' MUHAMMAD MUNIR KHAN, J,--This Criminal Appeal No,165 of 1983 by Muhammad Rafiq (22) and Muhammad Saeed (22), Criminal Appeal No,184 of 1983 by Atta Muhammad alias Attu and connected Murder Reference No;154 of 1983, arise from the judgment of learned Additional Sessions Judge, Multan, whereby he on 5-7-1983, convicted the appellants under section 302/307/34, P.P.C.
For causing the death of Muhammad Ashraf (18/19) and murderous assault on Muhammad Riaz P.W.9 and sentenced them as under:-
(1) Under section 302/34, P.P.C., Muhammad Rafiq and Muhammad Saeed to death and a fine of Rs,5,000 in default thereof three years' R.I. Atta Muhammad alias Attu to imprisonment for life and a fine of Rs,5,000 in default thereof three years' R.I.
(2) Under section 307/34, P.P.C. The three appellants to imprisonment for life and a fine of Rs,5,000 or in default thereof three years' R.I.
It was directed that the fine if recovered Rs.20,000 be paid to the legal heirs of the deceased and Rs,10,000 be given to Muhammad Riaz as compensation.
2. The occurrence took place on 23-5-1982 at 10-15 p.m. In the lane of Mohallah Pir Pathan, Multan at a distance of five furlongs from Police Station Old Kotwali F.I.R. Exh.P.F. Is statement of Ghulam Muhammad P.W.10, father of the deceased recorded by Abdul Khaliq S.I. P.W.14 at the gate of Nishtar Hospital at 2 a.m. On 24-5-1982. Formal F.I.R. Exh.P.E. Was drawn up at the Police Station Old Kotwali by Shameem Ahmad A.S.I. P.W.2 on 24-5-1982 at 2-30 a.m.
3. The motive as alleged by the prosecution was that two months before the occurrence, Muhammad Rafique appellant came to the house of Ghulam Muhammad P.W.10 father of the deceased and tried to insult his daughter Mst. Nasreen. Ghulam Muhammad P.W.10 stopped him from insulting his daughter but the appellant gave him beating. The alarm attracted Mohallandaran who got the matter patched up. It has been alleged that the appellant was still feeling annoyed that he was insulted before Mohallandaran, hence this occurrence.
4. As far the main occurrence, it has been stated that just before the occurrence Muhammad Ashraf deceased and Muhammad Riaz P.W. Told Ghulam Muhammad P.W.10 that they were going to see television in the house of Abdul Karim in Mohallah Qadeerabad. They left together followed by Ghulam Muhammad P.W.10. When the deceased and Muhammad Riaz P.W.9 reached near the Chowk they saw that the appellants were standing in the Chowk and when they (deceased and complainant cam near to them, Muhammad Rafiq appellant took out pistol and fired show at Muhammad Ashraf hitting in between his eyes. He fell down. Muhammad Rafiq fired two more shots hitting Riaz P.W. On the left flank an buttock. Riaz P.W. Started running when Muhammad Saeed appellant fired shot hitting on the back of his left shoulder. Atta Muhammad appellant kept standing near armed with a knife. The occurrence was also seen by Muhammad Ashiq P.W.11 and Manzoor Hussain (no produced). They put the deceased and Muhammad Riaz P.W.9 in Rickshaw in their injured condition and took them to Nishtar Hospital while Ghulam Muhammad followed them in another Rickshaw. Ghulam Muhammad P.W. And Muhammad Ashraf were admitted in the hospital. Muhammad Ashraf succumbed to his injuries at 4 a.m. On his death section 302, P.P.C.
Was added in the F.I.R. On 24-5-1982 at 10 a.m. Doctor Imtiaz Matti Piracha P. W.7 conducted post- Mortem examination on the deadbody of Muhammad Ashraf. He found following injuries:- "(1) Oval shape entry wound of fire-arm with inverted edges 1-1/4 c.m. x 1 c.m. About on left side of nose near inner angle of left eye. Left eye lids blackened and swollen."
' In his opinion, death was due to the injury to vital organ brain, resulting in laceration of the brain and intracranial haemorrhage. The injury was sufficient to cause death in the ordinary course of nature. The injury was caused with fire-arm. The time between injury and death was about 6 hours and between death and post-mortem was 6 to 8 hours. The Doctor handed over lead P.4 to Muhammad Ameen F.C. P.W.1, who produced it before Abdul Khaliq S.I. P.W.14.
5. The appellants were arrested on 25-5-1982 by. Abdul Khaliq S.I. P.W.14. On 27-5-1982 Muhammad Rafiq appellant got recovered Revolver P.7 containing five crime empty PQ/1 to 5 of .32 bore and missed cartridge PQ/2 of .32 bore which was taken into possession vide memo. P.Q attested by Abdul Ghani P.W.13, Ghulam Rasool (not produced). On the same day and before the same witnesses, Atta Muhammad appellant got recovered dagger P.8 which was taken into possession vide memo. P.R. The recoveries were effected by Abdul Khaliq S.1. P.W.14. No recovery was effected from Muhammad Saeed appellant. It may be noted that no crime empty was recovered from spot and as such recovery of Revolver from appellant is of no consequence.
6. To prove its case prosecution examined 14 witnesses. Muhammad Riaz P.W.9, Ghulam P.W.10 and Ashiq Hussain P.W.11 have given ocular account of the occurrence. They claim to have seen Muhammad Rafiq firing shot from his pistol at Muhammad Ashraf resulting in his death. They also saw Muhammad Rafiq and Muhammad Saeed appellants firing at Muhammad Riaz P.W. Causing fire-arm wound on his person. They also saw Atta Muhammad duly armed with a knife standing near his co-accused. Abdul Ghani P.W.13 and Abdul Khaliq S.I., P.W.14 have supported the recoveries of Revolver P.7 and dagger P.8 from Muhammad Rafiq and Atta Muhammad respectively. Dr. Imtiaz Elahi Piracha has proved post-mortem report of Muhammad Ashraf deceased, Dr. Tariq Farooq P.W.6 had medically examined Muhammad Riaz on 23-5-1982 at 11-15 p.m. He found following injuries on his person:- "(1) Circular injury of 4 c.m. Diameter on the left lower thorax, edges were inverted skin around was black, corresponding site of the shirt had a hole. It was 10 c.m. Below and lateral to the left nipple.
(2) Circular wound roughly 4 c.m. In diameter on the back of the left shoulder. Corresponding holes on the shirt present. Skin around the wound normal in colour.
(3) Circular wound roughly 4 c.m. In diameter on the lateral aspect of the left buttock. 15 c.m. From the iliac crast. Corresponding hole in the clothes present."
' All the injuries were caused by fire-arm and were grievous in nature. Dr. Saeed Ahmad Malik P.W.12 had X-rayed the injury of Muhammad Riaz P.W.9. His report is Exh.P.O. The rest of the injuries are of formal nature.
7. When examined under section 342, Cr.P.C. The appellants denied all the incriminating circumstances. They raised plea of false implication on account of enmity. They produced two witnesses in defence. Hashim D.W.1 stated that on 22-5-1982 he had submitted application Exh.D.D.
To Mayor Municipal Corporation Multan to the effect that an electric pole which was situated in front of his house was not in working condition. On 26-3-1982 Amil Hussain D.W.2 Lineman came there. He set the bulb and removed the defect. Amil Hussain D.W.2 stated that on 23-5-1982 application Exh.D.D. Of Hashim D.W.1 was marked to him by the Line Superintendent. On 26-5-1982 he removed the fault of the pole and made report Exh.D.D./2. It may be noted that this electric pole is situated at the place of occurrence.
8. The learned trial Court while doubting presence of Ghulam Muhammad P.W.10 at the time of occurrence has believed the ocular occurrence given by Muhammad Riaz P.W.9 and Ashiq Hussain P.W.10. The learned trial Court has also believed the motive and the alleged recoveries from Muhammad Rafiq and Atta Muhammad appellants and has convicted and sentenced them as stated above.
9. The learned counsel for the appellants contended that prosecution has failed to prove its case against the appellants beyond reasonable doubt, in that, there is inordinate delay in lodging the F.I.R., that the F.I.R. Was in fact lodged after preliminary investigation: that the presence of Ghulam Muhammad P.W.10 one of the eye-witness has already been disbelieved by the trial Court, that Muhammad Riaz P.W.9 is a related witness, that Ashiq Hussain P.W.11 is a chance witness, that there are contradictions and discrepancies in the statements of these two eye-witnesses, that since there was no bulb in the nearby electric pole as proved from the statement of D.W.1 and D.W.2, therefore, the eye-witness could not have identified the culprits, that the recovery of Revolver from Muhammad Rafiq is of no consequence because no crime empty was recovered from the place of occurrence, that there is no independent corroboration of the statements of the two eye-witnesses and that the prosecution has failed to prove alleged motive. Conversely the learned counsel for the State has supported the judgment of the trial Court.
10. We have attended to the arguments advanced by the learned counsel for the parties with care.
Keeping in mind that an accused person is presumed to be innocent till he is proved guilty of the charge and that the onus is always on the prosecution to prove its case through reliable evidence and beyond reasonable doubt, we have weighed and appreciated the evidence on record and the case as a whole. We find that the occurrence took place at 10-15 a.m. On 23-5-1982 F.I.R. Was recorded at 2 a.m. On 24-5-1982 i,e, after about three hours and 45 minutes. After the occurrence the deceased Muhammad Ashraf and Muhammad Riaz in injured condition were removed to the hospital. Dr. Tariq Farooq P.W.6 has stated that the deceased while alive and Muhammad Riaz were brought to the casualty ward at 11-15 p.m. And that the condition of Muhammad Ashraf was precarious. The conduct of the persons present on the spot of removing the injured to the hospital first does not run counter to the natural probabilities. In the peculiar circumstances of the case the delay of three hours and 45 minutes in lodging the report stands reasonably explained. Although the prosecution witnesses were subjected to lengthy cross-examination yet nothing has been brought on the record to show that the F.I.R. Exh.P.F. Was not prepared at the time and place as it purports to be. It seems to us that Exh.P.F. Is a genuine document. It contains the names of the accused/appellants and the names of the witnesses who allegedly saw the occurrence. Although the trial Court has held the the presence of Ghulam Muhammad complainant P.W.10 at the time of occurrence was doubtful, yet this observation will not adversely effect the evidence of the other two eye-witnesses because Ghulam Muhammad has himself stated in the cross-examination that he being at some distance had not seen the actual occurrence and details thereof were told to hi by Muhammad Riaz P.W. Muhammad Riaz P.W. Has also stated the' after having received the injuries when he was running in the street, he came across Ghulam Muhammad and told him about the occurrence. By the fact of injury on the person of Muhammad Riaz P.W.9 his-presence at the time of occurrence is very much established. He irelated to the deceased as well as to Muhammad Rafiq appellant. He is mother's sister's son of Ghulam Muhammad P.W.10 the father of the deceased. Muhammad Rafiq appellant is the son of the maternal-uncle of Ghulam Muhammad complainant. The appellants were known to hi before the occurrence, so he was in a position to identify them. W: have been very much impressed by the straightforward manner in which he made the statement. In his examination-in-chief he frankly state. That a fire shot hit him on the back of his left shoulder but he could not say who fired at him this shot. He had no illwill against the appellants to involve them falsely in the case. Ashiq Hussain P.W.1 claims to have seen Muhammad Rafiq appellant firing shot at Muhammad Ashraf resulting in his death and also causing fire-arm injuries to Muhammad Riaz P.W.9. He had also seen Saeed appellant firing at Muhammad Riaz P.W.9 hitting on the back of his shoulder. It seems to us that Ashiq Hussain P.W.11 is equally reliable witness. He has give plausible cause of his presence on the spot. He too, had no animosit against the appellants. Both the witnesses have successfully faced the test of ,cross- examination. The statement made by these two witnesses do not suffer from infirmities such as material contradictions discrepancies or dishonest improvements. The witnesses were not fa away from the culprits who were previously known to them. Therefore, there was no difficulty in the identification. The number of persons whom they have named does not exceed that which appears from circumstances of case not open to doubt to be the true number of the culprits. We do not see any legal infirmity in their evidence. Their statements are in consonance with the probabilities and materially fit in with other evidence and the attending circumstance. To our mind, the are confidence inspiring witnesses and can be relied upon without corroboration. The motive incident also appears to be true one. Had that incident not taken place, the complainant would not have involved his daughter in the matter. As far recoveries of the weapons of offence from Muhammad Rafiq and Atta Muhammad alias Attu appellants, we are of the view that since the crime empties were not recovered from the spot and dagger was not blood-stained, therefore, the same are of no consequence. Be that, as it may the facts remains there, that we have already held that the evidence given by the two eye-witnesses does not require any independent corroboration qua each appellants. As far the defence evidence we find that application Exh.D.D. To the effect that the bulb on the pole was not in working condition, was not produce before the police during the investigation and for the first time it was produced at the stage of defence. Furthermore, Amil Hussain D.W.2 o his own showing had not inspected the pole on the day of occurrence and as such it cannot be said with certainty that there was no light a the time of occurrence. The defence evidence does not rebut prosecution case and evidence produced by it.
10-A. Despite, aforesaid observations and without disbelieving th eye-witnesses, we feel inclined to give benefit of doubt to Atta Muhammad appellant as a matter of abundant caution in that, it may not be safe to saddle him with the liability of common intention with the co-accused because there is no evidence of pre-concert between him and the co-appellants, that although he was armed with a dagger yet he did not use it and that he did not instigate his co-appellant in any manner to commit the crime.
11. Now we proceed to consider the extent to which Muhammad Rafi and Muhammad Saeed appellants were responsible for what occurred a the fateful time. According to the prosecution, Muhammad Rafiq appellant caused the death of Muhammad Ashraf by fire-arm and that Muhammad Saeed appellant fired a shot hitting on the back of left shoulder of Muhammad Riaz P.W. In circumstances, that there is no evidence of pre-concert between Muhammad Rafiq and Muhammad Saeed with regard to the murder of Muhammad Ashraf, that there is no evidence to the effect that the appellants knew that the deceased and Muhammad Riaz P.W. While on their way to the house of Abdul Karim would come to the place of occurrence at the eventful time, that the prosecution case is that when the deceased and Muhammad Riaz P.W. Came near to the appellants, Muhammad Rafiq took out pistol and fired shot at the deceased, that there is no evidence against Muhammad Saeed that h had knowledge that Muhammad Rafiq appellant was carrying pistol of that he would use it with tragic consequence, that Muhammad Saeed neither fired any shot at. The deceased nor did he instigate Muhammad Rafiq appellant to murder Muhammad Ashraf and that Muhammad Saeed fired at Muhammad Riaz after Muhammad Ashraf deceased had bee fatally wounded by Muhammad Rafiq, appellant, we feel that murder o Muhammad Ashraf by Muhammad Rafiq appellant was his individual ac and Muhammad Saeed was not vicariously liable. It is well-settled that in invoking the provisions of section 34, P.P.C., a furtherance of common intention is a condition precedent for convicting each of the persons taking part in the commission of a crime, and the mere fact that several persons took part in a crime, in the absence of a common intention, is not sufficient to convict them of that offence. It is no sufficient for joint responsibility for an offence under this section that the offence actually committed was likely to occur as a result of severe persons acting jointly and that the existence of a common intention being the sole test of joint responsibility it must be proved what the common intention was and that the act for which the accused were made to be reasonable was acted upon in furtherance of that common intention. Furthermore, presumption of constructive intention must no be readily applied or pushed too far. We are fully aware that in certain cases common intention to bring about a particular result may develop on the spot as between a number of persons with reference to the facts of the case and circumstances of the situation. In the present case as discussed above, we do not find any circumstance which would warrant the conclusion that a common intention to murder Muhammad Ashraf had developed at the spur of moment. It seems to us that Muhammad Saeed was not vicariously liable for the murder of Muhammad Ashraf by Muhammad Rafiq appellant and that by firing at Muhammad Riaz P.W., he committed offence punishable under section 307, P.P.C. Since Muhammad Rafiq appellant had also fired shots at Muhammad Ria P.W., therefore, he is also liable to punishment under section 307, P.P.C.
12. This brings us to the question of sentence. So far as the murder of Muhammad Ashraf by Muhammad Rafiq is concerned, we do not see any extenuating/mitigating circumstance in his favour for lesser penalty. Since Muhammad Rafiq appellant had fired twice at Muhammad Riaz P.W. And thereby caused grievous injuries to him, therefore, the sentence awarded to him under section 307, P.P.C. Is not excessive As far, the sentence of imprisonment for life awarded to Muhammad Saeed appellant under section 307, P.P.C., we feel that the same is really excessive, because he allegedly fired single shot, so it is reduced to seven years' R.I.
13. The upshot of the above discussion is that while giving the benefit of doubt to Atta Muhammad appellant, he is acquitted of all the charges. He shall be released forthwith if not required to be detained in any other case. Muhammad Saeed appellant is also acquitted of charge under section 302, P.P.C. His conviction under section 307, P.P.C. Is maintained but sentence of- imprisonment for life is altered to seven years' R.I. The convictions and sentences of Muhammad Rafiq under sections 302 and 307, P.P.C. Are maintained. The fine of Rs,5,000 if recovered be paid to the legal heirs of Muhammad Ashraf deceased. The fine imposed by the trial Court on Muhammad Rafiq and Muhammad Saeed appellants under section 307, P.P.C. Or imprisonment in default thereof and direction for its payment to Muhammad Riaz P.W. Are maintained. The appeal to the extent of Muhammad Rafique is dismissed in toto and the sentence of death is confirmed. The judgment was announced by a short order and herein are the reasons therefor.