' ZAFFAR HUSSAIN MIRZA, J.-These four appeals by special leave arise out of a common judgment by a Division Bench of the Lahore High Court, Lahore dated 18-4-1979, whereby the appeals filed by the present appellants were dismissed and their convictions under sections 302 and 148 read with section 149, P. P. C. Were maintained. The sentences of death awarded to appellants Hafiz Muhammad Aslam and Muhammad Ali alias Muhammadah were confirmed. However, similar sentences awarded to appellants Muhammad Jarjees and Muhammad Hazkeel were altered from death to imprisonment for life. The sentences in respect of offence under section 148, P. P. C.
Awarded by the trial Court were, however, maintained and ordered to run concurrently with the principal sentences awarded for murder.
2. Leave to appeal was granted by this Court in these cases as per order dated 13-6-1981, in order to reappraise the evidence on the basis of A which the convictions of the appellants proceed.
3. The occurrence in this case took place on 12-5-1975 at about 7-00 a. m. In the area of Adah Samberial when the appellants alongwith one Arshad Mahmood absconding accused, brutally murdered Muhammad Hussain in the shop of Sarfraz Gill (P. W). According to the prosecution the mother of the deceased Mst. Hussain Bibi and her sister Mst. Khurshid Bibi, migrated to Pakistan from the State of Jammu and Kashmir on the eve of the partition, after their close relations had been killed in communal riots. After coming to Pakistan they settled in Alipur Gojran in the house of their maternal-uncle Ali Muhammad who is the father of Hafiz Muhammad Aslam appellant. It was alleged that Ali Muhammad and Hafiz Muhammad Aslam appellant in collusion with the revenue officers obtained allotment of some lands of Mst. Hussain Bibi and Mst. Khurshid Bibi in their own names and at this time the deceased was very young. However, when he came of age he asserted his right and demanded possession of the land obtained in the name of his mother, from Ali Muhammad and Muhammad Aslam appellant. The latter refused to accede to the demands of the deceased and this became the cause of friction between them. As a result about a year prior to the occurrence, the deceased is said to have fired upon Muhammad Aslam appellant, in Mandi Samberial. A case in this connection for murderous assault was registered by the police against the deceased but he absconded.
4. About 10 or 11 months before the occurrence Muhammad Alam appellant is said to have hired Muhammad Ali alias Muhammad appellant, who was sent to Gujrat to murder the deceased but he was caught there and a case against him and Muhammad Alam was registered. On a search of the premises of rice husking machine of Muhammad Alam appellant the police found some illicit arms and registered a case against him. It is the case of the prosecution that 2 or 3 months before the occurrence the deceased was arrested in a case registered against him at the instance of Muhammad Alam appellant and after being released on bail started attending the Court at Daska.
Some kind of settlement and reconciliation had also taken place between the deceased and Muhammad Alain but the latter did not abandon his hostility towards the deceased as the dispute with regard to the land still remained unsettled. The deceased was married on 10-6-1976 but Muhammad Alam did not participate therein.
5. On the fateful day when the occurrence took place at about 7-00 a. m. Muhammad Hussain deceased and complainant Muhammad Aslam came to the bus stand at Adah. Samberial in order to go to Daska to attend the Court where the hearing of the deceased was fixed on that date. On seeing the shop of Sarfaraz Gill (P. W. 17) opposite to the bus stand open, the deceased went there in order to ask Sarfaraz Gill (P. W. 17) about the stitching charges of the clothes he had stitched on the occasion of his marriage. As he was talking to Sarfaraz Gill (P. W. 17) a white car belonging to Muhammad Alam appellant came and stopped in front of the door of the shop. From this car Muhammad Alam appellant armed with the rifle, Jarjees appellant his nephew also armed with rifle, his another nephew Shakeel appellant having a dagger, Muhammad Ali appellant carrying a '12 bore gun and absconding accused Arshed Mahmood armed with a pistol came out and immediately raised lalkara to the effect that the deceased would not be allowed to go alive. Then Muhammad Alam appellant challenging the deceased fired at him but missed his target, hitting the shutter of a window of the shop. In the meantime Muhammad Alam complainant and deceased Muhammad Hussain ran into the shop for cover where Safaraz Gill (P. W. 17) was already present and the deceased shut the door but ciuld not bolt it, before which the assailants pushed the door open. They then entered the shop and Muhammad Alam fired at the deceased hitting him on his chest as a result of which be fell down. Upon this Jarjees appellant and Arshed Mahmood fired at the deceased with their respective weapons which hit his left flank and the walls of the shop. Shakeel appellant gave the deceased 3 or 4 blows with his dagger. Muhammad Ali appellant is said to have stood at the door of the shop raising lalkara. The complainant and Sarfaraz Gill (P.
W. 17) witnessed the incident from inside the shop. Muhammad Bashir Manzoor Bhatti and Muhammad Iqbal came at the time of occurrence and also witnessed the same: The deceased died at the spot on account of injuries received by him. After murdering him the assailants went out of the shop. Jarjees and Muhammad Alam boarded the car and went away, whereas the rest of the assailants went on foot to Mandi Samberial.
6. The appellants denied their participation in the occurrence and Muhammad Alam appellant also denied that he had any motive as alleged y the prosecution or otherwise to harm the deceased. However, he admitted that at Gujrat a case under sections 15, 20 and 65 of the Arms Ordinance was pending against him and Muhammad Ali appellant. He further denied that his rifle was recovered from Muhammad Ali appellant but admitted that such a case has been registered against the said appellant. His plea was that he was involved due to enmity with one Muhammad Nawaz. Muhammad Ali appellant also admitted that a case was registered at Gujrat although he denied that he was sent by Muhammad Alam appellant to murder Muhammad Hussain deceased.
7. At the trial the ocular version of the occurrence was furnished by the three eye-witnesses Muhammad Alam (P. W. 16), Sarfaraz Gill (P. W. 17) and Muhammad Iqbal (P. W. 18). The ocular testimony was sought to be supported with the recovery of the crime weapons at the instance of the appellants. The report of the Chemical Examiner and Serologist produced in evidence show that the blood-stained dagger recovered, from Shakeel appellant was stained with blood of the human origin. However the reports of the Ballistic Expert were to the effect that the crime empty of 7 m.m. Had not been fired from the rifles secured at the instance of Muhammad Alam and Jarjees appellants.
8. None of the appellants produced any defence evidence in their support except Muhammad Alam who produced four witnesses in his defence. Muhammad Ishaq (D. W. 1), who owns a shop at a distance of about 1 marla from the shop of Sarfaraz Gill (P. W. 17) deposed that he saw the deceased and two other persons abusing each other and named the two as Riaz and Arshad (apparently referring to the absconding accused). According to him deceased Muhammad Hussain fired a pistol shot at Riaz but it missed and hit the window of the shop of Sarfaraz Gill (P. W.
17). Arshed is then said to have taken out a Chhurri and chased the deceased Muhammad Hussain into the shop of Sarfaraz. The witness stated that "perhaps they (Riaz and Arshed) fired at the deceased". He has excluded the presence of the eyewitnesses examined by the prosecution but asserted that a young unnamed boy was present at the time of the occurrence in the shop.
9. Ghani Masih (D. W. 2) has given a similar version of the occurrence as that deposed to by Muhammad Iqbal (D. W. 1). According to him he was coming out of the shop of a barber Aslam after having a shave, which shop is said to be the third shop from that of Sarfaraz (P. W.). He has further stated that his son Javid aged about 10 years, had come to him and informed him that at the time of the occurrence he was inside the shop.
10. Lt.-Col. Rehmat Ali (D. W. 3) stated that he was going from Sialkot to Mirpur in a bus which stopped at the Samberial bus stand. He claims to have seen three persons going towards the tailor's shop, and as soon as they approached the door of the shop one of them fired inside the shop and then the third entered the shop. Thereafter the bus started moving from the bus stand and he could not see what happened inside the shop. The purpose of his evidence is disclosed by the assertion that he knew Muhammad Alam appellant and that the latter was not one of the assailants.
11. Ghulam Dastgir Khan (D. W. 4) was the then Inspector Crime Branch and had carried out initial investigation in this case. The main substance of his evidence is that besides the eye-witnesses cited in the F. I. R. He had also recorded the statements of the three aforementioned defence witnesses. He also expressed his opinion that from the investigation conducted by him he came to the conclusion that Muhammad Alam appellant was innocent. He further deposed that Muhammad Iqbal (P. W. 18) was employed in Rubber Plastic Small Industries at Sialkot and on the day of occurrence he was marked as present in the attendance register.
12. The learned Judge in the trial Court rejecting the defence evidence believed the testimony of the aforesaid eye-witnesses and also the supporting evidence of recoveries and convicted all the appellants under sections 148 and 302 read with section 149, P. P. C. Vide his judgment dated 6-3- 1978. He sentenced all the appellants to death, under the second count and under the first the appellants were sentenced to R. I. For 2 years subject to the result of the reference for confirmation of the death sentence. In addition he further sentenced the appellants to pay a fine of Rs, 10,000 each under the second count and in case of recovery, directed that half of the fine shall be paid to the parents of the deceased.
13. The appellants filed separate appeals in the High Court which were dismissed with the modification in the sentence as already stated. The learned Judges of the High Court were of the view that Sarfaraz Gill (P. W. 17) and Muhammad Iqbal (P. W. 18) had given a consistent version of the occurrence and there was no motive for them to falsely implicate the appellants. Excluding the testimony of Muhammad Alam (P. W. 16) from consideration on the ground of his being an interested witness the learned Judges believed the testimony of Sarfaraz Gill and Muhammad Iqbal. Although the learned Judges held that since the crime empties were found by the fire-arm expert not to have been fired by any of the fire-arms allegedly produced by the appellants, they found the convictions of the appellants to be well-founded on the ocular testimony and the motive proved on the record.
14. In support of this appeal the main contentions pressed before us are, firstly, that if the defence evidence is evaluated by the same token with which the High Court evaluated the evidence of the eye-witnesses on the prosecution side, the inevitable conclusion would be to hold that the offence was not committed by the present appellants and their defence cannot be justifiably rejected. In the second place it was urged that the High Court having disbelieved Muhammad Alam (P. W. 16) who was the first informer, as well as the recovery on the weapons from the appellants, it was not safe to base the convictions of the appellants solely on the testimony of the remaining two eye- witnesses without any corroboration.
15. Now the medical evidence revealed that the deceased had received six fire-arm injuries (3 entry and exit) 3 incised injuries and one contusion. From two wounds bullets were removed and a third bullet was found to have fallen on the ground at the place of occurrence in the opinion of the doctor the fire-arm injuries could have been caused by one and the same weapon as the dimensions of the three injuries were identical but he could not say so with certainty. He, however, opined definitely that the injuries being of the same dimensions they were caused by the same kind of weapon. The incised injuries were said to have been caused with a sharp-edged weapon.
The contusion, in the opinion of the doctor, could be caused by a fall on a hard substance.
16. There is no dispute that the two eye-witnesses, namely, Sarfaraz Gill (P. W. 17) and Muhammad Iqbal (P. W. 18) are independent witnesses having no relationship with the deceased or having any motive to falsely implicate the appellants. However, Muhammad Alam (P. W. 16) is a close relation of appellant Muhammad Alam, being his nephew and also distantly related to the deceased.
Before considering the evidence as a whole, keeping the defence evidence in juxta-position with the prosecution evidence, it is necessary first to evaluate the intrinsic worth of the ocular testimony.
The most important witness in the case is Sarfaraz Gill (P. W. 17), whose presence at the spot is apparently natural inasmuch as the occurrence took place in his shop where the dead body of the deceased was found lying in a pool of blood and bullet marks were found on the inner walls of the shop. The contention that it is not likely for him to be present at the time of the occurrence early in the morning when he had other employees working in the shop who could very well have come first for cleaning the shop is pure conjecture with nothing to support it from the evidence. In small places it is not unlikely for the owner of the shop to come and open it in the morning and clean it himself. As already stated this witness is not connected with the deceased in any manner and he also belongs to the Christian community. The other argument that his evidence and indeed the evidence of other eye-witnesses, is conflict with the medical evidence inasmuch as these witnesses attribute several shots to the three assailants who were armed with fire-arms, is also devoid of substance. As pointed out by the High Court apart from the three shots received by the deceased on his person, there were marks of bullet shots on the walls and furniture of the shop. It is quit consistent with the ordinary course of human conduct, in a situation like the one described by the witnesses, where one helpless victim is trying to find shelter in the shop to avoid a murderous assault by assailants armed with fire-arms to struggle in order to escape a direct hit and in the process of shooting in such an atmosphere charged with excitement, it is possible for the assailants to open indiscriminate firing resulting in some of the shots missing the target and hitting the walls. Also in the trauma of the dramatic events occurring suddently it is natural for the witnesses, who themselves may be apprehending harm in the face successive shots, not to clearly observe the sequence with which the shots landed on the body of the deceased. However, they could certainly be in a position to say who was shooting at the deceased. As regards the injuries given to the deceased with the dagger by Sha keel appellant, the version of the three witnesses is consistent and free from any kind of contradiction. Intrinsically, therefore, the evidence of Sarfaraz Gill (P. W. 17) is reliable and unimpeachable.
17. As regards Muhammad Iqbal (P. W. 18) his presence at the scene is corroborated by the F. I. R. As well as other two eye-witnesses. His testimony is consistent with that of Sarfaraz Gill (P. W. 17). The only argument of the learned counsel is that he was marked present at the place of his duty on the same day at Sialkot. There is nothing unusual for him to have witnessed the crime and to have attended to his work on the same day as the distance between Samberial and Sialkot is about 14 miles and a bus service is available for travelling to Sialkot. Nothing also turns on the fact that he denied that a case had been registered against him at the instance of one Shamsuddin under section 392, P. P. C. (as testified by Sardar Ayub Baig, S. I. (P. W. 19)) in which case he was discharged.
18. As to Muhammad Alain (P. W. 16) as already observed, the trial Court believed his testimony but the High Court rejected it out of consideration holding that he was not an independent witness, on the ground that he had been involved in a case registered at the instance of Muhammad Alem appellant against the deceased and himself. The learned Judges in the High Court also found his explanation unconvincing as after the occurrence he abandoned his intention to go to Daska for obtaining a copy of Jambandi. The reasons adopted by the learned Judges for discarding the testimony of this witness as interested, with all due respect to them, are not tenable. The learned Judges while referring to the case registered against the witness alongwith the deceased by Muhammad Alam appellants, omitted to notice the fact that this case had been filed 7 years before the occurrence and had ultimately been compromised on the application of the said appellant to the District Magistrate. It is quite natural and consistent with ordinary course of human conduct, for the witness not to go to Daska to pursue his personal business after witnessing the gruesome murder in which he was the complainant. The evidence of Muhammad Alam (P. W. 16) was, therefore, not liable to be thrown away, but nothing has been pointed out from the record to indicate that this witness was a false witness. Be that as it may, even if the evidence of this witness is kept out of consideration, the ocular testimony furnished by Sarfaraz Gill (P. W. 17) and Muhammad Iqbal (P. W. 18) both independent witnesses would be sufficient to sustain the conviction of the appellants. But there are some other aspects of the case which require further consideration.
19. On the question of the effect of defence evidence on the case as a whole, the main plank of argument for the appellants was that Ghani Masih (D. W. 2) was also from the Christian community and an independent witness, whose testimony cannot be discarded. The trial Court who had the advantage of seeing the demeanour of the witnesses has disbelieved his evidence on the ground that his evidence is contradictory to the version given by Muhammad, Ishaq (D. W. 1). It was observed further that his evidence was unnatural inasmuch as a person armed with the pistol would not ordinarily succumb to the assault of assailants possessing no fire-arm and the details as to how the assailants got hold of a pistol to shoot down the deceased were entirely lacking.
Further his presence at the spot was also by chance. The testimony of Muhammad Ishaq (D. W. 1) was discarded on the ground that he did not witness how the deceased was killed and also as he did not inform Muhammad Alam appellant or his relations about the identity of the alleged assailants. The evidence of Lt.-Col. Rehmat Ali (D. W. 3) is on the face of it improbable and of no value being only negative in effect, as he did not identify the alleged assailants of the deceased.
Additionally he admitted that he and Muhammad Alam appellant were jointly supporting the election campaign of Sardar Abdul Qayyum Khan. Lastly the evidence of Ghulam Dastgir Khan (D.
W. 4), consisting as it does of opinion evidence was rightly excluded from consideration. Thus, the reasons for holding that the defence evidence did not in any way materially displace or react on the prosecution evidence are cogent and well-founded.
20. It was forcefully contended on behalf of the appellants that keeping in view the medical evidence and the rejection of the evidence of recovery of crime weapons connecting them with the effence, it is reasonable to hold that the fire-arm injuries was the work of one assailant. The submission was that two of the appellants, namely, Muhammad Alam and Jarjees are said to have used rifles and in that case the responsibility for the fatal shots cannot be fixed on either of them, which is a valid reason for giving the appellants the benefit of doubt. It is no doubt true that the three fire-arm injuries found on the body of the deceased are identical in nature and dimensions and the medical officer has expressed the opinion, as already observed, that the possibility of one weapon being used cannot be excluded or the use of identical weapons if there were more than one person using rifles. The balance of probabilities would apparently be against such highly coincidental situation where two persons would be armed with identical rifles. Also the effective shots fired could be the work of one person armed with a fire-weapon, who could fire successive shots with the weapon at a helpless unarmed victim. However, merely because it is not certain as to which of the two appellants must have used his weapon so far as the effective shots are concerned, is no ground for holding that the other who did not use the weapon effectively was not present during the occurrence. The participation of the appellants has been fully established on the ocular testimony which is reliable and independent. This argument further omits to take into consideration the effect of the provisions of section 149, P. P. C. Which places vicarious liability on every member of an unlawful assembly if the offence is committed in prosecution of the common object or is known to be likely to be committed in prosecution of such object, although such person may not himself be directly responsible for the act of killing. In Muhammad Khan v. State this Court observed : ' In a situation like this, if two assailants lying in ambush having suddenly surprised the complainant party had fired in quick succession almost simultaneously the possibility of bona fide error of perception as to whose shot hit and whose missed could not be completely excluded from consideration and once the witnesses were believed both the assailants should have been convicted without any one of them being found entitled to benefit of doubt."
Although this was a case governed by section 34, P. P. C. The principles would be applicable to the case of persons forming an unlawful assembly the object of which is to commit the offence of murder, as is the case in hand. As in the reported judgment this is also a case of daylight occurrence, Muhammad Alam appellant having strong motive and Jarjees appellant being his nephew and there can be no question of mistaken identity nor of any inherent improbability regarding their participation.
21. In view of the above the guilt of the appellants has been established beyond reasonable doubt.
However the question of propriety of awarding the extreme penalty of death to Muhammad Aslam and Muhammad Ali alias Muhammadan appellants, requires to be examined. In the case of Muhammad Khan referred to above, the following rule was laid down.
"In fact proposition is not devoid of authority that where the infliction of the solitary fatal injury or the firing of the effective shot proving fatal cannot be attributed with certainty to one of the two or1 more assailants whose participation in the attack otherwise, stands established by satisfactory evidence, the non-participation could at best be a valid ground for award of lesser penalty."
On a parity of reasoning, therefore, Muhammad Aslam appellant seems to be entitled to the benefit of the aforesaid rule. His sentence would, there fore, be altered from death under section 302/149, P. P. C. To imprisonment for life. As regards Muhammad Ali appellant the High Court awarded him the death penalty on the ground that he was a hired assassin. However since he did not actually use his weapon and was not instrumental to the causing of the fatal injuries, his case should be at par with Muhammad Jarjees and Muhammad Hazkeel alias Shakeel as he also had no direct motive for killing the deceased. The death sentence awarded to him is, therefore, modified to life imprisonment. All other sentences to these two appellants shall, however, remain intact.
22. In the result all the appeals are dismissed except for the modification of sentences awarded to Hafiz Muhammad Aslam and Muhammad Ali alias Muhammadah as mentioned above. PLD 1977 SC 446