SHAFIUR RAHMAN, J.--Leave to appeal was granted to the two convicts under section 302/34, P.P.C.
And also to the complainant for examining the correctness of the decision given by the Lahore High Court on 17-6-1986 whereby while maintaining the convictions of these two appellants the sentence of death was not confirmed and instead they were sentenced to life imprisonment.
2. Muhammad Younis, the father of the complainant (Muzaffar SaeedPW 9) had purchased agricultural land in village Vaince which was already in his cultivating possession as tenant. The purchase had taken place on 6-11-1982. The land was close to the house of the convicts and their family members. They were interested in purchasing it and having not succeeded, were planning to file a preemption suit. In order to ensure success before instituting such a suit, they wanted to dislodge the entries in the Khasra Girdawari showing Muhammad Younis as the tenant of the land and had got moved an application through the vendor himself for the correction of the Khasra Girdawari wherein one Ghulam Mustafa son of Boota had appeared as a witness. On 23rd of May, 1983, while Muzaffar Saeed PW 9 was returning in the company of Ghulam Mustafa son of Noor Muhammad, he encountered Ghulam Mustafa son of Boota and complained to him as to why he had appeared to depose falsely about correction of the Khasra Girdawari. There was exchange of abuse followed by grappling. Ghulam Mustafa son of Boota left the place in order to report the matter to the convicts and their associates whereupon soon arrived at the scene the two convicts alongwith three others. Chan Peer and Aulad Hussain alias Phul Peer the two brothers, Sabir Hussain Shah s/o Chan Peer were all armed with revolvers. Abuzer son of Sabir had a carbine while Musaddiq son of Auland Hussain alias Phul Peer had a gun. Chan Peer was the first to fire which proved ineffective. Aulad Hussain's shot injured Naseem Akhtar the mother of Muzaffar Saeed while Sabir's shot injured Khalida who later died of the injuries on 23-8-1983 while in the Hospital. The convicts and their associates fired more shots but they proved to be ineffective. The two injured ladies were removed to the Hospital where Saeed Ahmad, S.H.O./PW-20 also arrived and recorded the statement of Muzaffar Saeed on which a case was registered at Police Station Philora at 5 p.m.
The case was investigated by Saeed Ahmad, SHO who got recovered from Sabir revolver P.12 which was the licenced weapon of Chan Peer his father and from Musaddiq the gun P.13 which was the licenced weapon of his father Aulad Hussain.
3. The convicts and their associates denied their participation in the occurrence. Chan Peer stated, and his statement was adopted by other associates, that Younis, father of the complainant suspected that Chan Peer had got moved an application for the correction of the Khasra Girdawari with a view to deprive Muhammad Younis of his rights as a tenant for protecting the sale. In defence Muhammad Latif, Assistant Licence Clerk, Licence Branch, D.C's. Office was produced to prove that the arms shown to have been recovered from Sabir (P. 12) and Musaddiq (P. 13) were licensed weapons.
4. The trial Court held that "the evidence regarding motive does not inspire confidence". As regards the statement of Mst.Khalida deceased (Exh.P.R.) recorded by the Magistrate (Abdul Rashid PW 16) on 16-6-1983, the Court held that "it can be read in evidence as a dying declaration". Two fire-arms recovered were found not to be linked with the crime as the recoveries did not match with the bullets recovered. The trial Court held the three eye-witnesses Muzaffar Saeed (PW-9), Saeed Ahmad (PW-10) and Muhammad Khan (PW-12) to be natural witnesses of the occurrence who had established their presence at the spot. As regards the fact why the two women who were not directly concerned with the occurrence were made the target, the trial Court observed as hereunder;- "The extreme confusion of mind in the assailants which necessarily follows the murder must have played a major part and even if the accused persons had intended the death of Muzaffar Saeed complainant and not the death of the two deceased persons which had resulted in the consequence, the accused persons naturally must have been more concerned about their attempt to abscond from the place of occurrence and to create a defence for the extreme steps that they had already taken. After that because of this confusion and concern they could not successfully aim at the complainant. If 11-6-1983 the date of the arrest of the accused persons who belong to the same village Waince is kept in mind it would reflect upon the concern that the accused persons had for defending the consequences."
' The case of Chan Peer was distinguished by observing as hereunder:- "So far as Chan Peer accused is concerned his alibi of being present in his Dera in village Waince at the relevant time was accepted by the first investigating officer and he was mentioned in column No, 2 of the Challan yet in the subsequent investigation conducted by the Crime Branch he was not given this advantage and was challaned alongwith other accused persons. However, the prosecution has not examined DSP Crime Branch who had investigated this case. Even otherwise, the alleged fire by this accused had not injured any person and keeping in view his extreme old age and the above mentioned facts the probability of his false involvement on account of being the head of the family cannot be ruled out and in view of this count he is entitled to the benefit of doubt."
' The trial Court finally held as hereunder:- "The eye-witnesses examined were the natural witnesses of the occurrence having no special reason to falsely depose against the accused persons and barring their minor discrepancies and confrontation to Exh. DB, Ex. DC and Ex. DD, their statement under section 161, Cr. P.C. The over all picture which their deposition depicts proves beyond doubt the guilt of these 4 accused persons.
They have been able to establish that Mst. Naseem Akhtar was killed on account of the revolver shot fired by Aulad Hussain alias Phul Peer while in furtherance of their common intention of all while similarly revolver shot by Sabir Hussain accused resulted in the ultimate death of Mst. Khalida deceased. These witnesses have also established the participation of Musaddiq Hussain while armed with gun and that of Abuzar Hussain accused while armed with a carbine in this occurrence in the furtherance of their common intention."
' All the four accused were held guilty under section 302/34 P.P.C. And Aulad Hussain and Sabir Hussain were sentenced to death while Musaddiq Hussain and Abuzar Hussain were sentenced to life imprisonment. Sentences of fine and compensation were also awarded against them.
5. On appeal and while seized of the question of confirmation of death sentences awarded to the two convicts, the High Court reappraised the entire evidence and recorded its own findings on material issues in controversy. It found "nothing on the record to suggest that the accused had any motive to kill the two deceased ladies". It considered Muhammad Khan (PW. 12) alone to be an independent witness by observing as follows:- "So far as the ocular evidence is concerned, there are minor contradictions which are quite natural but some improvements have also been made by Muzaffar Saeed and Said Ahmad. PW. 12 Muhammad Khan, however, is quite an independent witness. His testimony rings true. The occurrence took place quite close to his residence. He is the most natural witness of the incident."
' As regards the dying declaration it dealt with the dying declaration of Mst. Khalida as hereunder:- "This statement was recorded more than two months prior to the death of Mst. Khalida. Later she died on account of bedsore which caused septicaemia. The Magistrate admittedly did not ensure that the statement was not a tutored one. Two months prior to her death Mst. Khalida had no apprehension of her death, and, therefore, this statement cannot be termed as a dying declaration of a person made some time before his death when he was under the imminent danger of death."
' It formed the opinion about the whole case as hereunder:- "In the light of the foregoing discussion we have come to the conclusion that in this case net has been thrown wide and efforts have been made by the prosecution to involve male members of the family of Chan Peer Shah in this case. In the light of the ocular evidence supported by statement Exh. PR, we find that Aulad Hussain Shah and Sabir Hussain Shah appellants are liable for the murders of Mst. Nasim Akhtar and Mst. Khalida deceased, but the guilt in this behalf has not been brought home to Musaddaq Hussain Shah and Abuzar Hussain Shah beyond doubt and so is the case of Chan Peer Shah who has already been acquitted by the learned trial Court."
' On these findings Musaddiq Hussain Shah and Abuzar Hussain Shah were acquitted and while maintaining the conviction of Aulad Hussain Shah and Sabir Hussain Shah under section 302/34, P.P.C. Their sentence was altered to imprisonment for life from death. They were given the benefit of section 382-B of the Criminal Procedure Code. The sentence of fine and compensation was kept intact.
6. Mr. Ijaz Hussain Batalvi, Advocate, the learned counsel for the convicts/appellants in Criminal Appeal No, 127 of 1987 has contended that the same evidence which was found to be insufficient for convicting three of the five accused should not, without any additional material or any distinctive feature, have been considered sufficient for convicting the two others. The anomaly is obvious. The inconsistency need not be over emphasised. The learned counsel has also seriously challenged the conclusion of Muhammad Khan (PW. 12) being a disinterested witness, a natural witness or a witness whose testimony rings true. He has drawn our attention to the fact that he belongs to a different village Golookot. He admitted that father of Sarwar the husband of Khalida deceased and Ghulam Mustafa PW, were the first cousins of his father. He has also referred to the inconsistencies in his statement to make his evidence suspect. He has heavily relied on the general conclusion drawn by the learned Judge of the High Court that the net was widely thrown to contend that it was not possible after holding that to come to the conclusion that the case against the two convict- appellants was proved beyond doubt, so as to entail their conviction and sentence under section 302/34, P.P.C.
7. Mr. K. M. A. Samdani, Advocate, the learned counsel for the complainant has contended that the test adopted for distinguishing the case of three acquitted accused from the two convicted ones, namely, the efficacy of the shots fired by them was no test at all for judging the common intention of the participants in a crime. Even the role of firing ineffectively is as incriminating as is that of firing effectively on the ground that there existed common intention. The dying declaration and the statement of the three witnesses, according to the learned counsel for the complainant, was sufficient to establish the case of the prosecution beyond reasonable doubt. Further, according to the learned counsel, the High Court has not followed the salutary principle of giving any reason for imposing the lesser penalty. The absence of motive inferred is against the weight of evidence on record which clearly showed a plausible motive whereby stranger of no consequence was acquiring land in their vicinity. The learned counsel stated that in view of the decision given by this Court in the case of Dost Muhammad v. The State (PLD 1963 SC 285) reasons had to be recorded for awarding the lesser sentence. He relied on Piran Ditta and 3 others v. The State (PLD 1976 SC 300) and Muhammad Mushtaq v. The State (1973 SCMR 219) for stating that if there are no extenuating circumstances noticeable in the case then lesser penalty should not be awarded. He has also relied on Wali Muhammad and another v. The State (PLD 1976 SC 287) to contend that if the victims are defenceless intervenors as in this case the two women were, both having been fired from behind, such leniency should not have been shown.
8. There are certain features of the case which have to be noted in reappraising the evidence brought on record. In the first place, the two ladies who received fire arm wounds and died sooner or later of it, were fired at from behind and from a very close range. For example on the dead body of Naseem Akhtar, there was a fire arm entry wound 4 m.m. With blackend edges, on the right scapular region (back) about 4 c.m. Right to mid line. Mst. Khalida Begum had a wound of fire-arm entry 4 m.m. In diameter with blackend margin on the back of chest. The closeness from which the shots were fired, in the normal circumstances leave out any scope for the shots having been aimed at someone else and mistakenly injuring these ladies. Secondly, no particular motive or purpose has been indicated for selecting these two ladies for effective firing, against them. Nothing had happened earlier or during the course of the occurrence to aggravate or precipitate the animosity and the if, any, against these two ladies. Thirdly, the relationship between the parties had not been abnormally bad. Even if it is admitted that 2-1/2 years prior to the occurrence, a brother of Muzaffar Saecd had got a case registered under section 506, P.P.C. Against Musaddiq Hussain and his brother or that the parties had been in opposite camps in 1959 B.D. Elections or that ten or fifteen years ago a civil suit had been instituted by Afzal against Chan Peer with regard to closure of water channel in 'another village, there was nothing imminent or grave to occasion the occurrence. The purchase by Muhammad Younis had led to no exchange of threats and to no overt aggressive act on the part of either of the parties. They had been living in the neighbourhood.
Such litigation as is alleged is the normal course of village life without any threat to life unless some other factor, graver in nature and more imminent in point of time, intervenes. Nothing of the sort had taken place. At least there is no evidence to show the intervention of any such fact. Fourthly, the High Court in not treating the statement of Khalida recorded under section 164, Cr. P.C. As a dying declaration, on the ground that she was not imminently fearing death nor did the death take place soon thereafter, ignored the law laid down by Court and the express provision of section 32 of the Evidence Act. In the case cf Wazir GuI v. The State (1976 SCMR 471) it was laid down that "the law does not insist that for the purpose of being treated as a dying declaration, the statement should have been made under immediate apprehension of death. We cannot import into the statutory provision any such extraneous limitation". Finally, a fact to be noted is that due to the general amenesty granted in the country death sentence stands commuted into life imprisonment and those over sixty years of age and having undergone five years' effective rigorous imprisonment have been released. One of the convicts falls in the latter category and both in the former. As the restoration of death sentence will be relatable to the judgment passed by the High Court and in substitution of it the benefit cannot be denied to the appellants simply because they were wrongly sentenced to lesser penalty for the same offence. In this context and for that reason the appeal with regard to the sentence notwithstanding the high principles well-supported by precedents advanced by the learned counsel for the complainant must be treated as having become infructuous.
9. The High Court was justified in treating Muhammad Khan (PW-12) as a disinterested witness and relying on his testimony and thereafter extending the benefit to those whose fires did not hit or were not effective. On the facts of the case such a view was justified because the common intention to cause death remained a matter of some doubt in respect of those who did not fire or could not fire effectively at the individuals even from such a close distance. In respect of those who aimed their shots and caused the injuries to the individuals, such a common intention could be said to have been established beyond reasonable doubt. Such a view does not erode the principle of common liability but only reflects that feature of judicial restraint and caution which is insisted upon in a criminal case involving capital punishment where the totality of the facts of the case had to be viewed with a view to arrive at a conclusion beyond reasonable doubt. This also explains why even after giving all the benefits to three others allegedly involved in the crime, the conviction and sentence of the two convict-appellants can be maintained and sustained on the same evidence.
' We find no merit in both the appeals and they are dismissed.