' This judgment will dispose of Criminal Appeal No,48 of 1993 (Ghulam Mehdi etc. v. The State), Criminal Appeal No,102 of 1993 (Muhammad Abbas v. The State), Criminal Revision No,29 of 1993 (Mazhar Hussain v. Ghulam Mehdi, etc.) and Criminal Revision No,35 of 1993 (Mazhar Hussain v.
Muhammad Sarwar etc.) as all these matters involve common questions of law and facts and arise out of the judgment of Sessions Judge, Rawalpindi, dated the 30th January, 1993.
2. Briefly, the facts leading to these appeals and revision petitions are that on the morning of 29-7- 1989, on receipt of an information of the occurrence, S.H.O., Police Station Sihala, accompanied by a Sub-Inspector and three Constables reached Jawa Road, Rewat, and recorded statement of Mazhar Hussain culminating into registration of F.I.R. No,85 of 1989, on the same date at 11-10 a.m.
Under sections 302, 307, 148 and 149 of the Pakistan Penal Code at Police Station Sihala, District Islamaoad. It was claimed by the complainant Mazhar Hussain that he along with Muhammad Shabbir and Nazir Hussain had come to Rewat for domestic purpose. It was 9-15 in the morning and while they were standing near Ali Medicos at Jawa Bazar, six persons, namely, Mehdi and Abbas son of Mir Hassan armed with .12 bore guns, Ghafoor son of Sarwar, Zahoor son of Mehdi and Azad son of Mir Hassan armed with sticks and Sarwar empty-handed came there in a Suzuki van.
All of them alighted from the Suzuki van. Sarwar raised a Lalkara stating that no one would be allowed to let go alive. Immediately, thereupon, Mehdi fired at Shabbir hitting him just below his left shoulder from the front. Shabbir fell down. Abbas then fired upon Nazir Hussain hitting at his left elbow, while Zahoor gave a Soti blow at the right knee of Nazir Hussain. Ghafoor and Azad ran towards the complainant, but in the meanwhile Abdul Khaliq son of Gheba Khan and Munawar Hussain son of Sultan Khan reached there and raised hue and cry upon which the assailants decamped away in the Suzuki van towards their village.
3. Muhammad Shabbir got up and went inside Ali Medicos and again fell down and died soon thereafter. Nazir Hussain injured was sent to the hospital. The motive for the offence was stated to be that about four days prior to the occurrence, Muhammad Ishaque, the driver of Sarawak accused had come to village Sorah in the Suzuki and had put on the tape-recorder at a very high pitch and Muhammad Shabbir had admonished him for raising the volume of tape-recorder in the village. The assailants had a grudge of this incident and had joined together and made the murderous assault.
4. After recording the statement of Mazhar Hussain, Allah Yar S.H.O. Dispatched the same to the Police station through Muhammad Riaz, Constable for the purpose of recording F.I.R. And sent the dead body of Shabbir deceased to the hospital for autopsy. Consequently, the case was registered against the six assailants. The investigation of the case was also carried out by Allah Yar, S.H.O. And in consequence thereof Muhammad Abbas, Azad, Zahoor and Muhammad Sarwar were apprehended on 6-8-1989, while Ghulam Mehdi and Abdul Ghafoor were arrested on 10-8-1989, and were accordingly charged under sections 302, 307, 148 and 149 of the Pakistan Penal Code. All the accused pleaded not guilty.
5. In support of its case, the prosecution examined as many as fifteen witnesses. Muzaffar Hussain P.W.1 deposed that on 8-8-1989, he had gone to Police Station Sihala, in connection with a case registered against his father and cousin. Muhammad Abbas, Azad Khan and Zahoor Ahmad were present in the police station. Azad Khan and Zahoor Ahmad led to the recovery of one Soti each (Exh.P.1 and Exh.P.2) from bushes at two different places, while Muhammad Abbas led to the recovery of his licensed gun Exh.P.3 from his residence. The weapon of offence were taken into custody vide memo. Exh.P.A., Exh.P.B. And Exh.P.C., respectively and the same were duly attested by him and Muhammad Sadiq.
6. P.W.2, Constable Mumrez Akhtar deposed that on 29-7-1989, he accompanied S.H.O. Allah Yar to the place of occurrence at Jawa Road. Rewat. He escorted the dead body which was lying in the Ali Medicos Centre alongwith Constable Zafar Iqbal to the mortuary at D.H.Q Hospital, Rawalpindi, and handed it over to the doctor for post-mortem examination. After post-mortem examination, the doctor delivered back the dead body and last-worn clothes of the deceased along with a sealed phial containing pellets (Exh.P.9) which were delivered to the S.H.O. On the same day vide memo.
Exh.P.D. P.W.3 Muhammad Jamshed, A.S.-I. Testified that during July/August, 1989, he was posted as Moharrir A.S.-I. At Police Station Sihala. On 29-7-1989, on receipt of complaint Exh.P.E. He recorded F.I.R. Exh.P.E./1 which was in his handwriting and bears his signatures. On the same day, S.H.O.
Handed over him two sealed parcels containing blood-stained earth and crime-empties which he kept in the police Milkman till 9-8-1989. The same were handed over intact to Constable Muhammad Hussain for delivery in the office of the Chemical Examiner and Forensic Science Laboratory, Lahore. Similarly, S.H.O. Allah Yar gave him two parcels on 8-8-1989 and 19-8-1989 containing guns which he delivered to Constable Muhammad Khan on 30-8-1989 for onward transmission to the Forensic Science Laboratory, Lahore. Constable Muhammad Hussain (P.W.4) deposed about delivery of parcel containing crime-empty and bloodstained earth intact to the Forensic Science Laboratory, Lahore. Muhammad Khan, Constable (P.W.5) likewise, he deposed about delivery of sealed parcels containing guns to the Forensic Science Laboratory on 30-8-1989.
7. Haji Imtiaz Ali appearing as P.W.6 deposed that on 19-8-1989 he had gone to Police Station Sihala alongwith his cousin Safdar. Ghulam Mehdi who was present in the police station expressed his desire for delivery of his licensed gun which was recovered from his house vide memo. Exh.P.F. With license Exh.P.11. Dr. Abdur Rehman, Medical Officer (P.W.7) had conducted the autopsy of Shabbir son of Adalat Khan (deceased) and found the following injuries on the person of the deceased:--
(1) Wound of entry measuring 0.9 inches anteroposterior and 1.2 inches in transversed diameter just below left mid-clavicle; and
(2) Left, second and third ribs were found fractured, both right and left pleurae perforated trachea, perforated, right and left lungs perforated, great vessels perforated, oesophagus perforated.
' He deposed that one pellet was recovered from the right diaphragm. The injury was declared to be ante-mortem and was sufficient to cause immediate death. The time between death and post- mortem examination was from 4 to 8 hours. Muhammad Akram P.W.8 produced site plans Exh.P.H.
And Exh.P.H./1 prepared on the directions of the police.
8. P.W.9 Mazhar Hussain. The complainant reiterated the facts narrated by him in the F.I.R. He was cross-examined at length but he stuck to his statement that Shabbir deceased had received fire- arm injuries outside the Ali Medicos. P.W.10 Muhammad Nazir who was injured during the occurrence testified that about two years earlier than recording of his statement in the Court, he alongwith Shabbir deceased and Mazhar had gone to Rewat. Shortly, thereafter, Suzuki van RIN- 3602 came there from which Mehdi, Abbas, Azad, Zahoor, Ghafoor and Sarwar came out. Abbas and Mehdi were armed with .12 bore guns. While except Sarwar all were armed with sticks. Sarwar accused raised Lalkara so that these persons must not go alive today. Mehdi Khan then fired at Shabbir hitting him at his left chest on the front. Abbas loaded his gun by cartridges by taking it out from his pocket and in the process an empty was discharged from the gun. He then fired at P.W.10 hitting him on his left arm in the middle, while Zahoor gave him a blow at his right knee with his stick whereupon he fainted and fell down. When he regained consciousness, he found himself in the Civil Hospital wherefrom he was shifted to C.M.H. Subsequently, his injured arm was amputated.
Disc of his right knee was also removed. According to the witness, he remained under treatment in the hospital for about a month.
9. Abdul Khaliq son of Gheba Khan (P.W.11) deposed that on 29-7-1989 at about 9/9-15 a.m., he was present near Ali Medicos, Rewat, as he was off duty on the said date. He also gave details of six assailants coming on the spot. Sarwar proclaimed that their enemies must not be spared and should not be allowed to go alive. Mehdi then fired a shot hitting Shabbir on the left side of his chest. Abbas loaded his gun and in the process one empty cartridge was dropped from his pocket.
He took another cartridge and loaded the gun. He then fired at Nazir causing injury on his left arm in the centre. Zahoor thereupon gave a Sota blow on the right knee of Nazir (P.W.10) who fell down.
Mazhar Hussain raised alarm upon which the witness (P.W.11) raised hue and cry and warned the assailants who left the place in the Suzuki van.
10. Inspector Allah Yar (P.W.12) who at the relevant time was posted at Sihala Police Station, gave details of his reaching the place of occurrence on 29-7-1989 on receipt of a telephonic communication. He met there with Mazhar Hussain complainant and recorded his statement Exh.P.E. He examined the dead body and despatched the same for post-mortem examination through Mumrez Akhtar and Zafar Iqbal, Constables. He prepared injury statement Exh.P.L. And inquest report Exh.P.M. He also collected the blood-stained earth and prepared sealed parcels vide recovery memo. Exh.P.K. He testified that on search of the deceased, he recovered a carbine (Exh.P.13) alongwith 8 live cartridges (Exh.P.14/1-8), handkerchief and certain currency notes. He also narrated the details of his investigation. P.W.13 Khalid Masud, S.-I. Deposed that on 29-7-1989 he was posted as S.-I. At Police Station Sihala and had joined the investigation with S.H.O. Allah Yar Khan. He went alongwith S.H.O. At the place of occurrence and assisted him in the investigation. He also stated about taking into custody of Suzuki van numbering RIN-3602 along with its registration book vide memo. Exh.P.P. He also recorded the statement of Muhammad Nazir P.W. In the Civil and Military Hospital (C.M.H.), Rawalpindi.
11. Muhammad Altaf Dispenser/Record Keeper, D.H.Q. Hospital Rawalpindi (P.W.14), produced a copy of the original medical certificate issued by Dr. Shams Tabrez whose whereabouts were not known.
P.W.15 Nazir Ahmad, Head Constable, Police Station Sihala, produced summons issued to Dr. Shams Tabrez vide Exh.P.W 15/B claiming that according to the report of the hospital, Doctor Tabrez was transferred to the Basic Health Centre Takht Paree, but he had not joined the place of his posting.
According to the witness doctor Tabrez was absent from his duty for the last 1-1/2 years.
12. Statements of all the accused were also recorded under section 342, Cr.P.C. They all denied the charge and claimed that they were falsely involved in the case. The defense also examined three witnesses. Muhammad Aslam, Head Postman, G.P.O. Rawalpindi Cantonment, who appeared as D.W.1, deposed that as per record Zahoor Ahmad accused was a postman posted in G.P.O.
Rawalpindi during the period of occurrence, his duty hours were from 9-00 a.m. To 5-00 p.m. In this respect, he also produced a copy of the relevant register Exh.D.W.1/A. During cross-examination he, however, admitted that the register does not contain signatures of Zahoor nor his own (D.W.1) attendance was marked in the said register. He further stated that the entries in register were made by one Maqbool. Dr. Ghulam Sarwar, Eyes Surgeon, Al-Shifa Eye Trust, Rawalpindi testified that on 4-10-1989, he had examined Ghulam Mehdi and issued certificate Exh.D.W.2/2. He again examined him on 16-d4-1990 and issued certificate Exh.D.W.2/B. Dr. Ghulam Sarwar Bhatti stated that Ghulam Mehdi had cataract in both the eyes and he could not see beyond 3 to 4 yards. He further stated that he had also examined Ghulam Mehdi under the directions of the High Court.
During cross-examination, he, however, admitted that according to certificate Exh.D.W.2/B, the patient could clearly see the objects from the distance of 3/4 metres. D.W.3 Maqbool Khan, Head Postman, G.P.O., Rawalpindi, testified that in 1989, he was posted at Rawalpindi G.P.O. As Head Postman and used to record attendance of all the postmen. Name of Zahoor Ahmad postman exists at Serial No,40 and on 29-7-1989, he had marked his attendance in the second set up shown presence from 9 a.m. During cross-examination, the witness admitted that register does not bear signatures of any person, indulging himself or of any officer. He also admitted that at serial number 40, presence of one Khalid Mehmood was also marked. According to him, Zahoor Ahmad had proceeded on leave on 30-7-1989 to 3-8-1989.
13. The learned Sessions Judge, Rawalpindi, who was entrusted with the case vide his judgment, dated 30-1-1993, came to the conclusion that the motive in the case was not established. He also opined that the case against three accused, namely Sarwar, Azad Khan and Abdul Ghafoor was not free from doubt, hence he acquitted these three persons giving them benefit of doubt. He, however, convicted the remaining three accused, namely Mehdi, Abbas and Zahoor under section 302/34, P.P.C. For causing death of Shabbir and sentenced them to imprisonment for life and fine of Rs,50,000 each. In default in payment of fine, they were required to undergo further rigorous imprisonment for two years each. Each of them was also required to pay compensation of Rs,50,000 to the heirs of the deceased. In failure of payment of compensation they were required to undergo simple imprisonment for six months each. The accused were also convicted under section 307 (since substituted) and 34 of the Pakistan Penal Code for causing murderous assault on Nazir P.W. And sentenced them to rigorous imprisonment for 10 years each and fine of Rs,30,000. In default in payment of fine, they were required to undergo one and half years rigorous imprisonment each. They were also required to pay the compensation of Rs,25,000 each to Nazir Ahmad injured P.W. And in default in payment thereof they were required to suffer simple imprisonment for five months. All the sentences of imprisonment were to run concurrently. The convicts were considered not entitled to the benefit available under section 382-B of the Code of Criminal Procedure in the terms of their imprisonment.
14. Ghulam Mehdi and Zahoor have assailed their conviction and sentences vide Criminal Appeal No,48 of 1993, while Muhammad Abbas has contested his conviction and sentence through Criminal Appeal No,102 of 1993, Mazhar Hussain has sought enhancement of their sentences to death through Criminal Revision No,29 of 1993, while he has challenged the acquittal of three accused namely, Muhammad Sarwar, Azad Khan and Abdul Ghafoor through Criminal Revision No,35 of 1993 and prayed for their punishment in accordance with law.
15. Mr. Fayyaz Ahmad Khawaja, Advocate, the learned counsel representing Ghulam Mehdi and Zahoor Ahmad appellants, contended that the motive in the case has not been established.
Likewise, when on the basis of same evidence three accused were acquitted no credence could be given to the prosecution evidence. It was the case of the prosecution that about 4-5 days prior to the occurrence, Shabbir deceased had reprimanded Muhammad Ishque, the driver of Muhammad Sarwar, one of the acquitted accused for playing tape-recorder fitted in his Suzuki van at a high pitch. The said driver was not examined. In this respect, only Mazhar Hussain P.W.9 and Muhammad Nazir P.W.10 in their statements have testified that an altercation had ensued between Shabbir and driver of Sarwar as stated above. But none of them have claimed that they were present at the time of such altercation. Investigating Officer had also not examined the driver with whom the alleged altercation had taken place. Even otherwise, in this respect the aggrieved person was Sarwar accused with whose driver the alleged altercation had taken place but admittedly at the time of occurrence he was empty-handed. Meaning thereby that he had no intention of causing death of Shabbir or injury to any other person. Motive, therefore, had rightly been held to have not been proved. In this context, the learned counsel referring to Habib Ullah v. The State P1 D 1969 SC 127 urged that when a specific motive is set up for the offence and but the same is not proved, the prosecution evidence looses its credibility. Hence, it was contended that since the motive had not been proved, the whole of the prosecution case falls on the ground.
16. This principle, however, cannot be applied in all cases. In Ahmad Nisar v. The State 1977 SCMR 175 it was held that "motive, more or less, is a guess on the part of the prosecution witnesses. What truly motivates an accused person to commit a crime is best known to him and not to others.
Absence of motive or failure on the part of the prosecution to prove it does not, therefore, adversely affect the testimony of the eye-witnesses if they be otherwise reliable". In Saeed Ullah Khan v. The State 1986 SCMR 1027 the Honourable Supreme Court was pleased to lay down that it is not incumbent upon the prosecution to prove motive against an accused person in the commission of a crime. In Saeed Gul v. The State PLD 1992 Pesh. 40, a Division Bench of the Peshawar High Court had held that absence of motive should not deter the Courts to award normal sentence of death provided under section 302 of the Pakistan Penal Code. Hence, notwithstanding that the motive had not proved beyond doubt, the appellants could be punished on the basis of other available evidence for commission of the crime.
17. The learned counsel for the appellants also objected to the recoveries of Suzuki and sticks from three acquitted accused, the licensed gun from Ghulam Mehdi and gun Exh.P.4 belonging to Abbas accused. The learned trial Court had rightly not relied upon the recovery of three sticks as they were of ordinary nature and no specific mark of identification was made thereon. Likewise, the pellets P.9 recovered from the body of Muhammad Shabbir accused were not sent for matching with the licensed gun Exh.P.10 produced by Ghulam Mehdi appellant. Nevertheless, two empties Exh.P.12/1-2 recovered from the spot did match with the gun Exh.P.3 recovered from Muhammad Abbas appellant. Sardar Muhammad Ishaque Khan, the learned counsel representing him contended that two empties Exh.P.12/1-2 were stated to have been taken into custody from the place of occurrence on 29-7-1989, while the gun from Abbas appellant was recovered on the 8th August, 1989, and was sent to the Forensic Science Laboratory, Lahore, on the following day. This process makes the matching of empties with the gun doubtful. It was also claimed that according to the eye-witnesses, Abbas had fired only one shot, while two empties were recovered from the spot. This discrepancy was duly explained by P.W.10 Muhammad Nazir that at the time of loading the gun, Abbas appellant had dropped one cartridge. Although the eye-witness was cross- examined at length, but these assertions of Muhammad Nazir stood unrebutted.
18. The ocular evidence in the case consists of three witnesses, namely, Mazhar Hussain complainant (P.W.9) Muhammad Nazir P.W.10 (who was injured in the incident) and Abdul Khaliq P.W.11. All the three witnesses were cross-examined at length. No doubt wife of Mazhar Hussain P.W.9 and the wife of Shabbir deceased were real sisters, this relationship does not prove that he had not told the truth. In Shah Nawaz alias Shanoo v. The State 1991 PCr.LJ 83, it was held that the testimony Of a relative cannot be discarded because of his relationship with the deceased.
Muhammad Nazir P.W.10 who was admittedly injured during the incident appears to be the most truthful witness. He did not claim animosity with any of the appellant or accused, and thus, does not appear to have implicated any person in the commission of crime falsely. He categorically stated that Shabbir was shot by Ghulam Mehdi with his .12 bore gun which shot proved fatal, while he himself was fired upon by Abbas and was caused an injury on his right knee by Zahocr Ahmad.
These assertions are also fully supported by Abdul Khaliq P.W.11 who is an independent witness. The injury suffered by Muhammad Nazir by fire-arm on his left arm had resulted into amputation of the arm. Likewise, the injury on his right knee resulted into removal of the disc therefrom. These injuries were not controverted despite that no medico-legal expert or doctor was examined. Learned Trial Court had, in this context, specifically recorded an observation regarding missing of an arm of P.W.10. These injuries, thus, clearly prove his presence at the spot and thereby narration of the facts testified by him stands proved beyond any doubt.
19. The learned counsel for the appellant contended that no witness from the Bazar where the incident took place nor the owner of Ali Medicos was produced. Nevertheless, it is in the evidence of P.W.9 and Muhammad Nazir P.W.10 that when the firing started, to save themselves, people ran away from the spot. It is a common knowledge that these days the people generally avoid to appear as witnesses how independent they may be, to avoid any confrontation with the parties.
20. It was mainly emphasised on behalf of the appellants that the occurrence was not taken place outside Ali Medicos but actually the deceased had received the fatal shot inside the Chemist's shop where dead body of Shabbir was found. In this regard, the defence version as could be gathered from the questioning of eye-witnesses during cross-examination and the suggestions made to the Investigating Officer is that Shabbir was standing inside Ali Medicos. He in the first place himself fired upon someone with his carbine which he was carrying and in the said process Muhammad Nazir P.W. Was injured. In return, the unknown assailant fired upon Shabbir and he died instantly inside Ali Medicos. In this respect, the eye-witnesses and the Investigation Officer were subjected to very lengthy cross-examination. But nothing had brought out by the appellant in support of their contentions. No doubt according to the Investigating Officer (P.W.12) carbine with eight live cartridges was recovered from the persons of the deceased. Nevertheless, there is nothing on the record to show that the deceased had, in the first instance, fired upon any one with his carbine. It is generally known that people belonging to rural areas in particular keep fire-arms with them as a status symbol only. No empty pertaining to the carbine was recovered nor the carbine was sent for examination if any fire was shot therefrom. In absence of any evidence, it cannot be presumed that the deceased had fired upon some unknown person through the said carbine and in return had 'received a fire shot.
21. Even if it is presumed that Shabbir deceased was standing inside Ali Medicos when he received a fatal shot, the seat' of injury of his body negates such a suggestion. He had admittedly received a fire-shot on the left side of his chest from the front. In that case, he must have been standing in the shop facing towards the road. Such a posture is usually not adopted when somebody enters a shop for making. Purchases. If Shabbir was actually inside Ali Medicos he would have received fire shot either at his back or on the side of his body. In this connection, the main purpose of the defence appears to be that if Shabbir deceased was inside the shop when he received the fatal shot the eye-witnesses were standing in such a position that they could not see the deceased, receiving any fire shot. It was also urged on behalf of the appellants that if it is established that the venue was different than what the prosecution has claimed, the whole prosecution case would prove to be false.
22. The plea of substitution of the real accused who had caused the death of Shabbir or caused injuries to Muhammad Nazir P.W. Has not been proved nor any evidence in this respect had been led by the appellant. In this connection, simply because certain suggestions were made to the eye-witnesses, the plea of substitution as raised by the appellant is not proved. In Shah Nawaz alias Shano v. The State 1991 PCr.LJ 83 the Peshawar High Court had held as under:-- "It is consistent view of the Superior Courts that murder allegedly committed by one person in such a situation the substitution of innocent person for the actual culprit is extremely rare. Reliance in this respect may be placed on Siraj Din v. Kala and another reported as PLD 1964 SC 26, Muhammad Ayub alias Nikka v. The State reported as PLD 1983 SC 135 and Miran Baldish and another v. Muhammad Amir and another as reported as 1986 SCMR 1225. In all the aforesaid authorities, the august Supreme Court has consistently held that substitution or false implication in the case of single accused could safely be ruled out. The substitution or false implication could, however, be argued where either the occurrence has taken place at night time where identification of the culprit become doubtful. In the case in hand, on the other hand, the murders were committed in the broad daylight at Degar time in the street where the houses of the deceased and the P.Ws. Are situated and in these circumstances, misidentification of the accused was all the more not questionable."
In the instant case as well, it was a broad day occurrence which took place right in the Bazar where admittedly several persons were around. In the circumstances, substitution of the real accused was not possible.
23. In order to prove that Shabbir deceased had received the fatal shot inside Ali Medicos, it was urged on behalf of the appellants that according to the prosecution story, the deceased had fallen down on the ground. Later on, he got up and went inside Ali Medicos where again he fell down and died shortly thereafter. The complainant Mazhar Hussain in his statement as P.W.9 admitted that there was a lot of blood at the place of occurrence. Meaning thereby that there was blood where Shabbir deceased had fallen for the first time and must have left behind a trail of blood when he went inside the shop. But surprisingly no blood-stained earth was collected from outside the shop and the blood-stained earth was collected only from inside Ali Medicos. But simply because the Investigating Officer was not very efficient, the prosecution evidence cannot be belied. On the other hand, ocular evidence that Shabbir deceased had received bullet shot outside the Ali Medicos where he fell down and then he went inside the shop stands rebutted.
24. It was next contended on behalf of the appellant Ghulam Mehdi that he was suffering from cataract. This fact was also supported by Dr. Ghulam Sarwar Bhatti, Eye-Surgeon, D.W.2, who claimed that Ghulam Mehdi appellant could not see very clearly beyond 3-4 metres. It was, therefore, claimed that, since eyesight of Ghulam Mehdi was weak, he could not fire with precision.
In this respect, reliance was also placed on the statement of Mazhar Hussain P.W.9 who had stated that Ghulam Mehdi was about 9/10 yards away from Shabbir when he fired at him. It is, however, a fact that a person suffering from cataract does not loose his eyesight and only his vision is blurred.
From the site plans Exh.P.H. And Exh.P.H./1, the contents of which were not controverted the distance between Shabbir deceased and Ghulam Medhi is shown to be 7 ft. Only. Even if it is believed that Ghulam Medhi could not see beyond 3 to 4 metres, certainly from 7 feet he could see the objects clearly and fire upon Shabbir deceased. It was also claimed that Ghulam Mehdi was of advanced age but it does not mean that about 9 years back he was not in a position to fire upon Shabbir with his gun. No evidence, in this respect has been brought on the record. The plea of alibi in respect of Zahoor Ahmad that he being a postman was on duty, is not proved beyond doubt as admitted by D.W.1 and D.W.3, the attendance register did not contain the signatures, in particular at serial number 40 where Zahoor Ahmad was stated to have marked of his presence another person, namely Khalid Mehmood was also marked present. These entries, therefore, appear to be doubtful and no reliance can be placed thereupon. The ocular evidence in the instant case is duly corroborated and, in particular, as stated above the depositions of Muhammad Nazir P.W.10 and Abdul Khaliq as P.W.11 are straightforward and inspire confidence. Abdul Khaliq is an independent witness. Likewise, as stated above, no enmity or prejudice against Muhammad Nazir has been claimed by the defense. The minor discrepancies or improvements made by the eye-witnesses are natural, particularly when these depositions were recorded after more than two years from the date of occurrence.
25. Nevertheless, common intention of all the appellants and the acquitted accused for causing murder of Shabbir is not established. According to the prosecution version the occurrence was outcome of an earlier incident in which Shabbir accused had reprimanded Sarwar's driver for plying down van's radio/cassette. In this respect, it could only be Sarwar one of the acquitted accused who could be aggrieved of the conduct of Shabbir deceased but not others. Again Sarwar was empty-handed, while the other two acquitted accused Azad Khan and Zahoor Ahmad were armed with sticks. Ordinarily, it was not possible to cause death with such sticks and without hitting at the vital parts of Shabbir therewith. In fact, there is no allegation against Azad Khan and Abdul Ghafoor and Sarwar that they had caused any injury to anyone. The only allegation against them is that Sarwar raised Lalkara, while other two had tried to attack Mazhar Hussain complainant with their sticks but could not accomplish their intention because of intravention of P. Ws. In view thereof, because of lack of incriminating evidence against them, they were rightly acquitted.
26. Likewise, it cannot be said that with a stick Zahoor Ahmad could cause death of Shabbir. It is the case of prosecution that he only caused one injury at the right knee of Muhammad Nazir. Similarly, Abbas fired only one shot which hit Muhammad Nazir at his elbow. His intention of causing death of Shabbir is also not established. It was held by the Supreme Court in Imam Bux v. The State PLD 1983 SC 35, that "the common intention does not create a distinct offence but merely enunciate principle of joint liability for acts done in furtherance of common intention of the offenders. The essence of liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention". In the instant case, however, such common intention of causing death of Shabbir deceased by all the three convicted accused is missing. Similarly it does not appear that Zahoor Ahmad appellant intended to cause death of Muhammad Nazir. He did not repeat firing of shots at him when the first shot did not hit any vital part of Muhammad Nazir. The acts of all the three appellants, therefore, appear to be individual acts developed at the spur of the moment.
27. In view of the above discussion, the conviction of Ghulam Mehdi appellant under section 302 and sentences of life imprisonment and fine of C Rs,50,000 are maintained. In default of the payment of fine, he shall be liable to rigorous imprisonment for a period of one year. On recovery of the amount of fine, half of the amount shall be payable to the heirs of Shabbir deceased. Because of his advance age and involvement of protracted litigation in the instant D case and failure of the prosecution to prove motive, the enhancement of sentence to death penalty is, however, not called for at this stage.
28. The conviction and sentence of Muhammad Abbas and Zahoor Ahmed under section 302 of the Pakistan Penal Code read with section 34 thereof are set aside as their intention to cause death of Shabbir deceased is not proved beyond doubt. Since Ghulam Mehdi did not make any attempt to cause injury to Muhammad Nazir, the sentence of Ghulam Mehdi under section 307, P.P.C. (since substituted) read with section 34 thereof is also set aside. On the same principle, since Zahoor Ahmad appellant did not cause murderous assault upon Muhammad Nazir, his conviction and sentence under section 307, P.P.C. Read with section 34, P.P.C. Is altered to one under section 326, P.P.C. (since substituted) and is sentenced to 7 years rigorous imprisonment with fine of Rs,50,000.
In case of default in payment of fine, he shall be liable to undergo further rigorous imprisonment for six months. On recovery of the amount of fine, one half thereof shall be payable to Muhammad Nazir injured.
29. The conviction of Muhammad Abbas under section 307, P.P.C. (since substituted) is, however, maintained. Similarly, his sentences of rigorous imprisonment for ten years and fine of Rs,30,000 are maintained. In failure to pay the amount of fine, he shall be liable to further rigorous imprisonment of one year. In case of recovery of fine, half of the same shall be paid to Muhammad Nazir, the injured P.W.
30. The amount of compensation awarded against all the three appellants is, however, set aside.
The three convicts shall be entitled to the benefit under .. Section 382-B of the Cr.P.C. In the terms of their imprisonment. The appellants are on bail, they shall be taken into custody forthwith to undergo unexpired terms of their imprisonment. With the above modifications in the convictions and sentences of the appellants as stated above, both the appeals are dismissed. Likewise, there being no merit in the plea for enhancement of sentences of the appellants or conviction of the acquitted accused, the two revision petitions filed by Mazhar Hussain complainant are dismissed.