' TASSADUQ HUSSAIN JILANI, J.---This judgment shall dispose of Murder Reference No,68 of 1989 which seeks confirmation of the death sentence awarded to Fazalur Rehman alias Peshey Khan, appellant for the murder of Muhammad Arif; Criminal Appeal No,154 of 1989 filed by Fazalur Rehman, appellant against the aforereferred conviction; Criminal Revision No,421 of 1989 filed by Muhammad Nawaz, brother of the deceased praying that Fazalur Rehman appellant be burdened with a compensation under section 544-A, Cr.P.C.; Criminal Appeal No,63 of 1996 filed by Muhammad Yousaf alias Jamoora against the judgment dated 19-12-1995 passed by Mr. Muhammad Arif Sig, learned Additional Sessions Judge, Lahore and Criminal Appeal No,208 of 1996 filed by Muhammad Nawaz against the acquittal of Muhammad Yousaf of the charge under section 302, P.P.C. All these matters are proposed to be disposed of together as they arise out of the same case F.I.R. No,13 of 1984 dated 12-1-1984 under section 302/307/148/149, P.P.C. Police Station, Badami Bagh, Lahore.
2. Before coming to the facts of the case in hand, it is necessary to give 1. Brief note as to how the accused could not be tried in one trial.
(i) The case was registered on 12-1-1984; five persons were named in th( F.I.R. For having caused the murder of Muhammad Arif, deceased.
(ii) Appellants Fazalur Rehaman and Muhammad Yousaf were declare proclsaimed offenders whereas the remaining three i.e, Ghulam Nabi Haroon and Abdul Rehman were tried by Additional Sessions Judge Lahore who vide the judgment dated 30-4-1986 while acquitting Ghulam Nabi, convicted Haroon under section 307/434, P.P.C. An sentenced him to life imprisonment and a fine of Rs,10,000 in default whereof to undergo S.I. For two years. Abdul Rehman Alias Mana was also convicted under section 307/34, P.P.C. He was sentenced simple imprisonment for 10 years and a fine of Rs,10,000 and in case of default to further undergo S.I. For six months.
(iii) The state filed appeal against the acquittal of Ghulam Nabi and the convicts Haroon Khan and Abdul Rehman filed Criminal Appeal No,290 of 1986. The State appeal was dismissed and the appeal filed by the convicts (Crl. M. No,290/86) was allowed vide judgment dated 22-8-1990. The complainant party moved the Hon'ble Supreme Court against the afore-referred order of acquittal and the August Supreme Court dismissed the same on 26-11-1995 in respect of Abdul Rehman whereas with regard to Haroon, the appeal was allowed and instead of life imprisonment, he was awarded seven years R.I. And a fine of Rs,10,000.
(iv) Fazalur Rehman appellant in Crl.A.No,154 of 1989 was arrested on 27-10-1986, was tried by Mr. Muhammad Mansoor Ali Khan, Additional Sessions Judge, Lahore and vide judgment dated 6-3- 1989, he was convicted under section 302/149, P.P.C. And sentenced to death. He was also burdened with a fine of Rs,10,000 in default whereof to undergo R.I. For one year. He was also convicted under section 307, P.P.C. And sentenced to four years R.I. And a fine of Rs,5,000 in default whereof to undergo six months R.I. The fine if recovered was directed to be paid to the legal heirs of the deceased Muhammad Arif.
(v) Muhammad Yousaf Appellant in Crl.A.No,63 of 1995 was arrested on 1-2-1994; was tried by Additional Sessions Judge, Lahore who vide his judgment dated 19-12-1995 convicted him under section 307, P.P.0 and sentenced him to ten years R.I. He was given the benefit of section 382(B), Cr.P.C. And acquitted of the charge under section 302, P.P.C.
3. The prosecution story as given in the F.I.R. Exh. PA lodged on the statement of Muhammad Siddique P.W.2 recorded by Muhammad Nazam Shahid Durrani P.W.15 at 2.30 p.m. Briefly stated is that on 12-1-1984 at Zohrwela the complainant alongwith Muhammad Arif deceased; Muhammad Latif P.W.1 and Yar Muhammad P.W.9 were staying at the dera of the deceased when Razalur Rehman alias Peshay Khan, appellant; Ghulam Nabi; Haroon; Abdul Rehman alias Tore Khan while forming an unlawful assembly and armed with pistols; Muhammad Yousaf appellant armed with carbine, came in a blue car. Fazal-ur-Rehman alias Peshay Khan raised a Lalkara that they had came to avenge their defeat in the elections. Malik Arif deceased went forward to catch hold of Fazalur Rehman who fired at him which hit him at his temple and he fell down. On the falling condition. Peshay Khan fired another shot which hit him on the abdomen. Ghulam Nabi also fired which hit Muhammad Arif deceased on his left buttock. Muhammad Latif and Yar Muhammad P.Ws. Tried to lift Muhammad Arif who too were fired upon by Haroon which hit Muhammad Latif at his abdomen. Muhammad Yousaf appellant also fired at Yar Muhammad P.W. Which too landed on his abdomen. Complainant tried to hit Peshay Khan with a brick-bat but he was also fired upon by Abdul Rehman accused. The complainant ran for his life. On account of the firing, the P.Ws. Farzand Ali; Ghulam Murtaza and others were attracted to the spot but the accused decamped from the spot. While leaving the place, they broke the door of Masood Shah Councillor and fired at the shop of Khalid Butt. Malik Muhammad Arif died at the spot. Muhammad Latif and Yar Muhammad P.Ws.
Were taken to the Hospital. The motive alleged in the F.I.R. Was that in the last elections, the complainant party had helped Masood Shah in consequence of which, they had won Fazalur Rehman etc. Who had helped Abdul Hameed and others but was deceated. On account of the said grudge, it was alleged, the accused launched the assault.
4. During the trial, the prosecution examined 17 witnesses including the two Doctors and the Investigating Officer. Dr. Khalid Jamil Akhtar, P.W.11 conducted the post-mortem examination of Muhannad Arif deceased and found following injuries on the dead body:-- (i). Lacerated wound oval in shape 1.5 x 1 c.m. On the right temal region 2 c.m. Above and anterior to right ear. Blackening was present around the wound. This was wound of entry.
(ii). A lacerated circular wound 1 x 1 c.m. With everted border on the left partial region, of the skull, 6.3 c.m. Above the left ear. It was wound of exit.
(iii). Lacerated circular wound I x I c.m. In the left illiac fossa 4 c.m. From the and line and 8 c.m.
Medial to the anterior superior alliac spine. This was wound of entry.
(iv). A circular lacerated wound was located on the left buttock which was wound of exit. According to the Doctor, injuries Nos. 1 and 2 were individually and collectively sufficiently to cause death in the ordinary course of nature.
5. Dr. Tanvir Ahmad, appeared as P.W.16. He medically examined Muhammad Latif and found following injuries:--
(i) Punctured wound 1 x 3/4 c.m. On back of left lumber region, tatooing was present, margins inverted, "7 c.m. Above left illica crest.
6. He also examined Muhammad Yar P.W. And found following injuries:-
(i) punctured wound 2 x 1 c.m. Morzontal on left illiac fossa, 5 c.m. Above left anterior superior iliac spine, wound of entry.
(ii) punctuned wound 3/4 c.m. x 3/4 c.m. On back of left iliac region, margins everted. This was wound of exit. I advised his X-Ray plain abdomen.
7. Muhammad Latif P.W.1 is an eye-witness. He corroborated the statement of Muhammad Siddique P.W.2 who is a complainant. Muhammad Siddique P.W.2 made a statement consistent with the version given in the F.I.R. He is Uncle of P.W.1 Yar Muhammad is yet another injured eye-witness. He appeared as P.W.9. P.W.3 is Muhammad Mansha. He identified the dead body of the deceased at the time of the post-mortem examination in Mayo Hospital, Lahore. P.W.4 is Muhammad Anwar. He is a witness of recovery of bloodstained clothes of injured Yar Muhammad and Muhammad Latif P.W. P.W.5 is Syed Masood Shah. He is a witness of the motive part of the prosecution story. He corroborated the complainant on the point that he contested against Abdul Hameed who was being supported by Fazalur Rehman and others and won the elections. On that account, the accused party bore and the accused party conveyed threats to him that they will take revenge of the defeat. P.W.6 is Muhammad Hanif. He is a witness of the blood stained earth having been taken into possession by the Police vide memo.
Exh.PE. He also witnessed the recovery of empty cartridges Exh. P.11 which was taken into possession vide memo Exh.PF. Hamiduddin Chishti. P.W.7 is a Draftsman. He prepared the site plan. P.W.8 is Muhammad Sharif A.S.I. He was handed over proclamation under section 87/88, Cr.P.C. Of the absconsion of Fazalur Rehman alias Peshay Khan. And Muhammad Yousaf on which he made his report P.W./1 to the effect that Fazalur Rehman had absconded. P.W.10 is Muhammad Akbar A.S.I. He was Moharrir/Head Constable at the relevant time and was given a sealed parcel of blood-stained earth which he handed over to Muhammad Riaz Constable for onward transmission to the Chemical Examiner. P.W.12 is Kafayet Ullah S.I. He arrested Fazalur Rehman Appellant on 27-10-1986 P.W.13 is khurshid Ali Constable. He escorted the dead body of Muhammad Arif deceased to Mayo Hospital, Lahore. P.W.14 is Riaz Ahmad Head Constable. He carried the parcel containing empty cartridges of 32 bore pistol and he kept the same in Malkhana which subsequently sent to Forensic Science Laboratory. P.W.15 is Nizam Shahid Durrani, Inspector-S.H.O. He investigated the case. P.W.17 is Muhammad Riaz Constable who alongwith Khurshid Ali Constable escorted the dead body of Arif deceased to Mayo Hospital, Lahore for post-mortem examination.
8. The accused when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication due to enmity. According to him, the deceased. Muhammad Arif and the other P.Ws. Were notorious murderers and dacoits, that they were involved in numerous murder cases and that the deceased had some money dispute with Shah Muhammad alias Shahni.
Further, added that on the day of occurrence Shahni alongwith Muhammad Yousaf appellant visited the Dera of Arif deceased, during discussion hot words were exchanged, Shahani took out his pistol and killed Muhammad Arif at the spot while injured Latif and Yar Muhammad.
9. Learned counsel for the appellant in support of this appeal, has made following submissions:-
(i) That the prosecution story has been disbelieved by the Hon'ble Supreme Court in Cr.A. No,217 of 1992 inasmuch as the august Court had held that the accused had not come to the spot to murder Malik Muhammad Arif and therefore, the element of mens rea being missing, conviction under section 302, P.P.C. Cannot be maintained.
(ii). It is an old occurrence. The appellant has undergone the agony of protracted trial; he is in death cell since his date of conviction i.e, 6-31989 and capital sentence is not called for.
10. Learned counsel for the appellant Muhammad Yousaf in Crl. A.No,63 of 1996 submitted that the Hon'ble Supreme Court has held in CrI.A.No,217 of 1992 that the element of common intention being missing, every accused was liable for his own act and appellant having been attributed a simple injury to a prosecution witness, his sentence be reduced to what he has already undergone.
11. Learned counsel for the complainant assisted by learned State counsel, on the other hand, have supported the impugned judgment in so far as the conviction and sentence awarded to Fazalur Rehman appellant is concerned but in case of Muhammad Yousaf appellant, they did not join issue with the proposition that since he is attributed a simple injury, the sentence already undergone would meet the ends of justice.
12. We have heard learned counsel for the appellants; learned Law Officer as also learned counsel for the complainant and have given anxious thoughts to the arguments addressed at the bar.
13. Much stress has been laid by both the learned counsel for the appellants on the judgment of the Hon'ble Supreme Court and rightly so, though inference which is being drawn by them may not be in accord with the intent of the said judgment. It would, therefore, be of relevance to refer to the said judgment. Para. 9 of the judgment at page 7 is the operative part and is being reproduced below:-- ' "We have tried to appraise the evidence which had come on record through eye-witnesses Muhammad Siddiq P.W.8, Muhammad Latif P.W.10 and Yar Muhammad P.W.9. The very perusal of the F.I.R. Exh.PH shows that the five assailants had not come with a predetermined mind to kill Muhammad Arif or any of the witnesses. Prosecution case in the F.I.R shows that Muhammad Arif was fired at because he made an effort to catch hold of Fazalur Rehman. The ocular evidence is also to that effect. In the circumstances there is no scope for application of either section 34 of P.P.C. Or section 149 of P.P.C. Consequently every accused is liable for his own act."
' The afore-referred observations indicate that the Hon'ble Supreme Court while extending credit to the prosecution evidence came to the conclusion that the element of common intention or of forming an unlawful assembly was missing and, therefore, each accused was liable for his own act.
There is evidence to the effect that Fazalur Rehman alias Peshay Khan came to the spot armed with Pistol, he is attributed two fatal shots to Malik Arif deceased, one on the temple and the other on the abdomen. There was blackening present around injury No,1 which shows that it was a very close range shot and was fired with the intention to murder Malik Arif deceased. This intent is fully proved by the second shot fired by him which too was on the vital part of the body and was sufficient to cause death in the ordinary course of nature. Besides P.W.2 Muhammad Siddique, the ocular account consists of two injured witnesses namely, P.W.1 Muhammad Latif and Yar Muhammad P.W.9. Their credibility could not be shaken despite lengthy cross-examination. The motive part of the prosecution story has also been proved by the statement of Massud Shah P.W.5 who stated that Fazalur Rehman and his co-accused had been conveying threats to him that they shall take revenge of their defeat. The ocular account has not only been corroborated by the medical evidence; the evidence of motive but also finds corroboration from the fact that appellant Fazalur Rehman remained absconded for a period of more than three years. In Gul Hassan and another v. The State (PLD 1969 Supreme Court 89) and Mst. Moheeds v. Khan Bahadur and another (1992 SCM R 1036) absconsion was considered to be a sufficient corroborative circumstance to sustain a conviction on a capital charge. Similarly, there is evidence that Muhammad Yousaf appellant fired at Yar Muhammad P.W.9 which hit him on abdomen. The Hon'ble Supreme Court had convicted his co-accused Haroon (who was attributed similar role) on the same set of evidence and sentenced to seven years R.I. Under section 307, P.P.C. The prosecution case, therefore, against both the appellants Fazalur Rehman and Muhammad Yousaf stands proved beyond a shadow of doubt.
' There is no mitigating circumstance in case of Fazalur Rehman, appellant. His appeal is, therefore, dismissed and the Death Sentence awarded to him is hereby confirmed. Murder Reference is answered in positive.
14. So far as appellant Muhammad Yousaf is concerned, we find that he is in Jail since his arrest i.e, 1-2-1994. He is attributed a simple injury to a P.W. For afore-referred reasons, we partly allow his appeal and the sentence awarded to him is reduced to what he has already undergone. He shall be released forthwith if not detained in some other case.
15. For afore-referred reasons, Criminal Revision No, 421 of 1989 and Criminal Appeal No,208 of 1996 are hereby dismissed.