' MUHAMMAD MUNIR KHAN, J.-- The three criminal appeals Nos. 387 of 1981 by Aziz-ur-Rehman (30), 129 of 1981 by Raja Niaz Ahmed (27) and 125 of 1981 by Khalid Mahmood alias American (19) and the two connected Revisions Nos. 114 of 1981 and 169 of 1981 filed by the complainant for the enhancement of the sentence and against the acquittal of the co-accused arise from the judgment of learned Additional Sessions Judge, Rawalpindi, whereby he on 6-6-1981 while acquitting Muhammad Mohsin Shah, Arshad Hussain, Muhammad Awais, Abdul Shakoor and Shahid Mahmooa alias Shadoo co-accused, convicted and sentenced the three appellants as under:-
(i) Under section 302, P.P.C. For the murder of Naveed Hussain Shaheen, Azizur Rehman appellant to death and a fine of Rs,5,000 in default thereof one year's R.I. Raja Niaz Ahmed and Khalid Mahmood to imprisonment for life and a fine of Rs,5,000 in default thereof one year's R.I. Each;
(ii) Under section 307, P.P.C. Raja Niaz Ahmed for murderous assault on Ayub Alam P.W.8 sentenced to ten years' R.I. And a fine of Rs,1,000 in default thereof six monhts' R.I.
' It was directed that the sentences awarded to Raja Niaz Ahmed shall run concurrently.
2. The connected Criminal Revisions Nos. 114 of 1981 and 169 of 1981 have been dismissed by us today for non-prosecution vide orders passed in the revision petitions.
3. The occurrence took place on 10-3-1977 at 9-45 p.m. In Liaquat Chowk, Murree Road, Rawalpindi.
The F.I.R. Is statement Exh.P.C. Of Ayub Alam P.W.8 recorded in the District Headquarters Hospital, Rawalpindi by Ghulam Raza S.H.O. P.W.
10. The formal F.I.R. Exh.P.C./1 was drawn up by Raja Faiz Muhammad A.S.I. P.W. 5 at 11-30 p.m. On the same night at Police Station D-Division, Rawalpindi. The distance between the place of occurrence and Police Station is four furlongs.
4. There was no background of enimity between the parties. The prosecution case is that on the eventful day, Abdul Rauf P.W.7, a student leader, alongwith Imran Azim, Khalid Hameed, Altaf Pal and others, were seeing television in City Hotel, Rawalpindi. Raja Niaz Ahmed alongwith two appellants and the acquitted to-accused were also present there. Raja Niaz Ahmed appellant said that television was giving false news about the Provincial Election result, so television should be closed. At this Imran Azim and others insisted that television should be on whereupon Raja Niaz Ahmed and his companions opened attack on Imran Azeem and Abdul Rauf P.W.7. Imran Azeem ran away but Abdul Rauf was caught hold of and given beating by them. It has been alleged that during the scuffle Abdul Rauf P.W. Lost Rs,250. He then went to Committee Chowk where he met Ayub Alam P.W.8, another student leader, who was accompanied by Naveed Hussain Shaheen deceased, Muhammad Shehzad P.W.9 and others. Abdul Rauf told him what had happened in City Hotel. Ayub Alam P.W.8 told his companion that they should help Abdul Rauf in getting back his money. They then went to City Hotel. The appellants and the acquitted co-accused were still present there. Ayub Alam asked Abdul Rauf P.W., as to who had beaten him, on which he pointed towards the appellants and the acquitted co-accused. Ayub Alam P.W.8 inquired from Raja Niaz Ahmed and his companion as to why they had manhandled Abdul Rauf. Raja Niaz Ahmed replied that he had done well and that you (Ayub Alam and his companion) were new He then instigated his companion that the complainant party should not be spared. Raja Niaz Ahmed took out pistol and Aziz-ur-Rehman brought out his knife. Thereafter both the parties came out of the hotel. Raja Niaz Ahmed opened fire hitting Ayub Alam on his left arm. Ayub Alam raised alarm. In the meanwhile Naveed Hussain Shaheen deceased fired shots in the air. Raja Niaz Ahmed, Khalid Mahmood appellants and Shadoo Bills (acquitted accused) caught hold of the deceased. Khalid Mahmood snatched pistol from the deceased. Thereafter Aziz-ur-Rehman appellant gave one knife blow on the chest of the deceased who fell down and died. At this juncture Raja Niaz had also fired in the air. Raja Niaz and Azizur Rehman then proceeded towards Ayub Alam and others to attack them but they ran away towards City Chowk on account of fear. The appellants and others then went away. Ayub Alam was removed to the hospital where his statement Exh.P.C. Was recorded by Ghulam Raza S.H.O. P.W.10.
5. On 11-3-1977 at 10-30 a.m. Dr. Muhammad Aslam Arshad P.W.1 conducted post-mortem examination on the dead body of Naveed Hussain Shaheen and found following injuries:-
(i) An incised stab wound 11" x 1/2" x 1/2" x 5" deep on front of left chest 21/2" from nipple at 4 O'Clock position.
(ii) An incised stab wound 1/2" x 1/2" deep on outer parts of left chest 34" from nipple at 3 O'clock position."
' In his opinion, death was due to haemorrhage and shock caused by injury No,1 which was sufficient to cause death in the ordinary course of nature. Time between the injuries and death was immediate and between death and post-mortem was above 12 hours.
' On 10-3-1977 he had examined Ayub Alam complainant and found an oval wound of entrance 1/3" x 4" on back of left elbow middle outer part. ' The injury was caused by fire-arm and was declared grievous.
' On 18-3-1977 at 12-20 p.m. Doctor examined Aziz-ur-Rehman appellant and found:- "Liner scar of clean cut wound curved 3/8" x 1 millimeter on the outer side of right hand near thumb, Scab was present on a part of wound which was almost healed up."
' The injury was caused by the sharp-edged weapon and simple in nature about a week.
' On the same day at 12-30 p.m. Doctor examined Raja Niaz Ahmed and found:- "A healed oval wound with scab formation 4" x 3/16" on outer side of right leg back part 6" above the ankle. There was a corresponding wound circular 5/4" x 1" on front of right leg at 34" distance to the first wound and 3/4" at a higher level. The margin of this wound that is second wound were everted and wound was septic."
' The injury was caused by the fire-arm and simple in nature. The Doctor in his examination-in- chief stated that the possibility of this injury being self-inflicted cannot be excluded. In cross- examination, he stated that the injury of Aziz-ur-Rehman appellant could also be caused by an enmity during scuffle.
6. Raja Niaz Ahmed and Aziz-ur-Rehman appellants were arrested on 18-3-1977 by Ghulam Raza S.H.O. P.W.10. They got recovered licenced revolver P.9 and blood-stained knife P.13, respectively from their houses which were taken into possession vide memo. P.D./1 and P.E. /1 attested by Muhammad Akbar P.W.6 and Muhammad Ashraf (not produced) Khalid Mahmood was arrested on 22-3-1977. He produced pistol P.14 alongwith bullets P.15/1-2. It may be noted that no crime empty was taken into possession from the spot and that the bullet recovered from the body of Ayub Alam complainant P.W.8 and the fire-arm recovered from appellants were not sent to the Forensic Science Laboratory for examination. Serologists report Exh.P.Q. Is positive.
7. To prove its case, the prosecution examined 11 witnesses. Dr. Muhammad Alam Arshad P.W.1 had conducted the post-mortem examination on the dead body of the deceased and had examined the complainant and the two appellants namely Raja Niaz Ahmed and Aziz-ur-Rehman. Abdul Rauf P.W.7 and Ayub Alam P.W.8 and Muhammad Shahzad P.W.9 gave the ocular account of the occurrence. They supported the prosecution case as detailed in para. No,3 of the judgment in all material particulars. Muhammad Akbar P.W.6 and Ghulam Raza S.H.O. P.W.10 stated that Niaz Ahmed, Azizur Rehman and Khalid Mahmood appellants had got recovered revovler P.9 alongwith two life bullet, blood-stained knife P.13 and pistol P.14 alongwith two bullets, respectively. The rest of the evidence is more or less of formal nature.
8. The appellants when examined under section 342, Cr.P.C. Denied all the incriminating circumstances. Khalid raised plea of false implication on account of suspicion. He stated that he was not present on the spot at the time of occurrence. Raja Niaz Ahmed in reply to the question "As to why the case against him?" stated:- "Naveed Shaheen deceased armed with pistol and Ayub Alam armed with revolver and Abdul Rauf armed with knife and others attacked me and Aziz-ur-Rehman while we were proceeding towards our houses in Arya Mohallah and caused injuries to us. Many persons for and against P.P.P.
Collected and a fight started. I cannot say who injured whom. Complainant party has cooked up a false story to cover their own aggression I produced attested copies of cross-complaint Exh.D.H.
And order of Magistrate Exh.D.1. Summoning the complainant party as accused."
' Azizur Rehman made similar statement. In defence six witnesses were produced. Dr. Muhammad Aslam D.W.1, Dr. Muhammad Siddique D.W.2 and Dr. Sultan Mahmood D.W.6 appeared to prove the alibi of Shahid Mahmood acquitted co-accused, Jehan Dad Khan D.W.5 petition-writter deposed that the affidavit D.W.4/1 was written by him at the instance of Abdul Rauf P.W. Shakoor Ahmed, Advocate (Oath Commissioner) had attested the affidavit. Raja Muhammad Daud D.W.3, Sale Supervisor P.I.A. Booking Office, Rawalpindi stated that pre-paid ticket of Dr. Abdul Rauf Khan was sent to P.T.A. Section, Karachi on 14-2-1978. On this Dr. Abdul Rauf Khan collected the ticket on 15-2- 1978 and he was booked to travel on 16-2-1978 by P.K. No,300 from Karachi to Rawalpindi and by P.K.619 from Rawalpindi to Lahore. He produced attested copies D.W.3/1-2. The witness stated that this ticket had never been presented to the Booking Office for refund.
9. The trial Court had discarded the version of the occurrence given by Raja Niaz and Azizur Rehman appellants and believing the ocular testimony and the prosecution case had recorded conviction of the appellants.
10. The learned counsel for the appellants contended that the prosecution witnesses are not reliable that Muhammad Shahzad P.W.9 was not present on the spot; that the deceased party was in fact aggressor; that the deceased and the P.Ws. Had received injuries during fight at the hands of unknown persons and that the appellants Raja Niaz Ahmed and Khalid Mahmood, are not vicariously liable for the murder of Naveed Hussain Shaheen deceased. On the other hand, the learned counsel for the State supported the judgment of the trial Court. He maintained that the prosecution witnesses are quite dependable; that the deceased and the complainant were the victim of aggression and that the provisions of section 34, P.P.C. Are very much attracted to the case of Raja Niaz Ahmed and Khalid Mahmood appellants.
11. We have considered the arguments addressed by the learned counsel for the parties with care.
From the state of affairs, it is very much obvious that the time of occurrence, place of occurrence, presence of Raja Niaz Ahmed and Aziz-ur-Rehman appellants, presence of Abdul Rauf and Ayub Alam eye-witnesses and the receiving of the injuries by the deceased and Ayub Alam P.W., are the admitted facts of the case. Since it is a case of two version, so we propose to examine the prosecution case and the ocular account first, in order to arrive at an independent opinion as to the truth or falsity of the prosecution case and the credibility of the eye-witnesses. We find that it is a case of prompt F.I.R. The occurrence took place at 9-40 p.m. And the report was lodged within two hours of the occurrence. The names of the appellants, the parts played by them and the names of the eye-witnesses are given therein. There is nothing on record to show that the F.I.R. Was not a genuine document. This prompt and genuine F.I.R. Can be used to corroborate the statement made by its maker i,e, Ayub Alam P.W.8. By the fact of injuries on Ayub Alam, his presence on the spot is very much established. The appellants have also admitted his presence as well as that of Abdul Rauf P.W.7 Muhammad Shehzad had also no enmity with the appellants. The witnesses have successfully stood the test of cross-examination. Except for minor and immaterial discrepancies and contradictions, we do not see major contradictions/material discrepancies and dishonest improvements in their statements. The learned counsel has failed to point out any inherent infirmity in their statements. The allegations of the learned counsel of the supression of the injuries of Aziz-ur-Rehman and Raja Niaz Ahmed by the eye-witnesses is also well-founded inasmuch as injury 3/8" x 1 milli-meter on the outer side of the right hand near thumb was most probably received by Aziz-ur-Rehman while inflicting injuries to the deceased. As for the injury found on the person of Raja Niaz Ahmed, we find that he was examined 8 days after the occurrence when he was arrested by the police. About this injury, the Doctor in examination-in-chief stated that the possibility of this injury being self-inflicted cannot be excluded. From the nature of injury it can be reasonably inferred that the same was most probably created to blame the other side of the aggression, so we are convinced that the injuries were not caused to them by the deceased or the P.Ws. During the occurrence. For all these reasons, we are of the view that the prosecution case as well as the ocular elvidence, cannot be excluded from consideration.
12. This brings us to the defence version. We find that except for the statements of Raja Niaz Ahmed and Aziz-ur-Rehman, there is no evidence on record to support the version of the occurrence given by them. Although according to them, many persons had collected on the spot, yet they did not produce a single witness in support of their version. The copies of the cross-complaint and the order of the Magistrate summoning the complainant party as accused is of no consequence. They should have proved their version as given in the cross-complaint in the murder case by producing defence witnesses. The plea raised by the appellant is also not spelt out from the prosecution evidence and circumstances appearing in the case and as such there is no reasonable possibility of the defence version being true. Reverting to the question of vicarious liability of Raja Niaz Ahmed and Khalid Mahmood alias American for the murder of the Naveed Hussain Shaheen, we feel inclined to give them benefit of doubt for the reasons that there was no previous enmity between the parties; that Aziz-ur-Rehman alone could inflict the injuries to the deceased without any facilitation by the co-appellant; that since the deceased was having a pistol, the act of catching hold of him by Raja Niaz Ahmed and Khalid Mahmood was not necessarily for facilitation to Aziz- ur-Rehman to murder him and it could be to disarm him that the co-appellant had not instigated Aziz-ur-Rehman to inflict injuries to the deceased and that although Raja Niaz Ahmed was armed with a pistol yet he did not fire any shot on the deceased. It has been stated by Abdul Rauf P.W.7 that the appellant Raja Niaz was catching hold of the deceased with his left hand and his pistol was in the right hand. This conduct eliminates the common intention of Niaz Ahmed to kill the deceased. To our mind the common intention or common object of Raja Niaz Ahmed and Khalid Mahmood for the murder of the deceased is at least very much doubtful. For all these reasons we are of the view that murder of Naveed Hussain Shaheen was the individual act of Azia-ur-Rehman appellant and that Raja Niaz was responsible for murderous assault on Ayub Alam P.W. And that the prosecution hat failed to prove the vicarious liability of Raja Niaz Ahmed and Khalid Mahmood appellant for the murder of Naveed Hussain Shaheen beyond reasonable doubt. They are, therefore, as a matter of right, entitled to acquittal of the charge of murder. The charges of murder punishable under section 302, P.P.C. And of murderous assault punishable under section 307, P.P.C.
Are very much proved against Azizur Rehman and Raja Niaz, respectively.
13. This brings us to the question of sentence. As far Aziz-ur-Rehman, we find mitigating/extenuating circumstances in his favour for lesser penalty inasmuch as he had no motive for the murder of Naveed Shaheen and that the occurrence took place all of a sudden. The sentence of death awarded to him is, therefore, altered to imprisonment for life. The fine of Rs,5,000 and sentence in default thereof awarded by the trial Court is maintained. In view of the seat of the injury on Ayub Alam P.W. We feel inclined to reduce sentence of ten years' R.I. Of Raja Niaz Ahmed appellant to five years' R.I. Which would meet the case. The fine of Rs,1,000 and sentence of six months in default thereof awarded by the trial Court is however maintained. He shall also, however, get the benefit of the provisions of section 382-B, Cr.P.C. Khalid Mahmood appellant shall be released forthewith. Raja Niaz Ahmed is on bail. He shall surrender himself before the trial Court immediately. The trial Court shall also issue warrants for his arrest and detention to serve out the remaining sentence.
' The death sentence is not confirmed.