AJMAL MIAN, J.--The appellant stands convicted under section 302, P.P C. By the learned Additional Sessions Judge, Usta Mohammad, and the above death sentence stands confirmed by the High Court upon reference made by the learned Additional Sessions Judge to it under section 374, Cr.P.C. With the addition of section 34, P.P.C. To section 302, P.P.C. For the murder of Allah Bakhsh, through the judgments dated 10-9-1986 and 21-12-1986, respectively.
2. Leave to appeal was granted against the above judgments to consider the contentions advanced by the learned counsel for the appellant and noticed in the Leave Granting Order, the relevant portion of which reads as follows:- "Mr. Muhammad Aslam Chishti learned counsel for the petitioner submits that since all the eye- witnesses are related inter se, and admittedly there was dispute between the parties over matrimonial affairs, reliance on their testimonies could not be placed without an independent corroboration which is lacking in this case. In this connection, learned counsel pointed out that the circumstantial evidence as to alleged recovery of shotgun is not reliable for the reason that it was made after 14 days of petitioner's arrest and was in derogation of the provisions laid down in Section 103 of the Code of Criminal Procedure.
Learned counsel further submits that since there is no satisfactory evidence that petitioner had caused the fatal injury, he could not have been convicted under section 302, P.P.C. By the learned Sessions Judge, and his conviction could not have been altered to the one under section 302/34 by the High Court on the mere assumption that the learned trial Court omitted to record such finding.
In this behalf learned counsel further submits that the High Court could not treat such absence of a finding as a mere irregularity curable under section 537, Cr.P. C.
These submissions and others raised in the petition deserve consideration.
3. The prosecution case in short was that the deceased Allah Bakhsh, alongwith his cousin P.W.2.
Niaz Muhammad and the eye-witnesses P.W.3 Wali Muhammad, P.W.4 Muhammad Ayub, P.W.7 Mst.
Lala and one Kalu Khan, after staying at night at village Hamidullah Buledi on 9-11-1984 where they had gone to attend the funeral of Mst. Bakhtiar in the following morning at 8-00 A.M. Was proceeding towards village Usta Muhammad for making some purchases. When at about 9-00 A.M. They reached near village Muhammad Panah Mengal, the deceased and the above other witnesses saw the appellant and the absconding accused Arbab emerging from the bushes armed with shotguns. It was alleged that the appellant Jiand challenged Allah Bakhsh deceased and remarked that he would not be spared and thereafter both, the appellant and the absconding co-accused fired indiscriminately at Allah Bakhsh, who as a result of receiving gunshot injuries fell down and died at the spot. It was further alleged that P.W.3 Wali Muhammad also sustained gun- shot injuries. The motive for the offence alleged in the F.I.R. Was that there was matrimonial dispute between the accused and the deceased. The F.I.R. Was lodged by aforesaid P.W.2 Niaz Muhammad at 12-05 P.M. At Policed Station Usta Muhammad which was situated four miles from Goth Muhammad Panah Mengal, it was recorded by P.W.8, S.I. Tajamul Hussain. The case was investigated partly by above P.W.8, S.I. Tajamul Hussain and partly by P.W.9 Muhammad Yaqoob.
The latter took the appellant into custody from the lock-up of3acobabad formally on 26-1-1985.
P.W.8, S.I. Tajamul Hussain when visited the place of Wardat immediately after recording two. FIR on the same day, found inter alia six empties of .16 bore cartridges and two empties of.12 bore cartridges. Which were seized and were sealed in a parcel vide Exh.P.C. The conviction is founded (in the ocular evidence of the above eye--witnesses excluding Kalu Khan who was not examined on the ground that he would repeat the same what was stated by P.W.4, Ayub (See page 76 of the paper book), corroboration was sought by recovery of shot-gun at the pointation of the appellant, ballistic expert's report which was to the effect that the two empties of .12 bore recovered from the place of Wardat matched with the gun recovered from the appellant, motive and medical evidence.
4. In support of the above appeal, Mr. Aslam Chishti has reiterated his submission that the alleged eye-witnesses were inter se related and also with the deceased and since there was matrimonial dispute as alleged by the prosecution, no implicit reliance could have been placed upon the ocular evidence particularly keeping in view that the prosecution chose not to examine an independent eye-witness Kalu Khan.
The two Courts below have dilated upon the above contention properly and have correctly repelled the same. In my view, simpliciter relationship of the eye-witnesses inter se and with the accused would not justify disbelieving of their testimony. The Court has to scrutinize the evidence of such witnesses with caution and care and if it is satisfied that their evidence is truthful, the same can be relied upon. It is true that there was some alleged matrimonial dispute between the accused and the deceased but this fact would not warrant discarding of the evidence of the above eye-witnesses. At the most, the Court may look for corroborative piece of evidence which, in the present case, is available in the form of recovery of two empties of .12 bore from the place of Wardat, .12 bore gun from the house of the appellant at his pointation, and ballistic expert's report in the affirmative.
5. Then it was contended by Mr. Aslam Chishti that no reliance could have been placed on the alleged recovery of the shot-gun as the same was recovered after the expiry of 13 days from the date of the appellant's arrest and that the mashirs to the recovery were the police personnel instead of having independent persons from the locality.
It is correct that delay in the recovery of a crime weapon in some cases may be fatal as to its evidentiary value as the possibility of its being foisted by the Investigating Agency cannot be ruled out. However, in the present case, since two empties of .12 bore gun were recovered from the place of Wardat immediately after the incident which were sealed and which according to the ballistic expert's report matched with the gun recovered from the appellant at his pointation, in my view, the two Courts below have rightly relied upon the same.
6. As regards the factum that mashirs to the recovery were two police personnel, it may be observed that according to P.W.8, S.I. Tajamul Hussain, no other person was available at the time of recovery of above gun. It would have been proper on the part of the Investigating Officer to have some persons of the locality as mashirs to the recovery of gun, but the mere fact that the mashirs to the recovery were police personnel, itself is not sufficient to discard the recovery, if otherwise the Court is satisfied that the recovery was genuine and there were no circumstances casting any doubt as to its recovery. In the present case as observed hereinabove, recovery of two empties of .12 bore gun immediately after the incident from the place of Wardat which matched with the recovered gun, is a strong piece of evidence which lends credibility to the above recovery.
7. It was last contended by Mr. Aslam Chishti that the learned Additional Sessions Judge recorded conviction against the appellant under section 302, P.P.C., which could not have been sustained in view of the testimony of the injured eye-witness P.W.3 Wali Muhammad who attributed fire-arm injury at the face of the deceased to the appellant, but the High Court without any notice to the appellant, converted the above conviction under section 302/34, P.P.C. Which was not warranted by law and, therefore, the appeal should succeed on the above ground. In this regard, it may be pertinent to reproduce the relevant portion of the High Court's judgment touching upon the above aspect of the case, which reads as follows:-- "Taking advantage of this situation Mr. Chishti has urged that the appellant is responsible only for his act and injuries which were alleged to have been caused by him to the deceased were not on vital organs and fatal. We are mindful of the fact that the learned trial Judge has not taken into consideration this aspect of the matter and we have very anxiously taken into consideration this aspect but we cannot see eye to eye on this point with the learned counsel for the appellant. The appellant was originally charged not only in his own capacity but also in his vicarious liability. The prosecution case has also all along been that both the appellants had simultaneously fired shots at deceased and P.W.3 Wali Muhammad. The prosecution has successfully proved common intention between both the assailants. It is a fact that the learned trial Judge failed to advert to this aspect in his judgment but the perusal of the judgment will show that he was all along mindful of this aspect of the case. At the best it can be an omission on his part. It is not a fatal illegality in the case. The fact that the learned trial Judge has awarded the capital punishment to the appellant would amply prove that he had taken into consideration the provisions of section 34, P.P.C. The omission of this aspect in the impugned judgment is a mere irregularity and can be cured under section 537, Cr.P.C. The appellant has not suffered any prejudice on this account because the sentence awarded to him clearly proves that the learned trial Judge has taken into consideration the common intention of both the assailants. The impugned judgment is not exceptionable on this ground as well."
8. I have gone through the judgment of the learned Additional Sessions Judge and I am of the view that the above conclusion arrived at by the High Court is correct. The learned Additional Sessions Judge has not recorded any finding to the effect that section 34, P.P.C. Was not applicable to the present case or that he was convicting the appellant on the basis of the evidence of P.W.3 Wali Muhammad. On the contrary, the appellant was charged under section 302/34, P.P.C. The learned Additional Sessions Judge has dealt with the evidence of all the eye-witnesses produced by the prosecution, barring the statement of P.W.3 Wali Muhammad, the testimony of the other eye- witnesses is unanimous on the factum that both the accused after emerging from the bushes indiscriminately started firing upon the deceased, which version is also in consonance :with the case disclosed in the F.I.R. At the earliest opportunity. The above version has not been disbelieved by the learned Additional Sessions Judge and, therefore, it is evident that while recording conviction, he omitted to mention section 34, P.P.C. I may point out that even P.W.3 Wali Muhammad has referred to a fire-arm injury on the back side of the deceased in his examination- in-chief which he has not attributed specifically to any one of the two accused. The above injury seems to be Injury No.1 mentioned in the post-mortem report and by P.W.5 Dr. Mushtaq Ahmad in his deposition, which has been described as follows:--
(1) 13 wounds of entrances were present over right side back of chest."
9. At this stage I may refer to sections 236 and 237, Cr.P.C. Which read as follows:-- "236. Where it is doubtful what offence has been committed: If a single act or series of acts is of such a nature that it is doubtful which of several offences, the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried once; or he may be charged in the alternative with having committed someone of the said offences.
237. When a person is charged with one offence, he can be convicted of another:, (1) If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it:'
10. The accumulative effect of the above two sections is that if an accused is charged with one offence but from the evidence it appears that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
11. Reference may also be made to the following cases:--
(i) Khuda Bakhsh v. The Crown PLD 1955 F.C. 378. 1n the above case the Committing Magistrate charged the two accused under section 302/34, P.P.C. However, the learned Sessions Judge at the commencement of the trial amended the charge by striking off section 34, P.P.C. The matter came up before the Federal Court of Pakistan and the question arose, whether the above amendment affected the charge. The Federal Court concluded that the above amendment did not affect the nature of the charge and observed as follows:-- "Stress was laid on the resulting disparity in the treatment accorded to the two accused persons, and an attempt was made to show that there were grounds for doubting the direct testimony regarding the particular injuries which each assaillant had caused. The fact however is that the amendment made by the trial Judge did not in any way affect the nature of the charge which the accused persons were called upon to answer. The case was clearly one in which, if it could be believed that the accused persons, at the dead of night, being animated by a single motive, had come to the bed of Mst. Sakina and with their respective sharp-edged weapons had given her blow on the head and neck so that she died on the spot, no doubt could be entertained that her killing was a single act performed by these persons, with a common intention. The rule of constructive liability which is set out in section 34, P.P.C. Was directly applicable, and nothing in the charge read out to the accused persons at the commencement of the trial stood in the way of its application. In consequence of misconception on this point, Sohrab appears to have received unduly lenient treatment, at the hands of the High Court but that is a point with which this Court is not concerned.
We are satisfied with respect to the appellant Khuda Bakhsh that he was in no way prejudiced by anything appearing in the charge which he was called upon to answer, and that his conviction for murder has been duly recorded in a manner which does not call for interference by this Court in the exercise of its criminal jurisdiction. We accordingly dismiss this appeal:"
(ii) Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC 116;
(iii) Rawalpenta Venkalu and another v. The State of Hyderabad AIR 1956 SC 171;
(iv) B. N. Srikantiah v. State of Mysore AIR 1958 SC 672 and
(v) Jaikrishnadas Manohardas Desai and another v. State of Bombay AIR 1960 SC 889.
In the above cases mentioned at S. No.(ii) to (v) the Indian Supreme Court has inter alia held that the omission to mention section 34 alongwith the charging section does not make section 34, P.P.C.
Inapplicable if otherwise the charge framed against accused disclosed a case of application of above section 34, Penal Code and no prejudice having been caused to the accused is shown. It may be advantageous to reproduce para.10 from the judgment referred to hereinabove at S. No.
(iii) and para.9 from the judgment referred to at S. No.(v), which read as follows:-- AIR 1956 SC 171: "(10) As regards the frame of the charge, it is clear from the evidence that each one of the two appellants, if not also other persons, actively contributed to the burning of the cottage while the man had been trapped inside. According to the evidence of one of the five witnesses, namely, P.W.7, both these appellants lighted a match and set fire to the house.
Each one of them therefore severally and in pursuance of the common intention brought about the same results by his own act. It is also noteworthy that to both the appellants the learned Sessions Judge explained the charge against them in these words:-- "You are charged of the offence that you with the assistance of other present accused, with common intention, on 18-2-1953 at Mohiuddinpur village, committed murder, by causing the death of Md. Moinuddin-------" It is clear, therefore, that though section 34 is not added to section 302, the accused had clear notice that they were being charged with the offence of committing murder in pursuance of their common intention to put an end to the life of Moinuddin. Hence the omission to mention section 34 in the charge has only an academic significance, and has not in any way misled the accused. As already indicated, there is clear evidence that both the accused lighted a match stick and set fire to the cottage and each one of them therefore is clearly liable for the offence of murder. Their subsequent acts in repelling all attempts at bringing succour to the trapped person clearly show their common intention of bringing about the same result, namely, the death of Moinuddin.
The circumstances disclosed in the evidence further point to the conclusion that the offence was committed after a pre-concerted plan to set fire to the cottage after the man had as usual occupied the room and had gone to sleep. There is no doubt therefore that on the evidence led by the prosecution in this case the charge of murder has been brought home against both the appellants and that in the circumstances there is no question but that they deserve the extreme penalty of the law."
AIR 1960 SC 889: "(9) It was submitted that the High Court erred in finding the appellants guilty of offences under section 409 of the Indian Penal Code when the charge framed against them was one under section 409 read with section 34 of the I Indian Penal Code. A charge framed against the accused person, referring to section 34 is but a convenient form of giving notice to him that the principle of joint liability is sought to be invoked. Section 34 does not create an offence; it merely enunciates a principle of joint liability for criminal acts done in furtherance of the common intention of the offenders. Conviction of an accused person recorded, relying upon the principle of joint liability, is therefore for the offence committed in furtherance of the common intention and if the reasons for conviction establish that the accused was convicted for an offence committed in furtherance of the common intention of himself and others, a reference in the order recording conviction to section 34 of the Indian Penal Code may appear to be a surplusage. The order of the High Court recording the conviction of the appellants for the offence under section 409 of the Indian Penal Code is therefore not illegal."
12. The instant case stands on a stronger footing than the above-referred cases inasmuch as in the present case the charge framed against the appellant, was under section 302/34, P.P.C. And not under section 302, P.P.C. Alone, which was in consonance with the case disclosed in the F.I.R., and the three of the eye-witnesses proved the factum that the appellant committed the offence in furtherance of a common intention. The rule of constructive liability which is envisaged by section 34, P.P.C. Was directly applicable. Additionally no prejudice has admittedly been caused to the appellant as from the very inception of the trial, he was called upon to meet a charge under section 302/34, P.P.C.
I am, therefore, of the view that mere omission on the part of the learned Additional Sessions Judge to mention section 34, P.P.C. While recording conviction under section 302, P.P. C. Does not take out the case from the ambit of above section 34, P.P.C. And does not change the nature of the charge, and the above omission is an irregularity, if any, of the nature that stands cured by section 537, Cr.
P.C.
13. It may also be advantageous to refer to the following observations of Hamoodur Rahman, C.J. In the case Shahadat Khan and another v. Home Secretary to the Government of West Pakistan and others PLD 1969 SC 158 in which inter alia it was held that section 34, P.P.C. Does not create any distinct offence but merely lays down a principle of joint liability in a criminal act and that though in the First Schedule to the West Pakistan Criminal Law (Amendment) Act, 1963, above section 34 was not mentioned but the Tribunal could press into service section 34, P.P.C. While making recommendation as to the commission of offence or offences:- "This Court has since reversed the majority view of the Full Bench of the High Court and held that the First Schedule to the West Pakistan Criminal Law (Amendment) Act, 1963. Is not framed on any basis of categories of offences but has to be treated as an enumeration ad hoc of the particular offences which the Legislature had chosen to be referable to the Tribunal. This view has also since been re-affirmed by this Court in the case of The Commissioner, Rawalpindi Division and another v.
Pervez Iqbal PLD 1968 SC 259 and the High Court has itself, by another Full Bench decision in the case of Muhammad Nawaz and others v. The State PLD 1967 Lah. 952 held that since section 34 of the Penal Code does not create any distinct offence but merely lays down a principle of joint liability in a criminal act, it is immaterial whether it is mentioned in the Schedule to the West Pakistan Criminal Law (Amendment) Act or not as a referable offence. The mere fact, therefore, that a person is charged constructively for an offence by appending section 34, P.P.C. To the said offence does not affect the validity of the reference itself. Even if section 34 is not included in the Schedule yet, on the facts, if it is found that certain persons whose cases have been referred to the Tribunal are only constructively liable for that offence, the Tribunal would be able to recommend their conviction there under."
14. I am, therefore, of the view that the judgment of the High Court does not suffer from any infirmity of the nature, which warrants interference by this Court. The appeal is, therefore, dismissed.
However, I may observe that the appellant would be entitled to the benefit of the Presidential Order of commuting death sentences into life imprisonment if the case of the appellant is covered by the provisions of the aforesaid Presidential Order. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.