These two Criminal Appeals Nos. 139 of 1984 by Nasir Hussain and 195 of 1984 by Afrahim, arise from the judgment of the learned Additional Sessions Judge, Lahore whereby he, on 15-4-1984 convicted them under section 302/34, P.P.C. And sentenced them to imprisonment for life and a fine of Rs.10,000 each in default thereof two years' R.I. Each, with the direction that the fine if recovered, be paid to the legal heirs of the deceased.
2. The occurrence took place on 1-12-1981 at 12-30 p.m. Near Bungalow No. 203, Shadman Colony, G.O.R.-III, Lahore. The F.I.R. Is statement Exh. P.E. Of Anwar Masih P.W. 12 recorded by Mahboob Elahi A.S.I. P.W. 16 on the same day at 4-30 p.m. WAPDA Hospital, Lahore. The formal F.I.R. Exh. P.E./1 was drawn up at Police Station Lytton Road, on the same day at 5-30 p.m. The distance between the police station and the place of occurrence is, two kilometres.
F.I.R. Was registered under section 307, P.P.C. Since Muhammad Afzal succumbed to the injuries on 2-12-1981 at 12-25 a.m., therefore, section 307, P.P.C. Was converted into section 302, P.P.C.
3. There was no previous enmity between the parties. The prosecution case is that on the eventful day, some employees of WAPDA, including Anwar Masih complainant who was driver of Suzuki Pick-up No. LES 1059 were working in G.O.R. III Shadman Colony. They heard some women shouting"
Chor Chor". Anwar Masih saw two young boys who had snatched the purse of a woman, on a Yamaha motor-cycle being driven rashly. Anwar Masih, started his Suzuki Pick-up. He took alongwith him Muhammad Afzal Lineman and chased those boys. He overtook them near Bungalow No. 203, Shadman Colony. Muhammad Afzal tried to catch hold of the person who was sitting behind the driver of the motorcycle who fired shot from his revolver hitting Muhammad Afzal on his head. He fell down on the ground. The boys sped away motor-cycle and made good their escape. Leaving Muhammad Afzal in injured condition on the spot, the complainant went to G.O.R.
III where his companions were working. He informed them of the incident and brought some of them to the spot. Muhammad Afzal was then removed to WAPDA Hospital where he died as a result of the injury on the following day at 12-25 a.m. The description of the culprits given in the F.I.R. Was to the effect:- The complainant claimed in the F.I.R. That he would able to identify them if they appear before him.
4. On 1-12-1981 at 1 p.m. Dr. Ata Ullah Khan Medical Officer, WAPDA Hospital P.W. 8 examined Muhammad Afzal and found following injuries on his person:- (1)External injury on the left supra orbital ridge with swelling of left eye lid and bleeding and brain matter was coming out of the wound. The wound is punctured 1 c.m. x 1 c.m. In diameter.
(2)Eochymosis of the left eye with marked redness.
(3)Superficial graze on the right side of the face. Respiration was deep and gasping.
On 2-12-1981 at 11-30 a.m. Dr. Tahir Anees P.W.13 conducted post-mortem examination on the dead body of Muhammad Afzal. He found:- "1. A penetrating lacerated wound .7 x .5 with inverted margin over lower left part of the forehead just above the inner end of left eye-brow.
A hole corresponding to injury No. 1 in the bone underneath and through and through lacerated track in the meanings, left frontal, parietal and occipital lobes of brain were found. A metallic foreign body was recovered from the back part of left part of brain. The doctor sealed it in phial and handed over the same to Muhammad Yousaf F.C. P.W. 4 for producing the same before the Investigating Officer.
5. On 7-12-1981 at 9-15 p.m. P.W. 15 Akhtar Ali A.S.I. Of Police Station. Gulbarg. Lahore was present at Gulistan Petrol Pump near U.C.H. Roundabout Gulberg, Lahore. Two persons arrived at the petrol pump on a Yamaha motor-cycle which was without number plate. Akhtar Ali A.S.I. Entertained suspicions and checked them. On this one of the two persons slipped away whereas Akhtar Ali succeeded in apprehending Afrahim who was one of those two persons. On the personal search of Afrahim, a .32 bore revolver Exh. P. 6 was recovered. It was loaded with six cartridges.
5-A. On 10-12-1981 Dr. Muhammad Anees Sheikh. D.W. 2 examined the person of Afrahim appellant and found:- (i)Swelling 5 c.m. x 4 c.m. On the dorsum of right foot.
(ii)Swelling 8 c.m. x 5 c.m. On the sole of left foot.
The injuries were caused within two or three days. The injuries were simple in nature and were caused by blunt weapon.
Afrahim appellant was again examined by D.W.L. Dr. Muzaffar Hafeez, Medical Officer, Camp Jail, Lahore on 17-1-1982. At that time following injuries were found on his person:- (i)There was swelling on both sides of his feet near the ankle joints.
(ii)There were superficial lacerated on both sides of the feet at the lower surface in an area 6 c.m. x 3 c.m. Both sides.
(i.e)Superficial lacerated wound 4 c.m. x 2 c.m. Front of left forearm.
(iv)Contusion mark with swelling 3 c.m. x 2 c.m. Back of left hand.
(v)Contusion mark with swelling 10 c.m. x 3 c.m. On the front of right thigh.
(vi)Contusion mark with swelling 8 c.m. x 3 c.m. On the front of left thigh.
(vii)Contusion mark with swelling all around the right buttock with abrasion in an area of 6 c. m x 1 cm.
(viii)Contusion mark with swelling all around the left buttock with abrasion in an area of 7 c.m. x 1.5 c. m."
The injuries were simple and caused with blunt weapon within the duration of probably more than a week's time.
6. Muhammad Yousaf F.C. P.W. 4 handed over the phial containing lead of bullet to the Investigating Officer which was subsequently deposited intact in the police Malkhana by Masood Ahmad A.S.I. On 14-12-1981, the A.S.I. Handed over this sealed parcel to Sher Zaman P.W. 2 for onward transmission to the office of the forensic science laboratory. He brought back the same with some objection. The sealed parcel was redeposited with Masood Ahmad P W. 1 and was again handed over to Sher Zaman Constable on 15-12-1981 for taking the same to the office of forensic science laboratory, Sher Zaman FC. P.W. 2 gave the same intact in the concerned office. The revolver recovered from Afrahim appellant was sent to the forensic science laboratory for test. The report of the said laboratory is Exh. P.M. Which reveals that the mutilated lead marked (B) had been fired from the revolver recovered from Afrahim appellant.
7. To prove its case, the prosecution examined 19 witnesses. Dr. Ata Ullah Khan P.W. 8 and Dr. Muhammad Tahir Anees P.W. 13 have proved the medico-legal report and the post-mortem report of Muhammad Afzal deceased. Mrs. M.A. Khan P.W. 9 was Professor, Lahore College for Women, in December, 1981. She stated that on the eventful day she alongwith her colleague Mrs. Imtiaz Hassan, were going to the house of Mrs. Imitaz Ahmed Hassan situated in G.O.R. III, Lahore. Mrs. Hassan was on the road whereas she was towards the hedge on the main Pucca road. She was holding her purse. It was 12-30 p.m. When Afrahim and Nasir appellants crossed them on a motor- cycle. Nasir was driving the motorcycle and Afrahim was sitting behind him. She just made a way for their passage when Afrahim snatched her purse. So, she- and Mrs. Hassan raised a noise that motor-cyclists have snatched her purse. She identified the appellants in the identification parade hold on 14-12-1981 under the supervision of 4 Hamsher Ali Sial M.I.C. P. W .
7. In cross-examination, she stated that she continued seeing the accused for a distance of about 10 yards while running from near them and that she had seen the accused persons for about four minutes, and that she was not shown the appellants at the police station before the identification parade held in jail. Mrs. Imtiaz Ahmed Hassan P.W. 10 claims to have seen the appellants soon after the purse was snatched from Mrs. M.A. Khan. She also indentified the appellants in the identification parade. She stated that at the time of occurrence Mrs. M.A. Khan was close to the hedge and the motor-cycle could not pass so Mrs. M.A. Khan made a way for the passage of the motor-cycle. Soon the motor- cycle crossed her, Mrs. M.A. Khan raised a notice that her purse had been snatched away. She (witness) then saw that the purse was being held by the person sitting on the rear of the motor- cycle. She saw the accused persons present in the Court (Afrahim and Nasir) sitting on the motor- cycle. Afrahim was on the rear seat of motor-cycle and Nasir was driving the same. She further stated that she had definitely seen the accused person so she identified them in the identification parade. In cross-examination, she stated that she had seen the purse in the lap of accused sitting on the rear of the motor-cycle. She also stated that the accused went out of her sight after covering a distance of about 50 yards. She denied the suggestion that the appellants were shown to her at Police Station, Gulberg before identification parade. Muhammad Tufail P.W. 11 is an eye- witness of the murder of Muhammad Afzal. He stated that on 1-12-1981, he was working in Shadman III alongwith Afzal, Lineman and others. They came there in WAPDA Pick-up, driven by Anwar Masih complainant. Thereafter, he (witness) went ahead to work in the building of the Metrological Office.
Just before the occurrence of the murder of Muhammad Afzal, he saw motor-cycle carrying two boys near the office of Metrological. It was being followed by a Pick-up of the WAPDA Department driven by Anwar Masih, P.W. Muhammad Afzal deceased was also in the Pick-up. The motor-cycle was encircled. Muhammad Afzal came out of Pick-up to capture them. When he tried to capture the person sitting on the rear of the motor-cycle, he fired a shot hitting at the forehead of Muhammad Afzal who fell down on the spot. The motor-cyclists then made good their escape. The witness stated that out of the two accused persons present in the Court, Afrahim was on the rear of the motor-cycle whereas Nasir Hussain was driving the same. The witness stated that Anwar Masih P.W. Drove back the Pick-up and brought some persons on the spot. In the meantime he guarded Muhammad Afzal who was lying in injured condition on the spot Muhammad Afzal was then removed to WAPDA Hospital. The witness stated that he had identified the appellants in the identification parade. In cross-examination, he denied the suggestion that he was shown the appellants before the identification parade. In cross-examination, he stated that at the time of occurrence, he was on the pole which was installed by the wall of the Metrological Office. He denied that the photographs of the appellants were shown to him before the holding of the identification parade. Anwar Masih P.W. 12 did not support the prosecution so far as the identity of the appellants is concerned, while supporting the prosecution story of the occurrence, he stated that just before the murder he heard voices of "Chor Chor" so he had encircled them. When Afzal tried to capture the culprit sitting on the rear of the motor-cycle, the latter fired a shot hitting on the former who fell down. The witness stated that the accused present in the Court were not present on that motor-cycle. The witness further stated that he went back, brought other persons working G.O.R. III and then carried Afzal to WAPDA Hospital. He also stated that his statement was recorded on the next day of the occurrence. In his examination-in-chief, he stated that he had correctly identified, Nasir appellant in identification parade held on 14-12-1981. He explained that he had identified Nasir appellant in the jail as the one who was driving the motor-cycle. In cross- examination he stated that the appellants were shown to him and also to Muhammad Tufail, Mrs. M.A. Khan and Mrs. Imtiaz Hassan in the Police Station. Akhtar Ali S.I. P.W. 15 supported the recovery of .32 bore revolver Exh. P. 6 from Afrahim appellant. Javid Iqbal P.W. 17 and Pervez Rana P.W. 18 the witnesses of the recovery of revolver P. 6 did not support the alleged recovery. Mahboob Elahi A.S.I.
P.W. 16 had recorded the F.I.R. He obtained the persons of the appellant from S.H.O. Police Station, Gulberg. He moved the authorities for the identification parade of the appellants and also got prepared the site plan. Mr. Shumsheer Ali M.I.C. P.W. 7 had supervised the identification proceeding held on 12-12-1981. The rest of the evidence is more or less of formal nature.
8. When examined under section 342, Cr.P.C. The appellants denied all the incriminating circumstances, Afrahim stated that he was shown to the witnesses by the police before the identification parade. His photographs were also shown to the witnesses. He stated that he was present in his school i.e. Pak Punjab Technical Training Centre, Railway Road, Lahore at the time of occurrence. In reply to the question as to why the case against him ? He stated:- "I had a quarrel with Akhtar Ali A.S.I., I had slapped him who in return also slapped me. He arrested me on 7-12-1981 and thereafter tortured me and involved me in a number of false cases including the present one. Except the present one, I have already been acquitted in all other cases."
Nasir appellant stated that he was arrested on 1-12-1981 and shown to the witnesses in the police station. He stated that his photographs were also obtained to facilitate his identification and that he had raised this objection before the Magistrate conducting the identification parade. In reply to the question "As to why this case against him?" he stated:- "I am innocent and the police just to show their efficiency for being crowned have falsely implicated the in the present untraced case. I have got no connection with my co-accused Afrahim. He was not even earlier known to me."
9. The learned counsel for Afrahim appellant contended that the prosecution has failed to prove its case against the appellant beyond reasonable doubt in that, the identification parade was highly doubtful; the motor-cyclists had come from behind of Mrs. M.A. Khan and Mrs. Hassan, therefore, it was not possible for them to see and identify them; that no identifiable description of the culprits has -been given in the F.I.R.; that Anwar Masih has not named the appellants at the time of trial; that the name of Muhammad Tufail, the alleged eye-witness is not mentioned in the F.I.R.; that the appellants were in fact shown by police to the eye-witnesses before the identification parade; that the two recovery witnesses Javid Iqbal P.W. 17 and Pervez Rana P.W. 18, have stated that revolver P.
6 was not recovered from the appellant in their presence; that Akhtar Ali A.S.I. Was not a reliable witness as admittedly he was beaten by the appellant at the time of arrest and that the appellants have already been acquitted of the charge of robbery of the purse from Mrs. M.A. Khan by the order of M.I.C. The learned counsel for Nasir appellant submitted that his client had neither snatched the purse nor caused any injury to the deceased and as such he was not vicariously liable for the act of his co-accused if any. Conversely the learned counsel for the State has supported the judgment of the trial Court.
10. I have considered the arguments advanced by the learned counsel with care. I have not been able to persuade myself to agree with the learned counsel for Afrahim appellant, although I see sufficient force in the arguments of the learned counsel for Nasir appellant. Mrs. M.A. Khan and Mrs. Imtiaz Ahmad Hassan are respectable ladies. They are not under the influence of police at all. They have categorically stated that the appellants were on the motor-cycle. Nasir appellant was driving it and Afrahim was sitting behind him and that Afrahim had snatched the purse. They had identified the appellants in the identification parade. They have denied the suggestion that the appellants were shown to them in the Gulberg Police Station before the identification parade could be held. I do not see any infirmity in their statements. They had no enmity at all with the appellants.
Had they not seen them at the time of occurrence then they would have neither identified them in the identification parade, nor deposed against them in the Court. The aquittal of the appellants in the robbery case tried separately does not affect the evidentiary value of the statements of these witnesses recorded In this case because each case was to be decided on the evidence recorded therein. The witnesses have successfully faced the cross--examination. Even the greatest engine invented for the discovery of truth, could not elicit anything advantageous to the defence.
Muhammad Tufail is also an independent witness. He claims to be present near Metrological Office and seen the occurrence of the murder of Muhammad Afzal from there. He has clearly stated that Nasir appellant was driving the motor-cycle whereas Afrahim was on the rear and that the person sitting on the rear of the motor-cycle had fired a shot which hit on 16re forehead of the deceased resulting in his death. He identified the appellants in the identification parade. He has denied the suggestion that the appellants were shown to him by the police before the identification parade. In the circumstances that before lodging the F. I. R. Anwar Masih was not aware of the fact that Muhammad Tufail was seeing the occurrence from a pole installed by the wall of the Metrological Office and that Muhammad Tufail had arrived at the spot after the departure of Anwar Masih towards G.O.R: III and that when Anwar Masih came back alongwith others, in the Pick-up, then Muhammad Afzal was immediately carried to WAPDA Hospital and as such there could not be an occasion for conversation between the complainant and Muhammad Tufail P.W., the omission of his name in the F.I.R. Has no adverse effect on his credibility and merits of the case as well. I feel inclined to consider the statement of Muhammad Tufail. Anwar Masih has supported the prosecution version of the occurrence in its material particulars except the identity of the culprits.
There are reasons to believe that he has made obliging statement on the point of the identity of the appellants inasmuch as he clearly stated in the examination-in-chief that he identified Nasir accused in the jail as the one who was driving the motor-cycle at the spot. It seems to me that in cross-examination he falsely stated that the accused persons were shown to him in Gulberg Police Station, because he had not been able to identify Afrahim in the identification parade. Had the accused persons been shown to him in the police station Then he would have also identified Afrahim in the identification parade. From the very trend of the replies given in the, cross- examination, it is very 'much obvious that he was making obliging statement. I do not see any reason to disbelieve Mrs. M.A. Khan, Mrs. Hassan and Muhammad Tufail's statements to the effect that the accused persons were not shown to them by the police before the identification parade.
The recovery witnesses namely Javid Iqbal and Pervez Rana, had signed the recovery Memo. Of the Revolver P. 6 from Afrahim. It is thus crystal clear that they have not made the true statements, and were rightly declared hostile. The statement of Akhtar All A.S.I. Yet remains in field. He had no enmity with Afrahim appellant. He was not posted at the Police Station in the limits whereof the murder had taken place. He has made a straightforward statement. I do not see any infirmity in his statement. His statement cannot be thrown away simply because he is a police official. The ocular evidence finds support from a strong circumstance i.e. The forensic science laboratory's report Exh.
P.M. That the lead bullet recovered from the body of the deceased was fired from revolver P. 6.
Recovered from Afrahim. This circumstance is sufficient enough to satisfy a reasonable mind that the eye-witnesses while naming Afrahim, have spoken the truth. This circumstance also connects Afrahim with the murder of Muhammad Afzal deceased. The defence evidence does not rebut they prosecution case and its evidence. The statement made by Arshad Mahmood. Principal D.W. 3 does not exclude the possibility of the presence of the appellant at the time of occurrence on the spot. He has not deposed about the presence of Afrahim on 1-7-1981. For all these reasons I am convinced that Afrahim had caused the death of Muhammad Afzal whereas Nasir was driving the motor-cycle.
11. Reverting to the liability of Nasir appellant, I find that he did not cause any injury to the deceased.
No overt act accept that he was driving the motor-cycle, has been assigned to him. He has been convicted under section 302/34, P.P.C. For his vicarious liability. It is well-settled that the existence of common intention is a question of fact and has to be determined in the circumstances of each case. In the instant case, Nasir was driving the motor-cycle and that Afrahim sitting behind him, all of a sudden snatched the purse of Mrs. M.A. Khan and thereafter, Afrahim while sitting on the rear of the motor-cycle, fired shot on Muhammad Afzal when the latter tried to capture him. There is no evidence of any consultation or pre-concert between the two appellants. At the time of first incident, Nasir did not instigate Afrahim to snatch the purse from Mrs. M.A. Khan. Since Afrahim was sitting behind, Nasir appellant, the possibility that the purse was snatched by the former without the knowledge of latter's, cannot be excluded. Even at the time of murder Nasir did nothing which could indicate his common intention in the murder of Muhammad Afzal. There is no evidence that Nasir knew before that Afrahim was carrying revolver with him or that he would use it with tragic consequences. So, it seems to me, that shooting by Afrahim was his individual act and Nasir is not constructively liable.
12. The upshot of the discussion is that there being satisfactory basis to uphold the conviction and sentence of Afrahim, the appeal filed by him is hereby dismissed and while giving him the benefit of doubt, Nasir appellant is acquitted of the charge. He shall be released forthwith if not required to be detained in any other case. Afrahim shall however get the benefit of the provisions of section 382-B Cr. P. C.