' This judgment will dispose of Criminal Appeal 226 of 1990 (filed by Rashid Ahmad and Qamar Din appellants) and Criminal Appeal No,239 of 1990 (filed by Muhammad Akram, Mushtaq Ahmad and Waris All appellants). The appellants were convicted by the learned Sessions Judge, Lahore for an offence under section 302/148/149, P.P.C. Vide judgment, dated 31-3-1990. They were sentenced as under:-- ' Under section 302, P.P.C. Life imprisonment with a fine of Rs,10,000 each or in default to undergo R.I.
For one year each. The fine if recovered was ordered to be paid to the heirs of the deceased.
' Under section 148, P.P.C. Three years' R.I. Each.
' Both the sentences were ordered to run concurrently. No benefit under section 382-B of the Cr.P.C.
Was given to them.
2. The occurrence took place on 24th of June, 1986 at about 8-00 a.m. Near Haveli Mehr Zahoor situated at a distance of 4-1/2 K.M. From Police Station Shandara. The appellants (except Qamar Din who was empty-handed) were said to be armed with Chhuri each and launched an attack on Ghulam Raza son of Anwar All aged 17/18 years. Qamar Din was alleged to have held the deceased from behind in his Japha and the other appellants inflicted one blow each on the left side of the chest of the deceased. Waris All appellant gave the first blow which landed on, the left side of chest near heart of the deceased. Rashid Ahmad, Mushtaq Ahmad and Muhammad Akram gave one blow each on the left flank of the deceased. The deceased fell down on the ground. He was taken to Mayo Hospital, Lahore, by Malik Asghar All P.W.5 and Ahmad All P.W.B. He succumbed to the injuries on the same day at about 7 minutes past 9-00 a.m. The report Exh.PA. Was lodged by Malik Asghar All P.W.5 on 24-6-1986 at 9-45 a.m. At Police Post Shandara, Lahore. The formal F.I.R.
Exh.PA./1 was registered at Police Station, Shandara Town on the same day at about 10-05 a.m. It was recorded by Muhammad Rafique S.L/P.W.2.
3. Atta Muhammad S.I./S.H.O. P.W.13 first went to Mayo Hospital, Lahore and prepared the injury statement Exh.P.G. And the inquest report Exh.P.H. Of the deceased. He sent the dead body to the mortuary under escort of Muhammad Ashiq P.W.6 and Basharat Constable (not produced).
Thereafter, he reached the spot at about 12 noon, took the blood-stained earth into possession vide recovery memo. Exh.P.D. (attested by Ahmad All P.W.8 and Shaukat All P.W.9). He prepared the rough site plan Exh.P.F. And recorded statements of Ahmad All P.W.8 and Shaukat All P.W.9 under section 161 of the Cr.P.C. After the post-mortem examination, last-worn clothes of the deceased, Shalwar P.2 and Shirt P3 were produced before the Investigating Officer by Muhammad Ashiq, Constable P.W.6 which were taken into possession vide recovery memo. Exh.P.C. He also got the site plan Exh.P.F. Of the place of occurrence through Ch. Muhammad Yaqub, Draftsman. The Draftsman had died and the site plan was got proved through statement of his son named Mahmood Ahmad P.W.12. He arrested Rashid Ahmad, Muhammad Akram and Qamar Din on 23-7-1986. The other two appellants namely Waris All and Mushtaq were arrested by Ghazan Khan S.I. P.W.7 on 24-11-1986.
Waris All led to the recovery of blood-stained Chhuri P.1 from near "Bandi Ravi River" from underneath a Keekar tree which was taken into possession vide recovery memo. Exh.P.B. He forwarded the incriminating Chhuri to the Chemical Examiner whose report Exh.P.I. Shows that it was not stained with blood. It was merely shown to be rusted. After completing the investigation the Investigating Officer submitted challan against the appellants.
4. In support of its case the prosecution produced as many as 13 witnesses including three eye- witnesses namely Asghar All P.W.5, Ahmad Ali P.W.8 and Shaukat All P.W.9.
5. The appellants denied the charge made against them and pleaded to be innocent. They also claimed that they were not present at the spot and were involved due to enmity. They produced three witnesses in their defence namely Mian Mumtaz Hussain D.W.1, Hamid Mukhtar Gondal D.S.P./D.W.2 and Muhammad Azeem D.W3 and also appeared in their own defence and made statements on oath under section 340(2) of the Cr.P.C.
6. Learned counsel for the appellants in Criminal Appeal No,226 of 1990 contend as under:--
(i) The complainant and the other two eye-witnesses are highly interested. There is background of enmity between the parties. The accused persons had earlier committed the murder of nephew of Asghar All complainant/P.W.5 and two persons from the side of the accused were murdered by the complainant party. Shaukat Ali P.W.9 is a friend of the complainant.
' There is no independent corroboration of highly interested prosecution witnesses.
' The manner of infliction of injuries when the deceased was allegedly held in Japha is not believable. Since all the injuries were inflicted on the left side of the deceased, each accused after giving one blow must have jumped aside to create room for the other to enable him to inflict a blow. It was hardly necessary because one person alone could have inflicted all the injuries.
(iv) The medical evidence materially contradicts the ocular evidence as to the seat of injuries, time of death and roles ascribed to the appellants. All the injuries were not caused on the left flank. One injury was inflicted below the left axilla and the other on the abdomen.
(v) The solitary recovery of Chhuri (P.1) was said to have been effected from Waris appellant vide recovery memo. Exh.P.B., dated 24-11-1986 has no evidentiary value as the Chhuri was not blood- stained,
(vi) It was an unseen occurrence and the appellants were implicated due to previous enmity.
7. Learned counsel for the appellants in Criminal Appeal No,239 of 1990 submits as under:--
(i) Ghulam Raza deceased had died at 9-45 a.m. In Mayo Hospital as recorded in the post-mortem report Exh.P.E. While the matter was also reported at Police Station, Shandara at 9-45 a.m. Which is not reconcilable. After the death of the deceased at 9-45 a.m. It was not possible for the complainant to lodge the report at Police Station, Shandara lying at a distance at about 6 miles, at 9-45 a.m.
(ii) It had rained on 24-6-1986 and it was not possible to have bloodstained earth from the place of occurrence. P.W.9 admitted that it had rained just before the occurrence.
(iii) According to P.W.8 blood-stained earth was collected with the help of a wooden Phatti whereas the Investigating Officer stated that he had taken the blood-stained earth with the help of a knife (page 30 of the file).
(iv) The murder was probably committed by one Fakhar-ud-Din son of Mehr Zahoor who owned an orchard. In the site plan the name of Fakhar-ud-Din has been mentioned (vide point "B"). However, P.W.13 was not questioned about it.
(v) The accused persons were declared innocent by the Investigating Officer.
8. On the other hand, learned counsel for State supported the appellants' conviction on the ground that the occurrence had taken place in broad daylight and the prosecution case was fully proved by the ocular and medical evidence. Learned counsel for the complainant urged that the prosecution case was fully proved by reliable ocular evidence which was consistent. He added that in Column 3 of the inquest report the time and date mentioned pertained to the knowledge of the Investigating Officer and not the precise time when the deceased had died. He further submitted that the deceased was first taken to the Mayo Hospital as stated by the Investigating Officer who had obtained the death certificate from the doctor. He further submitted that there was no real contradiction in the medical or ocular evidence. He urged that the definitions of axilla and flank referred to by the appellants' learned counsel could not be made basis to falsify the P.Ws. To verify their veracity the rule of prudence of an ordinary man had to be applied. He urged that from a distance the P.Ws. Could only observe that the injuries were being caused on the left side of the deceased. He next submitted that the police leaned in favour of the accused persons and did not arrest them immediately after the occurrence. Moreover, the complainant was falsely involved in a murder case to pressurize him to settle the matter on oath. He added that the finding of innocence was wrongly recorded by the Investigating Officer on the basis of oath taken by Muhammad Azeem D.W.3. Lastly he submitted that the accused/appellants had raised the plea of alibi but failed to substantiate the same.
9. The material on the record shows that the occurrence had taken place in broad daylight at about 8-00 a.m. On 24-6-1986 at a public place. The accused persons were previously known to the complainant and the P.Ws. And there was no question of mistaken identity of the accused. The argument of the appellants' learned counsel that the occurrence had taken place in the darkness of night because the doctor (Dr. Saeed Ahmad) (P.W.11) had given the time between death and post-mortem as 18 to 36 hours is not acceptable. The doctor had given the above-referred time between the death and post-mortem examination approximately. It was merely his guesswork. In the presence of the clear eye-witness account qua time of occurrence and death of Ghulam Raza deceased the guesswo rk of the doctor, not based on any valid reason, cannot be relied upon for a definite finding that the occurrence had taken place in the darkness of night and that the deceased had stated about 36 hours before his post-mortem examination (held on 25-6-1986 at 9-00 a.m.). The next argument of the appellants' learned counsel regarding delay in lodging the F.I.R. Is also devoid of force. After Ghulam Raza was injured the complainant made hectic efforts to take him to the hospital. At first, he carried the injured person in a Rehra and thereafter travelled up to the hospital in a wagon. On reaching the hospital, he was informed by the doctor that Ghulam Raza had expired. For that reason, the deceased was not medically examined. Thereafter, the complainant again went back to the police station and got the F.I.R. Recorded at about 9-45 a.m.
Keeping in view the facts and circumstances of the case, it can be safely concluded that the F.I.R.
Was promptly lodged and that there was no time for confer and consultation for false implication of the accused. The appellants' learned counsel strenuously urged that the time of death of Ghulam Raza deceased given in the inquest report was 9-45 a.m. And that the F.I.R. Was recorded with considerable delay but the police wrongly showed the time of F.I.R. As 9-45 a.m. The argument has an element of ingenuinity but no substance. Column No,3 of the inquest report referred to by the appellants' learned counsel does not pertain to time of death of the deceased. It pertains to time and date when the Investigating Officer had learnt about the death of the deceased. Column No,3 reads as under:--{{URDU TEXT}} ' It clearly refers to the time and date when the factum of death of the deceased was known to the Police Officer. It was known in the present case when the F.I.R. Was recorded at 9-45 a.m. On 24-6- 1986. The doctor appears to have made a mistake when he mentioned the time of death as 9-45 a.m. In the postmortem report. Ghulam Raza, deceased was never admitted in the hospital in an injured condition or medically examined before his death. He died by the time he was brought to the hospital at about 9-00 a.m. On 24-6-1986. Therefore, the doctor had no definite knowledge about the time of death of the deceased and appeared to have taken the same from the entry made against Column No,3 of the inquest report without realizing that it pertained to the time and date of knowledge of the Investigating Officer regarding factum of death.
10. The eye-witness account furnished by Asghar Ali, complainant P.W.5, Ahmad Ali P.W.8 and Shaukat All P.W.9 appears to be straight, consistent and truthful. Asghar All P.W.5 stated that on the day of occurrence at about 8-00 a.m. He alongwith Ahmad Ali, grandson of his elder brother, was going towards Shandara Town, Lahore for making some purchases, Ghulam Raza (deceased) first cousin of Ahmad Ali P.W. And a student of 9th class accompanied them as he wanted to go for tuition. When they reached near the Haveli of Mehar Zahoor, Shaukat All P.W. Also met them.
Shaukat All was coming back from Shahadara after selling milk on his Rehra. The complainant and P.Ws. Started having conversation while Ghulam Raza deceased proceeded ahead. He had covered a distance of about 20 years when Qamar Din, Rasheed, Waris, Akram and Mushtaq appellant emerged from the lane situated near the Haveli of Mehar Zahoor. Qamar Din appellant clasped Ghulam Raza deceased while Waris accused inflicted a Chhuri blow to him causing an injury below his heart on the left side. Rasheed accused gave a Chhuri blow causing an injury on the left side of his flank. Similarly Mushtaq and Akram accused gave one blow each on the left side/flank of the deceased. On the hue and cry raised by the complainant and the P.Ws. Qamar Din released the deceased who fell down on the ground. The accused ran away from the spot. The complainant with the help of Ahmad All P.W. Took the injured person in a Rehra to the Shandara Bus Stop from where he boarded a wagon up to the hospital. He reached there at about 9-00 a.m.
And within 5 to 7 minutes was informed by the doctor that the deceased had died. The appellants' learned counsel vehemently urged that if Qamar Din appellant was holding the deceased in Japha then it was not possible for the four co-accused to inflict injuries on the left side of the body of the deceased. He urged that it was ridiculous to assert that at first Waris appellant inflicted an injury with Chhuri near the heart of the deceased and then jumped aside to create room for the other accused to give the second blow, then he also jumped aside and the third accused came forward and caused an injury and jumped aside to enable the fourth accused to inflict the last injury.
According to the appellants' learned counsel this manner of infliction of injuries is unbelievable.
Moreover, the persop clasping the deceased would also have been injured in the process. While raising the above argument, the appellants' learned counsel lost sight of the manner in which the deceased was actually held by Qamar Din appellant. The complainant and the other P.Ws. Had stated in cross-examination that Qamar Din made a Japha from right side of the deceased from behind twisting left arm of the deceased towards his backside and right arm over his shoulder, on the backside. In this manner, the body of the deceased from the left side was fully exposed to the assailants and they could conveniently inflict injuries to him in the manner stated by the complainant. The element of jumping one after the other is a figment of imagination of the appellants learned counsel. It may be mentioned that the manner of clasping was got clarified by the defence counsel in cross-examination of the complainant and the other eye-witnesses who were not confronted with the F.I.R. Or the statements recorded under section 161 of the Cr.P.C.
Regarding the details of Japha The complainant was subjected to lengthy cross-examination but nothing material was elicited to doubt his veracity. He appears to be a truthful witness. He honestly stated that there was previous enmity between the complainant party and the accused persons and that the accused had earlier committed the murder of his nephew. Thereafter, two persons from the side of the accused were killed. He added that the complainant party was not responsible for the said murders. He further explained that the murder disputes were settled through a Punchait on the Holy Qur'an about two years prior to the present occurrence. It was agreed that one of the parties should migrate from the village after selling its property.
' The complainant voluntarily offered to the accused party that he would quit the village after selling his property and a similar offer was made by the accused party. Ultimately, the accused party left the village Jada after selling the property. The complainant also honestly admitted that ever since the accused had left the village 'no dispute had taken place between the two parties. In this background, the complainant would not have falsely implicated the appellants, had they not been really responsible for the crime. The version of the occurrence given by the complainant was fully corroborated by Ahmad All (grandson of complainant's brother) P.W.8 and Shaukat All P.W.9 who is an independent witness. The testimony of P.W.8 cannot be brushed aside on the sole ground of his relationship with the complainant. P.Ws.8 and 9 were also subjected to lengthy cross- examination but the defence failed to make any significant dent in their. Evidence. They also deposed that the appellants were the real assailants and had inflicted one Chhuri blow each on the left flank of the deceased. They explained the precise manner of Japha by Qamar Din appellant. The appellants' learned counsel, in his. Attempt to dub Shaukat Ali P.W.9 as an unreliable witness, emotionally urged that an independent witness is normally flag-bearer of humanity and is prepared to suffer hardships for the sake of humanity but Shaukat Ali acted in a callous and cruel manner by not carrying the injured person in his Rehra to the hospital. The argument is devoid of force. Shaukat Ali P.W.9 had explained that he was coming back after selling milk at Shandara and had purchased fodder which was lying in his Rehra. He stated "my Rehra was not empty at that time and that is why I had not taken the deceased on it as it was loaded with fodder and empty vessels." Moreover, as stated by the complainant and Ahmad Ali P.W.8 another Rehrawala had come there and the deceased was carried to the bus-stop in the said Rehra. Shaukat All P.W.
Cannot be dubbed as a chance witness either because it was normal for him to pass from the said route. He stated in cross-examination, "I used to adopt the road going to Shandara Town from Village Jada whereupon the occurrence took place". He also stated, "I daily used to pass through road where the occurrence had taken place. This view finds support from the judgment of the Supreme Court in the case of Javed Ahmad alias Jaida v. The State and another 1978 SCM R 114.
Even the testimony of a chance witness can be relied upon. Keeping in view the facts and circumstances of a particular case, as held in the case of Irshad alias Shada v. The State 1971 SCM R
655. Therefore, I concluded that the eye-witness account furnished by the above-referred three witnesses can be safely relied upon. After careful appraisal of the statements of the eye-witnesses, the trial Court relied upon them. The trial Court had a better opportunity to see the demeanour of the witnesses and judge their veracity. Therefore, the views of the trial Court have to be given due weight. Moreso, when there was nothing to show that the conclusions drawn by the trial Court suffer from misreading or non-reading of evidence or that the same were absurd or arbitrary. In the case of Shahzado v. The State and 8 others PLD 1977 SC 413, the Supreme Court was pleased to I hold that due importance has to be attached to concessions drawn by the trial Court as it had the opportunity to watch the demeanour of the witnesses and to form first hand impression about their deposition.
11. The argument of the appellants' learned counsel that the medical evidence contradicts the ocular evidence regarding seat of injuries, time of death and roles attributed to the appellants had no force. The appellants' learned counsel has stressed that if the definitions of axilla, flank and abdomen are kept in mind, then at least two injuries were not caused on the left flank. While considering this aspect of the matter, we have to keep in mind the prudence of an ordinary man and the situation in which he had the occasion to see the assailants. The witnesses were not expected to use the word "flank" like a medical expert or strictly in accordance with the definitions contained in the medical dictionary. They had the occasion to see the occurrence from some distance and found that the injuries were being inflicted on the left side of the deceased and stated that the injuries were caused on the left flank of the deceased. Even the Investigating Officer mentioned the words left flank in the injury statement Exh.P.G. And the inquest report Exh.P.H.
Therefore, there is no real contradiction between the medical and ocular evidence. The medical evidence rather lends support to the prosecution evidence to the extent of showing that sharp- edged weapons were used by the assailants for causing injuries and that the injuries were caused on the left side of the body of the deceased.
12. The appellants' learned counsel laid great emphasis on the point that during the course of investigation, the appellants were found to be innocent and that the offence was probably committed by one Fakharud Din whose presence was shown at point "B" in the site plan Exh.P.F. He also argued that Hamid Mukhtar Gondal, D.S.P. Had appeared as D.W.2 and clearly deposed that in view of the oath taken by one Mehar Muhammad Azeem D.W.3 accused persons were declared to be innocent. I am afraid, the argument carries no weight. The mode of declaring accused persons to be innocent on the sole ground of oath taken by a party or a third person is highly deprecable.
Had the finding of innocence been based on some independent investigation and supported by the facts or physical circumstances of the case it would have been given due weight. Moreover, in the present case, it appears that right from the beginning the police has been siding with the accused party, that the accused though named in the F.I.R. Were not promptly arrested; that the complainant was falsely involved in a murder case to pressurise him not to depose against the appellants and that the name of one Fakharud Din was mentioned in the site plan to lend support to the defence version of substitution of the accused. It is strange that after registration of the F.I.R.
On 24-6-1986, the accused persons, through specifically named in the F.I.R., were not promptly arrested. Instead, the complainant was involved in a criminal case bearing F.I.R. No,323/86 registered on 22-7-1986 at Police Station, Shandara regarding the murder of one Muhammad Ramzan, brother-in-law, of Noor Muhammad, maternal-uncle of Muhammad Azeem D.W3 also admitted that his maternal-uncle Noor Muhammad and Rasheed accused were married to real sisters. Muhammad Azeem D.W.3 admitted that he was not present at the spot at the time of the occurrence, therefore, his statement on oath regarding innocence of Qamar Din, Mushtaq, Rasheed and Akram accused carried little weight. At any rate, it cannot be preferred over the eye-witness account furnished by three reliable witnesses. The criminal case was probably used as a lever for pressurising the complainant not to depose against the accused persons in the present case and to settle the dispute on oath. The accused persons involved in the present case and the other case registered vide F.I.R. No323/86 were brought face to face with each other and it was agreed that the m?Tter be resolved on oath of Mehar Muhammad Azeem, Mian Mumtaz and Mehar Musthaq Hussain or any one of them. After achieving the object of deciding the question of innocence of the accused persons on oath, the complainant was also declared to be innocent in the other murder case. In this connection, D.W.2 Hamid Mukhtar Gondal, D.S.P. Stated "after completing the investigation of case F.I.R. 323/86 Asghar Ali etc. Accused were found innocent". In the present case, the accused persons absconded, remained fugitive from the law and it was only on 23-7-1986 that Qamar Din, Muhammad Rasheed and Muhammad Akram were arrested. Waris appellant was arrested on 19-11-1986.
13. The appellants' learned counsel urged that the recovery of bloodstained earth from the spot was not believable as it had rained some time before the occurrence. In this connection, he referred to the statement of P.W.9 who had admitted the factum of rain before the occurrence. The mere fact that some time before the occurrence it had rained, is hardly sufficient to discard the recovery of blood-stained earth from the spot. There is nothing on the record as to how much time had elapsed between the rain and the occurrence and whether it was heavy rain or that water was standing at the place of occurrence. Had it rained immediately after the occurrence then probably blood would have been washed away. Some times, after the rain mud gets collected at the road.
Therefore, I am not inclined to believe that bloodstained earth could not be found at the spot.
Moreover, it is not the appellants' case that the occurrence had not happened at the place mentioned by the P.Ws. In this view of the matter, the apparent contradiction between the statement of P.W.8 and the Investigating Officer regarding the recovery of blood-stained earth with the help of a wooden "Phatti" or a knife becomes inconsequential.
14. The argument of the appellants' learned counsel that conviction under section 148 of the P.P.C.
Was bad as Qamar Din was not armed, is fallacious. The material on the record clearly shows that four persons were armed with Chhuris and Qamar Din had played an active part by clasping the deceased and facilitated the co-accused to inflict Chhuri blows on the vital parts of the body of the deceased. All of them had acted with the common object of committing the murder of the deceased. In the circumstances of the case the mere fact that four persons carried Chhuris while the 5th one was empty-handed is hardly sufficient to rule out the application of section 148/149 of the P.P.C. It may be observed that the inference of knowledge on the part of an accused can be reasonably gathered from the nature of the assembly, weapons of offence or conduct of the participants before or at the time of occurrence. In the case of Amir Hussain and others v. The State 1971 PCr.LJ 297 it was held "all the appellants had pounced upon the deceased and it is no wonder that although some of them had no weapon yet they may have surrounded the deceased in order to facilitate the attack on him by the persons who were armed with weapons. They were members of the unlawful assembly and when anything is done in prosecution of the common objection of the assembly all are equally guilty whether they actually assaulted or stood by to render any assistance that may be needed". Qamar Din appellant is vicariously liable for the act of the co- accused and rightly convicted by the trial Court under sections 203 and 148 read with 149 of the P.P.C.
15. The accused persons had specifically taken the plea of alibi but failed to substantiate the same or show that it was reasonably true. They appeared in their own defence and made statements on oath under section 340(2) of the Cr.P.C. Waris All stated that on the date of occurrence he was busy with his father in his village, lying at a distance of 5/6 miles away from the place of occurrence. He did not give the precise time when he was working with his father. Moreover, the father was not produced as a witness to support his plea of alibi. Likewise, Mushtaq appellant stated that he was sleeping in his house at the time of occurrence. Rasheed appellant stated that on the date of occurrence, he was present in his village Jair and was uprooting the rice plants. He added that his village was at a distance of 10/12 miles from the spot. Muhammad Akram stated that on the date of occurrence, he was working as a labourer in a factory of stone grinding of Arif.
Qamar Din stated that he was present in the Sessions Court in the Chamber of Muhammad Sharif Chohan, Advocate in connection with some civil cases. However, none of them produced any oral or documentary evidence to support this plea. The bald statements made by the appellants cannot be given any weight in the presence of the direct and reliable eye-witnesses' account showing their participation in the occurrence.
16. For the foregoing discussion, I do not find any merit in this appeal which is dismissed. The convictions and sentences of the appellants are maintained.