' MUHAMMAD MUNIR KHAN, J.--Criminal appeals Nos. 87/81 and 88/81 filed by Wasil-Din and Aqeel Din respectively, connected murder reference No, 37/81 and the connected criminal revisions against the acquittal of Sher Muhammad co-accused and for the enhancement of the sentence of Aqeel Din appellant arises from the judgment of the learned Additional Sessions Judge, Sahiwal, whereby he on 20-1-1981 while acquitting Sher Muhammad co-accused convicted the appellants under sections 302/34, P.P.C., for causing the death of Abdul Rashid and sentenced Wasil Din to death and a fine of Rs,5,000 in default thereof to one year R.I. And Aqeel Din was awarded sentence of imprisonment for life and a fine of Rs,2,000 in default thereof to further R.I. For six months. The appellants were also convicted under section 307/34, P.P.C., for murderous assault upon Muhammad Rafiq P.W. 7 and sentenced to one year R.I. Each The sentences were directed to run concurrently. It was further directed that the fine, if 'realized, half of the same be paid to the heirs of deceased.
2. The occurrence took place on 13-5-1977 at. 2-00 p.m. In a lane situated in Mohallah Muzaffarabad Arifwala Town. The F.I.R. i.e, statement Exh. P.E. Or Abdul Rashid deceased was recorded at 5-20 p.m. In the Civil Hospital Arifwala by Qazi Javid Shafi, Magistrate Section 30, P.W.
1. On the basis of this statement, formal F.I.E. Exh. P.E./1 was registered at he police station at 6-20 p.m. The same day by Muhammad Bashir A A.S.I. P.W.
2. The distance between the place of occurrence and the police station is six furlongs.
3. The prosecution case is that the two appellants and Sher Muhammad their father, the acquitted co-accused had raised unauthorised construction and thereby closed a thoroughfare. On the move of Abdul Ghani, P.W. 10 and other Mohalladars, the Tehsildar demolished the construction, The accused also used to stop the public from passing through the lane in front of their house. On the eventful day just before the main occurrence Abdul Ghani P.W. 10 passed through that lane when Sher Muhammad was sprinkling water in front of his house. He asked Abdul Ghani not to pass that lane, Abdul Ghani P.W. 10, however, insisted. On this, Sher Muhammad acquitted accused abused Abdul Ghani who returned the abuses. Wasil Din and Aqeel Din, the appellants came there armed with Sotas. In the meantime Sher Muhammad acquitted accused also brought a Sota. On hearing the alarm, Abdul Rashid deceased came out of the house and tried to pacify the matter.
Muhammad Rafiq P.W. Also reached the spot. Sher Muhammad acquitted accused opened the attack by giving Dang blow to Abdul Rashid deceased ,who snatched the Dang and in return gave a blow with it on the head of sher Muhammad. Aqeel Din appellant inflicted Dang blow on the head of Muhammad Rafiq P.W. And then went to his house and brought out hatchet with which he injured the right arm of Muhammad Rafiq P.W. Aqeel Din attempted to give second hatchet blow to Muhammad Rafiq when Khuda Bakhsh P.W. Snatched away hatchet from him. At this juncture Wasil Din appellant went inside his house and came back armed with a gun and fired at Abdul Rashid causing him fire-arm injury on the right flank. On receiving injury, Abdul Rashid fell down. In the process of re-loading, the empty fell down which was picked up by Abdul Rashid who gave it to Bashir Ahmad P.W.
6. The accused then fled away. The occurrence was also seen by Talib Hussain (not produced).
Abdul Rashid in injured condition was taken to Hospital Arifwala where he was admitted. Dr. Muhammad Hussain sent Ruqqa Exh. P.O. To the Police. On receiving this Ruqqa, Ehsanul Haq, A .S.I.
Of Police Station, Arifwala P.W. 11 moved application Exh. P.A. For recording the dying declaration. On this application Qazi Javid Shafi, Magistrate Section 30, P.W. 1 accompanied him to hospital and recorded statement Exh. P.E. Of Abdul Rashid at 5-20 p.m. On the basis of this statement, F.I.R. Exh.
P.E. /1 was registered under section 307/34, P.P.C., at the police station. Abdul Rashid died in the hospital on the same day at 7-00 p.m., therefore, section 307, P.P.C., was altered into section 302, P.P.C.
4. The post-mortem report which has properly been proved through statement of Kais Kausar, Dispensar, P.W. 9 shows that there was a fire-arm wound of entry-omentum and intestine coming out of the wound, and its margins were inverted and achmymosed measuring about 1" in diameter on the right loin. In the opinion of the doctor, the death was due to shock and haemorrhage resulting in the said injury and was anti-mortem caused by fire-arm. Muhammad Rafiq P.W. 7 received 2 injuries on his person. Both the injuries were simple in nature, one caused by sharp- edged weapon and the other by blunt weapon. 2 injuries were found on the person of Sher Muhammad, the acquitted co-accused. He also complained pain on the back of his chest. The injuries were simple and caused by blunt weapon.
5. Ehsanul Haq A .S.1., P.W. 11 inspected the spot where Bashir Ahmad P.W. 6 produced empty Exh. P.7 before him which was taken into possession vide memo. Exh. P.M. Khuda Bakhsh P.W. 8 also produced hatchet Exh. P.8 before him which was taken into possession vide memo. Exh. P.N. The investigation was then entrusted to Rao Shad Muhammad P.W. 13 who arrested Wasil Din, on 18-5- 1977. Wasil Din led to the recovery of his licenced gun Exh. P.5 and its licence Exh. P.6 which were taken into possession vide memo. Exh. P.K. The report of the Forensic Science Laboratory Exh. P.X.
Shows that empty Exh. P.7 was fired from gun Exh. P.5.
6. In order to prove its case, the prosecution examined as many as 13 witnesses. Qazi Javid Shafi P.W. 1 has proved Exh. P.E., the dying declaration. Bashir Ahmad P.W. 6 and Muhammad Rafiq P.W. 7, Khuda Bakhsh P.W. 8 and Abdul Ghani P.W. 10 have given the ocular account of the occurrence and supported the prosecution case in all material particulars. Muhammad Siddiq P.W. 5 stated that Wasil Din had led to the recovery of gun Exh. P.5 and licence Exh. P.6. The rest of the evidence is more or less of formal nature.
7. The appellants when examined under section 342, Cr.P.C. Denied the incriminating circumstances, pleaded false implication and stated that they were not present on the spot. Sher Muhammad acquitted accused admitted his presence and explained injuries found on his person.
He stated:- ' "On 13-5-1977 I was present in front of my house sprinkling water. Abdul. Ghani P.W . Got some sprinkles on his person, on which he abused me. I tried to pacify him and told him that the water had fallen just by chance. Abdul Ghani abused me and, as such, I also abused him in return. Abdul Rashid deceased came armed with a Dang and inflicted a Sota blow on my head, as a result of which I being an old man fell to the ground and entreated him not to give more blows upon my person. Abdul Rashid did not stop and continued giving blows to me with Sota. I raised hue and cry, on which several persons from the Mohallah were attracted' to the spot. One person from the side of Abdul Rashid deceased also brought a gun loaded with a cartridge. The man was standing close to Abdul Rashid deceased. The gun went off from him and hit the right flank of the deceased from a very close range."
' In defence he produced Kais Kausar Dispenser D.W. 1 to prove the hand-writing of Muhammad Hussain on M.L.R., D.W. 1/B relating to his injuries.
8. The learned counsel for the appellants vehemently challenging the conviction of the appellants submitted that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as there is a delay of three hours in recording the dying declaration, that Exh. P.E., the dying declaration appears to have been tutored to the deceased by his relatives accompanying him to the hospital; that the dying declaration is at least a weak type of evidence, that the eye-witnesses except Muhammad Rafiq and Abdul Ghani were not present on the spot; that Bashir Ahmed P.W. 6 and Khuda Bakhsh' P.W. 8 are the chance witnesses; that the ocular account suffers contradictions and discrepancies and that the medical evidence contradicts the evidence given by the eye- witnesses. The learned counsel also claimed right of defence for the appellants.
' The learned counsel for the State supported the judgment of the trial Court. The learned counsel for the complainant appearing for the petitioner in the connected revisions urged that in the circumstances of the case, there was no legal justification to acquit Sher Muhammad because under section 34, P.P.C., he was equally liable for the acts of the appellants and as for Aqeel Din, the learned counsel submitted that there being no mitigating circumstances, he deserves capital punishment.
9. We have considered the arguments addressed by the learned counsel for the parties and have examined the record carefully. We have not been able to persuade ourselves to agree with the learned counsel for the appellants. We find that it is a case of day light occurrence. The occurrence took place at 2-00 p.m. Abdul Rashid in precarious condition was straight-away taken to the hospital where he was admitted. The doctor sent Ruqqa to the police. Ehsanul Haq, A.S.I., then contacted the Magistrate and took him to the hospital reaching there at 5-20 p.m. The interval between the occurrence and the time when the dying declaration was recorded thus stand reasonably explained. The doctor had certified that Abdul Rashid was fit to make statement. There is no evidence that Abdul Rashid was promoted or suggested falsehood by by-stander, relatives, friends or by police before his statement Exh. P.E. Was recorded by the Magistrate. Since the dying declaration was made by the deceased in full possession of his faculties and is proved by reliable evidence in exact words of the deceased, to our mind, it is a very valuable piece of evidence. The evidential value of the dying declaration depends upon the facts B of each case. It would, therefore, be too much to treat dying declaration a weak type of evidence as a matter of course as urged by the learned counsel for the appellants. For these reasons, considerable weight has to be attached to the dying declaration Exh. P.E.
10. Coming to the ocular evidence, we find that the presence of Muhammad Rafiq and Abdul Ghani on the spot at the time of occurrence has been admitted before us by the learned counsel. The fact of injuries on the person of Muhammad Rafiq also proves his presence on the scene of occurrence. Abdul Ghani and Khuda Bakhsh cannot be termed and treated as chance witnesses because the occurrence having taken place in a lane and they being the passers-Dy were the natural witnesses. The witnesses have successfully stood the test of cross-examination. They had no motive to falsely involve the appellants. Their statements are in, consonance with the probabilities and material fits in with the attendant circumstances and other evidence including the medical evidence. To us, the ocular testimony in the case is confidence-inspiring. Learned counsel has failed to point out materia contradictions or discrepancies in the statements of the eye-witnesses. The prosecution has thus proved its case through reliable evidencand we are convinced that the occurrence took place in the manner as alleged by the eye-witnesses. The part assigned to Wash Din appellant also finds support from the report of the Forensic Science Laboratory Exh. P.X. Which says that crime empty Exh. P.7 was fired from his licenced gun Exh.. P.5.
The dying declaration is thus . Supported by consistent evidence produced by prosecution.
' As for the claim of the learned counsel that the appellants were fully justified to kill the deceased in exercise of their right of self-defence, we are of the opinion that in the peculiar circumstances of the case, the right of self-defence was not at all available to the appellants because the complainant party appears to be aggressor. Sher. Muhammad co-accused initiated the trouble by stopping Abdul Ghani from passing through the lane. He also abused Abdul Ghani P.W. And then opened the attack followed by Aqeel Din who inflicted hatchet blow on Muhammad Rafiq F.W. The appellants and Sher Muhammad did not raise the plea of self-defence in their statements recorded under section 342, Cr.P.C. They did not suggest it to the witnesses, rather their case is that they were not present on the spot. Sher Muhammad acquitted accused raised plea of substitution.
The right of self-defence to the appellants and Sher Muhammad is not spelt out from the prosecution case or surrounding circumstances. In this view of the matter, we are satisfied that Wasil Din has been rightly convicted under section 302, P.P.C., for the murder of Abdul Rashid. Next question for consideration is whether Aqeel Din shared common intention or any common intention developed at the spur of moment to kill Abdul Rashid. It is by now well settled that before a person can be saddled with constructive liability and convicted for F the act done by another person, it must be satisfactorily proved by the prosecution that the person so convicted had common intention of doing that particular act with the person actually doing it. Further common intention is a thing which cannot always be proved by direct evidence and has to be inferred from surrounding circumstances. Each case, of course, has to be decided on its own facts. After carefully going through the evidence brought on the record, we find that it was after infliction of the injury by Aqeel Din appellant to Muhammad Rafiq P.W., that in the course of occurrence Wasil Din appellant of his own went in his house and brought out gun and fired at the deceased. In the instant case, we do not find any circumstances which would suggest that common intention had developed in the course of events in that none of the eye-witnesses even tried to suggest that Aqeel Din had asked co-accused Wasil Din to bring the gun or exhorted him to fire at the deceased. This leads us to hold that appellants Nos. 1 & 2 should be judged for their indiViduaL acts. We are convinced that in such a situation vicarious liability of Aqeel Din punishable under section 302/34, P.P.C., was not attracted.
Since the injury inflicted by Aqeel Din with sharp-edged weapon on the person of Muhammad Rafique P.W. 7 was neither dangerous to life nor grievous, we, therefore, would hold him guilty under section 324, P.P.C., for causing simple injury to Muhammad Rafiq P.W. This brings us to the question of sentence to be awarded to the appellants particularly to Wasil Din which really demands utmost care on our part. It is well settled that the sentence must be weighed in golden scales as it were properly balanced to punish the offenders in proportion to the charge and extent of his guilt to be deterrent for I him and for the rest of the society without being unnecessarily harsh and needlessly indulgent. In the instant case, we find mitigating circumstances inasmuch as the occurrence started all of a sudden that the parties had exchanged abuses and that the deceased had given dang blow on the head of the father of the appellant before he was fired at by the appellant. The act of the appellant appears to us somewhat provoked. We, therefore, consider it safer to award him the lesser penalty provided under the law and accordingly alter his sentence from that of death to that of imprisonment for life. The sentence of fine i.e, Rs,5,000 and imprisonment in lieu thereof is maintained. The conviction of Aqeel Din under section 302/34, P.P.C., is also set aside instead he is convicted under section 324, P.P.C. Since Aqeel Din has remained in He is discharged of bail-bond.
' The death sentence of Wasil Din is not confirmed. He will, however, get benefit of section 382-B, Cr.P.C. The connected revisions are dismissed.