A.M.TIWANI, J.- The appellants herein, namely, Muhammad Hanif, Abdul Aziz, Abdul Hafiz and Abdul Majid were tried along with Sardar Muhammad and Muhammad Jamil acquitted co-accused by the learned Additional Sessions Judge, Sialkot, for committing the murder of Mumtaz alias Kala and attempted murder of Mst. Farzana PW, in the prosecution of the common object of unlawful assembly constituted by them on 5.1.1989 in the area of village Randhawa, Tehsil Pasrur, District Sialkot.
2. On the conclusion of trial, vide judgment, dated 28.1.1991, which is now under challenge, where Muhammad Hanif appellant was convicted u/S 302 PPC and sentenced to imprisonment for life and a i.e of Rs.20,000/- or in default of its payment to further undergo 4 years R.1, Muhammad Hanif, Abdul Aziz and Abdul Majid appellants were convicted u/S 307/34 PPC for launching murder assault on Mst. Farzana PW and sentenced to 7 years R.I and a i.e of Rs.2,000/- or in default to further undergo 1 year R.I, each. The i.e, if realised from Muhammad Hanif appellant, was directed to be paid as compensation to the heirs of Mumtaz alias Kala (deceased) and the i.e, if recovered from the remaining three appellants, was directed to be paid to the injured PW by way of compensation. The latter were also held entitled to the benefit of section 382-B Cr.P.C. Sardar Muhammad and Muhammad Jamil were, however, acquitted on benefit of doubt.
3. The prosecution case was that on 25.1.1969 Muhammad Yousaf complainant along with his co- villagers went to Pasrur Town on the tractor-trolly owned by one Ali Muhammad to attend a public meeting of Islami Jamhoori the had. After attending the meeting, they came back to the village on the same tractor-trolly and at about 5.15 P.M, when they were passing through the Circular Road in front of the house of the appellants and their acquitted co-accused, the latter started abusing them. Muhammad Yousuf complainant explained to them that it was a thoroughfare which they were using and it was the only approach to their 'dera'. So the parties exchanged hot words but the matter was patched up by the intervention of certain persons whereafter the complainant party riding the tractor-trolly went to their 'dera'.
4. After sometime, when Muhammad Yousuf complainant was present along with Wali Muhammad, Mumtaz alias Kala (deceased), Umar Din, Muhammad Shafique and Abdul Sattar at their dera' Muhammad Hanif, Abdul Aziz, Muhammad Hafiz and Abdul Majid appellants armed with guns, Muhammad Jamil acquitted co-accused carrying a revolver and Sardar Muhammad acquitted accused wedding a 'dong' came towards the 'dera' of the complainant party from the side of the water pond. They raised 'lalkara' and Muhammad Hanif appellant, opening the attack, fired at Mumtaz alias Kala (deceased), hitting his forehead. On the receipt, of this injury he fell down. Muhammad Hafiz appellant fired at Mst. Farzana PW, who was attracted to the spot meanwhile, hitting her right arm. Abdul Majid and Abdul Aziz also fired with their respective guns at her, the former hitting her left had and the latter her right leg. She also fell down. Muhammad Jamil acquitted accused also fired a shot with his revolver but it did not hit anybody. Then the assailants armed with i.e arms resorted to indiscriminate firing at their adversaries. On the alarm raised by the complainant party, a number of persons from the village were attracted to the spot and the assailants went back to their houses. Muhammad Yousuf complainant despatched both the injured to Civil Hospital, Pasrur, Mumtaz alias Kala, who had been injured grievously, was referred to Mayo Hospital, Lahore but he died on the way.
5. S.I Muhammad Iqbal PW, after recording the statement of Muhammad Yousuf complainant, whom he came across on the way, despatched the same to the Police Station for the registration of the case and himself went to Civil Hospital, Pasrur, where Mst. Farzana PW stood admitted in an injured condition. He tried to record her statement but could not because the doctor did not found her fit. However, he collected her blood stained clothes from her father and recorded the statement of certain PWs. A little before the mid-night, S.I Ghulam Rasul PW took over the investigation of the case. On the following day he went to the spot, prepared the injury statement and inquest report of the dead body of Mumtaz alias Kala, which had been brought back by that time, and despatched it to the mortuary for post mortem examination While carrying out the inspection of the spot, he collected blood-stained earth and seized four empties of 12 bore cartridges. He recorded the statement of a few more witnesses. On 14.2.1989 he arrested Abdul Aziz and Muhammad Hafiz appellants and Sardar Muhammad acquitted co-accused. On 22.2.1989 Abdul Aziz appellant, while in custody, led to the recovery of 12 bore gun from his house which was seized by the Investigating Officer. On the same day he recorded the statement of Mst. Farzana PW. On the following day the investigation was transferred to DSP Ghulam Muhammad Kaliar. On 26.3.1989 S.I Rafique Ahmad Hussain PW arrested Muhammad Hanif and Abdul Majid appellants and their acquitted co- accused Muhammad Jamil. On 1.4.1989 Muhammad Hanif appellant, while in police custody, led to the recovery of gun which was seized by the Investigating Officer. On the same day he seized revolver got recovered by Muhammad Jamil acquitted co-accused. In this way he completed the investigation and submitted the challan.
6. On the commencement of trial, the appellants and their acquitted co- accused were charged u/S 148/302, 307/149 PPC and on their pleading not guilty, the prosecution led evidence against them by producing as many as 19 witnesses. Prominent amongst them were Muhammad Yousuf complainant (PW-10), Mst. Farzana (PW-11) and Wali Muhammad (PW-13). They all gave the eye- witness account. The complainant and Wali Muhammad also deposed about motive. They supported the prosecution case as stated above in all material respects. Their testimony shall be subjected to a detailed appraisal, where necessary, in due course.
7. Dr. Gul Nawaz Medical Officer (PW-12) had first medically examined Mumtaz alias Kala injured and, after his death on the same day, he had carried out post mortem of his dead body. During the medical examination and at the time of autopsy he had noticed a i.e-arm injury 1 cm 1 x cm on the skull with inverted margins. On dissection he found under this injury, frontal bone fractured, scalp, membranes of brain and its frontal lobes injured. He removed one pellet from the floor of left anterior cranial fossa and sealed it in the final. He saw clotted blood present in the skull. In his opinion, death occurred due to shock and haemorrhage on account of the aforesaid injury to the brain which was sufficient in the ordinary course of nature to cause death. He proved post mortem report, Exh.PO and the diagram of injuries, Exh.PO/1.
8. On 25.1.1989 at 11.30 p.m he had conducted medical examination of Mst. Farzana PW and had noticed the following injuries on her person:-
1. Fire arm wound 15 x 14 cm front and inner side of right upper arm in lower half. Whole the muscle and the blood vessels were crushed. Slight blackening was present on the wound margins.
Corresponding tear was present on the shirt.
2. Fire arm wound 1 x 1cm on each of left index, middle and ring finger and on front aspect. Slight blackening present on wound margins inverted.
3. Fire arm wound 2 x 1cm x muscle deep outer aspect of right knee joint. Slight blackening present on Shalwar and wound margins. The margins were inverted. Corresponding tears were present on Shalwar.
9. Hakim Din (PW-17) and Rehmat Ullah (PW-9) had witnessed the recovery of gun from Abdul Aziz and Muhammad Hanif appellants, respectively. Both of them deposed accordingly.
10. S.I Ghulam Rasul (PW-15) and S.I. Rafique Ahmad Hussain (PW-16) gave the details of investigation. The role played by them as Investigators has already been outlined.
11. On the completion of the prosecution evidence, the appellant and their acquitted co-accused were examined u/S 342 Cr.P.C. They denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implication, professed innocence.
12. Muhammad Hanif appellant had, however, stated that the accused party were supporters of Pakistan People's Party, while the complainant party was supporters of I.J.I. And on the day of occurrence the workers of both the parties had exchanged i.e as a result of which some stray pellet hit Mumtaz alias Kala and he was fatally injured. He explained that Mst. Farzana PW was not injured on the spot, rather, she was incidentally hit by her own brother Muhammad Shafique who was handling his own licensed gun and it went OF accidentally. Abdul Majid and Abdul Aziz appellants made similar statements. Muhammad Hafiz appellant pleaded alibi and produced Muhammad Asghar, Havildar Central Exise and Customs Office as DW-1 and Muhammad Ashraf Constable (DW-2) to prove it.
13. Muhammad Shafique, a given up PW, was examined as a CW-1 and Mushtaq Ahmad Sukhara, Additional Superintendent of Police, Gujranwala as CW-2 on the application of the accused.
14. On the conclusion of the trial, by the judgment now under appeal, the appellants were convicted and sentenced in the manner aforesaid and aggrieved by it, they filed this appeal.
15. It was argued on behalf of the appellants that the complainant party returned to the village from the public meeting of I.J.I. At Pasrur in the evening of the day of occurrence and, after quarrelling with the accused party in front of their 'dera,' went to their own 'dera' where the accused party, annoyed by the earlier incident, allegedly went and fired at their opponents, resulting in the fatal injury to Mumtaz alias Kala (deceased) and also to Mst. Farzana.' According to the learned counsel, the occurrence took place some time in the evening or even thereafter and it was not possible for the eye-witnesses to pin-point as whose stray pellet hit the forehead of Mumtaz alias Kala (deceased), especially when, according to; the defence version, both parties, which were politically poised against each other, were firing at each other as a result of the unruly conduct displayed by the complainant party which returned from the village charged with political emotions. He contended that Muhammad Hanif appellant, who is an educated person and a teacher by profession, was not expected to participate in this fight but since he was one of the influential persons of the accused party, he was falsely implicated and the fatal injury of Mumtaz alias Kala (deceased) was attributed to him. He submitted that Mst. Farzana was not at the place of occurrence and in fact she was injured by her own brother Muhammad Shafique in their house when he was cleaning his licensed gun some time after the occurrence, but the accused party, making this incident as a part of the main occurrence, alleged her presence at the 'dera' of the complainant party and her having received the injuries there. In support of this contention, the learned counsel referred to the statement of Mr. Mushtaq Ahmad Sukhera, AddkS. P, Gujranwala, who was examined as CW-2, with reference to the statement of. Muhammad Shafique CW-1, a given up prosecution witness.
16. With regard to Muhammad Hafiz appellant he contended that he was an employee of Central Exise and Custom Department working at the place of his duty at the time to occurrence and his alibi was duly proved by Muhammad Asghar Havaldar of Exise and Custom Department (DW-1) and Muhammad Ashraf Constable (DW-2) with the help of relevant record but it was erroneously not accepted by the trial court and he too was convicted for the attempted murder of Mst. Farzana along with two appellants.
17. On the other had, the learned State Counsel, assisted by Mr. Tasawar Hussain Qureshi Advocate, tried to support the impugned judgment of the trial court by contending that Mst. Farzana was injured in the same incident at the 'dera' of the complainant party, where she had gone to call her brother Muhammad Shafique CW, in which Mumtaz alias Kala had received a fatal injury at the hands of Muhammad Hanif appellant.
18. It appears that the occurrence took place in the evening but it was not sufficiently dark. The complainant party, while returning to the village after attending the public, had passed in front of the house of the accused party, may be in unruly fashion being charged with political emotions, and a quarrel took place between them. If they had passed in front of the 'dera' or house of their opponents in a peaceful manner, they (accused) would not have reacted violently and to some extent the complainant party invited the trouble itself. This incident, however, ended due to the intervention of certain co-villagers, was so, then there was no justification for the accused party to have armed themselves with deadly weapons and gone to the 'dera' of the complainant party to attack them. It is an admitted position, coming even from the mouth of the accused party, that there had been an exchange of i.e at the time of occurrence between the two factions. Therefore, it cannot be said that the accused party was altogether innocent.
19. Now it is to be seen as who amongst the appellants had participated in the occurrence and what role they had played? The case was repeatedly investigated by a number of Police Officers, including some senior ones. It was only Mr. Mushtaq Ahmad Sukhera, AddkS. P, Gujranwala who, on the statement of Muhammad Shafique CW-1 recorded u/S 161 Cr.P.C, had come to the conclusion that his sister Mst. Farzana had been injured in the house while he was handling his licensed gun.
Muhammad Shafique/PW, who was given up by the prosecution as unnecessary, was later examined as CW-1 on the request of the accused and he denied having made any such statement before Mr. Mushtaq Ahmad Sukhers, Addl:S.P Gujranwala (CW-2). The case of the prosecution is that Mst. Farzana, whose house was probably situated near the place of occurrence, hurriedly went to call her brother Muhammad Shafique from the 'dera' of the complainant party perhaps apprehending the attack on them by their adversaries and she was hit during the incident by the shots fired by Abdul Aziz, Muhammad Hafiz and Abdul Majid appellants. Muhammad Hafiz appellant pleaded alibi and led evidence in support of his version, while two others along with Muhammad Hanif appellant resorted to simple denial. Mst. Farzana, being an injured eyewitness, having emphatically repudiated the defence version of her having been hit in her house by her own brother while carelessly handling his licensed gun, I have no reason to disbelieve her despite the statement of Mr. Mushtaq Ahmad Sukhera, AddkS. P, Gujranwala, most of which was not even admissible in evidence. No doubt, when the accused party was firing at the complainant party at the latter's 'dera' in the evening. It was difficult to determine as whose pellet hit the forehead of Mumtaz alias Kala, resulting in his death after sometime. In a situation like this, the provisions of law relating to vicarious liability are attracted and in fact section 34 and section 149 PPC, according to the numbers of the accused, are attracted. It was, therefore, not necessary for the trial court, nor it is necessary for this court, to determine as whose pellet had hit the deceased at the time of occurrence and to single out that assailant for the commission of murder.
20. In my opinion, the appellants, excepting Muhammad Hafiz, who pleaded and proved his alibi, on account of their participation in the occurrence by actually firing at their opponents, were vicariously liable for the murder of Mumtaz alias Kala and the attempted murder of Mst. Farzana PW and should have been convicted and sentenced accordingly. Muhammad Hanif appellant was, therefore, rightly convicted and sentenced for the murder of Mumtaz alias Kala (deceased). Abdul Aziz and Abdul Majid appellants should also have been convicted accordingly with him but they were erroneously acquitted. However, since the learned trial Judge acquitted them of the charge of murder, I do not want to direct their retrial at this stage. As regards Mst. Farzana PW, she was grievously injured in he same occurrence at the hands of the appellants, excepting Muhammad Hafiz appellant, Abdul Aziz and Abdul Majid appellants along with Muhammad Hanif appellant for the same vicarious liability should have been convicted and sentenced for her attempted murder.
Abdul Aziz and Abdul Majid appellants were, therefore, rightly convicted and sentenced u/S 307/34 PPC. Since Muhammad Hanif appellant was acquitted by the trial court of this charge and he stands convicted for a more serious offence, I do not deem proper, to direct his retrial for this offence now.
21. In view of the above, where the appeal of Muhammad Hanif, Abdul Aziz and Abdul Majid appellants is dismissed, that of Muhammad Hafiz appellant is accepted. His conviction and sentence u/S 307/34 PPC are set aside and he is acquitted. Being on bail, he stands absolved of his liability under the bail bonds. Abdul Aziz and Abdul Majid appellants, who are on bail, have to be arrested and sent to the prison for serving our remaining sentence with all the benefits of section 382-B Cr.P.C. District Magistrate concerned should be asked to do so.