JUDGMENT JAVED IQBAL, J.- Appellants Chulta, Acher and Ghulam Haider were tried by the learned Additional Sessions Judge, Usta Muhammad on a charge under Section 302/34 P.P.C, for the murder of Nouroz and convicted under Section 302 PPC to undergo life imprisonment and fine of Rs. 1 lac each and in default whereof to further undergo R.I. For 1 year vide judgment dated 6.7.94, hence this appeal.
2. Briefly stated the facts of the, case are that on 19-4-1993 at 4.30 P.M. Amanullah got lodged F.I.R.
No. 22/93 alleging therein that he along with his uncle Nouroz came Usta Muhammad for some personal work and purchase of house-hold articles and after doing the needful they reached Gandakha Bus Stop, where his uncle, Nouroz went to by some vegetable, while he was standing at some distance when suddenly he heard 2/3 gun shot fire and saw that Chutta was carrying a hatchet, Ghulam Haider was holding a pistol and Acher with danda were firing and attacking on his uncle. He immediately reached the spot when accused persons made their escape good and disappeared towards north. It is further alleged that Nouroz died on the spot. He also pointed out about the motive that the above named assailants were under suspicion that the brother of accused Chutta namely Ghulam Muhammad was murdered by Nouroz about 8/9 years back. After registration of a case the convict/appellant Chutta and Acher were arrested on 19-4-1993 while convict/appellant Ghulam Haider was apprehended on 24-3-1993. After the completion of investigation the challan was submitted and trial concluded.
3. Prosecution in support of accusation produced Amanullah (PW-1), Muhammad Baqa (PW-2), Ghazi Mer Jan (PW-3), Dr. Shah Bakhsh (PW-4), Qalandar Bakhsh (PW-5) and Abdul Kareem S.H.O.
(PW-6). The prosecution at the trial mainly relied on the ocular evidence, medical evidence, recoveries and finally the Chemical Examiner Report.
4. The convict/appellants in their, statements recorded under Section 342 Cr.P.C, have denied the allegation and staled that a false and concocted case was got registered due to enmity. The statements on oath were not got recorded and no defence whatsoever led. The convict/appellant Chutta has staled that his elder brother Ghulam Muhammad was murdered and a case was got registered against the deceased Nauroz by him. Convict/appellant Acher and Ghulam Haider also took the plea of false implication being relative of convict/appellant Chutta. The statements of convict/appellants as discussed above revolves around a bare denial regarding alleged recovery of hatchet Pistol and Danda. The convict/appellants look the plea that the same were foisted. In respect of Chemical Expert report (Mark-A), the convict/appellants said "the report is manipulated".
We may make it clear here at this juncture that simple denial does not carry any weight and their statements remained silent that why the report was manipulated and recovery of Pistol, hatchet and danda was foisted. It is to be noted that no enmity or mala fides whatsoever have been alleged against the Police. The investigation of the case was never alleged being dishonest. In such view of the matter mere denial would not be sufficient. The convict/appellants did not prefer to give their statements on oath to explain the reasons for registration of a concocted case or substitution with that of the real culprits or grave enmity with Police, which compelled them to foist the recovery of hatchet and pistol and get a manipulated report. We accordingly not going to believe such allegation being baseless.
5. We have minutely perused the evidence, as led by the prosecution in support of accusation.
Amanullah (PW-1) is complainant and narrated the details of incident in a straight forward manner. He deposed that on 19.4.1993 he along with his uncle Nouroz visited Usta Muhammad and reached there at 4.30 p.m. He further deposed that his uncle was purchasing vegetable from nearby a Bus Stand, when he heard commotion and 2/3 gun shot reports from the distance of 20 paces from the place of firing and saw convict/appellants Ghulam Haider, Chutta and Acher running towards north. He further deposed that convict/appellant Ghulam Haider was armed with Pistol, while Acher with Danda and Chutta having a hatchet, and they attacked upon his uncle Nauroz and killed him. He further deposed that the above named convict/appellants were under the suspicion that Nouroz/had murdered Ghulam Muhammad, the brother of convict/appellant Chutta 8/9 years back. He further stated that FIR (Ex. P.1-A) was got lodged by him and he identified his thumb impression thereon. He was subjected to lengthy cross examination, but nothing advantageous could be extracted and he stood firm to the test of cross examination. He also refuted various suggestions and in our view his deposition being confidence inspiring, has rightly been relied upon. Muhammad Baoa (PW-2) has deposed that on 19.4.1993 he was posted as Head Constable at Usta Muhammad Police Station, and on the same day at 4 P.M. Case No. 22/93 under Section 302 Qisas and Diyat Ordinance, was got registered at Police Station Usta Muhammad by Amanullah (PW-1). He further deposed that after registration of case he along with S.H.O, proceeded to the place of occurrence, from where SHO secured blood stained earth vide recovery memo Ex. P/2-A duly signed by him. He further deposed that it was made into a scaled parcel (Art. P.1) and be also identified the blood stained earth as Art. P/2. He further pointed out that inventory of Wardat (Ex. P/2-B) was also prepared and duly signed by him. He has further deposed that on 22.4.1993 at 4.30 p.m. Convict/appellant Chutta during interrogation expressed his willingness to get the crime weapon i.e. Hatchet recovered and on this disclosure, he was handcuffed and taken to village Chandia and convict/appellant Chutta himself took out a blood stained hatchet from the bushes and handed over it to S.H.O., who took into possession vide recovery memo (Ex:P/2-C). He also identified his signature on the recovery memo and further identified hatchet as Art: P/4. He further deposed that on 30-4-1993 at the pointation of convict/appellant Ghulam Haider one Carben Pistol was recovered from his house located at village Allah Dina, which was taken into possession vide recovery memo Ex: P/2-D. He also identified the pistol as Art: P/6. He was also subjected to cross examination, but nothing advantageous could be elicited from the defence point of view. We have also observed that cross examination mainly remained confined to the distances in between various places and number of houses located in Goth Chandia and Jalbani Allah Dina. No enmity or mala fide whatsoever was alleged. Ghazi Mer Jan (PW-3) produced blood stained shirt (Art: P/8) and trouser (Art: P/9), which were taken into possession vide recovery memo Ex:P/3-A. He was not cross examined inspite of opportunity. Dr. Shah Bakhsh (PW-4) has deposed that on 19.4.93 he was posted as Medical Officer in Civil Hospital Usta Muhammad when at 5.10 P.M.
Mumtaz Ahmed Constable Police Station Usta Muhammad brought the dead body of Nouroz for Post mortem examination. The following injuries were observed:-
1. Incised wound on the face (left) starting from left eye laterally upto lower jaw. All bones of the same side fractured. Size 6" X 2" X 3".
2. Incised wound on the face (right) Size 3" X X 1".
3. Incised wound on the neck. Size 4" XlXl ".
4. Incised wound on the neck below the right ear. Size 3"X1 "XI".
5. Fire arm wound on the right hand (wrist Joint area) entrance wound size " in diameter.
6. Fire arm wound of exit on the hand (right) laterally. Size 1" in diameter.
7. THORAX: Larynx and tracheae damaged, blood vessels were damaged (neck)
The statement of Dr. Shah Bakhsh (PW-4) is demonstrative of the fact that all injuries were antemortem in nature, homicidal in character caused by sharp weapon and fire arm. It is quite amazing that he was not subjected to cross examination which amounts to acceptance of his version in toto, which corroborates the ocular testimony of Amanullah (PW-1), who had mentioned the infliction of hatchet blows and use of fire arm. Qalandar Bakhsh (PW-5) has deposed that on 22.4.1993 convict/appellant Acher and Chutta were taken in police custody to Goth Chandio from where Danda was recovered and Police took into possession vide recovery memo Ex:P/5-A duly signed by him. He also identified Danda as Art: P/ll. He was not subjected to any cross examination.
Abdul Kareem S.H.O. (PW-6) has deposed that on 19.4.1993, he was posted as S.H.O, at Police Station Usta Muhammad, when a case was got registered vide FIR No. 22/93 under Section 302 P.P.C, by the complainant Amanullah (PW-1) against convict/appellant Chutta Acher and Ghulam Haider, and he resultanlJy accompanied the complainant and inspected the place of occurrence and site Inspection (Ex.; P/2-B) was prepared duly signed by. Him. He also prepared map Ex. P/6-A and identified his signatures thereon. He also prepared inquest report Ex:P/6-B and identified his signature thereon, and secured blood stained earth vide recovery memo Ex: P/2-A and made into a sealed parcel and dead body was sent to Hospital for postmortem. He further deposed that on 19.4.1993 convict/appellants Chutta and Acher were arrested from Goth Jalbani and on the same day in evening he took into possession the blood stained cloths of deceased Nouroz vide recovery memo Ex:P/3-A and made the same into a sealed parcel Art: P/7 and produced blood stained shirt (art. P/8) and Shalwar (Art: P/9). He also identified the same. He further deposed that on 22.4.1993 at the pointation of accused Acher and Chutta, danda (Art: P/ll) and hatchet (Art: P/4) were recovered. He further deposed that-Ghulam Haider was arrested on 24.4.1993 from Goth Jalbani and on his pointation a Carbon Pistol (Country made) Art. P/6 was recovered. He also identified his signatures on challan Ex: P/6-C. He also deposed that blood stained earth, blood stained Clothes of deceased Nouroz, Pistol, danda and hatchet were sent to Chemical Analysis, for report. He was subjected to an exhaustive cross examination and he conceded frankly that on 22.4.1993 he look convict/appellant Ather and Chutta together for the purpose of recovery to village Jalbani, from where Danda and hatchet were recovered from the bushes. He could not mention the exact dale when blood stained clothes, blood stained earth, danda, hatchet and pistol were sent for chemical examination. It would not be out of place to mention here that neither any question regarding foisting of hatch# and pistol was made nor any it will or enmity alleged to implicate the convict/appellant falsely. There was not even the slightest suggestion that the Carbon Pistol could not have caused such injuries as were deducted and reported by Dr. Shah Bakhsh (PW-4). In our view the prosecution witnesses arc absolutely independent witnesses having no enmity with the convict/appellants to implicate them all in a false or concocted case. We have thrashed out the entire cross examination which is silent regarding this aspect of the matter and in our view now it is too late to raise the plea of false implication on the ground as agitated by the learned Defence Counsel Mr. Muhammad Aslam Chishti Advocate, that independent witnesses have not been associated cither as eye witness or recovery witnesses who could be a better witness then that of Amanullah (PW-1) by whom the occurrence was witnessed and FIR got lodged with promptitude excluding the possibility of any dishonest exaggeration improvement or manipulation and substitution. There must be some concrete base to substantiate the plea that a particular prosecution witness was not "INDEPENDENT" as mere such allegation would not be sufficient to discard his version which otherwise remained unshuttered. The reluctance of general public to come forward and associate as witness is well known for certain obvious reasons and notice whereof has already been taken by the superior judicial forum. We may reproduce the latest available verdict on the point which still hold fields; In any case reluctance on the part of the members of public to offer themselves as witnesses in such like matters is by now a judicially recognized fact and no adverse inference can be drawn against the prostitution only because private persons had not been cited as witnesses: (Muhammad Sharif Vs. The State PLD Feb. 1992 Lahore-57)
6. By now it is well settled that the statements of Police officials can be considered untill the same remain un-shaken. Even otherwise there is no rule that evidence of Police Official cannot be considered. Evidence of a witness who stood the test of cross-examination should be relied. In this regard reliance can be placed on following authorities:- PLD 1980 SC 446.
PLJ 1982 SC 79.
PLD 1968 Kar. (D.B.) 903.
P.Cr.L.J. 1976 (D.B.) 311.
7. It is emphatically urged by the learned Defence Counsel that a Carben Pistol could not have been caused such an injuries as mentioned in the Medical Certificate. The learned counsel has attempted to substantiate his arguments by saying that the nature of cartridge to be used by Carben Pistol cannot cause such kind of injury which as per medical report are as under:-
1. Incised wound on the fact (left) starting from left eye laterally upto lower law.
All bones of the same side fractured. Size 6" X 2" X 3".
2. Incised would on the face (right) Size 3" X " X 2"
The nature of above mentioned injuries does not involve any complexity or confusion and entrance and exit wounds with size of " and 1" in diameter have been shown, which could have been caused by any cartridge to be used by a Carben Pistol. Besides that no scientific reasons has been given or technical cause mentioned that as to why such injuries could not have been caused by use of a Carben Pistol and what sort or nature of injuries should have been there. In absence of any cogent reasoning the contention as raised seems to be devoid of merit. It is note worthy that Kareem Bakhsh, Investigating Officer (PW-6) was subjected to cross examination but no question regarding the use of carben pistol, kind of cartridge or nature of injuries were asked but on the contrary the cross examination remained limited to remand, date and time of arrest of the convict/appellants and details of recovery. Hypothetical assertion that too at this belated stage can hardly render any assistance to defence and cannot be considered.
8. We may point out that Medical certificate (Ex.P/4-A) is indicative of the fact that hatchet and fire arm was used and thus extends corroboration to ocular version duly supported by recovery of hatchet and danda which were also found blood stained (Chemical Expert report Mark-18) and as such the ballastic expert report which could not be produced by the prosecution, in the light of overwhelming evidence as discussed above can be ignored.
9. The scrutiny of evidence as discussed above is indicative of the fact that the case of accused Acher stands on a different footings; We may point out here that Section 34 P.P.C, itself does not creat any distinct offence but merely indicates the principle of joint liability and more so, it neither creates an offence nor amounts to an offence by its on for&. (P.L.D. 1969 S.C. 158 x P.L.D. 1967 Lahore- 952). The following are the prerequisites of the Section before it could be made applicable:-
(a) It must be proved that criminal act was done by various persons.
(b) The completion of criminal act must be in furtherance of common intention as they all intended to do so.
(c) there must be a pre-arranged plan and criminal act should have been done in concert pursuant whereof.
(d) Existence of strong circumstances (for which no yard stick can be fixed and each case will have to be discussed on its on merits) to show common intention.
(e) The real and substantial 'distinction in between "common intention" and "similar intention" be kept in view. Cases Noticed Judicially. 1978 S.C.M.R. 49.
P.L.D. 1965 S.C. (Ind.) 176. 1978 P.LJ. S.C. 429.
P.Cr.L.J. 1976 (D.B.) 1067.
P.L.D. 1972 (D.B.) Lah: 19.
C. Russel on Crime 11th Edn. 137.
10. The prosecution could not establish the common intention or that there Was any pre-arranged plan in pursuance whereof the murder of Nouroz was committed and as such the conviction of convict/appellant Acher cannot be sustained. It is also to be noted that medical evidence is silent regarding danda blows allegedly inflicted by Acher, who on this score alone deserves the benefit of doubt, which is accordingly extended in his favour and he is directed to be released forth with if not required in any other case.
11. We have also focused our attention to the contention as raised by Mr. Mohammad Aslam Chishti Advocate, that it was not within the competency of trial Court to impose fine being not permissible 302-B PPC whereby the conviction was awarded and fine imposed. The above mentioned contention is important, and therefore, is being dealt with at some length. We may point out that the promulgation of Qisas and Diyat Ordinance, has brought a substantial change in the Provisions as contained in Section 302 PPC. The original Section is reproduced herein below for ready reference:- "302 PPC...... Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine".
12. A bare perusal of the above referred to Section would show that imposition of fine has been made obligatory and not discretionary. It may not be out of place to mention here that various authorities are available to support the mandatory nature of the provisions as contained in Section 302 PPC. For example it was held by Hon'ble Supreme Court in case Mst. Razia Vs. Hijarat Ali and others (P.L.D. 1976 S.C. 44) as under:- "I would also impose a fine of Rs. 3,000 upon Abdul Ghaffar and Abdul Ghafoor each and in default of payment of fine they shall suffer further rigorous imprisonment of three years each. In the event of recovery of fine, the same shall be paid to the heirs of the deceased as compensation under Section 554-A. Criminal Procedure Code. This aspect of the case was unfortunately overlooked by the trial court. As recently pointed out by this court in State V. Rabnawaz (1), the above Provision of law is not only statutory but mandatory in its requirement. In that case too, in an appeal against acquittal by the High Court, sentence of fine was imposed by this Court to make up for the omission of the trial Court".
13. It was also held in case Mokha Vs. Zulfiqar (P.L.J. 197& S.C. 19) as under:- "The trial Court had failed to award compensation under Section 544- A Cr.P.C. The Division Bench while maintaining the convictions of Zulfiqar Azam and Rajada also did not award any compensation. Accordingly, there was no compliance with the mandatory provision. I would, therefore, direct, that the respondents shall pay a fine of Rs. 1,000/-,each as compensation to the heirs of the two deceased in equal shares under Section 544-A Cr.P.C, or in default, to suffer rigorous imprisonment for 6 months".
The Penal Code is a substantive law while the Code of Criminal Procedure is adjective law and Section whereof provides that all the offences under Penal Code shall be death with in accordance with the Provisions as laid down in Cr.P.C. The imposition of fine was provided in Section 302 PPC which was to be regulated and dispersed in accordance with the Provisions as enumerated in Section 544-A Cr.P.C. After the promulgation of Qisas and Diyat Ordinance, Section 302 P.P.C, has under gone a substantial change and is reproduced hereunder for ready reference:- "302. PUNISHMENT OF QATL-E-AMD.-Whoever commits qatl-e- and shall, subject to the Provisions of this Chapter be-
(a) punished with death as cases:
(b) punished with death for imprisonment for life as tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions o Islam the punishment of cases is not applicable".
14. As it is apparent no sentence of fine has been provided in the sub-section as such the question of its imposition does not arise. The Provisions o Section 544-A Cr.P.C, cannot be invoked as Section 302 PPC, now does no provide for any fine. By now it is well settled that a Penal Statute must b construed strictly meaning thereby that nothing is to be regarded as within th meaning of the statute, which is not within the letter or which is not expressly an intelligibly described in the very word of the statute itself. In other words n deletion, insertion, addition, or amendment can be made and simultaneously n< liability should be held to alter and no penalty imposed by mere implication an court should not extend or narrow down the scope or meaning of a Pent Provisions by loose or strained construction. We are, therefore, of the view that statute may not be extended to meet a case for which Provision has clearly am undoubtedly not been made meaning thereby that the ambit of penal statute should neither be curtailed nor expended. In this regard we are fortified by th dictum laid down in P.L.D. 1957 S.C. 219.
15. No doubt that the court has full discretion to impose fine in view c the provisions as contemplated in Section 544-A Cr.P.C, as the same ar obligatory and therefore, it is mandatory for court to impose fine in all those case mentioned therein including murder cases, but now it cannot be done as Section 302 (b) PPC does not provide for any fine and being substantive law is to b followed. It view of the above mentioned discussion it can be inferred safely the imposition of fine is not permissible under Section 302(b) PPC and as sue cannot be imposed. We accordingly set aside the fine of Rs.1 lac imposed on a the convict/appellants being unlawful.
16. In the light of what has been stated above the appeal c convict/appellants Chutta and Ghulam Haider is hereby rejected, whereas appeal regarding convict/appellant Acher is allowed, and he be released forthwith if m required in any other case.
Consequently, for the foregoing reasons appeal of Acher is allowed, but that of appellant Chutta and Ghulam Haider is dismissed.