' The abovementioned criminal appeal and criminal revision were filed against the judgment, dated 20-3-1994 passed by Syed Muhammad Zafar Babar, the then learned Sessions Judge, Faisalabad whereby convictions and sentences given below were challenged:--
(a) Imprisonment for life under section 302 read with section 34, P.P.C. To all the appellants with a fine of Rs,50,000 each and a compensation in the sum of Rs,50,000 each under section 544-A, Cr.P.C. To be paid to the heirs of Muhammad Sadiq, deceased or in default to undergo further R.I.
For one year each;
(b) All the appellants were sentenced to pay Daman amounting to Rs,3,000 each to Muhammad Siddique Injured P.W. Or to suffer 6 months' R.I. Each upon conviction under section 337-A(i) read with section 34, P.P.C.
(c) All the appellants were sentenced to undergo 2 years' R.I. Each under section 337-F(iv), P.P.C.
2. All the above said sentences were directed to run concurrently with the benefit of section 382(b), Cr.P.C.
3. The appellants contended that the prosecution has failed to prove its case and as such the aforesaid convictions and sentences were not maintainable in the eyes of law. Revision petitioner, however, contended that the learned trial Court failed to award the normal penalty of death under section 302, P.P.C. After the charge of murder was proved against all the appellants.
4. Since both the matters arise out of the same judgment, therefore, those are dealt with in this common judgment.
5. The brief facts are that appellant Muhammad Farooq armed with .12 bore gun, Faqir Hussain also armed with .12 bore gun, Muhammad Mumtaz alias Taj armed with a Sota and Muhammad Aslam also armed with a Sota came out of cotton field near the place of occurrence and attacked the deceased Muhammad Sadiq at about 8-00 a.m. On 25-10-1992. According to the F.I.R. The complainant Muhammad Safdar (P.W.7) along with his deceased brother Muhammad Sadiq were taking a round of their cotton crop in Killa No,23 Square No,3, when the a forenamed appellants/convicts appeared along with their respective weapons. Out of them Muhammad Farooq raised Lalkara that the deceased and the P.Ws. Namely Muhammad Siddique and Muhammad Arshad who had also arrived there from the nearby field, be finished in order to avenge their insult. Simultaneously Muhammad Farooq and Faqir Hussain aforementioned pulled out their respective guns and suddenly fired at the deceased thereby injuring different parts of his body. The deceased fell on the ground in injured condition and died on the spot. In the meanwhile Muhammad Aslam appellant/convict gave multiple blows with his Sota on the person of Muhammad Siddique (P.W.9) whereas Muhammad Mumtaz alias Taj caused injuries to Muhammad Arshad (P.W.10) with his Sota. The noise raised by the complainant attracted Muhammad Asghar and Muhammad Imran who intervened and upon their request all the four appellants/convicts left the spot along with their weapons of offence. The motive disclosed in the F.I.R. Is that 6 months prior to the occurrence Mubrarik Ali son of Muhammad Siddique and Muhammad Tufail Taili i,e, father of Muhammad Farooq appellant had quarreled with each other in Sabzi Mandi Jaranwala. The appellant Muhammad Farooq etc. Nursed grudge against the complainant side and committed the present occurrence.
6. The prosecution examined the complainant and other two eye-witnesses Muhammad Siddique and Muhammad Arshad in order to support the ocular version of the occurrence. The medical evidence was brought on record through the statement of Dr. Akram Ali (P.W.1) who conducted post-mortem examination on the dead body of Muhammad Sadiq. According to him there were 54 lacerated penetrating wounds of entry each measuring 1/4 c.m. In diameter under injury No,1, whereas 59 lacerated wounds, 40 round in shape measuring 1/4 c.m. In diameter, whereas 19 measured 2 c.m. x 1/4 c.m. Were found under injury No,2 which were skin deep. According to aforenamed Medical Officer injury No,1 was grievous as well as fatal while injury No,2 was simple in nature. Both were inflicted with fire-arm and were ante-mortem. The post-mortem report was Exh.P.A. Whereas pictorial diagrams of injuries was Exh.P.A./1. The other doctor Muhammad Hanif (P.W.2) was produced in respect of injuries which were kept under observation. He being Radiologist gave the opinion after the X-Ray Report Exh.P.B. That injuries on the head and chest of Muhammad Siddique were simple while injury on the left fore-arm was grievous. His report Exh.P.C.
In respect of Muhammad Arshad injured P.W. Showed that injuries on his person were simple in 'nature. He also added that both the injured persons were brought to him as a private patients ond not by the Police. However, they had been referred to him by the concerned C.M.O. Of Tehsil Headquarter Hospital, Samundri. Dr. Liaquat Ali (P.W.8) examined the injuries on the person of Muhammad Arshad injured P.W. He found 12 injuries on the person of aforementioned person. Out of those injuries Nos.3, 4, 5, 9 and 10 were kept under observation whereas rest were found to be simple caused with blunt weapon as per medico-legal Report Exh.P.J. The diagram of injuries were Exh.P.J./1. The aforesaid doctor also examined Muhammad Siddique on the same day and found 11 injuries on the person of the victim. Out of those injuries, injuries Nos.2, 3, 4, 7 and 8 were kept under observation whereas rest of the injuries were found to be simple and caused with blunt weapon during the period of 6 hours. Medical Report Exh.P.K. And pictorial diagram of injuries Exh.P.K./1 were brought on record to prove those injuries. As stated above the Radiologist P.W.2 had given his opinion as abovesaid in respect of injuries kept under observation.
7. Recovery of .12 bore gun P.4 was effected from Muhammad Farooq appellant/convict on 22-11- 1992 which was taken in possession vide memo. Exh.P.F. Recovery memo. Was attested by Manzoor Hussain P.W.6 and Maqsood Ahmad, S.-I. P.W.11. One of the recovery witness namely Muhammad Sharif was given up. The empty was recovered from the spot on the day of occurrence i,e, 25-10- 1992 vide memo. Exh.P.Q. Attested by Maqsood Ahmad, S.-I. P.W.11, whereas the 2 marginal witnesses Muhammad Imran and Muhammad Aslam were given up. The aforesaid empty and .12 bore gun recovered from appellant Muhammad Farooq were sent to the Ballistic Expert for examination. As per report of the expert the crime-empty was found wedded with the .12 bore gun recovered from Muhammad Farooq appellant/convict. Sota P.5 was recovered from Muhammad Mumtaz alias Taj vide memo. Exh.P.9 on 22-11-1992 in presence of Manzoor Hussain P.W.6 and Maqsood Ahmad, S.-I. P.W.11. However, marginal witness namely Muhammad Sharif was given up.
8. No weapon of offence was recovered from Faqir Hussain and Muhammad Aslam, appellants/convicts. Both of them were also found innocent by the Police in the repeated investigations conducted by Amir Nawaz, D.S.P.,Samundri, Ch. Muhammad Farooq, S.H.O., Police Station Jaranwala and Mukhtar Ali, Inspector Range Crimes Branch, Faisalabad.
9. I have heard the learned counsel for the parties and have also gone through the record with the able assistance of the learned counsel from both sides.
10. It is contended by the learned counsel for the appellants that motiveif at all was against Muhammad Farooq, but rest of the appellants/convicts were roped in the case on account of enmity; that the appellants had no common motive to kill the deceased and their vicariously liability was also distinguishable from each other; that out of the 4 named accused, two namely Faqir Hussain and Muhammad Aslam were found innocent and a vile attempt was made by the complainant side to nominate the innocent persons to bring maximum harm to the accused party; that even Muhammad Farooq appellant/convict had nothing to do with the occurrence and was involved in the case on account of enmity on the basis of suspicion as the occurrence remained witnessed; that the medical evidence contradicted the ocular account of occurrence, which was later on improved at the trial to bring the statements of eye-witnesses in line with the injuries found on the persons of the deceased and the injured P.Ws. The alleged recovery from Muhammad Aslam was of no avail, as the Sota recovered from him was admittedly not stained with blood.
11. Lastly it was contended that all the witnesses are closely related to the deceased and being inimical to the accused were not reliable and trustworthy without independent corroboration which was none in this case. Hence it was prayed that the appeal be accepted and the prosecution case being not free from doubt, all the appellants/convicts be acquitted.
12. The learned counsel for the State assisted by the learned counsel for the complainant submitted that witnesses in this case are very reliable as two out of them sustained injuries during the occurrence which would not only show their presence at the spot but would also corroborate the complainant about the ocular version given in the F.I.R.; that recovery of gun P.4 from Muhammad Farooq appellant/convict which matched with the crime-empty; and Sota P.5 recovered from Muhammad Mumtaz alias Taj appellant/convict provided sufficient corroboration to sustain ocular account of occurrence. The medical evidence was also in accord with the version given by the eye-witness that the fire was made by Muhammad Farooq and Faqir Hussain at the deceased with .12 bore guns and that all the accused acted in furtherance of common intention to cause death of the deceased and injuries to Muhammad Siddique and Muhammad Arshad P.Ws. Hence it was contended that the prosecution had proved its case to the hilt against all the appellants/convicts and as such they were rightly convicted by the learned trial Court. However, in the matter of sentence, it was contended by the learned counsel for the complainant that the learned trial Court took lenient view in awarding imprisonment for life instead of capital sentence after offence under section 302/34, P.P.C. Was proved against all of them. It was prayed that sentence be enhanced accordingly.
13. I have considered the arguments addressed at the Bar from both sides. It is true that the complainant and the eye-witnesses are closely related inter se and also with the deceased. The complainant is the brother of the deceased whereas Muhammad Siddique P.W. Is the paternal- uncle ( ) of the deceased and the complainant. The other eye-witness namely Muhammad Arshad is the paternal-cousin of the complainant and the deceased whereas he is the son of Muhammad Siddique aforesaid P.W. It is to be seen whether these witnesses can be believed against the appellants. Although they are related, but nothing has been brought on record to show that they were inimical to the extent that they would falsely implicate the accused in this case. Out of them Muhammad Siddique and Muhammad Arshad had also received injuries during the occurrence at the hands of Muhammad Mumtaz alias Taj and Muhammad Aslam appellants: There were 11 injuries to Muhammad and 12 injuries to Muhammad Arshad. Out of said injuries one injury on the left forearm of Muhammad Siddique was found grievous after its examination through X-Ray.
Statement of Dr. Muhammad Hanif P.W.2 is relevant on this point. Rest of the injuries were found to be simple and caused with blunt weapon. According to the F.I.R. And the ocular account of occurrence rendered by the eye-witnesses those injuries were inflicted to Muhammad Arshad by Muhammad Mumtaz alias Taj and to Muhammad Siddique by Muhammad Aslam appellants with Sota each. Although it is contended that those were self-inflicted injuries, but there is nothing on record to prove that fact. The locale of injuries which includes vital parts of the bodies of both the victims would show that these injuries could not be manipulated or self-inflicted. Hence there is no doubt that both the eye-witnesses had received injuries as explained by them during their statements at the trial. Likewise motive against Muhammad Farooq has been proved through evidence brought on record, but the same does not involve rest of the three appellants namely Faqir Hussain, Muhammad Mumtaz alias Taj and Muhammad Aslam.
14. In view of above situation, it cannot be successfully urged that the occurrence remained unseen because the presence of two eye-witnesses namely Muhammad Siddique and Muhammad Arshad on the spot is well-established from the injuries found on their persons. In such a case though the witnesses are closely related inter se and the deceased, but they had no malice to implicate the accused in this case falsely. As such it cannot be believed that it was blind murder or that the witnesses were not present when awful tragedy was enacted by the appellants/convicts.
However, in the safer administration of criminal justice and as a matter of abundant caution it would be necessary to seek for further corroboration in respect of participation of the appellants/convicts, in the occurrence. In this regard as stated above, the motive is partly proved as the same has been alleged against Muhammad Farooq appellant with whose father there was some quarrel by Mubarik Ali son of Muhammad Siddique, who as stated above is paternal-uncle of the deceased, who himself was injured during the transaction as stated above. The F.I.R. In this case was promptly lodged, which provided sufficient corroboration to the prosecution version that there was practically no time for fabrication or padding but as stated above and as a matter of abundant caution it will be worthwhile to apply the rule of prudance to come to a correct decision regarding culpability of each of the appellant/accused. It is in the F.I.R. That Muhammad Farooq and Faqir Hussain while armed with .12 bore gun each had simultaneously fired at the deceased, but a conscious attempt was made to cover up the medical evidence by improving statements of the witnesses during trial that first fire was made by Muhammad Farooq and then by Faqir Hussain assigning different parts of the body of the victim to each of the fire. However, during investigation it was found that Faqir Hussain had not participated in the occurrence. No recovery was effected from him nor there was any other empty found on the spot which should have been recovered if Faqir Hussain had also fired from his gun. Although the police investigation is not binding on the Court but it is well-established fact that it is the first State Agency which comes into contact with the parties soon after the occurrence and while collecting evidence have to form its own opinion about the culpability or otherwise of a person named for an offence. As such that opinion may not be binding upon the Court, but it can be taken into consideration while deciding the case finally by a Court for the safer administration of criminal justice. In the instant case Faqir Hussain was found repeatedly innocent during three investigations conducted by the Senior Police Officers. The weapon of offence was also not recovered from him. Initially appellants Muhammad Farooq and Faqir Hussain had a typical joint role in making simultaneous firing from their respective weapons but after the medical evidence came to light, the prosecution witnesses tried to distinguish by attributing specific injuries to both of them separately. This belabored and belated attempt would create a genuine doubt in a judicial mind regarding involvement of Faqir Hussain appellant/convict in the murder of the deceased. It is particularly so when there is no motive as assigned to him nor any weapon of offence has been recovered from him. His case is, therefore, not beyond reasonable doubt and deserves to be given benefit of doubt. Accordingly his appeal is accepted and he is given benefit of doubt and acquitted of all charges.
15. Now it is to be seen if the remaining accused namely Muhammad Farooq, Muhammad Mumtaz alias Taj and Muhammad Aslam appellants/ convicts were vicariously liable for the murder of the deceased although the latter two had only caused simple injuries with Sotas to the injured P.Ws.
And had neither raised Lalkara nor had attacked the deceased in any manner. Even in the prosecution evidence the eye-witnesses have stated that they stood apart from Muhammad Farooq while he was having a gun and had fired at the deceased. In such a situation, Muhammad Mumtaz alias Taj and Muhammad Aslam cannot be saddled with vicarious liability qua the appellant Muhammad Farooq for sharing common intention with him to kill the deceased. They could only be punished for the act they had performed during the occurrence by injuring P.Ws.
Aforenamed. Hence, it can be safely said that they did not share the common intention of killing the deceased with Muhammad Farooq and could be held liable for the offence they had committed in causing injuries to the P.Ws. Therefore, their convictions and sentences under section 302/34, P.P.C. Are not liable to stand. Their appeal to that extent is accepted and their convictions and sentences under section 302/34, P.P.C. Are set aside, and they are acquitted on that charge.
However, they have rightly been convicted and sentenced by the learned trial Court under section 337-A(i), P.P.C. And under section 337-F(iv), P.P.C. For causing injuries to Muhammad Siddique and Muhammad Arshad. Their appeals to that extent are dismissed. Since compensation under section 544-A, Cr.P.C. Has not been awarded while convicting and sentencing Muhammad Mumtaz alias Taj under section 337-F(iv), P.P.C. For causing injuries to Muhammad Arshad P.W.,. Therefore, the aforesaid accused is given notice, which has been accepted on his behalf by his learned counsel.
Hence he is directed to pay compensation in the sum of Rs,10,000 to the aforesaid injured P.W. Or in default to undergo 6 months' S.I.
16. Now I come to the case of Muhammad Farooq appellant. His case has been proved by the prosecution beyond any reasonable doubt. All the eyewitnesses had linked him with the occurrence as he had first raised Lalkara and then fired from his .12 bore gun at the deceased.
Injuries (injury No,1) attributed to him proved fatal, as per opinion of the Medical Officer, who conducted the post-mortem examination. The testimony of the eye-witnesses stand supported and the motive is also proved against him and that the weapon of offence i,e, gun P.4 after its recovery from him had matched with the empty recovered from the spot. This is sufficient corroboration to support the eyewitnesses, to link him with the capital offence. He has, therefore, been rightly convicted under section 302(b), P.P.C. And rightly sentenced to undergo imprisonment for life with a fine of Rs,50,000 and .Further with an amount of Rs,50,000, which is to be paid as compensation to the heirs of the deceased. The finding of the learned trial Court on the conviction and sentence awarded to Muhammad Farooq appellant/convict does not call for interference. The appeal to the extent of Muhammad Farooq appellant/convict is accordingly dismissed, regarding his conviction and sentence under section 302/34, P.P.C. Since each of the accused has been held individually responsible for the offence committed by each one of them, therefore, conviction of appellant/convict Muhammad Farooq under section 337-A(i)/34, P.P.C. And section 337-F(iv)/34, P.P.C. Are set aside. All the appellants/convicts shall have the benefit of section 382(8), Cr.P.C., which has already been extended to them in the impugned judgment.
17. In view of my above finding there is no ground for enhancement of the sentence of the appellants/convicts as prayed in the revision petition. Accordingly the revision petition is dismissed.