' JAVED IQBAL, J.--- Appellants Ahmed Khan and Amir Hamza were tried by the Additional Sessions Judge-III, Quetta for the offences under section 302/307/34, P.P.C. Who found them guilty and vide judgment, dated 8-10-1992 and sentenced them to imprisonment for life and to pay fine of Rs,10,000 each or in default to suffer R.I. For one year and fine, if realised, was to be paid to the legal heirs of the deceased. By this appeal under section 410, Cr.P.C. The appellants have challenged their conviction and sentences.
2. Briefly stated the facts of the case are that Muhammad Ismail complainant resident of Killi Habib got lodged a report that on 13-8-1990 he alongwith his neighbour went towards the water channel which was being used by their women-folk for washing of clothes where they found one Muhammad Sadiq from whom Abdul Salam enquired that as to why he was standing there because the privacy of their women-folk was being disturbed. Muhammad Sadiq who was having a Danda told Abdul Salam that he should mind his own business and also called his companions namely Ahmed Khan, Muhammad Hassan and three other persons and threatened to kill Abdul Salam and Muhammad Sadiq who restrained them from visiting the water channel. The said persons out of whom Ahmed Khan was carrying a hatchet and two others having Dandas attacked Muhammad Sadiq, injured Muhammad Ismail and caused head injury by means of wooden stick, while the remaining three accused attacked upon Abdul Salam with Dandas and hatchet and accused Ahmed Khan inflicted hatchet blow by using its back side at the head of Abdul Salam who resultantly sustained injuries on the left side of his head. The fight came to an end as Mir Khan, Muhammad Ibrahim and Ghulam Jan intervened and saved them from the accused persons. Mr. Rasool Bakhsh, S.H.O. Alongwith Muhammad Jamil, Investigating Officer and other police officials upon receipt of a telephonic information reached Civil Hospital where S.H.O. Recorded Fard-e- Biyan of complainant and send the same to police station where F.I.R. No,132 of 1990 was registered and investigation assigned to Muhammad Jamil S.I. (P.W.9). During the investigation, Investigating Officer recorded the statement of Abdul Salam injured who died subsequently. Thereafter, the Investigating Officer alongwith Muhammad Ismail (complainant) and Abdul Salam and other police officials visited the place of occurrence and prepared site plan (Exh.9-A) and site inspection note (Exh.3/A). He also recorded the statements of prosecution witnesses namely Mir Khan, Ghulam Jan and Muhammad Ibrahim at the place of occurrence. At 11-40 p.m. Upon receipt of information that injured Abdul Salam had been brought once again to hospital where he succumbed to the injuries, the Investigating Officer alongwith police officials proceeded to Civil Hospital and found Abdul Salam lying dead. The dead body of deceased was handed over to his legal heirs without post-mortem. On 19-8-1990 the Investigating Officer got prepared site plan (Exh.9/B) of the area by Patwari. He arrested the accused persons and on 20-8-1990 accused Amir Hamza was identified through identification parade (Exh.P.B.). On 22-8-1990 death certificate (Exh.4/B) of deceased Abdul Salam was obtained. On 23-8-1990 weapons of offence, i,e, wooden sticks and one hatchet was recovered from Killi Habib at the instance of accused persons and taken into possession vide recovery memos. Exhs.6/A, B, C and D and the same were sealed into parcels. On 28-8-1990 accused were sent to judicial lock-up. On 18-9-1990 medical certificate of injured Muhammad Ismail was collected and thereafter challan (Exh.9/E) was furnished for favour of trial.
3. The charge was framed under section 302/307/34, P.P.C. Against all the accused persons namely Ahmed Khan, Muhammad Hassan, Muhammad Sadiq and Amir Hamza to which they pleaded not guilty. At the conclusion of trial Muhammad Sadiq and Muhammad Hassan were acquitted while conviction was awarded to Ahmed Khan and Amir Hamza (convict appellants) as already mentioned, hence this appeal.
4. The prosecution produced Muhammad Ismail (P.W.1) who is also complainant in the case, Mir Khan (P.W.2) is an eye-witness Muhammad Ibrahim (P.W.3) is also an eye-witness of the incident and witness of site inspection note, Dr. Abdul Sattar (P.W.4) who is Medical Officer and examined deceased Abdul Salam and issued certificate Exh.4/A. Ghulam Jan (P.W.5) is also eye-witness of the occurrence, Abdul Qayyum (P.W.6) is witness of recovery of crime weapons, Sherdil Khan (M.F.C. P.W.7) is witness of the identification parade, Dr. Agha Fairoze (P.W.8) who has examined complainant Muhammad Ismail and issued certificate (ExhA/A). Muhammad Ismail (P.W.9) is Investigating Officer of the case.
5. At the trial the prosecution case rested principally on the testimony of eye-witnesses, the evidence of recoveries of hatchet and Danda, the medical evidence and lastly the evidence of motive. Let us examine the oral evidence first, produced by the prosecution to establish the charge.
Muhammad Ismail P.W.1 who is also complainant in the case stated that on 13-8-1990 at 12-30
(noon) he came from his house and saw that Abdul Salam and another persons whose name revealed subsequently as Amir Hamza were quarrelling with each other, he intervened and separated them. Amir Hamza was sent to his house. He deposed further that meanwhile he saw accused Ahmed Khan and two of his companions holding hatchet and Danda in their hands but he denied the presence of accused Muhammad Sadiq and Muhammad Hassan (acquitted accused) and probably due to the said denial he was declared hostile and subjected to cross- examination by the learned District Attorney. He admitted that at the time of occurrence accused Ahmed Khan was holding a hatchet in his hand and further admitted presence of Ghulam Jan (P.W.5) who witnessed the occurrence but denied the contents of his report (Exh.1/A) upto the extent of implication and role played by Ahmed Khan and presence of Muhammad Sadiq and Muhammad Hassan. Let us have a pause at this juncture and make it clear that the statement of a hostile witness should not be discarded or ignored altogether. In our view such evidence requires scrutiny to see whether any part of it is worthy of credence and belief in the light of other evidence.
The settled principle in this regard is that the evidentiary value of a hostile witness is equal to that of any other witness. The Court may rely and act on such particular evidence of a hostile witness as may be considered true and subject to availability of corroboration from independent source and conformity with remaining evidence. The evidence of a hostile witness cannot be discarded merely for the reasons of his being hostile. We are fortified by the following authorities in this regard:--
(i) Abdul Rehman v. The State 1988 PCr.LJ 1523
(ii) Zard Khan v. Gul Sher 1972 SCM R 597.
6. No doubt that Muhammad Ismail was declared hostile but we are inclined to accept his testimony in so far as it relates to the happening of occurrence, fight in between Abdul Salam and Ahmed Khan and others, carrying of a hatchet by Ahmed Khan infliction of hatchet blow by Ahmed Khan and presence of Ghulam Jan. The abovesaid version as given by Muhammad Ismail has been corroborated by the other evidence as is apparent from the deposition of remaining prosecution witnesses and would be discussed wherever necessary at relevant places in this judgment. Mir Khan (P.W.2) has witnessed the occurrence and deposed that he alongwith Ghulam Jan (P.W.5) when reached the place of occurrence saw that Abdul Salam and Muhammad Ismail from one side and Ahmed Khan, Muhammad and Amir Hamza were on other side, out of whom Ahmed Khan was having a hatchet and the remaining having Dandas in their hands. He deposed further that two accused were beating Muhammad Ismail and Muhammad Sadiq caused stick blow on Muhammad Ismail while accused Ahmed Khan inflicted a hatchet blow by using its back side at the head of Abdul Salam and whereafter on their intervention they were separated. He deposed in an unequivocal terms that accused Ahmed Khan gave hatchet blow with its back side on the head of Abdul Salam. He was subjected to lengthy cross-examination to which he stood firm and nothing advantageous could be extracted from the defence point of view specifically the role played by Ahmed Khan. It is, however, to be noted that he could not exactly identify accused Muhammad Sadiq and this fact prevailed upon the learned trial Court and resulted in acquittal of accused Muhammad Hassan and Muhammad Sadiq. It is to be noted that he has also corroborated the version of Muhammad Ismail (P.W.1) hostile witness regarding occurrence of dispute and carrying of hatchet by Ahmed Khan. He also mentioned about the Danda blow inflicted upon Muhammad Ismail (complainant) and thus corroborated his version regarding injury received by him during fight. It must not escape unnoticed he also deposed the motive of the alleged occurrence as narrated by Abdul Salam who objected to the visit of Muhammad Sadiq to water channel being used by their women-folk for washing of clothes and Muhammad Sadiq told all this to three of his companions who remained present outside of their houses and said that they would not spare Abdul Salam and Muhammad Ismail as they restrained them from visiting the water channel. The motive as narrated by Abdul Salam and deposed by Mir Khan (P.W.2) was never challenged specifically but a suggestion that it was a dispute over water channel was made but denied. He also mentioned that no blood oozed from the injury caused with the hatchet blow and this fact was further corroborated during medical examination of Abdul Salam. Muhammad Ibrahim (P.W.3) has corroborated the deposition of Mir Khan (P.W.2) on all material particulars. He witnessed the occurrence and saw Ahmed Khan who inflicted hatchet blow by using its blunt/backside on the head of Abdul Salam. He also mentioned about Danda blows inflicted by accused Muhammad Sadiq to Muhammad Ismail (P.W.1/compiainant). He, however, could not identify accused Muhammad Sadiq and erroneously identified him as accused Muhammad Hassan. He also pointed out the motive as narrated by deceased Abdul Salam as already mentioned above. He was also subjected to a lengthy cross-examination but nothing beneficial could be extracted and, he, on the contrary and in categorical terms denied the suggestion that deceased Abdul Salam received injury as he fell down in the ditch but it was caused with hatchet blow. It is noticeable that motive as explained was never challenged and not a single question put up during cross-examination. Ghulam Jan (P.W.5) has stated that on 13-8-1990 he heard some commotions and saw that Abdul Salam was being beaten by four persons but he was not aware regarding their names at the time of occurrence. He, however, deposed that accused Ahmed Khan was having a hatchet in his hands while accused Muhammad Sadiq was beating Muhammad Ismail. He, however, could not identify Muhammad Hassan and recognised Muhammad Sadiq as such. He further deposed that Ahmed Khan inflicted a hatchet blow with its backside at the head of Abdul Salam. He further deposed that Abdul Salam was taken to his house and subsequently to hospital. His testimony remained unshattered during cross-examination. He, however, could not identify accused Muhammad Sadiq as pointed out earlier. Abdul Qayyum (P.W.6) has deposed that on 30-8-1990 when he visited the house of deceased Abdul Qayyum to offer Fateha and on his return while he was standing alongwith Muhammad Alam, police reached there and associated them as witnesses for recovery of crime articles. According to him accused persons led police to a house from where they got produced one hatchet three wooden sticks before police. It is pertinent to note that he could not specifically mention and attribute as to which particular Danda pertained to whom but he mentioned clearly and without any ambiguity that hatchet (Article 2) was got recovered at the instance of accused Ahmed Khan. Sherdil Khan (P.W.7) M.F.C., Quetta deposed that in his presence identification parade of accused Amir Hamza was conducted and he was identified by Muhammad Ismail as Amir Hamza. We are deliberately avoiding to discuss his statement for the reason that accused Amir Hamza was previously known to Muhammad Ismail (P.W.1) and as such the holding of identification parade, in our view, was a futile exercise. The said P.W. Was also declared hostile but his testimony being not material deserves hardly any analysis or comments. Muhammad Jamil (P.W.9) has deposed that on 13-8-1990 he was posted as Additional S.H.O. At Police Station Sariab Road, Quetta when after receiving an information from the duty doctor of casualty department of Civil Hospital regarding some fight which took place at Killi Habib and injured persons were brought to Civil Hospital, he alongwith Ishfaq Ahmed, Rasool Bakhsh and other officials proceeded to Civil Hospital and found Abdul Qayyum and Muhammad Ismail in injured position. On physical check up he found injuries on frontal region of the forehead of Muhammad Ismail and Abdul Salam had received injuries on his head and body. S.H.O. Rasool Bakhsh took Fard-e-Biyan of injured Muhammad Ismail who nominated accused Muhammad Khan, Muhammad Hassan and Muhammad Sadiq as culprits but did not mention the name of the fourth accused Amir Hamza (being not known to Min). A case was accordingly registered vide F.I.R.
No,132 of 1992 and investigation conducted by him and he recorded the statement of Abdul Salam deceased in injured position who nominated all four accused namely Ahmed Khan, Muhammad Hassan, Muhammad Sadiq and Amir Hamza. He visited the place of occurrence and at the pointation of Muhammad Ismail. Inspected the place where incident occurred and prepared the sketch plan (Exh.9/A), inspection memo. Was also prepared (Exh.3/A). He also recorded the statements of Mir Khan, Ghulam Jan and Muhammad Ibrahim at the place of occurrence. All the three P.Ws. Nominated the four accused and also identified them in Court. He received subsequent information at 11-40 p.m. From Civil Hospital that injured Abdul Salam was brought again to Civil Hospital where he succumbed to the injuries. He visited the casualty department of Civil Hospital and found Abdul Salam lying dead. Section 302, P.P.C. Was added, thereafter, the dead body was handed over to the legal heirs without post-mortem. On 22-8-1990 death certificate of deceased Abdul Salam was obtained (Exh.4/B). He further deposed that recovery was made in presence of Muhammad Alam and Abdul Qayyum (P.W.6) at the pointation of four accused persons from a room. He further deposed that accused Ahmed Khan got recovered the hatchet used in inflicting blow upon Abdul Salam. After completion of necessary formalities the challan was filed for- favour of trial. He was subjected to a lengthy cross-examination but nothing beneficial could be extracted from defence point of view apart from a few minor contradictions which can be ignored being not grave in nature.
7. Now let us see the medical evidence as led by the prosecution. The statement of Dr. Abdul Sattar (P.W.4) is free from any ambiguity who has stated in clear terms that probable cause of death is injury to the vital organ, i,e, brain, comma, shock and death. He also issued medical certificate which is Exh.4/A and reproduced hereunder for ready reference:- "DEATH CERTIFICATE ' Certified that Abdul Salam son of Sher Muhammad aged about 18 years, caste Shahwani, occupation farmer. Address Habib Kechibaig Sariab was brought to the casualty department, by Mir Khan on 13-8-1990 at 2-40 p.m. Under M.L.C. No,391/AFK and the following were noted:--
(1) Bruise mark on right shoulder joint.
(2) Haemotoma on the left parietal region.
(3) Abrasion over right wrist.
' Treatment was given and the patient was improved, and advised to go to home, and the patient was brought to the casualty back on the same date, i,e, 13-8-1990 in unconscious condition emergency treatment was given, but no response, and the patient died in casualty at 11-30 p.m.
' Probable cause of death, ' Probable cause of death is injury to the vital organ, i,e, brain, comma, shock and death.
(Sd.)
Sandeman Prov. Hospital, Quetta."
8. It is to be noted that he was subjected to thorough cross-examination and while answering one of the questions he stated emphatically and denied the suggestion that during scuffle the deceased fell on a stone and resultantly received the injuries in question. It is worth mentioning that an entirely different suggestion was made to all other prosecution witnesses that the alleged injuries were caused as the deceased fell in a ditch.
9. We have examined with care and caution that the depositions must have an intrinsic value and must not suffer from deliberate material improvements, and same should not be unreasonable, baseless and inherently improbable. In our view the evidence of the eye-witnesses is independent, credible and irrefutable, hence is confidence inspiring and can be relied upon. The discrepancies in the statement of P.Ws. Do occur in every criminal case and if there are not serious enough to the extent of demolishing all the structure of the prosecution case then these are liable to be ignored.
We have also examined the statements of convict appellant Ahmed Khan recorded under sections 342 and 340, Cr.P.C. But he could not substantiate the plea of innocence as taken by him which is fictitious and afterthought, therefore, cannot be relied upon.
10. We have carefully examined the case of Amir Hamza in the light of prosecution evidence as discussed. It would not be out of place to mention here that under the provisions as contemplated in section 34, P.P.C. The two elements that constitute the crime are common intention and participation in the crime. The important question to be dealt with is whether Amir Hamza was cognisant of the fact that companions Ahmed Khan would commit murder or otherwise. In order to ascertain whether he was having a common intention the fact that must not be ignored is that the common intention implies acting in concert, existence of pre-arranged plan and that is to be proved either from conduct or prevalent circumstances at the time of occurrence or from any incriminating facts. Before drawing any conclusion on the point of common intention another important factor which deserves consideration is to see the element of participation in the action which resulted in the fateful event. It transpires from the circumstances and evidence as led by the prosecution that he was accompanying Ahmed Khan but could not get a chance to participate in the actual occurrence which came to an end within a few moments and Ahmed Khan completed the task by infliction of a single hatchet blow. Accused Amir Hamza, therefore, cannot be convicted on the basis of intention only as participation in the commission of offence as preconcert is one of the mandatory pro-requisite which is lacking. Even otherwise it is well-settled by now that "common intention" as mentioned in section 34, P.P.C. Presupposes prior concert and a pre- arranged plan as no conviction can be awarded for vicarious liability and criminal act of the others till it is proved that the same was done in furtherance of common intention (1956 PCr.LJ 897 and 1955 SCMR 1083). No iota of evidence has come on record to prove either the prior concert in between the convict appellants or participation by Amir Hamza who C resultantly deserves acquittal.
11. We would like to discuss at some length the main contention as raised by Mr. Ehsanul Haq, Advocate that there was no intention on the part of Ahmed Khan to commit murder of Abdul Salam and as such capital punishment cannot be awarded to him. We may mention here that the evidence which is required in such like cases revolves around the following important factors:--
(a) The act was done with the intention of causing such bodily injury;
(h) The death is likely to be caused and this aspect is known to the accused;
(c) The inflicting injury was sufficient to cause death in ordinary course of nature.
' We are conscious of the fact that mere infliction of injury which resulted in death in the ordinary course of nature would not be a conclusive proof that the accused intended to cause such bodily injury and there should be a definite finding based on some concrete evidence that the act which caused the death was done to achieve the following objects:--
(a) The intention of causing death;
(b) Infliction of bodily injury sufficient to cause death in the ordinary course of nature.
12. In so far as intention is concerned that can be inferred from acts which in this case can be judged from the injury inflicted by hatchet blow. Act of accused Ahmed Khan leaves no room for doubt that he fully intended to do what he did. The deadly nature of the weapon used and the forceful blow on the head would certainly justify the inference that he knew that he was likely to kill Abdul Salam. It hardly needs any explanation that culpable homicide is murder if the accused knows that his act is so eminently dangerous that it must in all probability cause death or any such bodily injury that is likely to cause death in the ordinary course of nature. If an ordinary person must know that an act is so eminently dangerous that it will in all probability cause death or such bodily injuries as is likely to cause death an accused person charged with the doing of such an act will be presumed to have that knowledge unless he can prove that he is deficient in such knowledge. As is evident from the evidence the deceased was empty-handed when Ahmed Khan in an unusual and cruel manner inflicted hatchet blow which resultantly caused his death. In these circumstances the conclusion is irresistible that the convict/appellant had brought about the death of Ahmed Khan and the act for which he was answerable was sufficient in the ordinary course of nature to cause death. We have also examined the medical opinion which appears to be sound and probable cause of death has been mentioned in categoric terms which is injury to the vital organ, i,e,, brain, comma, shock and death. It needs no elaboration that head is a vital part of the body, therefore, injuries on the head are sufficient in the ordinary course of nature to cause death and the person who inflicted the same must be presumed to have had the requisite intention of causing injuries sufficient to cause death. It is, therefore, manifest that in the present case the cause of death was the act of accused Ahmed Khan, i,e, hatchet blow and, therefore, it would be only an academic exercise to discuss whether homotoma could cause death or not, in the presence of medical opinion given by an expert in the field concerned. We may mention here at this juncture that the deposition tendered by Dr. Abdul Sattar (P.W.4) is based on special knowledge and cannot be brushed aside. He also stood firm to the test of cross-examination. Generally when an expert like a Medical Officer gives a report after personal examining the deceased or the injured, the same is entitled to weight when he is examined in Court and has given evidence in identical terms and stood firm to cross-examination. We may mention here that the value of the medical evidence adduced by the prosecution in support of its case when there are eye-witnesses, who speak directly about the act of violence is only corroborative. The medical evidence establishes that the injury could be caused in the manner sworn to by the witnesses and, therefore, the testimony of the witnesses could be accepted. The medical evidence does not itself prove the prosecution case. It is useful either as corroborative evidence to the prosecution or for contradicting by the defence. The medical opinion which has come on record is comprehensive, complete and does not call for any interference.
13. We have carefully considered the arguments advanced by the learned counsel for the convict appellants. We find that it is a case of prompt F.I.R. (Exh.1/A) and daylight occurrence. There is nothing on record to show that F.I.R. Was not prepared at the time and place of incident. In the F.I.R.
Names of the prosecution witnesses (Mir Khan, Muhammad Ibrahim and Ghulam Jan) the names of convict appellants (Ahmed Khan and one another person who was subsequently identified as Amir Hamza), the weapons carried by the-a and the manner of occurrence are detailed. The ocular version is free from doubt and confidence inspiring. The recovery of hatchet also corroborates the prosecution version. Learned defence counsel has failed to point out material contradictions, grave discrepancies and dishonest improvements in the statement of eye- witnesses. The appellants Ahmed Khan has failed to rebut prosecution case and its evidence. This brings us to the alternate plea raised by the learned defence counsel which runs as under:-- ' Because, learned trial Court has not appreciated that in any case if there was intention to cause death, blunt side of the hatchet would not have been used."
14. The mere fact that death was a result of single blow will not reduce criminality of the act, particularly when we bear in mind the nature of weapon (hatchet) used, the force with which the blow was inflicted (caused homotoma and deceased fell in a ditch) and vital part of the human body (head) where it was inflicted. the circumstances as explained above the accused was rightly convicted. It is worthmentioning that the location of the body of deceased Abdul Salam selected by the appellant, the kind of weapon used by him, force with which he inflicted the blow and the damage done by the injury indicates that accused had no intention other than that of causing the death of deceased Abdul Salam. He at least fully knew that the injury inflicte.d by him was most likely to cause the death and, therefore, there is no doubt in our mind that the death caused by Ahmed Khan amounts to murder and no exception can be taken. In this regard we are fortified by the dictum laid down by Honourable Supreme Court in case Haider Khan v. The State 1972 SCMR 668 wherein it was observed in a similar circumstances as under:-- "However, it is clear that the injury having been caused on a vital part of the body by a deadly weapon, and having been found to be sufficient in the ordinary course of nature to cause death, the offence committed by the appellant would fall within the definition of murder even though he may not be credited with the intention of causing death. It is at any rate, a case where the appellant must be burdened with the intention of causing such bodily injury as was likely to cause death. The appellant has, therefore, been rightly convicted for murder under section 302 of the P.P.C."
15. The prosecution has been able to prove its case beyond the shadow of doubt against accused Ahmed Khan and resultantly his appeal stands dismissed. Convict appellant Amir Hamza is acquitted and should be released forthwith if not required in any other case. The appeal filed on behalf of State under section 417, Cr.P.C. Against acquittal of accused Muhammad Hassan and accused Muhammad Sadiq and revision petitioner preferred under section '435/439Cr.P.C. For enhancement of sentence regarding accused Amir Hamza and Ahmed Khan, in the light of above mentioned discussion also stand 'dismissed.