1. ' MUHAMMAD ASLAM ARAIN, J.--- This appeal and the criminal revision application are directed against the judgment dated 10-4-1994 passed by the learned IInd Additional Sessions Judge, Karachi West in Sessions Case No,301 of 1989 under sections 307, 302, 34, P.P.C. Appellant Muhammad Riaz is convicted under section 326 read with section 109, P.P.C. And sentenced to R.I.
2. For 10 years and fine of Rs,19,000 and in default to suffer further R.I. For one year. Appellant Muhammad Fayyaz is convicted under section 323, P.P.C. But it is ordered that since he remained in jail as an undertrial prisoner for about 12-1/2 months, which being more than the punishment provided for offence under section 323, P.P.C., the sentence awarded to him is imprisonment, which he has already undergone as an undertrial prisoner. Although this appellant was released, he has also challenged his conviction.
3. ' The criminal revision is filed by complainant Pervaiz Khan challenging the inadequate sentence awarded to appellants with prayer to remand the case for fresh trial/decision in accordance with law. Through this judgment, the appeal as well as the revision application are being disposed of.
4. ' The facts of the case are that on 14-9-1989, statement of complainant Pervaiz Khan under section 154, Cr.P.C. Was recorded in emergency ward of Civil Hospital Karachi which was subsequently incorporated in 154, Cr.P.C. Book as Crime No,191 of 1989 under sections 302, 107 and 34, P.P.C. It was stated by him that he had a Kiryana shop by the side of his house. On 11-9-1989 two boys of Mohalla, Hafeez and Lal Badsha had a quarrel with the appellants Riaz and Fayyaz, both sons of Ghulam Jilani. Complainant's brother Riaz had intervened and separated them but the appellants and their father Ghulam Gillani were annoyed and had been saying that they (appellants) were associated in the quarrel with Hafeez and others. The Mohalla people had, however, brought about a compromise between the parties.
5. ' Complainant further stated that on 13-9-1989, at about 10-15 p.m., while he was present at the shop of this friend Luqman alongwith Faqeerzada. He heard commotion from outside. When he came out, he saw appellant Riaz holding his father Syed Alam, and deceased accused Ghulam Jillani, father of appellants was carrying a Chhuri in his hand and caused blow at the back of Syed Alam who on receiving such injury fell down. When the complainant saw this, he ran towards his father to rescue, on which appellant Fayyaz who was carrying a hatchet gave a hatchet blow on complainant's head. Complainant fell down on receiving the blow and then, it is stated, Ghulam Jillani gave a Chhuri blow on his left side lower abdomen. P.Ws. Luqman, Faqeerzada and other Mohalla people were attracted and they released complainant party from the clutches of accused and took injured Pervaiz Khan and his father Syed Alam to Clifton Medical Centre where Syed Alam succumbed to injuries.
6. ' Deceased Syed Alam and complainant Pervaiz Khan were removed to Civil Hospital Karachi where post-mortem examination of the deceased was carried out and complainant was provided treatment.
7. ' The statement under section 154, Cr.P.C. Was sent to Police Station Jackson where F.I.R. (Exh.27) was recorded.
8. ' On 14-9-1989 the appellants and their father Ghulam Jillani were arrested. On 17-9-1989 Ghulam Jillani led the police and from a gutter, took out the Chhuri and produced it before police. After necessary investigation, challan was submitted against the appellants and their father Ghulam Jillani. Charge (Exh.1) was framed against appellants and Ghulam Jillani under (sic) which they pleaded not guilty and claimed to be tried.
9. ' Accused Ghulam Jillani who was an under-trial prisoner confined at Central Prison Karachi, was admitted in Civil Hospital Karachi on account of his illness and he expired there on 5-9-1990. The death of accused Ghulam Jiliani was certified by the Superintendent, Central Prison Karachi, and on 9-1-1991 the trial Court observed that accused Ghulam Jillani had died a natural death and the proceedings against him were said to have abated.
10. ' At the trial, prosecution examined P.W.1 complainant Pervaiz Khan (Exh.6) who produced his 154, Cr.P.C. Statement (Exh.7), P.W.2 Faqeerzada (Exh.8) produced his 164, Cr.P.C. Statement (Exh.8/A), P.W.3 Lal Badshah (Exh.9), P.W.4 Jan Asar Khan (Exh.10) who produced the memo of injuries on the deceased and the inquest report (Exhs. 11 and 12), P.W.5 Muhammad Aftab Khan, a Mashir of arrest of accused (Exh.13) and he produced memo of arrest (Exh. 14), P.W.6 Luqman (Exh.15) who produced his 164, Cr.P.C. Statement (Exh.16), P.W.7 Hussain Badshah who acted as a Mashir of recovery and production of blood-stained Chhuri at the pointing of deceased Ghulam Jillani (Exh.17) and recovery memo. (Exh.18), P.W.8 Muhammad Aslam Mashir of Wardat (Exh.19) who produced memo. Of Wardat (Exh.19/B), P.W.9 Muhammad Siddiqi Ghori a Mashir of search of house of accused (Exh.20) who produced such memo. (Exh.19/A), P.W.10 Aayaz Khan another Mashir of arrest of accused (Exh.21), P.W.11 Dr. Captain Liaquat (Exh.22) who produced certificate of injuries on complainant Pervaiz Khan (Exh.23), supplementary medico-legal report (Exh.24) and post-mortem report of deceased Syed Alam (Exh.25), P.W.12 Sabir Hussain S.I.P. Who was on night duty at Jackson Police Station (Exh.26) and he produced F.I.R. (Exh.27), P.W.13 Fazal Haq Duty Officer at Police Station Jackson (Exh.28) who on receipt of information from Clifton Medical Center about the arrival of a dead body and an injured, made entry in Roznamcha (Exh.29), P.W.14 Nisar Ahmad Memon S.H.O. Of Police Station Jackson (Exh.30) who produced the report of the Chemical Examiner (Exh.31) and sketch of Wardat (Exh.32). When the trial had commenced, the learned trial Court had examined Court witness No,1 Nazeer Hussain Shah, Assistant Superintendent Jail, who testified the death of accused Ghulam Jillani. Trial Court also examined Court witness No,2 Muhammad Iqbal, a process server, who had gone to effect service on P.W. Ashraf Sial, A.C.M. Karachi, and stated that the said Magistrate had expired. The Court witness No,2 produced his report dated 1-11-1992 (Exh.33/A).
11. Prosecution also examined P.W.15 Haji Essa who was associated by the police for the arrest of accused who were not available, P.W.16 Haji Sher Muhammad (Exh.35) who had acted as Mashir of the inspection memo. Of dead body and the inquest report.
12. ' Statements of appellants under section 342, Cr.P.C. Were recorded and they both denied the allegations against them and claimed to be innocent. Both appellants Muhammad Riaz and Muhammad Fayyaz examined themselves on oath and stated that they were innocent and were falsely implicated by the police.
13. ' On conclusion of trial, the learned trial Court convicted appellants as stated above and this appeal as well as revision are directed against the impugned judgment.
14. ' I have heard the learned counsel for the parties. Mr. MA. Kazi, learned Advocate for the appellants, has contended that there was no motive in the case and, therefore, each accused would be liable for his own acts; that it has been wrongly concluded by the learned trial Court that case of appellant Riaz would fall under sections 326, 109, P.P.C. Because allegation against appellant Riaz was that he had held deceased Syed Alam whom blows with Chhuri were caused by deceased Ghulam Jillani; that deceased Syed Alam died due to Injury No,2 which is not attributed to either of the appellants; that allegation against appellant Riaz is that he had held the deceased when accused Ghulam Jillani (since deceased) had inflicted Chhuri blows but even --holding deceased Syed Alam by accused Riaz is falsified from the fact that if Syed Alam on receipt of injury at the hands of deceased accused Ghulam Jillani. Who had bled profusely, the clothes of appellant Riaz would have been blood-stained which is not the case and lastly that for no evidence against appellant Riaz the learned trial. Court has convicted him under section 326, P.P.C. Learned counsel referred to the evidence of witnesses, in particular the eye-witnesses Faqeerzada and Luqman from whose evidence no case against appellant Riaz under section 326, P.P.C. Was made out. In the circumstances, according to the learned Advocate, the conviction and sentence awarded to appellant Riaz is liable to be set aside. In so far as appellant Fayyaz, it is contended that his conviction under section 323, P.P.C. Is also bad in law and cannot be sustained. In support of such contentions, learned Advocate referred to the cases of (1) Ram Sarup and another v. State of Bihar 1971 Supreme Court Cases (Cri) 494, (2) Gaya Prasad Ramlal alias Chakkiwala v. State of Maharashtra (1971 Supreme Court Cases (Cri.) 497, (3) Haji Khan and two others v. The State and others 1991 PCr.LJ (F.S.C.) 295, (4) Saligram v. State of M.P. (1990 Supreme Court Cases (Cri.) 614, (5)
15. Unreported judgment of this Court in Criminal Appeal No,68 of 1991 and Criminal Revision No,42 of 1991 (Ishaque and others v. The State), (6) Sharif Khan v. Seenar Gul and another 1990 PCr.LJ 143 and (7) Riaz Masih alias Nanna and another v. The State 1990 PCr.LJ 1863.
16. ' Learned Advocate appearing for the State has not supported the conviction and sentence and has argued that the role attributed to appellant Riaz was that he had caught hold deceased Syed Alam while dead accused Ghulam Jillani had inflicted blows but such fact is not established, as in a situation like that, the clothes of appellant Riaz who was holding the deceased must have been blood-stained. He has also argued that allegation against appellant Fayyaz is that he gave hatchet blow to complainant Pervaiz Khan on the head but even this fact is not supported by P.W.11 Dr. Captain Liaquat who gave the nature of injury on the head of complainant Pervaiz Khan as "lacerated wound 3" x 1/4 muscle deep" but for this the radiological report suggested no fracture.
17. The injury was declared as simple. According to the learned State counsel, this injury on the head of complainant Pervaiz Khan seems to have been a result of his fall on the ground after he received a blow at the hand bf dead accused Ghulam Jillani and the injury could possibly not have been result of a blow with hatchet although with blunt side.
18. ' Mr. Gul Zaman Khan, learned Advocate for the complainant Pervaiz Khan, who has filed the revision application challenging the inadequate sentence awarded to the appellants argued that from the evidence of P.W. Lal Badshah, it appears that two days earlier to this incident another occurrence took place and the appellants were suspecting that the complainant and his deceased father Syed Alam had sided their rival party and that was the motive for the appellants and deceased accused Ghulam Jillani to commit the offence. He further argued that common intention of both appellants was obvious as one of them held the deceased Syed Alam and the other stood duly armed with a hatchet when their deceased father Ghulam Jillani inflicted Chhuri blows to deceased Syed Alam as well as to complainant Pervaiz Khan. The conviction awarded to both appellants is liable to be maintained, rather it is a case in which the sentence is liable to be enhanced and a fit case for remand and retrial. In support of such contention learned Advocate referred to the cases of (1) Rasool Bux v. The State PLD 1970 SC 316, (2) Muhammad Akbar v.
19. Muhammad Khan and others PLD 1988 SC 274, (3) Islamul Haq and two others v. The State 1974 PCr.LJ 6, (4) Allah Bux v. Shammi and others PLD 1980 SC 225, (5) Muhammad Riaz alias Riasti and another v. The State 1987 SCM R 177 and (6) Aamir and three others v. The State 1987 SCM R 270.
20. ' I have considered the contentions in the light of evidence recorded at the trial. The motive in the case as suggested by prosecution is that two days prior to the incident, P.W.3 Lal Badshah and one Hafeez had a quarrel on a very trifling matter with the appellants Muhammad Riaz and Muhammad Fayyaz and this quarrel was pacified by one Riaz (brother of complainant Pervaiz Khan). It is stated that deceased accused Ghulam Jillani and his two sons, the appellants, had alleged against said Riaz that he was siding Lal Badshah and Hafeez. It is a matter of record that whatever the minor dispute that took place on 11-9-1989 was settled bythe respectables of the Mohalla and there was hardly any occasion for the appellants or their deceased father Ghulam Jillani to have launched on attack on complainant party on 13-9-1989 as a result of which Syed Alam died and complainant Pervaiz Khan sustained injuries. The motive suggested is only very week, but it is also far-fetched, which has come through complainant and there is no corroboration to his evidence on the point of motive.
21. ' The ocular testimony in the case is furnished by complainant Pervaiz Khan, P.Ws. Faqeerzada and Luqman, the last two of whom are said to have been attracted on the cries raised by complainant Pervaiz Khan who had seen his father deceased Syed Alam being caught hold by appellant Riaz and the Chhuri blows being given to deceased by accused Ghulam Jillani. All the three witnesses are consistent and have deposed that the deceased Syed Alam was held by appellant Riaz and the blows to him were given by deceased Ghulam Jillani. They are also consistent on the point that appellant Muhammad Fayyaz gave a hatchet blow to complainant Pervaiz Khan on the head. In so far as the Chhuri blow to complainant Pervaiz Khan on the left lower side of the abdomen is concerned, the three eye-witnesses are again consistent that the blow was given by deceased accused Ghulam Jillani. Thus it is clear from the evidence that fatal blows to deceased Syed Alam and sharp side injury to complainant Pervaiz Khan were caused by deceased Ghulam Jillani and not by either of the two appellants. As mentioned above, accused Ghulam Jillani died soon after the charge was framed and before the trial commenced. The only evidence on record against the appellant Muhammad Riaz is that he held deceased Syed Alam in `Japha' and against appellant Muhammad Fayyaz is that when complainant Pervaiz Khan went to rescue his father Syed Alam, this appellant gave a blunt side hatchet blow on the head of Pervaiz Khan. There is nothing on record that either appellant Muhammad Riaz or appellant Muhammad Fayyaz abetted the commission of murder by their father Ghulam Jillani or injury to complainant. These appellants shall, therefore, be liable for their individual act and section 109, P.P.C. Would not be attracted in their case.
22. ' Appellant Muhammad Riaz is convicted under section 326 read with section 109, P.P.C. And he could not have been so convicted for the aforementioned reasons. Part attributed to him is that he held deceased Syed Alam when his father Ghulam Jillani caused sharp side injury blows. There is no evidence in the shape of clothes of appellant Muhammad Riaz having been blood-stained as a result of sharp injury to Syed Alam who on receiving injury had bled profusely. Even the evidence of holding deceased by appellant Riaz in his `Japha' is not free from doubt. In the case reported as Ram Sarup Singh and another 1971 Supreme Court Cases (Crl.) 494, the conviction of two appellants under section 326 read with section 34, P.P.C. Was maintained as said appellants had instigated the third accused not to spare the complainant. In the instant case, there is no evidence that the appellants herein actually instigated their father Ghulam Jillani to cause the murder of Syed Alam or injuries to complainant Pervaiz Khan. In the case reported in 1971 Supreme Court Cases (Crl.) 497, it was observed that "care should be taken not to confuse some or similar intention with common intention and the common intention required a pre-arranged plan and, therefore, there must be a prior meeting of minds. That statement of law is indisputable". Those accused who were acquitted had gone to the scene of offence after the assault on the deceased had commenced. In the case of Haji Khan 1991 PCr.LJ (FSC) 295), dealing with the object of section 34, P.P.C., it was observed as under:-- "Once it is found that the accused persons had common intention to commit the crime, it is immaterial as to what part was played by whom. Section 34, P.P.C. Clearly lays down that when a crime is committed in furtherance of common intention of several persons, each one of such persons would be liable for the offence, as if he alone, had perpetrated it. The very purpose of this provision of law is to create joint liability for those who indulge in the organized commission of crime. In the nature of things, it cannot be said of certain, the exact part of each one of several accused persons acting with common intention and object. In such cases, the moral culpability of each is clear and identical and once a criminal act is done with common intention by several persons, each one of them would be criminally liable as if he alone, had done the act. If it were otherwise, and Courts were required to apportion each man's liability according to his overt act, conviction in almost every case of organized crime would become most difficult and, perhaps, an impossibility and criminal-minded elements in society would feel greatly encouraged to join hands in the concerted criminal acts "
23. ' The case-law referred by the learned counsel appearing for the complainant in criminal revision application is totally distinguishable. In the case of Rasool Bux PLD 1970 SC 316 leave to appeal was granted to consider correctness of co-accused's conviction in view of fact that he had fired "in air" and whether firing in air by him indicated that his intention was different from that of principal accused who fired at and killed deceased. The liability of such accused under Section 34 of P.P.C.
24. Was duly established and it was held "even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes, as in other things they also served who only stand and wait". As pointed out earlier, there is no evidence showing common intention of appellants so as to attract provision of section 34 of P.P.C. In the case of Muhammad Akbar PLD 1988 SC 274 three eye- witnesses who were present at spot and had suffered serious injuries at the time of occurrence. It was held that the witnesses in the circumstances of case were not only natural witnesses of incident, but best possible witnesses who could depose about occurrence. In the case of Islamul Haq 1974 PCr.LJ 6 while dealing with common intention of accused in a murder case, the evidence that a challenge was thrown to deceased on earlier occasion to be avenged and killed, was found consistent with reference to evidence of three eye-witnesses. In the said case, the accused having taken out knife declared that the deceased would be done to death followed by concerned attack by all accused persons. It was held that no doubt was left as to vicarious liability of co-accused regarding murderous attack of accused. In the case of Allah BUX PLD 1980 SC 225, it was observed, that the conviction even in murder cases can be based on testimony of a single witness if the Court is satisfied as to the evidence of witness being reliable. It was also observed that the emphasis is laid on quality of evidence and not on its quantity. In the case of Muhammad Riaz 1987 SCM R 177, it was observed that from the conduct of accused in throwing brickbat on face of deceased after he had been stabbed in abdomen, it was evident that such accused shared common intention with co-accused on spot to murder deceased. In the case of Aamir and others 1987 SCM R 270, it was observed that if one of a group comes out armed with Barchhi and proceeds to attack with it then all those who joined him in its errand must share common intention attributable to him.
25. The facts and circumstances of the reported judgments above referred are thus distinguishable from the facts of the case in hand. Neither section 34 nor section 109 of P.P.C. Would be attracted in the case of appellant Muhammad Riaz and since he has not caused any grievous hurt either to deceased or to complainant Pervaiz. Khan, his conviction under section 326, which is erroneously recorded, cannot be sustained.
26. ' Coming now to the evidence against appellant Muhammad Fayyaz who is convicted only under section 323, P.P.C. It may be noted that allegation against him is that while his father deceased Ghulam Jillani was causing Chhuri blows to deceased Syed Alam, and while complainant Pervaiz Khan went to rescue his father, this appellant gave hatchet blow to complainant on the head.
27. Because it is not stated that sharp side hatchet blow was given, it would be presumed that blow was given with blunt side of the hatchet. The injury on the head of complainant Pervaiz Khan is reflected in the evidence of P.W.11 Dr. Captain Liaquat who has described the said injury as "lacerated wound about 3" x 1/4" muscle deep over the frontal region of Skull". This injury which was initially reserved for opinion was after radiological report certified as simple. The measurements of the injury on the forehead of the complainant can possibly not be presumed to be the result of hatchet blow even if caused by blunt side, for, in that case there would have been some evidence of a fracture rau of skull even though very minor. After receiving stab wound at the hands of deceased accused Ghulam Jillani, P.W. Pervaiz Khan had fallen down and this injury on his forehead, in my view, would be the result of fall on the ground and not as result of hatchet blow.
28. Except that evidence, there is no further evidence against appellant Muhammad Fayyaz and his conviction under section 323, P.P.C. Can also not be sustained, irrespective of the fact that at the conclusion of trial he was not sent to jail to serve out the sentence because it was observed by the learned trial Court that he had remained as an under-trial prisoner for one and a half years which was more than the punishment prescribed for the offence under section 323 of P.P.C.
29. ' From the evidence on record, it is clear to me that the conviction and sentence awarded to appellants herein cannot be sustained as the offence against them was not proved beyond all reasonable doubts. Every doubt arising in the case has to be resolved in favour of the accused and not the prosecution. For these reasons I allow the appeal filed by the appellants, set aside the conviction and sentence awarded to them and acquit them. Appellant Muhammad Riaz who is in jail undergoing the sentence shall be released forthwith if not required in any other case. For the same reasons, I find no merit in the revision application through which inadequate sentence awarded to the appellants is challenged and a prayer for redirecting the trial of the appellants is made. Consequently, the revision application is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.