MIAN BURHANUDDIN KHAN, J.-- Leave was granted against Mehram and Baggu sons of Muhammad and Lal and Farid sons of Hamayun by this Court vide order dated the 13th July,. 1980.
2. The above-named respondents along with Amir, Ghammi, Lal and Muhammad were tried by the learned Additional Sessions Judge, Faisalabad, for the murder of Balli and injuring Pannun P.W. 10, Jaman P.W. 11, Mst. Sammon P.W. 13, Noor Din and Rab Nawaz alias Haq Nawaz on 21-9-1975 at Peshiwela in Chak No. 513/G.B, 7 miles from Police Station Kamalia, District Faisalabad by firing at them with guns in the prosecution of the common object of an unlawful assembly which they had formed. The learned trial Judge awarded the penalty of death to Mehram and Baggu and to pay a fine of Rs.2,000 each under sections 302/34, P.P.C., or to undergo 2 years' R.I. In default. Half of the amount of fine, if realized, was ordered to be paid to the legal heirs of Balli deceased. Mehram and Lal were further convicted under section 307, P.P.C. And each was sentenced to 10 years' R.I. And a fine of Rs.1,000 or in default to undergo further R.I. For one year. Half of the amount of fine, if realized, was ordered to be paid to injured Parnun P.W.
10. Farid acquitted-accused was convicted under section 324, P.P.C. And was sentenced to 3 years' R.I.; while the remaining four accused were acquitted vide judgment dated 25-5-1978.
3. The convicts filed appeal in the Lahore High Court. Murder Reference for confirmation of the death sentence of Mehram and Baggu was also placed before the learned High Court Judges.
Criminal Revision was also filed against the acquitted accused. The learned High Court acquitted all the accused; answered the reference in the negative and dismissed .The revision petition vide the impugned judgment dated 21-3-1979. Thereafter, petition-seeking leave to appeal was filed in this Court and leave was granted per order 13-7-1980 as mentioned above.
4. According to the prosecution, on the day of occurrence Balli deceased, Punnun, Lal, Mst. Samon P.Ws. And Jaman son of Hamyun were coming from the Dhari of Lal P.W. When they reached near the village mosque close to the house of Nawaz P.W.; Mehram, Baggu, Amir, Ghammi, Farid and Lal son of Humayun came out of the Deori of Mehram accused. All the accused were armed with guns and raising Lalkaras. They called out Jaman P.W. As to why he was again passing through the street in spite of the warning of the accused, and, simultaneously, it is alleged, Mahram accused fired a gun shot at Jaman, which hit him on his legs, and he fell down. Balli deceased and P.W.
Punnun came forward whereupon Mehram and Baggu fired one shot each at Balli who was hit below his chin, chest and abdomen and he fell to the ground. Then Lal son of Humayun acquitted- accuse6 fired at P.W. Punnun, which hit him on his thighs. It is stated that thereafter Mst. Samon came forward and beseached the accused not fire any more. !Gin this Yarid acuitted-accused fired at her and bit her left thigh. P.Ws. Nur and Haq Nawaz also reached the spot ands tried to dissuade the accused not to continue the attack. Whereupon Muhammad fired at Nur P.W. And Lal son of Baggu fired at Haq Nawaz P.W. And these P.Ws, were, therefore, also injured. Muhammad and Ghammi also fired at Lal P.W but he ducked down and escaped unhurt, Besides the injured P.Ws.
Ratallon and Humayun P.Ws. Also witnessed the occurrence. Balli deceased died on the spot.
5. Jaman P.W. 11 removed the injured to Kamalia Hospital where the doctor was not available.
Therefore, the injured were taken to the Civil Dispensary, Rajana, for medical treatment.
6. Motive for the crime is stated to be an illicit liaison between Jaman P.W. 11 and Mst. Lalo daughter of Baggu accused.
7. Report Exh. P.J. Was lodged by Lal son of Raja P.W at about 5.45 p.m. On the same day i.e. 21-9- 1975 and the same was recorded by Abdul Majeed S.I. P.W.
15. The Investigating Officer then visited the spot, prepared injury statement Exh. P.V. And inquest report Exh. P. W. In respect of Balli deceased and then sent the dead body to the mortuary. He then got the site plains Exhs. P.Y. And P.Y./1 prepared from Muhammad Hussain draftsman,
8. Dr. Muhammad Latif P.W. 8 examined Jaman P.W. On 21-9-1975 and found five lacerated wounds caused by fire-arm on his legs. The doctor then examined Noor Muhammad and found a single contused wound caused by firearm and then he medically examined Punnun and found three lacerated wounds caused by fire-arm.
9. Dr. Ghulam Ahmad, Medical Officer, Civil Hospital, Kamalia P.W.1 examined Rab Nawaz alias Haq Nawaz and found a fire-arm injury near midline at dorso lumber region. Then the same doctor performed the post-mortem examination on the dead body of Balli deceased, the same day and found five fire-arm wounds of various dimension In the opinion of the doctor the death was caused due to shock and haemorrhage and injuries Nos.2 and 3 were individually sufficient to cause the death in the ordinary course of nature.
10. Lady Doctor Hassan Bano P.W.5 examined Mst. Samon and she found a lacerated wound on the front upper 1/3 of left thigh. This injury was also found to have been caused by fire-arm.
11. Lal son of Raja P.W.9 stated that Mehram, Baggu and Amira accused are brothers while Lal accused is the son of Baggu accused. The other Lal and Farid accused are brothers and they are sons of Humayun. Farid and Mehram accused are maternal-cousins and Ghami accused is the sister's son of Mehram accused. Muhammad accused is also known as Mammi, father of Mehram accused namely Muhammad and witness's mother Mst. Fateh are paternal-cousins. He further gave the ocular account of the occurrence as stated in the F.I.R.
12. Punnun P.W.10 who was injured during the incident of firing also gave ocular account of the occurrence, and so did Jaman P.W.11 who to was injured in the same firing incident. Similarly, Mst.
Summon P.W.13 another injured witness gave ocular account of the incident. Rattalon P.W.14 also supported the prosecution case. All the accused, when examined, denied the charges and stated that they were charged due to enmity.
13. We have examined the evidence on the record and find that there is consistency of charge against the accused /respondents. All the witnesses who deposed, have sustained fire-arm injuries and they have corroborated the prosecution case, although there is the background of enmity due to the fact that Jaman P.W.11 was suspected of having illicit connexion with the daughter of Baggu, accused/ respondent.
14. We find that Lal P.W.9 admitted in cross-examination that about ten years prior to the occurrence the bullocks of Mehram accused were stolen and he lodged a report against P.Ws.
Punnun, Jaman and Nawaz the brother of Jaman Nawaz was challaned by the police but the matter was patched up later on. Relationship of the witnesses was also admitted the accused were also related to the complainant party.
15. The fact remains that the occurrence took place at about Peshivel near the village mosque and the evidence of eye-witnesses in such circumstances cannot be totally ignored for the reason that they sustained injuries with gunshots and the site plans drawn by the draftsman show that the blood was found on various places in the street in front of the house of Mehram and next to the house of Mehram is the house that was occupied by Balli deceased. The learned High Court Judges while considering the prosecution evidence observed: "But the problem in this case is that all the prosecution witnesses produced in the instant case are highly inimical, inerested and partisan."
They further observed: "It was argued by the learned counsel for the complainant that the eye-witnesses in the instant case, out of which three had sustained injuries in the course of occurrence, have consistently assigned specific parts to all the members of the accused party and that, therefore, their testimony should be accepted. But we cannot ignore the fact that on the basis of the same testimony, the trial Court has acquitted four co-accused of the appellants namely Amir, Lal son of Baggu, Ghammi and Muhammad, despite the fact that specific parts had been assigned to them by the interested eye-witnesses."
Regarding the motive the learned Judges observed:- "It was then argued by the learned counsel for the complainant that the suggestions given in the cross-examination to these eye-witnesses from the side of the defence, were to the effect that the complainant party along with the deceased, had gone to the house of Mehram appellant in order to abduct Mst. Lalo daughter of Baggu, appellant and that it was on this account that they were fired at by the accused party which had resulted in the death of one and injuries to many. Be that as it may, these suggestions have been denied vehemently by the P.Ws. And furthermore, the appellants as well as the acquitted co-accused in their statements before the trial Court did not refer to this immediate cause of occurrence at all. We would go to the extent of saying that if it were assured that this might have been the immediate cause of occurrence, even then the right of self-defence would have been available to the accused party."
16. The learned Judges of the High Court considered non-production of disinterested witnesses who had sustained injuries in the course of the same transaction, as fatal to the case for the reason that no corroboration is forthcoming of the evidence of the interested witnesses.
17. Examining the above points and observations, the least we can say is that the presence of the aforesaid witnesses cannot be denied. As regards the acquittal of four co-accused we would not agree with the learned trial Court as in case of vicarious liability when the evidence is consistent, all the accused can be convicted and sentenced according to their respective roles in the commission of the crime depending upon the circumstances.
18. However, the case of the four accused /respondents before us is established by the testimony o-- the aforesaid witnesses who have been cross-examined at length but nothing could be elicited to discredit their testimony Thus, in the light of above observation we would allow this appeal, convict and sentence Mehram under section 302, P.P.C. To life imprisonment and a fine of rupees twenty thousand (Rs.20,000) which, if realized, shall be paid as compensation to the heirs of Balli deceased, or in default, Mehram shall further undergo R.I for five years. Lal and Farid have already undergone the sentences awarded to them by the learned trial Court. We maintain their sentences and dispose of their case accordingly. As regards Baggu, undoubtedly, his daughter was involved in an affair with Jaman, P.W.11 but looking at his age and circumstances of the present case we hold that he would not have joined with the other accused. Therefore, giving him the benefit of doubt of this fact, we uphold his acquittal. Order accordingly. Benefit of section 382-B, Cr.P.C.
Allowed to respondent Mehram.