injuries thus caused were definitely dangerous to life, and could have resulted in the death of the deceased.
14. For the aforesaid reasons the conviction of Muhammad Iqbal (appellant) under section 302/34, P. P. C. Is altered to that under section 304, Part I, P. P. C. And his sentence is reduced to 10 years' R. I.
With a fine of Rs, 5,000, or in default of payment of fine to further 2 years' R. I. The conviction of Iftikhar Hussain (appellant) under section 302/34, P. P. C. Is altered to one under section 335, P. P. C.
And he is sentenced to 3 years' R. I. With a fine of Rs, 2,000, or in default of payment of fine to further 6 months' R. I. The fine if recovered shall be paid to the heirs of the deceased as compensation. The period of detention of the appellants during the trial shall be considered as the period of sentence having been undergone by them. The appeal is accepted to this extent only. PLD 1978 SC 114 1969 SCM R 426 PLD 1963 Pesh. 118 PLD 1965 Kar. 133