' QAISER AHMED HAMIDI, J.---Appellants Nazir Ahmed son of Muhammad Soomar, aged 32 years, and his cousin Bashir Ahmed son of Dur Muhammad, aged 23 years, Mirani by caste were tried for the offence under section 302-307-114/34, P.P.C., by 1llrd Additional Sessions Judge, Larkana, who found them guilty and vide judgment dated 5-2-1989 sentenced them as under: (1)Nazir Ahmed(i) Under section 302/114/34 P.P.C. Imprisonment for life and to pay a fine of Rs.10,000 or in default to suffer R.I. for one year, and to pay a compensation of Rs.10,000 to legal heirs of deceased MuhammadSaleh or in default to suffer R.I. for one year.
(ii) Under section 307/114/34, P.P.C. R.I. for three years and to pay a fine of Rs.1,000 or in default to suffer R.I. for three months.
(2)Bashir Ahmad(i) Under section 302/114134. P.P,C. sentenced to death and to pay a fine of Rs.10,000 or in default to suffer R.I. for one year, and to pay a compensation of Rs.10,000 to legal heirs of deceased Muhammad Saleh or in default to suffer R.I. for one year.
(ii) Under section 3071114/34, P.P.C. R.I. for three years and to pay a fine of Rs.1,000 or in default to suffer R.I. for three months.
' By this appeal filed under section 410, Cr.P.C., the appellants have challenged their conviction and sentence. The learned Additional Sessions Judge has also referred the case to us under section 374, Cr.P.C. By this judgment we propose to dispose of the appeal as well as the reference made under section 374, Cr.P.C.
2. Complainant Haji Muhammad Bux and his son deceased Muhammad Saleh resided in Mohalla Rehmatpur, Larkana Town. The appellants who were working as police constables resided few paces away from their house. It is alleged that on 29-7-1983 at about 7.00 a.m. both Haji Muhammad Bux and his son deceased Muhammad Saleh were present in their house when they heard a commotion and went outside. They found both the appellants quarrelling with P.Ws.
Hazoor Bux and Ghulam Mustufa over the discharge of dirty water. Deceased Muhammad Saleh intervened which enraged appellant Nazir Ahmed who asked appellant Bashir Ahmed to bring his service rifle, which was lying in the house. Appellant Bashir Ahmed brought the service rifle, loaded it and fired it at deceased Muhammad Salch who sustained injury on the back. The bullet passed through his body and then caused injuries to P.Ws. Ghulam Mustufa and Hazoor Bux who were standing close to deceased Muhammad Saleh. Besides complainant Haji Muhammad Bux, the incident was witnessed by Ali Khan, Hamzo and several other persons of locality. The appellants then bolted away. Muhammad Saleh died after a short while. On the same day at 7-45 a.m. the report of this incident was registered at Taluka Police Station Larkana. Masoom Ali Shah, A.S.I. took up the investigation. He rushed to the scene of occurrence, which was about 15 feet from the houses of appellants. He then prepared such memo in presence of mashirs Khadim Hussain Shah and Muhammad Bux. The police officer arrested appellant Nazir Ahmed on the same day in presence of same mashirs. On 31-7-1983 appellant Bashir Ahmed was arrested and from his possession the service rifle and 19 lives bullets (one short of the total quantity issued to him) were recovered in presence of same mashirs. After completing the investigation both the appellants were sent up.
3. The appellants pleaded not guilty when charge was read out to them and wanted, to be tried. At the trial the prosecution examined Ubedullah P.C. (P.W.1), Muhammad Mithal Tapedar (P.W.2), Haji Muhammad Bux (P.W.3), Hamzo (P.W.4), Hazoor Bux (P.W.5), Ghulam Mustufa (P.W.6), Ali Khan (P.W.7), Khadim Hussain Shah (P.W.8), Abdul Rasool Lance Naik (P.W.9), and Dr. Najibullah (P.W.10).
4. In their statements recorded under section 342, Cr.P.C., the appellants disputed the case of the prosecution by stating that witnesses against them were interested and hostile to them. Both the appellants examined themselves on oath. They, however, led no defence.
5. On the assessm ent of evidence the learned Additional Sessions Judge found the appellants guilty and convicted them accordingly.
6. We have had the benefit of a very careful and well-prepared arguments from both the sides, The learned A.A.-G. has supported the impugned judgment.
7. The fact that Muhammad Saleh died an unnatural death by means of a rifle shot is established from the record. Besides the ocular testimony, which we will discuss at the proper time, there is evidence of Dr. Najibullah (P.W.-10), who had conducted autopsy on the dead body of Muhammad Saleh and on external examination found the following injuries on his person:-
(i) Lacerated punctured wound on the back of right side of chest inner aspect of scapula 1.5 c.m. in diameter. Charring negative. (Wound of entry).
(ii) Lacerated wound margins averted at front of right side of chest 6 c.m. below clavicle. 6 c.m in diameter with muscles out of wound (wound of exit)
' Dr. Najibullah (P.W.10) found extensive internal damage and from external as well as internal examination of the dead body of Muhammad Saleh, he is of the opinion that the death occurred due to shock and haemorrhage, as a result of above injury which was caused by discharge from fire-arm and was individually sufficient to cause death in ordinary course of nature. Although Dr. Najibullah (P.W.10) did not state in specific words that the injuries (wound of entrance and wound of exit) were the result of rifle bullet, the size of exit wound leaves no room of doubt in our mind to conclude that deceased Muhammad Saleh was hit by a rifle shot. According to Dr. Modi a bullet travelling at high velocity produces a clean, circular, punched-out aperture or slit as in a stabbing wound and usually perforates the body. It is not deflected from the path by striking a bone, but may cause its communication or splintering. Dr. Modi further points out in his Medical Jurisprudence and Toxicology that wound of exit in such a situation is larger than the wound of entrance.
8. The case of the prosecution against the appellants hinges upon, following items of evidence:
(i) Direct testimony consisting of Haji Muhammad Bux (P.W.1), Hamzo (P.W.4), Hazoor Bux (P.W.5), Ghulam Mustufa (P.W.6), and Ali Khan h.
(ii) Recovery of service rifle and 19 bullets (one short of actual bullets issued) from the possession of appellant Bashir Ahmed.
9. The case against appellant Nazir Ahmed stands on quite different footing, hence we propose to dispose it of first. It is the case of the prosecution that on the intervention of deceased Muhammad Saleh, appellant Nazir Ahmed asked his cousin appellant Bashir Ahmed to bring his service rifle.
Appellant Bashir Ahmed brought the rifle, loaded it and fired at deceased Muhammad Saleh, resulting into his death and injuries to P.Ws. Ghulam Mustafa and Hazoor Bux. Complainant Muhammad Bux (P.W.3) who is father of deceased Muhammad Saleh has testified about the role of appellant Nazir Ahmed in the following words: "My son intervened in order to separate them. Accused Nazir asked him as to why he had intervened and told him that he was not the Nekmard of the area. Then accused Nazir asked co- accused Bashir to bring his rifle. Bashir has remained as police constable (and) was having Government rifle. Accused Bashir went and got his rifle from his house. He then fired from the rifle at my son which hit him on the back side ...."
10. Hamzo (P.W.4) and Ali Khan (P.W.7) have also implicated appellant Nazir Ahmed to the extent mentioned above. The remaining two eye-witnesses, namely, Hazoor Bux (P.W.5) and Ghulam Mustufa (P.W.6) who are injured persons in this case have turned hostile, but in their 164, Cr.P.C. statements (Exhs.12/A and 13/A) also they had confined themselves to what complainant Haji Muhammad Bux (P.W.3) has testified. Thus, the only piece of evidence connecting appellant Nazir Ahmed is that he had asked appellant Bashir Ahmed to bring his service rifle and nothing beyond it.
11. An act of abetment may take place in one of three ways: (1) Instigation, (2) Conspiracy, or (3)
Intentional aid. 1n order, therefore, there may be abetment, there must be either instigation or intentional aiding or engaging in a conspiracy (See Nelson's Pakistan Penal Code). However, there cannot be any abetment without knowledge or intention and mere presence when the offence is being committed by other is not sufficient to make out a case of abetment. It may be recalled that none of the prosecution witnesses has attributed any other role to appellant Nazir Ahmed beyond the one stated above. So, even if the evidence of all the prosecution witnesses examined on this point is taken on face value against appellant Nazir Ahmed, he will not be liable for what appellant Bashir Ahmed had done. The possibility that the rifle was sent for merely to scare deceased Muhammad Saleh and others, cannot be ruled out in the circumstances of the present case.
12. The facts of the case as unfolded by the main witnesses examined by the prosecution again do not attract the provisions of section 34, P.P.C. The most important elements of "community of purpose" or "common design" or "common enterprise", are lacking in this case. It will not be out of place to mention here that the incident took place all of a sudden at the spur of moment with no previous hostility between the parties. There is total absence of any evidence showing pre-concert or prior meeting of minds. We are fortified in our view by cases reported as Yousaf and another v The State PLD 1963 Pesh. 118, Ahmed Khan and two others v The State PLJ 1982 Cr. C. 315, and Abdul Khaliq and another v The State 1982 P Cr. L J 466. In the first cited authority a Division Bench of the erstwhile High Court of West Pakistan examined the Principle of constructive liability and observed as follows: "It is well-settled proposition of law that in invoking the provisions of section 34 a furtherance of a common intention is a condition precedent for convicting each of the persons who take 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 crime. It is not sufficient for joint responsibility for an offence under this section that the offence actually committed was likely to occur as a result of the several persons acting together; but 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 common act for which the accused were to be made responsible was acted upon in furtherance of that common intention. It is also well-settled proposition of law that the presumption of constructive intention must not be readily applied or pushed too far. We arc aware that a reconvert in the sense of a distinct previous plan is not necessary to be proved, and that common intention to bring about a particular result may well 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 we do not find any circumstances, which would warrant, the conclusion that a common intention developed at the spur of the moment, in that none of the eye--witnesses even tried to suggest that any one of the appellants exhorted the other co-accused to open attack on the complainant party. In such a situation vicarious liability under section 34, P. Ws not attracted."
13. On overall appraisement of the entire evidence in this case and on considering all the surrounding circumstances, we are of the view that appellant Nazir Ahmed is entitled to benefit of doubt. We accordingly extend benefit of doubt and acquit him from the charge. He is in custody and be released forthwith, if not required in any other case.
14. Appellant Bashir Ahmed who was working as police constable is alleged to have fired at deceased Muhammad Saleh by means of his service rifle on a petty matter. Complainant Haji Muhammad Bux (P.W.3) has testified the circumstances leading to the unfortunate murder of his son. Khadim Hussain Shah (P.W.8) who has acted as mashir of wardat has made it clear that the scene of occurrence was situated near the houses of appellants. Muhammad Mithal (P.W.2) who is Tapedar of the area has prepared the sketch of Wardat (Exh.9/A), which confirms that the wardat was at a distance of 8 feet from the house of appellant Nazir Ahmed and 30 feet from the house of appellant Bashir Ahmed. The police officer had secured blood-stained earth from the spot which fact has come on record through Khadim Hussain Shah mashir (P.W.8) as the police officer who had investigated the case was himself murdered in an encounter with dacoits. The blood-stained earth was examined by the Chemical Examiner, Karachi, whose `report (Exh.19/A) shows that it was stained with human blood. It is thus proved from the evidence of Khadim Hussain Shah (P.W.8) who has acted as mashir and Muhammad Mithal (P.W.2) who has prepared the sketch of wardat that the wardat was situated near the houses of both the appellants. The evidence of Tapedar also shows that the house of Haji Muhammad Bux (P.W.3) where deceased Muhammad Saleh also resided was 259 feet away from the place where deceased Muhammad Saleh was murdered. The presence of Haji Muhammad Bux (P.W.3) at the place of incident is, therefore, natural. Haji Muhammad Bux (P.W.3) who stood the test of cross-examination has implicated appellant Bashir Ahmed in clear terms. The incident took place at 7.00 a.m. and the parties were known to each other. There was, therefore, hardly any occasion of mistaken identification. The F.I.R. in this case was lodged within 45 minutes of the incident in which the names of both the appellants and all the prosecution witnesses were disclosed. The record also shows that there was no enmity between the parties prior to this incident which took place all of a sudden. Under these circumstances it is difficult to reject the testimony of a person whose presence at the place of incident cannot be said to be by chance.
15. The version of complainant Haji Muhammad Bux (P.W.3) gets full support from Hamzo (P.W.4) and Ali Khan (P.W.7). No doubt both of them are related to complainant Haji Muhammad Bux (P.W.3), but this fact alone is not sufficient to suspect their words. Even if the evidence of Hamzo (P.W.4) who is not resident of this Mohallah is excluded for the sake of safe dispensation of justice there still remains the evidence of Ali Khan (P.W.7) who has fully supported the case of the prosecution. It is factually correct that there are few minor discrepancies in their evidence on matters of details but this could be due to lapse of memory. No two persons observe the same fact in the same light and even if they do, the chances of their being able to describe in the same words are very remote. The learned Additional Sessions Judge was apparently favourably inclined by the demeanour of these witnesses and we find it difficult to reject their evidence.
16. The evidence of both these witnesses is assailed mainly on the ground that they are closely related to deceased Muhammad Saleh, and are thus interested witnesses. In Nazir and others v The State, reported in PLD 1962 SC 269, the Supreme Court held that the interested witness is one who hasmotive for falsely implicating the accused. At page 274, their Lordships of the Supreme Court observed as follows: "By what we said in Niaz v. The State we were not laying down any rule of law though we were explaining for the guidance of Courts our own approach to the problem that generally confronts the Courts in cases of crime by violence. It is possible to lay down a rule of law that a witness belonging to a particular category is to be presumed to be unworthy of credit without corroboration. In the case of an accomplice such a rule has already been accepted by the Courts.
94 we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated alongwith the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability, which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness.
Corroboration may be afforded by anything in the circumstances of a case, which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstance relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice forth of stand on the same footing."
17. In Muhammad Raza v. Khan Muhammad an pliers reported in 1984 SCM R 1588, the Supreme Court again held: "We have given our anxious consideration to the above-noted contentions relating to the testimony of these two witnesses but are not persuaded to agree with the learned counsel for the accused appellant that they are unreliable and that the appellant's conviction cannot be based on their uncorroborated testimony. Although they are related to the deceased yet they had no direct hostility with Sher Bahadur, appellant, which can be said to have induced them to exonerate the real culprit and attribute the fatal shot to him."
18. An effort has also been made to show that the medical evidence is in conflict with the eye- witness account furnished by Hap Muhammad Bux (P.W.3) and Ali Khan (P.W.7), on the assumption that the ages of injuries of deceased Muhammad Saleh and those suffered by Hazoor Bux (P.W.5) and Ghulam Mustufa (P.W.6) do not reconcile with each other. Reliance is placed upon the cases reported as Bagh Ali v. Muhammad Anwar and another 1983 SCM R 1292 and Yousif v. The State PLD 1988 Kar 521, with a view to satisfy us that both the eve-witnesses upon whom reliance was placed by learned Additional Sessions Judge are not worthy of credence. We have carefully examined the evidence of Dr. Najibullah (P.W.10) who has given vague replies while giving the duration of injuries without furnishing-any data in arriving to such a conclusion. However, we have not discovered the result, which apparently a critical examination by the learned counsel for appellants had produced. Even otherwise it is only a guess, work and cannot dislodge the belief created by ocular testimony of the above witnesses.
19. We now address ourselves to the value of the evidence given by Hazoor Bux (P.W.5) and Ghulam Mustufa (P.W.6). Both of them are injured persons and their presence at the relevant time can hardly be suspected. In fact there was quarrel between these two witnesses on one side and the appellants on the other side over the drain of dirty water and deceased Muhammad Saleh lost his life while separating them. Unfortunately both these witnesses were won over by the appellants and they turned hostile although there was compulsive force of their 164, Cr.P.C. statements. The- evidence of Muhammad Mithal Tapedar (P.W.2) reveals that they were very close to the assailants but still they had the audacity to state on oath that they did not see the person who had fired at deceased Muhammad Saleh causing injuries to them. They are liars and have made a deliberate attempt to save appellant Bashir Ahmed. It may be noted that both the appellants were policy constables and it was not difficult for them to tamper with this evidence. At any rate it is clear from the evidence of Hazoor Bux, (P.W.5) that the incident took place near the houses of appellants and both were present at that time.
20. Then there is evidence of recovery of service rifle and 10 live bullets from the possession of appellant Bashir Ahmed. It may be added that appellant Bashir Ahmed did not dispute this position in specific words when asked to explain it in his statement recorded under section 342, Cr.P.C. in the following words: "(Q) It is in evidence that on 31-7-1983 at 8-00 a.m. at Police Station Taluka Larkana you surrendered yourself before Masoom Ali Shah, A.S.I. and produced your service rifle .303, No.26597 and 19 live bullets of .303 used by you in committing murder of deceased Saleh before Masoom Ali Shah, A.S.I. Police Station Taluka Larkana, in presence of mashirs Khadim Hussain and Muhammad Bux. What have you to say?
(A) I was arrested by police from my house. Rifle was also recovered from my house."
21. The prosecution has led secondary evidence for Masoom Ali Shah, A.S.I. who died before his evidence could be recorded and the evidence of Abdul Rasool Lane Naik (P.W.9) was not questioned on the point of this recovery. Khadim Hussain Shah (P.W.8) who had acted as mashir of recovery,, has given the number of bullets as `about 20 live bullets' in his evidence. He has, however, clarified after seeing the bullets in Court which were 19 in number. The evidence of mashir has gone unchallenged to this extent. It may be noted that appellant Bashir Ahmed did not explain about this shortage. The testimony of Chaman Lal P.I. who was examined in this Court proves beyond any shadow of doubt that. 20 live bullets were issued to appellant Bashir Ahmad.
22. The plea of enmity raised on behalf of appellant Bashir Ahmed has not been substantiated. No person who had allegedly complained against deceased Muhammad Saleh was put into the witness-box. As a matter of fact there was no enmity between the parties and the incident took place all of a sudden. It was, therefore, not necessary to put any other person of the locality in the witness-box as such persons are usually unwilling to appear in Court to avoid future enmity.
23. Having regard to the above circumstances, we are of the view that appellant Bashir Ahmed was responsible for committing the murder of deceased Muhammad Saleh. His case does not fall within Exception 4 to section 300, P.P.C. and he was rightly convicted for the offence under Section 302, P.P.C. No doubt appellant Bashir Ahmed acted rashly but this happened in a sudden flare --up.
The death penalty was, therefore, not called for. Keeping in -view the case of Abdul Khaliq and another v. The State, reported in 1982 PCr.LJ 466, we would reduce the sentence to imprisonment for life. The sentence of fine and order for compensation to legal heirs of deceased Muhammad Saleh are, however, maintained. Appellant Bashir Ahmed will suffer imprisonment in lieu thereof if he fails to deposit the amount. The period spent by appellant Bashir Ahmad in detention as U.T.P. and as a convict will, however, be counted towards his sentence.
24. As regards the conviction under Section 307, P.P.C. is concerned the same cannot be maintained. Appellant Bashir Ahmed had no intention to commit the murder of Hazoor Bux and Ghulam Mustufa. Both of them have also not implicated him. In this view of the matter the sentence awarded to appellant Bashir Ahmed under section 307, P.P.C. is set aside.
25. In the result the appeal filed by appellant Nazir Ahmed is accepted. The appeal filed by appellant Bashir Ahmed is partly accepted to the extent mentioned above. The reference made by learned Additional Sessions Judge, Larkana under section 374, Cr.P.C. is, however, rejected.