S.M. ZUBAIR, J.- Muhammad Aslam (26), his brother Khuda Dad alias Allah Dad (60) and their Khalazad Ijaz (26), were tri under section 302/34 PPC by the learned Additional Sessions Judge, Bhalwal, for the murder of Mahla. The learned trial Judge vide his judgment dated 1-11-1990, convicted Muhammad Aslam under section 302 PPC and sentenced him to suffer death and i.e of Rs. 50,000/- or in default further R.I. For i.e years. Out of the i.e, if realized, Rs. 40,000/- were ordered to be paid to the legal heirs of the deceased. Ijaz and Khuda Dad alias Allah Dad were convicted under section 323/34 PPC on two counts for causing simple injuries to Mahla deceased and Muhammad Ramzan P.W. And sentenced to six months S.I. On each count. Khudad Dad alias Allah Dad was further convicted under section 323 PPC for causing simple injuries to Mst. Sakina P.W. And sentenced to six months S.I. The sentences of Ijaz and Khudad Dad alias Allah Dad were ordered to run concurrently.
The convicts have filed the present appeal, viz Criminal Appeal No. 797 of 1990, whereas the learned trial Judge has referred the case to this Court vide Murder Reference No. 225 of 1990, for confirmation of death sentence awarded to Muhammad Aslam. Maula Bakhsh complainant (P.W.7) has filed Criminal Revision No. 513 of 1991, for setting aside the acquittal of Ijaz and Khuda Dad alias Allah Dad under section 302/34 PPC. We propose to dispose of all the matters by this judgment.
2. The motive for the occurrence is stated to be that Ahmad Yar cousin of Mahla deceased purchased four marlas of land from Muhammad Aslam appellant and after payment a regular deed was executed. Muhammad Aslam wanted to get back the said piece of land. He installed an outlet for water (Pamala) towards that plot, resulting in exchange of hot words between Ahmad Yar and Muhammad Aslam. Mahla deceased favoured his cousin Ahmad Yar. It is alleged that on account of this annoyance, the accused party while armed with i.e-arm and blunt weapon injured Mahla and Mst. Sakina in order to kill them.
3. As to the main occurrence, it is alleged that on 28-5-1987 at about 11/10 a.m. Muhammad Ramzan P.W.7 was passing through the lane. Seeing him, Muhammad Aslam armed with 12 bore gun, Allah Dad with Dang and Ijaz with Sota attacked him. They caught hold of him and gave him kick and fist blows. On hearing the outcries, Maula Bakhsh complainant along with Mahla deceased, Yousuf (not produced) and Mst. Sakina P.W. Reached the spot to rescue Muhammad Ramzan, whereupon Muhammad Aslam raised Lalkara that none should go alive. Seeing the accused party armed, the complainant party retreated, whereupon Muhammad Aslam appellant fired three shots one after the other at Mahla, which hit him on his buttocks, right side of haunch, right side of flank, right calf and other parts of his body. Mahla fell down. Mst. Sakina tried to intervene, whereupon Allah Dad appellant dealt a. Sota blow which hit on her head. She too fell down. When mahla deceased fell down, Allah Dad appellant dealt a Sota blow which hit on his right arm followed by Sota blow by Ijaz which too hit him on his right arm. Thereafter the accused decamped from the spot while raising lalkaras.
4. After the occurrence, Maula Bakhsh P.W. Took the injured to Sardarpur Noon Hospital, where they were medically examined. After getting the medicolegal reports of the injured, Maula Bakhsh proceeded to the police station. He met Ahmad Khan Niazi SI (PW. 10) at Alipur Chowk where his statement Ex. PM was recorded. It was sent to Police Station Bhera, where formal FIR was recorded by Mazhar Hussain Shah M.H.C. At 10.15 p.m.
5. Ahmad Khan Niazi SI (PW.10) reached Sardarpur Noon Hospital. He after getting the requisite report from the doctor that Mahla was fit to make a" statement recorded his statement Ex.PF, which was treated as dying declaration. He also recorded the statement of Mst. Sakina P.W. In the hospital under section 161 Cr.P.C. It may be observed that initially a case under section 307/34 PPC was registered, but Mahla died on 6-6-1987 and, therefore, the offence was converted to one under section 302 PPC.
The Sub Inspector on 29-5-1987 reached the spot. He took into possession bloodstained earth vide memo. Ex.PJ. The recovery memo, was attested by Dost Muhammad P.W. 6 and Muhammad Yar (not produced). On 6-6-1987, on receipt of information about the death of Mahla, the S.I. Proceeded to DHQ Hospital Sargodha, prepared the injury statement and inquest report of the deceased and sent the dead body to the mortuary for post mortem examination. He arrested Muhammad Aslam and Ijaz appellants on 26-6-1987. On the same day Muhammad Aslam produced 12 bore gun P.4 which was taken into possession vide memo. Ex. PK. Ijaz appellant also got recovered Sota P.5 vide memo. Ex.PL. The S.I. Arrested Khuda Dad alias Allah Dad on 7-7-1987. He got prepared site plan Ex.PH and Ex. PH/1 by Syed Ghulam Ahmad Shah, Draftsman (P.W.3). After completing usual formalities, he submitted the challan in the Court.
On 28-5-1987, Dr. Abdul Hameed Baig (P.W.2) medically examined Mahla and found two lacerated wounds apart from 181 gunshot wounds on different parts of his body. The doctor opined that lacerated wounds were the result of blunt weapon whereas the remaining injuries were by firearm.
Mst. Sakina received a contused wound on the left side of her head. This injury was declared simple. Muhammad Ramzan P.W. Received i.e contusions on his back, chest, left buttock and left thigh. He also complained of pain in sacrotal region.
On the death of Mahla, autopsy on his dead body was conducted by Dr, Muhammad Khalid Qureshi P.W.1, who noticed the same number of injuries thereon as were noticed by Dr Abdul Hameed Baig P.W.2. The doctor opined that death occurred due to shock, caused by haemorrhage and septecemia as a result of injuries to abdominal viscera.
7. The appellants in their statements under section 342 Cr.P.C, denied the prosecution allegations and pleaded innocence and that they had been involved in this case 'due to enmity1. No evidence was produced in defence.
8. Believing the prosecution evidence, the learned that Judge convicted the appellants and gave them the sentences, as indicated above.
9. The learned counsel for the appellants vehemently c untended that the eye-witnesses are the dose relations of the deceased and are inimical towards the appellants; hence their uncorroborated testimony cannot be accepted in this case. The FIR was lodged after considerable delay and the ocular version is being negated by the medical evidence.
In the end, learned counsel submitted that it is a case of two versions, as due to the dispute over the installation of outlet there was quarrel between Ahmad Yar and Muhammad Aslam appellant, which led to malee and in that confusion and disturbance somebody opened the i.e which accidentally caused the death of Mahla; hence the appellants are not responsible for that. He also submitted that according to the doctor, the deceased suffered seven injuries at the had of Muhammad Aslam, whereas according to the ocular version three shots are attributed to Muhammad Aslam and the deceased died due to septecemia and gangerene, so death sentence to Muhammad Ashan appellant is not called for.
10. Learned counsel for the State supported the impugned Judgment.
11. The learned counsel for the complainant submitted that the acquittal of Ijaz and Khudadad alias Allah Dad from section 302 PPC has resulted into miscarriage of justice, because they shared the common intention with the principal accused, they should have been convicted under section 302 PPC and not under section 323 PPC and, therefore, by accepting the revision petition the case be remanded for fresh trial.
12. We have minutely gone through the record with the able assistance of the learned counsel for the parties and have critically examined their respective submissions.
The occurrence took place at 10/11 a.m. On 28-5-1987, whereas Mahla deceased was got admitted in the hospital on the same day at 12.30 p.m., and after procuring the medicolegal reports of the injured, the complainant immediately proceeded to the police station which is at a distance of 14 miles. He met Ahmad Khan Niazi SI (PW.10) at Alipur Chowk, where his statement Ex.PM was recorded at 10 p.m.; hence there is no delay in lodging the F.I.R. Neither any suggestion on this point was put to any witness nor proved from any other independent source. The presence of the complainant and the two eye-witnesses is proved form this fact that the complainant immediately took the injured to the hospital along with the deceased and lodged the report without any loss of time. The contention of the learned counsel for the appellants that the complainant was called from outside in order to depose falsely in this case on account of his relationship with the deceased, is devoid of force, had he been brought from outside, he would not have lodged the report with the police so promptly and got the injured admitted and examined within an hour or so in the hospital, which is at a considerable distance and this fact, per se, is sufficient to prove his presence at the spot.
As the occurrence took place at 10/11 a.m. And the appellants being the co- villagers of the complainant and the eye-witnesses, so they were in a position to correctly recognise the assailants. The occurrence took place due to the dispute between Ahmad Yar and Muhammad Adam appellant over the installation of outlet towards four marlas of land which Ahmad Yar had purchased from Muhammad Aslam appellant. Muhammad Aslam appellant had motive against Mahla deceased, as he used to support Ahmad Yar in this controversy. The presence of the eye- witnesses who received injuries in the transaction is not denied even by the defence. The plea of the defence that somebody in the malee caused injuries to the deceased and the injured P.Ws, is untenable and without substance, as in the broad day light it was very easy for the injured P.Ws, to recognise the real assailants as; they were already known to them. Even this plea was not taken at the earliest opportunity before the police. The ocular version furnished by the witnesses get!; further support from the medical evidence as the deceased received three shot!; on different parts of his body at the had of Muhammad Aslam appellant as deposed by them. The mere fact that the doctor on a guess work admitted that these injuries could be the result of seven shots is not sufficient to discard the direct and inspiring evidence of the eyewitnesses.
The deceased as well as the injured P.Ws, received the injuries in the thoroughfare which blies the defence plea that the complainant party was the aggressor on account of the installation of outlet by Muhammad Aslam and they opened the attack. The defence plea is further belied by. This fact alone that none of the accused persons received any injury either with blunt weapon or with firearm at the had of the complainant party, which proves that the complainant party was unarmed at the time of occurrence and Muhammad Aslam who had certain grievance against Mahla, being the relative of Ahmad Yar, as mentioned above, caused injuries to the; deceased, which ultimately resulted into his death. Thus the prosecution has proved its case so far as the complicity of Muhammad Aslam appellant is concerned. In addition to that, there is dying declaration of the deceased on the record, which has been supported by Dr. Abdul Hameed Baig (P.W.2), who had no animus against the appellants to falsely endorse the dying declaration of the deceased recorded by Ahmad Khan Niazi, SI (PW.10) in his presence; hence in the presence of this over whelming evidence, this appeal has no merits and is accordingly dismissed.
13. We have given our anxious consideration to this aspect of the case whether the sentence of Muhammad Aslam appellant needs consideration or not in view of the defence plea that Mahla died a few days after the receipt of injuries and that too due to septecermia and gangerene. We find that Muhammad Aslam fired three gunshots at Mahla, who was unarmed at that time. This dearly proves the intention of Muhammad Aslam that he wanted to cause the murder of Mahla deceased on some petty dispute; hence he deserves no concession so far as the imposition of capital sentence is concerned. Accordingly we confirm his death sentence and the reference is answered in the affirmative.
14. We have also considered the submission of the learned counsel for the complainant whether the acquittal of Ijaz and Khudadad alias Allah Dad appellants from section 302 PPC has resulted into miscarriage of justice or not, on the principle of vicarious criminal liability. We find that narration of the occurrence and the circumstances which led to the occurrence, reveal that they had no common intention with the principal accused, whose death sentence has been confirmed by this Court. Even otherwise, we find that the learned trial Judge gave very cogent and valid reasons while convicting them under section 323 PPC, which are not open to any serious objection.
Resultantly, we find no justification to remand the case for fresh trial and the revision petition, which is at a motion stage, is dismissed in limine.