' MIR HAZAR KHAN KHOSO, J.---The facts in brief giving rise to Criminal Appeals No,211/93 (Nazir Ahmad v. Muhammad Siddique and others) and 212/94 (Muhammad Siddique v. The State) are that on 28th of January, 1988 at 7-30 p.m. Complainant Nazir Ahmad was standing outside Ahata of his brother Abdul Aziz when Riaz passed nearby and pet dog of Abdul Aziz barked at him. Riaz protested. It resulted in exchange of rebukes between Riaz and Abdul Aziz. Abdul Aziz went away but threatened Abdul Aziz of dire consequences. Immediately thereafter Muhammad Siddique armed with 'Barchi', Muhammad Rafique with 'apa', Muhammad Sharif and Riaz with Lathies barged into house of Abdul Aziz. Riaz raised Lalkara. Muhammad Siddique gave 'archi' blow in the belly of Abdul Aziz. He received injury and fell down. Muhammad Rafique inflicted 'apa' blow at his right hand. His wife Mst. Shameem intervened. Muhammad Sharif gave her Lathi blows. She was injured.
Inmates of the house raised hue and cry. The abovesaid four assailants decamped alongwith their weapons. Nazir Ahmad lodged complaint at Police Station Renala Khurd.
2. After usual investigation the police arrested and challaned Muhammad Siddique, Muhammad Rafique, Muhammad Sharif and Riaz to face trial before the Court. Their case came up for trial on charges of trespass, murder and assault before the Court of the learned Sessions Judge, Okara.
They did not plead guilty to it and claimed trial. Prosecution examined eleven witnesses. They denied the allegations and examined one witness in defence.
3. On 8-1-1989, the learned Sessions Judge, Okara, passed judgment as under:-- (0 Acquitted Riaz of all the charges:
(ii) Convicted Muhammad Siddique, Muhammad Sharif and Muhammad Rafique under section 302/34, P.P.C.
(a) Muhammad Siddique sentenced to death and fine of Rs,5,000, in default to suffer R.I. For one year.
(b) Muhammad Sharif and Muhammad Rafique sentenced to imprisonment for life and fine of Rs,5,000 in default to suffer R.I. For one year more.
(iii) Under section 323/34, P.P.C. Sentenced Muhammad Siddique, Muhammad Sharif and Muhammad Rafique to R.I. For three months and fine of Rs,500 in default to suffer R.I. For one month more.
(iv) Under section 452/34, P.P.C. Sentenced to Muhammad Rafique, Muhammad Siddique and Muhammad Sharif to R.I. For two years and fine of Rs,1,000 in default to suffer R.I. For three months more.
(v) Their sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
4. Muhammad Siddique and Muhammad Sharif challenged their conviction and sentences through Criminal Appeal No,83/1989 before the Lahore High Court, Lahore. The learned Sessions Judge under section 374, Cr.P.C. Made Reference No,14/1989 before the same Court for confirmation of death sentence of Muhammad Siddique. Nazir Ahmad, complainant, too filed Revision Petition No,202/1989 there.
5. On 11-11-1991, the Lahore High Court:--
(i) (a) Dismissed appeal of Muhammad Siddique, maintained his conviction under section 302/34, P.P.C. But reduced his death sentence to imprisonment for life and fine of Rs,5,000, in default to suffer R.I. For two years. Benefit of section 382-B, Cr.P.C. Was also extended in his favour.
(b) His conviction and sentences under sections 323/34 and 452/34, P.P.C. Were set aside.
(ii) (a) Muhammad Rafique and Muhammad Sharif were acquitted of the charge under section 302/34, P.P.C. And section 452/34, P.P.C.
(b) Their conviction under section 323/34, P.P.C. Was maintained, but sentence reduced to that already suffered. Resultantly the Criminal Reference No,14/1989 and Criminal Revision No,202/1989 were dismissed.
6. Complainant Nazir Ahmad directly and convict Muhammad Siddique through Superintendent of Jail approached this Court through Petitions Nos.460/L/91 and 211/91 respectively. On 15-3-1993 they both were granted leave to appeal which are numbered as 211/93 and 212/94. Abovesaid bdth the appeals arise out of the same facts between the same parties and have assailed same judgment of the High Court, we intend to dispose of them by this one judgment.
7. We have heard Mr. Asghar Ali, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate- on-Record, for complainant Nazir Ahmad, Dr. Khalid Ranjha, Advocate Supreme Court, for Muhammad Siddique and others and Sheikh Muhammad Naeem, Advocate Supreme Court, for the State. Besides, with their dexterous assistance we have gone through the record of the case and the impugned judgment.
8. At the very outset the learned counsel for the complainant vigorously criticized the impugned judgment passed by the Lahore High Court. He endeavoured to impress us that it was erroneous, faulty and had entailed in miscarriage of justice. He emphatically canvassed for setting aside the same and to restore judgment passed by the trial Court which was a balanced one. He contended that the trial Court had properly appraised and appreciated the evidence produced by the parties and on sound grounds arrived at right conclusions that Muhammad Siddique, Muhammad Rafique and Muhammad Sharif with common intention had trespassed into the house of the deceased Abdul Aziz, murdered him and assaulted his wife Mst. Shamim. He complained that the Judge in Chamber of Lahore High Court misread and misappreciated evidence and wrongly held that the incident had taken place at the spur of moment and every person was liable for his own individual acts and erroneously thus on wrong assumption acquitted Muhammad Rafique and Muhammad Sharif of charge of murder. The learned counsel reiterated that on extraneous grounds the learned Judge in Chamber altered death sentence of Muhammad Siddique to that imprisonment for life and interfered with sentences of his two companions. To fortify his contentions he took us through statements of eye-witnesses Nazir Ahmad, Mst. Shamim and Medical Officer Dr. Sarfaraz Hussain showing that Muhammad Rafique had also caused 'Kapa' injury on the right hand of deceased Abdul Aziz and the case as such was of vicarious liability but not of individual acts.
9. M/s. Dr. Khalid Ranjha and Sheikh Muhammad Naeem while repudiating contentions raised by the learned counsel for the complainant urged for maintaining the conviction and sentence of Muhammad Rafique and Muhammad Sharif passed by the High Court. The learned counsel for Muhammad Siddique insisted for acquittal or reduction of his client's sentence on the ground that evidence of two eye-witnesses was interested and unreliable, besides, their evidence was not relied upon against his two companions and they were acquitted of the charge, the consistency required that his client be also acquitted.
10. To appreciate the abovementioned contentions raised by the learned counsel for the parties it would be beneficial to have glance at the statements of Medical Officers, Dr. Sarfaraz Hussain, who held autopsy on the dead body of Abdul Aziz and W.M.O. Dr. Azra Batool, who examined injuries of Mst. Shamim. As the medical evidence would play pivotal role in adjudicating the controversy it would be helpful to reproduce evidence of both the Medical Officers:- ' Dr. Sarfraz Hussain: "On 29-1-1988 at 2-30 p.m. I conducted the post-mortem examination on the dead body of Abdul Aziz s/o Karam Din caste Jat r/o Chak 13/1A.L., P.S. Renala Sadar, Okara. The dead body was brought by C-Muhammad Arshad No,457/C and was identified by Noor Muhammad s/o Boota and Nazir Ahmad s/o Karam Din. That was a dead body of a man clad in Sleti Cameez white Chadar and green Sweater, eyes half-opened, mouth was half-opened, rigor mortis and post-mortem staining were present on the dead body. The following injuries were present on the dead body.
(1) Incised wound 12 x 4 cm x muscle deep on back inner middle and upper part of right forearm.
(2) Incised wound 7 x 4 cm x deep going, intestine (large) out on front middle and lower part of abdomen just on umbilicus (stab wound)
' Cranium and spinal card.
' All healthy.
' Thorax.
' All healthy.
' Abdomen ' Peritoneum healthy abdominal cavity full of blood clots. Stomach contained 3/4 ounces semi- digested food, large intestines contained cut 6 cm x 2 cm on descending colon. Faecal material was present over spread over large intestine. Bladder was empty and all the other organs were healthy.
' Muscle bones and joint No fracture was found.
OPINION: ' In my opinion the cause of death was shock and haemorrhage due to injury No,2 which was sufficient in the ordinary course of nature for death. All the injuries were ante-mortem and caused by sharp-edged weapon. The time between death and injury was about four hours, between death ,and post-mortem about 20 hours. After post-mortem examination I delivered the dead body police papers after signing them, copy of the post-mortem report and last worn clothes of the deceased to the constable concerned under his signatures. Exh.PA is the carbon copy of my post- mortem report and Exh.PA/1 is the diagram showing the location of injuries and both are in my hand under my signatures and seal."
' Lady Dr. Azra Batool, W.M.O: "On 29-1-1988 at 4 p.m. I medically examined Mst. Shamim Bibi wife of Abdul Aziz aged 30 years caste Jat, R/o 13/1A.L. P.S. Sadar Renala brought by Falak Sher C-511 and found the following injuries on her person:-
(1) Swelling 7 x 4 c.m. On left elbow.
(2) Swelling 9 x 5 c.m. On back just above left hip.
(3) Contusion 9 x 12 c.m. On left hip.
' All the injuries were simple, caused by blunt weapon within the duration of 24 hours. Exh.PB is the carbon copy of my medico-legal report which is in my hand, under my signatures and seal."
11. It may be noted that injury No,1 on the person of Abdul Aziz deceased is located at his right hand.
Medical Officer has certified it to be caused by sharp weapon. He has not classified the injury. If it was simple or grievous one? In such situation we have to determine it. The location of injury and its description narrated by Medical Officer reflects that it was simple in nature. Such type of injury indeed falls within the ambit of section 324, P.P.C. But not under section 323, P.P.C. As charge does not contain section 324, P.P.C. We would refrain from dilating upon this issue further and leave the things as they are.
12. Medical Officer has definitely said that injury No,2 on the deceased was caused by sharp-edged weapon and sufficient in ordinary course of nature to cause his death. This injury is assigned to Muhammad Siddique. Muhammad Siddique had ample Opportunity and chances to inflict more injuries and cause more harm to deceased. He did not certainly do so. It reflects upon his conduct and working of his mind. It shows that he had no intention to cause his death. It could be indeed gathered from the evidence and circumstances that he had no intention to kill him but to chastise him. Accidentally he hit the deceased with a little more force than he aimed and caused his death.
In respect of the abovesaid injury the High Court has opined that Muhammad Siddique caused a solitary 'Barchi' blow to the deceased which unfortunately proved fatal. The words "solitary Barchi blow" and "unfortunately" have been intentionally introduced and with purpose by the learned Judge to minimize the role of Muhammad Siddique showing that he had no intention to kill the deceased. In addition thereto the abovesaid two words negate the stand of complainant that the three assailants with common intention of killing deceased had trespassed into his house.
Resultantly, therefore, the learned Judge in Chamber has held that as the murder was committed at the spur of moment and without premeditation life imprisonment would meet the ends of justice. Continuing his observations the learned Judge had further observed that principles of vicarious liability cannot be invoked in the circumstances of the case and every person shall be liable for his own individual acts. The abovesaid observations of the learned Judge are not based on conjectures or surmises but are supported by the record. The evidence of the prosecution and the circumstances of the case emanate so. The observations are not only appropriate but convincing also. There is no reason for us to take a different view than taken by the learned Judge in Chamber.
13. Coming to injury No,1 on the person of the deceased. It was attributed to Muhammad Rafique.
Injuries on person of Mst. Shamim were attributed to Muhammad Sharif. The trial Court therefore convicted and sentenced them for the same under section 323/34, P.P.C. The learned Judge in Chamber has maintained conviction of Muhammad Rafique and Muhammad Sharif under the abovesaid section awarded to them by the trial Court, but only reduced their sentences to that already undergone. It may be worthwhile to note that the trial Court had awarded sentence of R.I.
For three months and fine of Rs,500 in default to suffer R.I. For one month more to them for the said offence. With concern we observe that while allowing leave to appeal on 15-3-1993, this Court ordered issuance of non-bailable warrants against Muhammad Rafique and Muhammad Sharif.
The warrants were executed and they were arrested and are detained since then. By this time they must have undergone imprisonment for more than two years. The maximum sentence provided under section 323, P.P.C. Is imprisonment for one year or fine or both. No further action for enhancement of their sentence under section 323/34, P.P.C. Would be either reasonable or justifiable or even legal.
14. Reverting to acquittal of Muhammad Siddique, Muhammad Rafique and Muhammad Sharif of charge under section 452/34, P.P.C. It may be observed that indeed the Judge in Chamber has neither touched it nor given any reason therefor. The learned Judge ought to have given reason therefor. The error is there. It is case of acquittal. Mere technical defects in judgment per se would not be sufficient to lightly set aside findings of acquittal passed by the learned Judge in Chamber and to revive the findings of the trial Court in respect of offence under section 452/34, P.P.C. In such situation it would be duty of this Court to examine the prosecution evidence and see if evidence is sufficient and satisfactory to revive and maintain conviction and sentence passed by the original Court under section 452/34, P.P.C. The record of the case is before us. Witnesses Nazir Ahmad and Mst. Shamim have deposed that assailants entered into their house. The sketch of the Vardat Exh.PC does not show that the house was encircled by enclosure from all the four sides and there was a gate for its entrance and closure. Even eye-witnesses Nazir Ahmad and Mst. Shamim are silent in respect of the same. Obviously essential ingredients of section 452, P.P.C. Remained unattended. Lacuna is there. Benefit thereof, however, cannot be stretched in favour of the prosecution but it is to be extended in favour of defence. Besides, sentence awarded to Muhammad Siddique, Muhammad Rafique and Muhammad Sharif by the trial Court under section 452/34, P.P.C. Is R.I. For two years and fine of Rs,1,000 in default to suffer R.I. For three months. It was ordered to run concurrently with other sentences. Muhammad Siddique is already serving sentence of imprisonment for life under section 302, P.P.C. After issuance of non-bailable warrants by this Court Muhammad Rafique and Muhammad Sharif were arrested and detained in jail and by now they must have remained in custody for more than two years. Ostensibly they all have served their sentences. We as such are not inclined to interfere with acquittal of assailants of the charge under section 452/34, P.P.C.
15. Coming to appeal filed by Muhammad Siddique it may be observed that there is unimpeachable and credible evidence of Nazir Ahmed and Mst. Shamim against him. Both of them unanimously and in unambiguously have attributed fatal injury to him. Mst. Shamim is widow of deceased. She resided with him. At the time of incident she was present in the house. She was injured while saving her husband. She is natural witness of the incident. Nazir Ahmad has justified his presence at the spot. He reported the incident to police and brought law into motion. Name of Mst. Shamim appears in F.I.R. F.I.R. Contains name of Muhammad Siddique, the weapon he carried and the role he played. No doubt the abovesaid witnesses are closely related to the deceased.
Their mere relationship with the deceased would not make them interested or unreliable witnesses.
They had no animosity with Muhammad Siddique. They successfully stood to the test of cross- examination. No infirmity was pointed out therein. There is also no inherent defect. It is corroborated by medical evidence. Their evidence inspires confidence. Individually and collectively their evidence is sufficient to maintain conviction. Their evidence has been relied upon by the two.
Courts below. There is concurrent findings of the facts against Muhammad Siddique. We are not inclined to take a different view than that taken by the two Courts below.
16. The case of Muhammad Rafique and Muhammad Sharif is quite distinguishable from Muhammad Siddique. Muhammad Sharif did not cause any injury to deceased. Muhammad Rafique caused simple injury to deceased wherefore he was convicted for offence under section 323/34, P.P.C. The acquittal of Muhammad Rafique and Muhammad Sharif of charge under section 302/34, P.P.C. Would not strengthen the case of Muhammad Siddique. Principle of consistency is therefore not violated.
17. There is no merit in both the appeals which as such are dismissed accordingly.
18. Muhammad Rafique and Muhammad Sharif were arrested and detained by issuance of non- bailable warrants ordered by this Court. They are no more required by this Court. They be released forthwith if not required in any other case.