ATAULLAH SAJJAD, J.--The two appellants, namely, Siraj and Sadiq were tried along with seven others for offences under sections 148, 302/149 and 307/149 of the Pakistan Penal Code. Siraj was convicted under section 302, P. P. C. for causing the death of Sabir Ali and was sentenced to death.
Both the appellants were convicted under section 307/34, P. P. C. for making a murderous assault on the life of Iqbal Hussain (P. W. 9) and sentenced to three years' rigorous imprisonment each. The sentence of imprisonment awarded to Siraj under section 307/34, P. P. C. was ordered to take effect only if the sentence of death was not confirmed by the High Court. The co-accused of the appellants were acquitted.
The appellants have appealed to this Court against their convictions and sentences. There is also a usual murder reference for the confirmation of the death sentence awarded to Siraj appellant. This judgment will dispose of both the matters.
2. The occurrence took place on 12th of December 1967, at 2-15 p.m. in Chak No, 27/E.B., Police Station Arifwala, District Sahiwal. Iqbal Hussain (P. W. 9) and Sabir Ali deceased were returning to their houses after saying their zohar prayers in the village mosque. When they reached near the house of Umar Din P. W. the appellants and their co-accused came variously armed. The two appellants and Rajada son of Allah Ditta and Rehmat son of Jamala, two of the acquitted accused were armed with pistols. Rajada opened the attack by firing his pistol but nobody was hurt. Sadiq appellant fired a pistol which hurt Iqbal Hussain (P. W. 9). Rehmat son of Jamala (the acquitted accused) also fired but missed the target. Siraj appellant then fired from his pistol as a result of which Sabir Ali was hit and fell down. Muhammad Din (P. W. 10), Ghazanfar Ali (P. W. 11), Umar Din (P.
W. 12) and Sultan son of Jiwan (P. W. 16) were attracted to the spot. Muhammad Din came forward to intervene but Nazar (the acquitted accused) gave him a hatchet blow on his shoulder. Umar Din P. W. was injured by Rehmat son of Sultan. The assailants thereafter ran from the spot with their respective weapons.
3. The two injured persons were removed to Arifwala Hospital, where they were medically examined by Doctor Sher Muhammad Akhtar (P. W. 2). Sabir Ali had three lacerated wounds on the left parietal region and the scalp, and was unconscious. Iqbal Hussain was fit to make a statement.
The doctor wrote a ruqqa to the Sub-Inspector who came to the hospital and sent for the Naib- Tehsildar, Arifwala who recorded the statement Exh. P. A. of Iqbal Hussain (P. W. 9) on which the first information report Exh. P. All was drawn up. The medical officer handed over the perforated shirt of Iqbal Hussain P. W. to the Sub-Inspector which he took into possession vide memo. Exh. P. B. The Sub-Inspector also recorded the statements of Muhammad Din, Umar Din, Ghazanfar Ali and Sultan P. Ws. in the hospital.
4. The injuries to Sabir All had been caused with a fire-arm. Injuries Nos, 1 and 2 were grievous and injury No, 3 was simple. There were multiple contused wounds about 20 in number measuring 1/3' x 1/3" each on the person of Iqbal Hussain, out of which about eight were in the abdomen, measuring 1/3' x 1/4" on the right side of the chest and right side of the abdomen with indefinite depth. This, in the opinion of the doctor was a grievous injury and had been caused freshly by a fire-arm. The doctor recommended that both the injured persons should be removed to the District Headquarters Hospital, Sahiwal.
5. Muhammad Din and Umar Din P. Ws. and Rajada accused were examined by the same doctor on the same day. Rajada had following injuries on his person :- (1)A contused wound 1 x 1/6" x 1/4" muscle deep on the parietal region of the scalp 24" above the left pinna of the left ear, directed obliquely.
(2)An abrasion 3/4" x 1/2" on right elbow-joint back. Injury No, 1 was kept under observation and the patient was advised X-Ray for this injury which he refused. Therefore, the doctor was not in a position to give any definite opinion about the nature of this injury. Injury No, 2 was simple in nature and had been caused by blunt weapon.
Muhammad Din P. W. had a red contusion mark 4" x 2" on the top of the left shoulder, directed obliquely. The injury was simple and had been caused by a blunt weapon.
Umar Din P. W. had two abrasions, one measuring I" x 1/4" on the right parietal region of the scalp 21" above the pinna of right ear, and the other measuring 1" x 1/6" on the outer aspect of the right shoulder-joint. The injuries were simple and had been caused with a blunt weapon.
6. Sabir Ali died in the District Headquarters Hospital, Sahiwal, on 15th of December 1967. The post- mortem examination on his dead body was performed by Dr. Wasim Akhtar (P. W. 1) on the same day at 4-30 p.m. The doctor was of the opinion that injuries Nos, 1 and 2 were respectively the wound of entry and the wound of exit. He found the left temporal bone to have been fractured. The brain had been injured and shattered.
7. The Investigating Officer reached the place of occurrence which is about five miles from the police station, on the morning of 13th of December 1967. He took the blood-stained earth from the street in front of the house of Umar Din P. W. vide memo. Exh. P. N. and sealed it into a parcel. All the accused, excepting Rajada son of Nizam, were produced before the Investigating Officer by Sultan Dogar of Police Station, Hujra. They were not arrested but the Investigating Officer asked Akbar, Nazar, Khana and Rehmat son of Sultan to bring their respective weapons of offence. All of them produced their hatchets of their own accord which were taken into possession vide memos. Exhs. P.
D., P. E., P. F. and P. G. All the accused were thereafter arrested. Rajada son of Allah Ditta on the same day led to the recovery of pistol P. 7 from a heap of cotton in his kotha. Sadiq appellant also led to the recovery of pistol P. 8 from a trunk lying in his kotha. Siraj appellant led to the recovery of pistol P. 9 from a heap of clothes lying on a cot in his residential house. Rehmat son of Jamala produced pistol P. 10 from his residential house which was lying behind the gunny bags containing wheat. Rajada son of Nizam was admitted in Arifwala Hospital. He was arrested from his Chak on 23rd of December 1967. He produced hatchet P. 6 which was taken into possession by the Investigating Officer.
9. No empties were recovered from the spot and it cannot, therefore, be said that the pistols recovered at the instance of the two appellants were used in the commission of the offence. The learned trial Court did not accept these recoveries as genuine and observed that Anwar Khan (P.
W. 14) who had supported these recoveries was brought from Chak No, 46/E.B. which is at a distance of eight miles from the place of occurrence. Anwar Khan P. W. was not able to say as to which weapon was recovered from which of the accused. He was also not able to positively assert that the houses from which the recoveries were effected belonged to which particular accused persons.
10.Both the parties are Dogars and refugees from a place in Ferozepur District which now forms a part of the Indian territory. Iqbal Hussain P. W. dismissed a barber Mukhtar by name and appointed Ashiq Muhammad barber in his place. This was resented by the accused party. It is also in evidence that Khana and Akbar, the co-accused of the appellants, had constructed kothas on the land of Iqbal Hussain P. W. and were being asked by him to vacate the land and remove the malba.
11.It appears from the cross-examination of the prosecution witnesses that the case of the accused was that Mukhtar barber had himself assaulted Sabir Ali deceased and Iqbal Hussain P. W. Rajada son of Nizam accused interfered and received the injuries at the hands of the complainant party.
Rajada himself did not own the defence plea taken in cross-examination in respect of his injuries and stated before the committing Magistrate that he had received his injuries in the course of cultivation work. He was not questioned with regard to his injuries at the trial where he stated that it was Mukhtar barber who had fired at Sabir Ali and Iqbal Hussain and had disappeared. No defence evidence was produced at the trial.
12.The conviction of the appellants is based on the oral testimony of the eye-witnesses.
Muhammad Din (P. W. 10) is an uncle of Iqbal Hussain (P. W. 9) and is also married to the sister of Sabir Ali deceased. Ghazanfar Ali (P. W. 11) is a puphizad of Iqbal Hussain P. W. Umar Din (P. W. 12) is a brother of Sabir Ali deceased. Sultan son of Jiwan was a Chaukidar of the village and died after making his statement before the committing Magistrate which was transferred to the record of the trial Court under section 33 of the Evidence Act.
13.We also find from the record that apart from the immediate motive which was provided by the dismissal of Mukhtar barber and the demand of Iqbal Hussain P. W. for removal of the malba of their houses by Khana and Akbar accused, there is a background of enmity between Khana, the acquitted accused, and the family members of the deceased and Iqbal Hussain P. W. It was admitted by Iqbal Hussain that Ghazanfar Ali (P. W. 11) was involved in a case under section 307, P.
P. C. and Khana was a prosecution witness in that case. It was also admitted by him that there was a case against Sabir Ali deceased under section 366/376, P. P. C. and Khana was a prosecution witness against him. It was further admitted by this witness that there was litigation with regard to warabandi between himself and Rehmat son of Sultan the acquitted accused. The learned Sessions Judge on the basis of these facts observed that it was possible that because of this background of enmity the prosecution witnesses might have attempted to involve a larger number of persons in this case. He found that no overt act was attributed to the three accused persons, namely, Akbar, Khana and Rajada son of Nizam. He further found that Rehmat son of Jamala had not been attributed any part by most of the prosecution witnesses including Sultan (P. W. 16) when they were examined by the police or before the committing Magistrate. He further found that according to Ghazanfar Ali (P. W. 11), Rehmat son of Sultan accused had gone to Chak No, 25/E.B. to have wheat ground at the time of the occurrence. Since the injuries suffered by Muhammad Din and Umar Din P. Ws. were simple and had been caused by blunt weapon, the learned trial Court held that it was doubtful whether they had been caused as alleged by the injured P. Ws. It was, however, found by him that the case against the present appellants had been proved because the part ascribed to them had been unanimously deposed to by all the prosecution witnesses. The learned Sessions Judge, however, proceeded to draw a distinction between the case of Siraj appellant who had fatally injured Sabir Ali and Sadiq appellant who had caused a fire-arm injury to Iqbal Hussain P. W. He came to the conclusion that according to the eye-witnesses the accused persons had a grudge against Iqbal Hussain P. W. only, and the fatal injury caused to Sabir Ali was, therefore, the individual act of Siraj appellant.
14.We may state that the view of the law with regard to the vicarious liability of Sadiq appellant taken by the learned Sessions Judge is entirely erroneous. The inference of common intention' can be drawn from the act or conduct of the accused or other relevant circumstances of the case. The evidence shows that the accused party had come armed with lethal weapons and the inference that can be drawn from their conduct is that they shared the common intention to kill one or more members of the complainant party. The learned Sessions Judge himself held that the common intention was to kill Iqbal Hussain and it was on this account that he exonerated Sadiq appellant from the charge of murder of Sabir Ali. Section 34 of the Penal Code deals with the doing of separate acts similar or diverse by several persons ; if all are done in furtherance of the common intention, each person is liable for the result of them all, as if he had done these himself. It was so held by the Privy Council in Barendra Kumar Ghosh v. Emperor. It was further observed that the words "that act" in the latter part of the section must include the whole action covered by "a criminal act" in the first part. In Bahar v. Crown where the appellant along with another had gone to commit dacoity and his co-accused had fired at the goldsmith and then at one of his pursuers, both of whom succumbed to their injuries, it was held that the appellant participated in the intention of his co-accused of committing murder in the course of the dacoity, if needed, and that consequently section 34 of the Pakistan Penal Code was rightly applied to the case of the appellant although he had not fired at any one of the deceased persons. In Sher Khan Bher Zaman v. Emperor where the party of the accused had gone to avenge the insult to their woman-folk by the brother of the deceased and the fatal shot had been fired by the co-accused of the appellant, it was held that the appellant was liable for the acts committed by his companion including act of homicide under section 34 of the Pakistan Penal Code. In Indar Singh Gurmukh Singh v. Emperor, the common intention of the culprits was to commit robbery and in furtherance of that intention, different acts were committed by different persons. One of the culprits went to fetch an accomplice for carrying out of the common intention and in his absence another culprit shot down a person, it was held that the shooting down was done in furtherance of the common intention, notwithstanding the absence of the culprit who had gone to fetch the accomplice.
We need not multiply the authorities on the subject and we think this is a sufficient re-statement of law as contained in section 34 of the Pakistan Penal Code. For the reasons which follow, we are ordering the acquittal of the appellants and there is no occasion for the correction of the error committed by the learned Sessions Judge.
15. We now advert to the merits of the case. It was submitted by Mian Hamid-ud-Din, the learned counsel for the appellant, that the evidence of the prosecution witnesses having been found to be highly doubtful with regard to seven of the nine accused, we should not maintain the conviction of the appellants without seeking corroboration with regard to their participation in the commission of the offence. It was further pointed out by him that there was definitely a background of enmity between Khana, the acquitted accused on one side and the deceased, Iqbal Hussain (P. W. 9) and Ghazanfar Ali (P. W. 11) on the other. than the actual participants in the commission of the offence. their net too wide in order to involve1 2 3 4 a larger number of persons 15. We have a feeling that in this case the prosecution threw Rajada son of Nizam had not been mentioned in the F. I. R. as one of the participants in the commission of the offence but was stated in the concluding portion of the F I. R. to have been present with the assailants. This was perhaps for the reason that he had been injured and the first informant found it congenial to suppress the factum of this injury. It is true that Rajada for understandable reasons denied having received any injury during the fight, but the trend of the cross-examination clearly shows that the plea of the defence was that Rajada had been injured at the time of the incident. It, therefore, appears that the prosecution not only involved a larger number of persons than those who actually took part in the commission of the offence but have also not disclosed the whole truth. The testimony of the eye-witnesses has not received credence from the learned trial Court with regard to the participation of the seven co-accused of the appellants. We have, therefore, to seek corroboration with regard to the two appellants. There is none forthcoming. The mere fact that those very witnesses who have not been believed with regard to seven other accused have unanimously ascribed the fire-arm injuries on the person of Sabir Ali deceased and Iqbal Hussain P.
W. to the appellants is not sufficient to persuade us to hold that this unanimity in their statements amounts to corroboration as contemplated by law.
16.Mian Hamid-ud-Din pointed out with reference to the parentage of the appellants that Siraj and Sadiq appellants were respectively son and brother of Khana and Akbar the acquitted accused and since the dispute of Iqbal Hussain P. W. with regard to the vacation of land was with the two latter named persons there was a reason for Iqbal Hussain P. W. to give them a prominent part. It is further submitted by the learned counsel that the injuries on Iqbal Hussain P. W. and Sabir Ali deceased were not the result of two separate shots.
17.The learned counsel has given us a reason as to why the two appellants were ascribed a conspicuous part. We have held above that no corroboration is forthcoming with regard to the present appellants. In the circumstances of the case, we have no alternative but to give the benefit of doubt to the appellants and set aside their convictions and sentences. We order accordingly.
They shall be set at liberty unless they are required to be lawfully detained in some other cases. We do not confirm the sentence of death. The appeal and the reference are disposed of accordingly. AIR 1925 P C 1 PLD 1954 FC 77 AIR 1940 Lah. 485 AIR 1933 Lah. 819