MUHAMMAD MUNIR KHAN, J.---Criminal Petition for Leave to Appeal No,77(S) of 1992 filed by Baqir Ali against Zafar alias Zafroo and Allah Ditta against their acquittal of the charges under sections 302, P.P.C., 411 P.P.C. And 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance), Jail Petition No,78(S) of 1992 filed by Muhammad Ashraf against his conviction and sentence under sections 302, P.P.C., 307, P.P.C. And 17(4) of the Ordinance, and Jail Petition No,124(S) of 1992 filed by Allah Ditta and zafar against their conviction and sentence under section 392, P.P.C., which we propose to dispose of through this single judgment, arise from the facts that in the occurrence which took place on 27-3-1989 at 4.00 a.m. In the area of Jhada, District Sargodha at a distance of eight miles from Police Station Bhera, Muhammad Ashraf, Zafar and Allah Ditta caused the death of Amjad Nawaz, attempted to kill Muhammad Arshad P.W.9 and forcibly removed Rs,2,800 from the pocket of Amjad Nawaz, in the presence of Baqir Ali P.W.8, Suba Khan P. W.10, Muman (not produced) and others. Muhammad Ashraf was apprehended on the spot with the Carbine, whereas the others made good their escape.
2. F.I.R. Of the occurrence was lodged by Baqir Ali P.W.8 at Police Station Bhera on 27-3-1989 the same day at 8.30 a.m. Muhammad Ashraf was produced before the Police. The Carbine recovered from Muhammad Ashraf was produced by the complainant. The remaining accused were arrested on 31-31989. On the completion of the investigation, challan was submitted against them. They were tried by the Additional Sessions Judge, Bhalwal, District Sargodha, who, on 17-7-1991 convicted and sentenced them as under:-- (i)Under section 302/34, P.P.C. All the accused - death and a fine of Rs,50,000 each, or in default 5 years R. I . each.
(ii)Under section 307/34, P.P.C. All the accused - Ten years R.I. Each and a fine of Rs,25,000 each, or in default 2-1/2 years R.I. each.
(iii)Under section 17(4) of the Ordinance, read with section 34, P.P.C.All the accused Death.
(iv)Under section 411 P.P.C. Zafar and Allah Ditta - three years R.I., each.
3. On appeal filed by them against their convictions and sentences, the Federal Shariat Court vide its judgment dated 17-5-1992 has upheld the convictions and sentences of Muhammad Ashraf on all the charges. Allah Ditta and Zafar were, however, acquitted of the charges under sections 302, 307, 411, P.P.C. And section 17(4) of the Ordinance. Instead, they have been convicted under section 392, P.P.C. And sentenced to ten years R.I. Each, and a fine of Rs,25,000 or two years R.I. Each, with benefit of the provisions of section 382-B, Cr. P. C .
4. Since the accused were tried under section 17(4) of the Ordinance, the trial Court had examined Maulvi Muhammad Younas Mozakki No,1, Haji Muhammad Akbar Mozakki No,2, Syed Karam Hussain Shah Mozakki No,3, Muhammad Bashir, Chairman Tehsil Uchhar, Zakat Committee Mozakki No,4 and Maulvi Muhammad Aslam, Khateeb Jamia Masjid, Jhadah Mozakki No .5 .
5. Baqir Ali P.W.8 in his statement before the Court stated that he was working as a Cleaner of the Truck of Khadim Hussain P.W. Amjad Nawaz deceased was the son of Khadim Hussain, who, and his brother Arshad P.W. Used to drive the truck. On the fateful day, Muhammad Ashraf and Zafar met them at Derra Zamir Shah and hired the truck for loading the coal and taking it to Bhalwal District Sargodha at the fare of Rs,1,100. After loading the truck with coal, he, Amjad Nawaz deceased, Arshad P.W., Muhammad Ashraf accused and Zafar accused left for Tehsil Bhalwal in the truck. On the same night at 4.00 a.m. They unloaded the truck in Bhalwal. In the meantime, Allah Ditta accused came there with a hatchet in his hands. Muhammad Ashraf accused asked Amjad Nawaz deceased to take the truck to a nearby Derra so that the fare is paid to him whereupon all of them went to that Derra in the truck. Amjad Nawaz, the deceased, was driving the truck. He (Baqir Ali) sat in the rear of the truck. The truck stopped in the area of village Jhadha. Muhammad Ashraf accused on the Carbine point asked Amjad Nawaz to leave the truck and when Amjad Nawaz was getting down from the truck, Muhammad Ashraf fired shot at him hitting the back of chest. Allah Ditta and Zafar accused took out Rs,2,800 from the pocket of Amjad Nawaz. Muhammad Arshad intervened whereupon Muhammad Ashraf fired shot at him which hit his abdomen. Suba Khan P.W.10, Numan (given up) and many other persons were attracted to the spot. They apprehended Muhammad Ashraf on the spot. Allah Ditta and Zafar, however, escaped and could not be apprehended. Baqir Ali snatched the Carbine from Muhammad Ashraf which he subsequently produced before the Police. Muhammad Arshad P.W.9 and Suba Khan P.W.10 have fully supported the statement of Baqir Ali complainant P.W.B.
6. Dr. Malik Alam Khan P.W.2 found one fire-arm wound on the person of Amjad Nawaz deceased and one fire-arm injury on the person of Muhammad Arshad P.W. Amjad Nawaz died subsequently as a result of the fire-arm wound which was sufficient to cause death in the ordinary course a nature.
7. On 8-4-1989, Allah Ditta accused got recovered Rs,1050 from his house. On the same day he led to the recovery of hatchet P.13 from his house. On the same day, Zafar accused got recovered Rs,1,750 from his house, which amount was taken into possession by Iftikhar Ahmad S.I. P.W.13. When examined under section 342, Cr.P.C., the three accused denied the incriminating circumstances.
Muhammad Ashraf stated that he was arrested from the house of his in-laws from village Nabi Shah. Muhammad Azam D.W.1, and Syed Manzar Hussain D.W.2 were produced in defence.
Muhammad Azam D.W.1 has proved copies of reports Exhs.D.B. To D.J. Entered in the daily diary of Police Station Bhera. Manzar Hussain D.W.2 stated that Muhammad Ashraf was arrested three days after the occurrence, from village Nabi Shah.
8. We have heard the learned counsel for the parties. We find that the main intention of the three accused was to commit robbery. During the occurrence, Muhammad Ashraf asked Amjad Nawaz deceased/driver to leave the truck and when he was getting down, all of a sudden he fired shot at him, without any instigation from Zafar and Allah Ditta accused. So, in the circumstances of the case, we are convinced that the act of killing of the deceased was an individual act of Muhammad Ashraf for which Zafar and Allah Ditta are not vicariously liable. The reasons given by the Federal Shariat Court for convicting Zafar and Allah Ditta under section 392, P.P.C. Are supportable from the evidence and circumstances appearing in the case. So, the impugned judgment to the extent of the acquittal of Zafar and Allah Ditta from charges is unexceptional.
9. Muhammad Ashraf was arrested on the spot. He was produced before the Police the same day.
So, the plea of the defence that he was arrested from his house three days after the occurrence is totally false. The three eye-witnesses namely, Baqir Ali, Suba Khan and Muhammad Arshad have been believed by the two Courts. Muhammad Arshad P.W.9 is an injured witness. By the fact of injury on his person, his presence at the spot is very much established. We do not see any infirmity in the statements of the eye-witnesses or in the impugned judgment warranting any, interference by this Court.
10. For what has been said above, there being no merit in the three petitions for leave to appeal, leave to appeal is refused in all the petitions and the same are dismissed. It is however, directed that the registration book of the truck (Exh.P.8), driving licence of the driver/deceased Amjad Nawaz (Exh.P.9) and the Identity Card of the deceased Amjad Nawaz (Exh.P.10) which were taken into possession during investigation should immediately be returned to Baqir Ali complainant.