' ABDUL QADEER CHAUDHRY, J.---This appeal by leave of the Court is directed against the judgment of the High Court dated 10-9-1991, whereby the appeal filed by the appellants against their conviction recorded by the learned Additional Sessions Judge, was dismissed.
2. The appellants alongwith the co-accused were tried by the learned Additional Sessions Judge.
He convicted Muhammad Nawaz appellant under section 302/34, P.P.C., and sentenced him to death. He also imposed a fine of Rs,10,000, and in case of default the appellant will further undergo R.I. For two years. The learned Additional Sessions Judge convicted Haq Nawaz appellant under section 302/34, P.P.C., and sentenced him to imprisonment for life with a fine of Rs,10,000 or in default to further undergo R.I. For two years. It was further directed that the amount of fines if recovered, half of it would be paid to the heirs of the deceased as compensation. They were also convicted alongwith Manzoor Hussain, a co-accused, under sections 324/34 and 323/34, P.P.C., and sentenced them to R.I. For 2/1-2 years in each offence with fine of Rs,2,500; in default whereof to undergo further R.I. For six months. It was further directed that the amount of fines, if recovered, half of it would be paid to injured P.Ws. Muhammad Saleem and Muhammad Javaid by way of compensation. Ata Ullah was acquitted, and one of the accused namely Akhtar Javaid had absconded after the occurrence. The benefit of section 382-B, Cr.P.C. Was given to Manzoor Hussain and Haq Nawaz. The learned High Court maintained the conviction of Muhammad Nawaz and Haq Nawaz appellants under section 302/34, P.P.C., as also the conviction of Manzoor Hussain under section 323, P.P.C. The death sentence of Muhammad Nawaz was altered to life imprisonment; the conviction and sentence of Haq Nawaz, appellant No,2 herein under section 324/323/34 were set aside and he was acquitted of these charges. The conviction and sentence of Manzoor Hussain under section 324/34, P.P.C., were set aside, but his conviction under section 323, P.P.C. Was maintained and the sentence was reduced from 2/1-2 years to one year and the fine was reduced from Rs,2,500 to Rs,1,000.
3. . The facts of this case are that on 20-3-1988 Iftikhar Hussain deceased asked Riaz Christian to clear the lane in front of his house but the latter showed some reluctance. Muhammad Javed P.W.
Was also present. Muhammad Shafi D.W.1, the brother of Manzoor Hussain, objected to the harsh behaviour of Iftikhar Hussain deceased with Riaz Christian. There was altercation between Iftikhar Hussain deceased and Muhammad Shafi. They were, however, separated by the co-villagers.
Muhammad Shafi, being an elderly person, felt insulted and left the place with a threat to avenge his insult. On 21-3-1988 at about 8-00 a.m. Iftikhar Hussain deceased accompanied by Muhammad Saleem complainant (who lodged the First Information Report) and Muhammad Javed P.W.9 went towards Sambrial. While they were passing through the street in front of the house of Manzoor Hussain, they saw Muhammad Nawaz appellant armed with 'a dagger and Ata Ullah (acquitted accused) armed with a knuckle-duster standing in the street near their house. Manzoor Hussain and Haq Nawaz armed with .12 bore guns and Akhtar Javed absconding co-accused armed with a sten gun were also present. They all attacked Iftikhar Hussain deceased and his companions. After receiving a blow of the butt from Haq Nawaz appellant, Iftikhar Hussain deceased fell down.
Muhammad Nawaz appellant gave him dagger blows on his head. The accused injured the deceased and the witnesses with their respective weapons. The complainant party was then dragged into a room of Manzoor Hussain's house. The complainant party was again attacked by the accused party. The police came to the spot and rescued the three injured. Muhammad Ashraf Sub-Inspector P.W.12 recorded the statement of Muhammad Saleem complainant. He prepared the injury statements of all the three injured and sent them to Civil Hospital, Sambrial, for medical examination. On 5-4-1988 Muhammad Aslam, Advocate, produced before the Investigating Officer four accused, namely, Manzoor, Nawaz, Ata Ullah and Haq Nawaz. To bring home the charge against the appellants, the prosecution relied upon the ocular testimony of Muhammad Saleem P.W.8 and Muhammad Javed P.W.9. Both the witnesses fully supported the report lodged by the complainant. Dr. Syed Sohail Hussain Naqvi P.W.2 found 4 incised would on different parts of the head of Iftikhar Hussain deceased; three contusions, 2 lacerated wounds and two swellings on other parts of the body, in all 11 injuries. The deceased was unconscious and vomiting. Muhammad Saleem P.W. Received 14 injuries, two with sharp-edged weapon and the rest with blunt.
Muhammad Javed P.W. Received 6 injuries; all simple caused by a blunt weapon. The evidence of the two eye-witnesses have been accepted by the Courts below. Their presence cannot be doubted, as both of them had stamp of injuries.
4. The appellants have not denied the occurrence, but they have raised a plea of self-defence, as according to the defence Muhammad Shafi D.W.1 was attacked by the complainant party including the deceased. According to the defence, Iftikhar Hussain deceased was armed with dagger, Muhammad Saleem P.W. Armed with pistol, Javed P.W. Was armed with .12 bore gun and Manzoor Hussain armed with Sota came there and they started beating Muhammad Shafi with their respective weapons. Iftikhar Hussain gave him a dagger blow. The others gave him blows with fists and butts of their respective weapons. Muhammad Shafi snatched the dagger from the hand of Iftikhar. Muhammad Shafi gave dagger blow which hit Iftikhar on left side of his hand. On the alarm, being raised by Muhammad Shafi, Shabbir Hussain and Fayyaz, his real brothers; his nephew Amjad, Muhammad Malik and others came there. They started fighting with Iftikhar and others.
Fayyaz, Shabbir and others managed to disarm Iftikhar, Saleem and Javed, while Manzoor succeeded in running away from the spot. Iftikhar, Saleem and Javed were then confined in a room. While Muhammad Shafi was trying to push Iftikhar inside the room, his head had struck against wooden frame of the door. Javed and Saleem also received injuries at the hands of Fayyaz and others.
5. Manzoor Hussain and Haq Nawaz produced the guns. The Courts below have accepted the evidence produced by the prosecution against the appellants. They discarded the defence version.
Learned counsel for the appellants submitted that the two Courts have convicted the appellants on probability. He submitted that it is the duty of the Court to examine the two versions and then decide which version is more convincing. He stated that the Courts below have eliminated the counter-version of the defence. He submitted that the prosecution has failed to substantiate the charge against the appellants beyond all reasonable doubts. The defence version may be false, but the conviction cannot be recorded, if the defence version is rejected.
6. The learned counsel for the appellants has relied upon Muhammad Luqman v. The State (PLD 1970 SC 10), Muhammad Yaqub v. The State (1992 SCM R 1983), Ashiq Hussain v. The State (1993 SCM R 417), and Syed Saeed Muhammad Shah v. The State (1993 SCM R 550). It has been held in these cases that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding, as regards the guilt, should be rested surely and firmly on the evidence produced in the case, and it is the duty of the prosecution to prove the case against the accused beyond doubt. It is well-settled principle of criminal jurisprudence that the prosecution has to succeed on its own merits. It has to prove the case against the accused beyond reasonable doubt and every doubt is to be resolved in favour of the accused. In the instant case the two eyewitnesses have given consistent and coherent statements. There is no defect in the statements of these witnesses. The two Courts have properly considered the defence of the appellants and rightly rejected it. The approach of the two Courts in assessing the prosecution and defence versions in juxta position brings to the irresistible conclusion that the accused have been rightly convicted. Learned counsel next contended that both sides have not told the truth. The accused were only armed with Lathis, as clear from the nature of the injuries of the complainant party. Therefore, the Court has to reconstruct the case and come to a fair conclusion as held in Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502). We do not think that the circumstances of the present case warrant any other inference. The defence plea that the complainant party came there with lethal weapon cannot be accepted for the simple reason that the police has not secured any weapon from the spot belonging to the complainant party. The High Court has rightly observed that had the complainant party been armed, they being young persons, would not have readily submitted to their opponents and allowed them to be overpowered, injured and dragged into the room to be confined there as helpless creatures. Muhammad Saleem P.W.8 was aged 23 years and Muhammad Javed P.W.9 was aged 18 years when their statements were recorded on 7-6-1989, and the deceased Iftikhar Hussain was aged 22 years at the time of occurrence; whereas Manzoor Hussain accused was aged 60 years, Muhammad Nawaz appellant aged 40 years, Ata Ullah was aged 60 years, Haq Nawaz was aged 22 years and Muhammad Shafi D.W.1 was aged 57 years. The next objection raised by the learned counsel is that the complainant party came to the spot with ulterior motive, as there was shortest route to approach Sambrial, but they did not choose that route. In fact they in complicity with each other had come to the house of the accused, otherwise there was no purpose for them to pass by the house of the accused. Learned counsel has referred to the statement of Muhammad Babar P.W.6, who deposed that if one was to proceed to Sambrial Road from the shortest route, the Haveli of Manzoor Hussain accused does not fall on the way. This witness also admitted that Katcha path leading to Sambrial Road from the house of Muhammad Saleem does not have the Haveli of Manzoor Hussain by its side; but Muhammad Saleem P.W.8 has denied the suggestion that there are other shorter routes to go to Sambrial. Learned counsel has referred to the site plan Exh.PN to show that this was not the route to go to Sambrial. This may be correct, but all the attending circumstances have to be kept in mind. The complainant party was not armed with any weapon. Had there been any intention to attack the accused they would have definitely come there fully prepared. Even if they had not used the shortest route, the evidence of the prosecution cannot be impeached on this count. The overall assessment of the evidence has to be made before coming to the final conclusion. Learned counsel stated that sharp-edged weapon could not be used for inflicting injuries on the head. According to the witnesses, sharp- edged weapon was used for causing injuries on the head of the deceased and the doctor has confirmed this statement. The general statement of the doctor shows that the injury caused by a blunt weapon on some part of the body where the underlying bone is only covered with skin given the appearance of sharp-edged wound. In his deposition he has clearly stated that the injury on the head of the deceased was caused by sharp-edged weapon. We do not find any conflict between the direct and medical evidence. Even otherwise, when the statements of the eye- witnesses are accepted, then the opinion of the doctor cannot be prevailed over the direct evidence. The occurrence took place in broad daylight. The accused were known to the witnesses prior to the occurrence. The part played by each of the accused in the commission of the offence has been specifically stated by the witnesses, therefore, there is no force in the objection. The next submission of the learned counsel is that there was no intention to cause the death of the deceased, therefore, the offence squarely falls under section 304, Part II, P.P.C. And 308, P.P.C.
Learned counsel stated that Manzoor Hussain and Haq Nawaz accused were armed with .12 bore guns and the absconder Akhtar Javed was armed with sten gun, but they did not fire at the deceased. He was referred to Rab Nawaz v. The State (1990 SCM R 1040), Zahid Pervaiz v. The State (PLD 1991 SC 558) and Waris Khan v. Ishtiaq (PLD 1986 SC 335). In determining the guilt of the accused the facts and circumstances of.Each case have to be considered. The intention and knowledge of the accused can be gathered from the evidence on the record. There were 11 injuries on the person of Iftikhar Hussain deceased. Some of the injuries were on the vital part of the body.
Muhammad Nawaz appellant gave repeated blows to the deceased. Similarly, there was fracture of bone, which was the result of injuries caused by Haq Nawaz appellant. The case falls under section 302, P.P.C.
' It is submitted by the learned counsel that according to the statement of P.W.2, injured Iftikhar, Muhammad Javed and Muhammad Saleem were brought by the police for medical examination and they were in hand cuff. This statement of the doctor has been attended to by the learned High Court. The statement on the face of it is false because Iftikhar deceased was unconscious, therefore, it could not be believed that he was taken to the doctor in hand cuff. The Investigating Officer and the prosecution witnesses have denied this fact. The last submission of the learned counsel is that the police had come to the place of occurrence on a Suzuki Pick-up belonging to Muhammad Shafi, as admitted by Muhammad Babar P.W.G. The Investigating Officer has denied this fact that he reached the place of occurrence on the Suzuki Pick-up belonging to Muhammad Shafi. According to the prosecution, someone had informed the police about the occurrence and the police had come to that place on receiving the information. The Investigating Officer stated that he did not recollect the name of the person who intimated him about the incident. It appears that after the occurrence and when the injured persons were dragged into the room which was bolted, Muhammad Shafi had gone to the police station, so as to create a plea of self-defence.
Muhammad Shafi D.W.1 in his statement has deposed that he narrated the incident to Abdul Majid Waraich the then S.H.O. P.S. Sambrial. The said S.H.O. Recorded his statement as an F.I.R. And he stayed at the police station for about half an hour. They reached the spot from the police station within an hour. When they reached the spot, Iftikhar, Saleem and Javed of the complainant party were still confined in the room of his Haveli. No F.I.R. Lodged by Muhammad Shafi D.W. Was produced at the trial. It is possible that his report was not recorded, but the fact remains that whatever was the defence of the accused party that was duly considered by the two Courts, and as stated above Muhammad Shafi D.W. In order to raise the plea of self-defence might have gone to the police station, but this fact would not diminish the evidentiary value of the prosecution witnesses. The injuries on the person of Muhammad Shafi were not on vital part of the body; only one injury is stated to be caused with sharp-edged weapon and all other injuries were simple in nature. It may be pointed out that he had himself gone to the doctor and got himself examined.
The doctor has given an obliging statement in favour of defence. About the injuries of Muhammad Shafi, the learned High Court has observed as under:- "So far as the role of Muhammad Shafi (D.W.1) is concerned, we are of the opinion that when the accused party realised that Iftikhar Hussain, as a result of the head injury had become unconscious in their house and was likely to die, entailing a murder case against them, they either hurriedly fabricated a few simple injuries on the person of Muhammad Shafi (D.W.1) or otherwise approached and modified Dr. Syed Sohail Hussain Naqvi, who issued a false medico-legal report in order to make out a false defence. Had he participated in the main occurrence, the complainant party in the natural course of events should not have spared him. Similarly, there was no reason for them to have left him out purposely besides other assailants, and substitute for them the present appellants."
The number of injuries commensurated with number of accused. The occurrence had not been taken place in the Haveli of the accused. The bloodstained earth was secured from the place of occurrence and the appellants also admitted their presence at the place of occurrence. Both Muhammad Nawaz G and Haq Nawaz appellants are constructively liable for the commission of the offence.
7. It may be mentioned that none of the precedents cited in support of the contentions has any application to the facts of the present case. The case H against the appellants is proved to the hilt.
There is no force in this appeal, and the same is dismissed.
' Leave is not granted in Cr.P.No, 417/L/91. No case has been made out for enhancement of sentence. Keeping in view of the circumstances of the case, the sentence of life imprisonment awarded to the accused is legal and proper. This petition is also dismissed.