1. ' This is an appeal under section 410, Cr.P.C. Against the judgment, dated 28th September, 1995 passed by learned VIIIth Additional Sessions Judge, Karachi East in Sessions Case No,375 of 1990 (State v. Ayub Masih and another), F.I.R. No,'136 of 1990, whereby appellants have been convicted under section 302/34, P.P.C. And sentenced to undergo R.I. For imprisonment for life and to pay fine of Rs,25,000 each and in case of default in the payment of fine, appellants to suffer imprisonment for three years each and further appellants were ordered to pay compensation of Rs,25,000 each to the legal heirs of deceased Inayat Masih under section 544-A(1) and (2), Cr.P.C.
2. ' Brief facts of the prosecution case are that one Shahid Masih son of Khushi Masih through his statement on 24-3-1990 at about 23-45 hours which was subsequently, incorporated in the F.I.R.
3. Book as F.I.R. No,136 of 1990 of Police Station New Town on 25-3-1990 at 0015 hours wherein he has stated that he is a sweeper. On 24-3-1990 in the day time there was some exchange of hot words with the Bhabi of Ayub Masih on the children quarrel. In the evening at about 8-30 p.m. When he was present in his house, his uncle Inayat Masih son of Gulab Masih also came there. In the meanwhile appellant Ayub Masih called at his (Shahid Masih's) door when he went out, he saw that Ayub Masih and his brother Silvester Masih were standing there. Silvester Masih was armed with Danda who started using abusive language and gave Danda blow on his (Shahid's) head, which caused injury and it started bleeding, thereafter, both of the appellants went away towards their house. In the meanwhile Shahid's uncle Inayat Masih came out of the house who was told about the incident on which Inayat Masih (deceased) took complainant (Shahid) to Ayub Masih's house who resided in the next street for patch-up, when they reached in front of the house of Ayub Masih he came out with Chhuri, while Silvester came out with Danda and started using abusive language when Ayub Masih with intention to cause the death gave Chhuri blow on the right side of the chest of Inayat Masih while Silvester Masih gave Danda blow on the head of In-ayat Masih due to which he fell on the ground. The incident was witnessed by Iqbal son of Sadiq, Wilayat Masih son of Gulab Masih and others Mohalla people. During this incident Dilawar Masih son of Piara Masih also got injured. Mohalla people and Iqbal son of Sadiq took injured Inayat Masih son of Gulab Masih to hospital where a case under section 307/34, P.P.C. On 25-3-1990 at 0015 hours was registered, subsequently, Inayat Masih expired at 0045 hours, thereafter, case under section 307/34, P.P.C.
4. Against the appellant-accused was converted under section 302/34, P.P.C. Who were arrested at 0040 hours on 25-3-1990.
5. ' Sub-Inspector Wahab Noor took up the investigation of the case, after recording the 154, Cr.P.C.
6. Statement Exh.7 of complainant Shahid and registration of F.I.R. Exh.25 prepared memo. Of Wardat Exh.6 in presence of Mashirs, Shahid and Ashique Masih, memo. Of arrest of the appellants Exh.9 in presence of Mashirs Shahid and Wallayat Masih and also prepared memo. Of recovery of knife Exh.10 in presence of same Mashirs, so also held inquest upon the dead body of the deceased in presence of Wallayat Masih and Ashique Masih and prepared such memo. Exh.12 and prepared inquest report as Exh.13 in presence of same Mashirs. He examined P.W. Shahid the complainant, P.W. Willayat Masih, Ashique Masih, Iqbal Masih and also got 164, Cr.P.C. Statements of Iqbal Masih before the First Class Magistrate and Mashirs named above. He sent the dead body of deceased Inayat Masih to mortuary for post- mortem examination and obtained medico-legal certificate of the deceased and his post-mortem report so also medico-legal reports of other injured including the appellants and sent the blood-stained cloths of the deceased and the bloodstained knife secured from the appellant Ayub Masih to the Chemical Examiner for his Report. However, the final charge-sheet of the case was submitted by P.W.3 Sub-Inspector Abdul Jabbar. The Investigating Officer, Wahab Noor could not be examined as soon thereafter he retired from the service and his attendance could not be procured as his whereabouts were not known as deposed by C.W.1, Muhammad Yousuf, process-server, Head Constable, who also &posed that there was no possibility of his securing the attendance of Investigating Officer Wahab Noor, Sub-Inspector who also produced his retirement orders Exh.21 and statement of witnesses Exhs.22 and 23. The prosecution, therefore, examined Abdul Jabbar Sub-Inspector P.W.5 Exh.24 who had worked with him for long and was conversant with his handwriting and signatures.
7. ' The appellants-accused were charged under section 302/34, P.P.C. For the commission of the murder of deceased Inayat Masih to which they pleaded not guilty, therefore, prosecution examined P.W.1 Shahid Exh.6 who produced his 154, Cr.P.C. Statement, memo. Of Wardat Exh.8, memo. Of arrest of appellants Exh.9, memo. Of recovery of knife from the house of appellant Ayub Masih Exh.10, P.W.2 Wilayat Masih Exh.11, who produced memo. Of inspection of dead body Exh.12, inquest report Exh.13, P.W.3 Ashique Masih Exh.14, P.W.4 Iqbal Masih Exh.15 who also produced his 164, Cr.P.C. Statement Exh.16, C.W. No,1 Muhammad Yousuf the process-server, P.W.5 Abdul Jabbar Exh.24 who was examined in place of Investigating Officer Wahab Noor who produced F.I.R. Exh.25, Chemical Examiner's Report Exh.26, examined P.W.6 Dr. Naseem Ismail Exh.27, who produced medico-legal certificate of Inayat Masih and post-mortem report as Exhs.27 and 28. He also produced medico-legal reports of appellants Ayub Masih and Silvester Masih as Exhs.30 and 31 and also medico-legal reports of Shahid Masih son of Khushi Gulab as Exhs.32 and 33. The appellants were examined under section 342, Cr.P.C. Who denied the charged offence. Appellant Ayub has stated that he was injured by Shahid Masih and 25 others and his brother was also assaulted by Silvester Masih. Appellant Silvester Masih stated that he was injured by Shahid and 25 others and his brother Ayub was also assaulted. Both appellants did not examine themselves under section 340(2), Cr.P.C. However, they in defence examined D.W.1 Shahid Saghar and D.W.2 Younus Masih ,brother of appellants. After recording of above evidence and hearing the learned counsel for the appellants-accused and the State Counsel the appellants accused were convicted and sentenced as said above.
8. ' I have heard the learned counsel for the appellants, Mr. Sardar M. Ishaque, Mr. S. Sayeedain Zaidi, learned A.A.-G. For the State and perused the evidence.
9. ' The prosecution case rests on following pieces of evidence:--
(i) Ocular evidence of P.W.1 Shahid Masih, P.W.2 Wilayat Masih and P.W.4 Iqbal Masih.
(ii) Recovery evidence of Chhuri as per memo. Of recovery Exh.10 secured from the house of appellant Ayub Masih in presence of Mashirs Shahid Masih and Willayat Masih and Chemical Examiner's Report Exh.26 with his opinion that grey shirt, gray Shalwar and red and yellow jacket of deceased and Chhuri were found to be stained with human blood.
(iii) Medical evidence of P.W.6 Dr. Naseem Ismail.
(iv) Motive as described by P.W. Shahid Masih and P.W.2 Willayat Masih.
(v) Evidence of injuries on the person of the appellants-accused.
10. ' Ocular testimony of P.W.1 Shahid Masih, P.W.2 Willayat Masih and P.W. Lqbal Masih when P.W.
11. Shahid Masih in his deposition Exh.6 has deposed in respect of the first incident which took place on the same day at 10-00 a.m. When a woman namely Sliammo Bhabi of appellant Ayub abused and told him that her Daywear would see him in the evening. He has also deposed about the second incident took place at about 8-30 p.m. When appellants Ayub and Sylvester came to his house, when appellant Sylvester gave him Danda blow on his head and then both appellants went away after abusing him and then he has deposed about the third incident, when he was asked by Inayat Masih to accompany him to the house of appellants to have a talk with them as to why he (Shahid) was beaten and then door of the appellant's was knocked, appellant Ayub came out of with a Chhuri in his hand while appellant Sylvester came with a Danda in his hand when Sylvester caused Danda blow on the head of Inayat Masih (deceased) when Ayub gave Chhuri blow on the chest of (deceased) Inayat Masih which incident was witnessed by P.W.2 Willayat Masih and Iqbal Masih and others also were standing there. Inayat Masih was taken to hospital where he expired at about 12-00 midnight. P.W.1. Shahid Masih is fully corroborated and supported by Willayat Masih P.W.2 (Exh.11) and P.W.4 Iqbal Masih (Exh.15) so far the third fatal incident is concerned which resulted the death of deceased Inayat Masih. All the aforesaid witnesses have fully corroborated and supported the main as detailed above.
12. ' So far the recovery evidence of Chhuri used in the commission of offence, P.W.1 Shahid Masih has deposed that appellant Ayub took the police party to his house and under the box from his house he produced blood-stained Chhuri which was secured as per memo. Exh.10. P.W.2 Willayat Masih has deposed that after about 3/4 days blood-stained Chhuri was produced by appellant Ayub under the box and such memo. Exh.10 was prepared in his presence which bore his signature. P.W.5 Abdul Jabbar deposed that Exh.10 bore signature of Investigating Officer Mr. Wahab Noor. Blood- stained Chhuri secured by S.-I. Wahab Noor, Investigating Officer was sent to Chemical Examiner who as per his report Exh.26 has opined that Chhuri was found stained with human blood.
13. Investigating Officer, S.-I. Wahab Noor had also sent clothes of deceased viz. Grey Shirt, Grey Shalwar and Red and Yellow jacket which were also found to be stained with human blood.
14. ' So far the medical evidence P.W.6 Dr. Nasim Ismail (Exh.27) has deposed that deceased had two injuries viz. (i) incised would just above the nipple of the right side of the chest measuring about 1" x 1/4" suspected to be cavity deep and corresponding cut mark present on the cloths of deceased;
(ii) lacerated wound on the back of the head measuring 2" x 1/2" bone deep when the injured deceased Inayat Masih expired in the emergency room at 0045 hours. The doctor has further deposed that on opening the chest right side of the chest was full with blood, a deep cut was seen in the right lung which passed through the length of the lung upto the base of the right lung. The doctor has opined that the cause of death was haemorrhage and shock resulting from the stab wound of the chest which had been caused with some sharp cutting weapon. The medicaliA evidence corroborates the occular version in the case.
15. ' So far the motive, P.W. Shahid has given the details of the first incident when Shammo Bhabi of appellant No,1 used abusive language to him and threatened him that her Daiwar (appellant No,1) would see him in the evening whereupon on the said petty matter the appellants came in the evening time to the house of P.W. Shahid when appellant Silvester gave Danda blow on his head, abused them and went away where after Inayat Masih (deceased) took P.W.1 with him to the appellant's house where the fatal incident took place when Inayat Masih sustained fatal stab wound at the hands of the appellant No,2 which resulted his death. P.W.2 Willayat Masih has also deposed in respect of the second and third incidents. This proves the motive of the incident as the appellants came at the instance of Shamoo who had threatened the P.W.1 Shahid Masih.
16. ' Besides the above prosecution evidence, the medical evidence of injuries on the person of the appellants, though P.W.1 has suppressed the injuries sustained by the appellants and stated in the cross-examination that the appellants had no injuries and again stated that he was not there when accused/appellants had received injuries would prove the presence and active participation of the appellants in the commission of crime. It will not be out of place to state here that memo. Of arrest of the appellants Exh.9 did mention about the injuries on the persons of appellants for which P.W.1 stated in the cross that the said memo. Was not read over to him. The incident had taken place on 24-3-1990 whereas P.W.1 Shahid was examined on 29-4-1991 after about one year, therefore, such discrepancies are likely to occur while recording the evidence of the witnesses.
17. Injuries on the persons of appellants also proved their presence at the time of occurrence. Even the appellants in their 342, Cr.P.C. Statements have admitted to have been injured by P.W.1 Shahid and others. P.W.6 Dr. Naseem Ismail has also deposed about the injuries on the person of appellants Ayub and Silvester Masih and has also produced such medical reports as Exhs.30 and 31 so also in respect of P.W.1 Shahid Masih Exhs.32 and 33.
18. I have heard and carefully considered the arguments addressed by learned counsel for the parties and have reviewed the entire evidence on record that has been produced by prosecution, statements made by the appellants under section 342, Cr.P.C. And the statements of defence witnesses in disproof of the charge against them and circumstances appearing in the case, I find that on the prosecution side Inayat Masih met with unnatural death while P.W.1 Shahid sustained simple injuries whereas both appellants received simple injuries in the last fatal incident. In my independent assessm ent of evidence I feel that P.W. Shahid has suppressed the injuries inflicted upon the person of appellants with intent to minimize the part played by the prosecution side but it would not affect the merits of prosecution case as otherwise also prosecution has proved the case against the appellants beyond reasonable doubt. The incident has taken place in the street which is thickly residential place but it is normal and it has been observed that all persons who witnessed the incident generally are not willing to come forward to become witness of incident but only few who are near and dear, who witnessed the incident come forward to become the witness of the incident. Nobody is interested to be dragged in the Courts and waste one's time when they know that they would not be examined on the first date when they are summoned for evidence because of various reasons beyond the control of the Court. In the circumstances, the contention of the learned counsel for the appellants was that except the relations of the deceased and friends of complainant none else who resided near the place of incident have been made witness consequently, adverse presumption be drawn has no merit and substance. The ocular version in the peculiar circumstances of the case is quite confidence inspiring and it is not possible to discard the prosecution case and evidence produced, and believe the defense version. So far the main occurrence is concerned there is reliable and confidence inspiring evidence from the prosecution side that Inayat Masih was given fatal stab wound on the vital part on his person which cut the lung resulting into his death. It has also come in the evidence that the incident took place near the house of appellants when the appellants Ayub came out of the house with a Chhuri in his hand while appellant Sylvester came armed with Danda with common intention to commit the said offence when neither the deceased nor Shahid nor other witnesses has been said to be armed with any weapon, therefore, it could be said that appellants had acted harshly and had taken undue advantage of the situation because of initial incident of trial nature of use of abusive language between the parties.
19. ' The State PLD 1982 Kar. 975, Gulan and 2 others v. The State PLD 1982 Kar. 983, Muhammad Tasneem v. The State 1985 SCMR 160, Muhammad Abdullah v. Muhammad Safdar Khan and another 1973 SCMR 26, Sahib Masih and others v. The State 1982 SCMR 178, Zahoor Bakhsh v.
20. Waddon and 3 others 1980 SCMR 979, Muhammad Afzal and another v. The State 1976 PCr.LJ 1169, Muhammad Sharif and another v. The State 1972 PCr.LJ 1259, A.K.M. Reza and others v. The State PLD 1958 Dacca 111, Qamar v. The State PLD 1979 Lah. 436, Bashir Ahmed and others v. The State PLD 1988 SC 86, Misbahuddin and others v. The State PLD 1983 SC 79, Munawar All alias Munawar Hussain v. The State PLD 1993 SC 251, Muhammad Younas v. The State 1992 SCMR 1592, Shamir alias Shamla v. The State PLD 1968 SC (Pak.) 242, Noor Khan v. The State 1996 PCr.LJ 790, Zafar lqbal v. The State 1985 PCr.LJ 2619, Muhammad Waqar v. The State 1991 PCr.LJ 197, Hazartullah and another v.
21. The State 1958 SCMR 1361 and Miran Bux v. Niaz and others 1975 SCMR 337 but the facts of cited cases are quite different and distinguishable to the facts of the instant case considering that principles laid down in criminal cases are always found on facts and circumstances of each case and could not be loosely applied in a Omni bus manner. Reference may be made to Safari Abbas and 2 others v. The State PLD 1987 SC 467. Learned counsel for the appellants has also argued that there are contradictions and discrepancies in the evidence of the prosecution. I have minutely gone through the referred alleged discrepancies and contradictions but the same are not material in nature effecting the merits of prosecution case when the confidence inspiring E prosecution evidence has proved beyond reasonable doubt that appellant Ayub gave Chhuri blow on the vital part of the body of deceased while appellant Silvester with common intention gave Danda blow on the head of the vital part of the body of the deceased.
22. ' The next point for my consideration in this case is the extent to which the appellants would be responsible as to what occurred at about 8-30 p.m. On the fateful day when the third incident took place. Medical evidence shows that lnayat Masih died due to injury No,1 which according to the prosecution was caused by appellant Ayub while the injury caused by the appellant Sylvester on the head was also on the vital part of body though simple in nature but both the appellants came out armed together from their house, attacked the deceased lnayat Masih in furtherance of common intention, caused the injuries to the deceased who was admittedly unarmed, therefore, the appellants would be vicariously liable for the commission of offence punishable under section 302, P.P.C. It is immaterial as to what injuries were inflicted by a particular accused for the application of section 34, P.P.C. As the principle underlying the section is that where two or more persons act with a common intention, each is liable for the act committed as if it was done by him alone. Reference may be made to Khanam and another v. The State PLD 1961 Kar. 684 and (ii)
23. Sultan Muhammad and 2 others v. The State PLD 1955 Lah.
575. It would not be out of place to state here also that the deceased was unarmed while appellants came armed from their house and forcibly stabbed on the vital part of the body which pierced the right lung of the deceased resulting his death though a single blow but with force, therefore, act of the appellants accused of killing Inayat Masih would not be covered by exception 4 of section 300 or 304(2), P.P.C. And would amount to a murder punishable under section 302, P.P.C.
24. ' So far the sentence, I have considered the said question with utmost care and caution, since Inayat Masih died in the said incident in which appellants only sustained simple injuries when the appellants came armed with Chhuri and Danda in furtherance of their common intention from their house when the deceased and the P.Ws. Were unarmed, appellants should have deserved the capital punishment prescribed under section 302, P.P.C. But the trial Court awarded the lesser punishment of life imprisonment; which could not be interfered with in this appeal and further I am not inclined to exercise the provisional jurisdiction of this Court for enhancement of sentence, considering that facts and circumstances stated above and the judicial discretion exercised by the trial Court. Accordingly, the conviction and sentence passed by trial Court are maintained and appeal is dismissed.