' SH. MUHAMMAD ZUBAIR, J.--- Muhammad Rafique, Muhammad Sharif and Muhammad Siddique alongwith Riaz, who are brothers inter se, were tried under sections 302/323/452/34, P.P.C. By the learned Sessions Judge, Okara, for the murder of Abdul Aziz and for causing injuries to his wife Mst.
Shamim Bibi on 28-1-1988 at 7-30 p.m. In the area of Chak No,13-1/AL. The learned trial Judge vide his judgment, dated 8-1-1989 acquitted Riaz of the charges, but convicted the remaining three brothers thereunder and sentenced them as under:-- Under section 302/34, P.P.C.: ' Muhammad Siddique was sentenced to death and fine of Rs,5,000 or in default one year's R.I., whereas the remaining two were sentenced to imprisonment for life plus fine of Rs,5,000 or in default one year's R.I.
Under section 452/34, P.P.C.: ' Two years' R.I. Each plus fine of Rs,1,000 or in default three months' R.I.
Under section 323/34, P.P.C.: ' Three months' R.I. Each phis fine of Rs,5(X) or in default one month's R.I.
' In case of realization of fine as imposed by the trial Judge under section 302/34, P.P.C. Half of it was ordered to be paid to the legal heirs of the deceased. The substantive sentences were, however, ordered to run concurrently.
2. The convicts have appealed and the learned Sessions Judge ha referred the case to this Court under section 374, Cr.P.C. For confirmation o death sentence of Muhammad Siddique. Nazir Ahmad complainant has file Criminal Revision No,202 of 1988, for the enhancement of sentence o Muhammad Rafiq and Muhammad Sharif. As the three matters arise out o the same judgment, we, therefore, propose to dispose of these matters by a single judgment.
3. Briefly, the prosecution case, as disclosed in the statement Exh.P.E. Of Nazir Ahmad P.W.8, which was recorded by Muhammad Yamin Khan Inspector P.W.10, in Chak No,12-1/AL, is that the cattleshed of the complainant is situated near the house of his brother Abdul Aziz deceased. He had a pet dog to guard the animals and had chained it outside the Ihata. On the fateful night at about 7-30 p.m., Nazir Ahmad complainant and his brother Abdul Aziz deceased were standing outside the Ihata. Riaz (since acquitted) passed by the road. The dog barked at him. Riaz asked the deceased to hold up the dog and abused him. Abdul Aziz deceased also returned in the same coin.
Riaz left for the house saying that he would teach him a lesson for insulting him. This motivated the present occurrence.
' It is alleged that Muhammad Siddique, brother-in-law of Nazir Ahmad complainant had come to the house of Abdul Aziz deceased. He also went there to see him. Nazir Ahmad P.W., his uncle Noor Muhammad and his brother-in-law Muhammad Siddique were mutually talking. Abdul Aziz deceased was giving fodder to the cattle. Muhammad Siddique armed with Barchhi, Muhammad Rafiq with iron Kapa, Muhammad Sharif and Riaz with Lathis came there. Riaz raised a Lalkara that they would teach them a lesson for the insult. Muhammad Siddique gave a Barchhi blow which landed in the abdomen of Abdul Aziz, who fell down and his intestines came out. Muhammad Rafiq struck a blow with the iron Kapa on the right wrist of Abdul Aziz. Mst. Shamim Bibi (P.W.9) stepped forward to rescue her husband. Muhammad Sharif injured her with the Lathi. Nazir Ahmad P.W., Muhammad Siddique and Noor Muhammad (not produced) tried to save Abdul Aziz, whereupon Muhammad Rafiq forbade them to do so, otherwise they would meet the same fate. On the alarm raised by Nazir Ahmad complainant and others, a large number of co-villagers came there. The occurrence was witnessed by Nazir Ahmad P.W.8, Mst. Shamim Bibi P.W.9, Noor Muhammad and Muhammad Siddique (not produced). Abdul Aziz succumbed to the injuries on the spot. It is stated that the accused had murdered Abdul Aziz in furtherance of their common intention. Thereafter the accused decamped from the spot with their respective weapons.
4. Muhammad Yamin Khan Inspector (P.W.10) after recording the statement of Nazir Ahmad complainant, sent the same to Police Station Rcnala Khurd for the registration of the case and himself proceeded to the spot, where he prepared the injury statement Exh.P.H. And inquest report Exh.P.I. And sent the dead body for post-mortem examination. He collected blood-stained earth from the spot and sealed it into a parcel vide memo. Exh.P.H. He also prepared the injury statement of Mst. Shamim Bibi and got her medically examined.
' On 29-1-1988, the last-worn clothes of the deceased were produced before the Inspector. He took the same into possession vide memo. Exh.P.K. He got prepared the site plan (Exh.P.C. And Exh.P.C./1) by Abaidullah Draftsman (P.W.3). He arrested the appellants on 5-3-1988. On 15-3-1988, Muhammad Sharif got recovered Dang P.5 vide memo. Exh.P.L. On 18-3-1988, Muhammad Siddique led to the recovery of Barchhi P.1, from his residential house, which was taken into possession: vide memo. Exh.P.G. After completing the legal formalities, he submitted the challan in the Court.
5. Dr. Sarfraz Hussain M.O., D.H.O. Hospital, Okara (P.W.1) conducted post-mortem examination on the dead body of Abdul Aziz on 29-1-1988 at 2-30 p.m. And noticed thereon two incised wounds, one on back inner middle and upper part of right forearm, 12 x 4 c.m. Muscle deep, and the other on front middle and lower part of abdomen just on umbilicus, 7 x 4 c.m. Deep going, large intestines came out. In the opinion of the doctor, cause of death was shock and haemorrhage due to injury No,2, which was sufficient to cause death in the ordinary course of nature. The injuries were ante- mortem and caused by sharp-edged weapon. Time between death and injuries was about four hours and between death and post-mortem was about 20 hours.
' On the same day at 4-00 p.m. Lady Doctor Azra Batool, W.M.O. Of Okara Hospital medically examined Mst. Shamim Bibi (P.W.9). She noticed swelling 7 x 4 c.m. On left elbow; swelling 9 x 5 c.m.
On back just above left hip and a contusion 9 x 12 c.m. On left hip of her person. The injuries were declared simple, caused by blunt weapon within 24 hours.
6. The appelants when examined under section 342, Cr.P.C. Denied the prosecution allegations and professed innocence. It would be relevant to reproduce in extenso, the stance taken by them in answer to question 'why this case against you':- Muhammad Rafiq: "At the time of alleged occurrence I was away at Chak No,33/1-AL in connection with the treatment of Ghulam Dastigir patient. Two days prior to the alleged occurrence, Aziz deceased had 'stolen the Toka machine of Hanif and Ismail Kharal. We made a Mukhbari to the owners of the Toka machine.
Aziz deceased and his family had malice and grudge against us. Jeero son of Bhana, Sultan and Khan sons of Mohabbat All Kora, Ameen Joya and Ramzan Kalya, all these persons were suspected for the murder of Aziz deceased. The alleged occurrence took place in the dark night in the street outside his Ihata. It was blind murder absolutely unwitnessed and unseen. None of us was present at the time of occurrence. We have been falsely involved in this case due to enmity."
Muhammad Sharif: "My younger brother Riaz accused is also student. At the time of the alleged occurrence we were away at Renala Khurd for getting our usual tuition. The alleged occurrence took place at Isha prayers in the south western street of the village. Nobody saw the alleged occurrence and the detailed reasons have been given by Muhammad Rafique co-accused. There was a long-standing quarrel between Mst. Beshtan the wife of Nazir P.W. And Mst. Shamim P.W. On the day of the alleged occurrence at about 5 p.m. There was again quarrel between Beshtan and Shamim P.W.
Consequently, Shamim P.W. Was given shoe beating by Beshtan and her brothers Sultan and Khan.
She was also beaten by sticks."
Muhammad Siddique: "For the reasons given by my co-accused and I may further add that my younger brothers Sharif and Riaz are residing with me while Rafique is residing separately.
' At the time of alleged occurrence a Punchayat was convened by Ch. Nazir Ahmad, a Zamindar of my village at his Dera. I, Nazir P.W., Noor Muhammad P.W., Hanif son of Haider and other respectablcs were present there. At about 8 p.m. We learnt about the murder of Aziz deceased. All of us went to the place of occurrence. We saw that the dead body of Aziz deceased was lying in south western street of the village outside his Ihata. He was murdered by some unknown persons in the street while he was coming after giving the call of nature. Aziz deceased had enmity with Jeero son of Bhana, Khan Sultan son of Muhammad Ali. Koa and Ramzan Kalya and Ameen Joya. At the arrival of police all these persons were made to join the investigation as they were suspected for the murder of Aziz deceased. Two days prior to the alleged occurrence we had made a Mukhbari about the theft of Toka machine belonging to Hanif and Ismail Kharal. The alleged occurrence took place in the dark night. Nobody saw the occurrence. We have been implicated due to enmity. We voluntarily appeared in the Police Station Renala Khurd on the next day of occurrence through Ch. Nazir. We were kept in the police station for one month and ten days without any entry of arrest in the record."
' Muhammad Rafiq produced Nazir Ahmad D.W.1 in defence.
' Muhammad Sharif and Muhammad Siddique also relied upon the defence produced by Muhammad Rafique.
7. Placing reliance upon the prosecution evidence, the learned trial Judge convicted the appellants and gave them the sentences mentioned above.
8. The learned defence counsel contended that murder was not seen by any of the eye-witnesses.
It was in fact, an unseen occurrence, it took place when it was dark and none of the eye-witnesses saw the real culprits. The prosecution has failed to establish motive in this case, nowhere in the site plan, the place where dog was tied has been shown, which makes the prosecution case further doubtful, the eye-witnesses are close relatives of the deceased as one is brother, the other is the widow of the deceased and the testimony of these interested witnesses cannot be acted upon unless it stands corroborated in material respects but no corroborative evidence is available on the record. The injury allegedly suffered by Mst. Shameem P.W.9, is self-suffered and the presence of the widow at the scene of occurrence is doubtful. Even if she was present in the house still due to the darkness, she as well as the complainant was not in a position to recognize the real culprits and the appellants have been involved falsely due to the enmity on account of theft of fodder machine. The ocular version given by these highly interested witnesses stands contradicted by the medical evidence. The possibility that some other persons who were inimical, killed the deceased cannot be ruled out as defence had established on the record that the deceased was a man of criminal disposition and was involved in a number of criminal cases. The F.I.R. Was recorded after preliminary investigation, hence no explicit reliance can be placed on this dubious document. In the end, he strenuously urged, even if the prosecution version is accepted on its face value, still no case under section 302, P.P.C. Is made out, as the occurrence took place all of a sudden, over a petty dispute, so the principle of vicarious criminal liability cannot be made applicable to the facts of the present case, every individual would be liable for his own act. The sentence of death imposed by the learned Judge needs consideration.
9. The learned counsel for the State has adopted those reasons which prevailed with the learned trial Judge while passing the impugned judgment.
' The learned counsel for the complainant has forcefully argued that the prosecution has proved its case against the appellants and sentence of imprisonment for life awarded to Rafique and Sharif appellants be enhanced to death as there is no extenuating circumstance in their favour.
10. We have carefully gone through the record of the case and also examined critically the respective submissions of the parties.
' The occurrence took place in the house of the deceased, not in the street as asserted by the defence because blood-stained earth was taken from the point 'A' as shown in the site plan Exh.P.C.
Of the place of occurrence prepared. By Abaid Ullah, Draftsman (P.W.4). Both the eye-witnesses are natural and probable witnesses of the occurrence being the inmates of the house where the murder took place. Mst. Shameem (P.W.9) apart from being the widow of the deceased received injuries on her person which proves her presence beyond any reasonable doubt. The submission of the learned defence counsel that due to the darkness the eye-witnesses were not in a position to correctly recognize the real culprits is not well-founded, as the occurrence took place in the residential house, where the inmates must have some arrangement of light in order to do their routine work. In the absence of any animosity between the eye-witnesses and the appellants, the evidence of these eyewitnesses cannot be discarded solely on this ground that they arc the close relations of the deceased. We find no legal justification to discard their truthful testimony merely on the basis of some minor and insignificant discrepancies pointed out by the learned defence counsel here and there, which do occur in the evidence of most reliable witnesses due to lapse of time and difference of perceptions. The defence version that the deceased met his death at the hands of some unknown assailants is neither plausible nor probable, because the occurrence took place in the house of the deceased and Mst. Shameem Bibi (P.W.9) was in a position to recognize the real culprits. We find no ostensible reason why she let off the real culprits and instead nominated the appellants as assailants of her husband. Over and above this, the F.I.R. Was lodged with great promptitude which altogether rules out the possibility of c deliberation, speculation for the purpose of false implication of the accused in this case.
9. We find substantial force in the submissions of the learned defence counsel that the occurrence took place all of a sudden due to the complaint which the appellants lodged with the deceased with respect to the incident of barking of the dog as narrated in the FIR., then Muhammad Siddique appellant caused a solitary Barchhi blow to the deceased which unfortunately proved fatal. As the murder was committed at the spur of moment without premeditation, we think the sentence of imprisonment for life would meet the ends of justice. We . Anyhow, the sentence of fine imposed upon Muhammad Siddiquc appellant alongwith directions given by the learned trial Court is maintained. He is also allowed benefit of the provisions of section 382-B, Cr.P.C.
10. In view of the above discussion, the principle of vicarious criminal liability cannot be invoked in the present case, so every appellant would be responsible for his own individual act. As Muhammad Rafique and Muhammad Sharif did not cause any injury to the deceased, so their conviction under section 302/34, P.P.C. Is set aside, but their conviction under section 323/34, P.P.C.
For simple injuries to Mst. Shamim Bibi is maintained and their sentence is reduced to one already undergone. The sentence of fine is also set aside. They arc on bail and are discharged from their bail bonds.
' The conviction and sentence of the appellants under section 452/34, P.P.C. Are also set aside. The revision petition automatically fails and is dismissed in limine. The reference is answered in the negative and the death sentence of Muhammad Siddiquc is not confirmed.