1. ' AMAN ULLAH KHAN YASINZAI, J.--- By means of impugned Judgment, dated 31-8-1999, passed by learned Additional Sessions Judge-III, Quetta, the appellants have been convicted under section 302(b), P.P.C., and sentenced to suffer life imprisonment and to pay fine of rupees fifty thousand and in default in payment of fine to further suffer two years R.I. And under section 337-A(i), P.P.C. To suffer R.I. For one year and to pay Daman of Rs,2,000 each and in default in payment of Daman, to further undergo S.I. For a period of one month.
2. ' Briefly, the facts are; that on 22-5-1998, complainant Abdullah Jan lodged report with Kuchlak Police Station, vide Fard-e-Biyan (Exh.P./1-A) under section 324/147/149, P.P.C. It was averred in the Fard-e-biyan, that on 10-5-1998, the brother of complainant Haji Muhammad Yakub was taking mud from his lands in a Tractor. At about 10-15 a.m. Haji Abdullah Jan son of Muhammad Ishaque came and forcibly stopped Muhammad Yakub from lifting the mud and told him that the lands belong to him. During this period, Abdullah Jan son of Muhammad Ishaque, Abdullah son of Haji Muhammad Saghir, Naseem son of Saghir and Mirza Khan son of Muhammad Ishaque, who were armed with Dandas came there and attacked Muhammad Yakub. It was further alleged that he (complainant) was at his house and on coming to know about the said fight, rushed to the place of incident. There, in order to save his brother, he tried to intervene, but he was also attacked. Haji Abdullah Jan, who was armed with Iron Rod hit his brother Muhammad Yakub on his head, who received serious injuries. However, due to the intervention of people, they were saved. From the place of incident he took his brother to Police Station Kuchlak, where on the intervention of Noteables, he did not lodge the report and took his brother to Civil Hospital, Quetta, and as now the condition of his brother has become serious, therefore, he is lodging the report.
3. ' Muhammad Yakub remained in Civil Hospital, Quetta till 11-5-1998 and thereafter he was shifted to National Hospital, where he was operated upon by Dr. Amir Muhammad Panezai, Nuero Surgeon, however, he succumbed to the injuries on 25-5-1998. Accordingly, on the death of Muhammad Yakub, section 302, P.P.C. Was inserted in the F.I.R.
4. ' It may be noted that on the first day, P.W.3 Dr. Muhammad Amin Malghani, examined the deceased Muhammad Yakub and Complainant Abdullah and issued medical certificates (Exh.P/3- A & B), wherein he found following injuries on their person:-- Deceased Muhammad Yakub.
(1) Lacerated wound on the nose, clinically fractured. Bone of nose which is fractured bone is exposed with profuse bleeding.
(2) Blunt injury to the left eye, it is swollen and black.
(3) Blunt injury to the left shoulder.
(4) Lacerated wound on the vertex of skull 3 x 1 c.m. Muscle deep.
(5) Lacerated wound on the right parietal area 4 x 1 muscle deep.
5. ' Nature of injuries.
6. ' Dangerous.
7. ' Duration of injuries. ' fresh.
8. ' Kind of Weapon.
9. ' Blunt.
10. Injured Abdullah.
(1) Lacerated wound on right parietal area of skull 4 x 1 c.m. Muscle deep.
(2) Lacerated wound on the right side of occipital region of skull 3 x 1 c.m. Muscle deep.
11. ' X-Ray Skull shows. Normal.
12. ' Nature of Injuries.
13. ' Simple.
14. ' Duration of Injuries.
15. ' Fresh.
16. ' Kind of Weapon.
17. ' Blunt."
18. ' On the death of Muhammad Yakub, P.W.4 Dr. Fareed Ahmad conducted the post-mortem of deceased and issued Certificate (Exh. P/4-A), wherein he found following injuries and accordingly opined as under:--- "(1) Surgical incisional wound like a flap on left parietal of skull bone piece was not present.
19. Operated by Neuro Surgeon Amir Muhammad Panezai).
(2) Lacerated healed scar of wound on left parietal operated area 4 c.m. In length.
(3) Lacerated healed scar of wound on top of skull about 3 c.m. In length.
(4) Lacerated healed scar of wound right parietal 4 c.m. In length.
(5) Nosal bone fractured, bone is exposed by blunt weapon. Internal Examination.
20. ' Head:-- Oedema and clotted blood present in left parietal area of brain. Nosal bone fractured, a piece of bone was not present in left parietal.
21. ' Neck:-- Vassels are normal and healthy. Thorax:-- Normal and healthy.
22. ' Abdomen:-- All visceras normal and healthy.
23. ' Duration between death and post-mortem examination is within 12 hours.
24. ' Opinion.
25. ' The cause of death of deceased Muhammad Yakub son of Haji Muhammad Rahim. I am of the opinion caused that is head injury by blunt weapon in trax crail heamorrhage developed and death."
26. ' During investigation, P.W.9 Mehar Dad, A.S.-I., inspected the place of incident and prepared site Map (Exh.P/9-A), recorded statements of witnesses under section 161, Cr.P.C. And on 25-5-1998, he was transferred, as such, he handed over the papers to S.H.O. Thereafter, P.W.10 Ghulam Mustafa, I.P. Carried out rest of the investigation. On receiving information about the death of deceased, he shifted his dead body to Civil Hospital, for autopsy. He arrested the accused persons, secured blood-stained clothes of deceased vide memo. (Exh.P/7-A), recovered the Crime Weapon i,e, Dandas at the instance of accused vide Memo. (Exh.P/5-A5 and on receipt of Death Certificate, prepared incomplete challan (Exh.P/10-A). It may be noted that all the accused persons were arrested, except Haji Abdullah Jan, who was declared absconder.
27. ' The accused party also got lodged an F.I.R. Being No,66 of 1998 with Kuchlak Police Station under section 324/34, P.P.C., which matter was also investigated and ultimately the challan was submitted before the Competent Court, for trial.
28. ' At the trial, appellants did not plead guilty to the charge framed against them on 2-9-1998 under section 302/324/147/149, P.P.C., As such, to substantiate the accusation, prosecution produced; ' P.W.1 Abdullah Son of Haii Muhammad Rahim, Complainant. He lodged Fard-e-biyan Exh P/1-A .
29. ' P.W.2 Abdul Manan. An eye-witness.
30. ' P.W.3 Dr. Amin MaIghani. He examined the deceased and complainant and issued Medical Certificates Exh.P/3-A and B.
31. ' P.W.4 Dr. Fareed Ahmad. He conducted the post-mortem of deceased and issued Certificate Exh.P/4-A.
32. ' P.W.5 Asghar Ali. He is marginal witness to recovery memo. Of Dandas (Articles P/1 to P/4) which were taken into possession vide memo. Exh. P/5-A.
33. ' P.W.6 Muhammad Masoom. He is an eye-witness.
34. ' P.W.7 Abdul Karim Constable. He is witness to the recovery of blood-stained Waist Coat of deceased, taken into possession vide Memo Exh.P/7-A.
35. ' P.W.8 Abdul Wadood. He is also any eye-witness.
36. ' P.W.9 Mehar Dad. He partially conducted investigation at the initial stage.
37. ' P.W.10 Ghulam Mustafa. He investigated the case after the death of deceased.
38. ' Appellants were examined under section 342, Cr.P.C. In their such statements, they tendered medical certificates marks D/1 and D/2, according to which, accused Haji Abdullah Jan and Muhammad Abdullah Jan, were shown to have received injuries. They also produced copy of F.I.R.
39. No,66 of 1998, lodged by Abdullah Jan son of Haji Muhammad Hassan, as mark D/3. However, they did not get recorded their statements on oath nor produced anybody in defence.
40. ' On completion of trial, vide impugned Judgment the appellants were convicted and sentenced, as specified hereinabove.
41. ' Thus appellant have challenged their conviction by filing instant Criminal Appeal No,241 of 1999, whereas complainant Abdullah son of Haji Muhammad Rahim has filed Criminal Revision Petition No,142 of 1999, for enhancement of sentences awarded to appellants. Therefore, by means of this common judgement, we intend to dispose of both the matters jointly.
42. ' Syed Ayaz Zahoor, learned Counsel appeared for appellants, whereas State was represented by Mr. Nasrullah Khan Achakzai, Advocate. However, Raja Rab Nawaz, Advocate, pleaded the case of complainant.
43. ' Learned Counsel for appellants, contended that the trial Court has erred in holding, that appellants attacked the complainant and the deceased, in furtherance of common intention. He further argued that the witnesses produced by prosecution, are interested and their testimony has been wrongly taken into consideration, without any corroboration. According to him, the F.I.R. Was lodged with a considerable delay and no explanation for the same has been given. Learned Counsel also contended that the cause of death of deceased was not known, as admittedly on the second day of incident i,e, 1,1-5-1998, he was discharged from the hospital and there is nothing on record to show, as to what happened after 11th May upto 25th May, 1998, i,e, the date on which the deceased died.
44. ' Learned State Counsel, however, supported the impugned judgment and stated that appellants have been rightly convicted. However, he did not support the Criminal Revision, filed by complainant.
45. ' Learned counsel for complainant contended that the prosecution has proved its case against appellants beyond any shadow of doubt, therefore, there was no reason for the trial Court to have awarded them lessor punishment. He prayed for enhancement of sentence awarded to appellant.
46. ' It may be noted that the prosecution case mainly rests on the ocular testimony of P.Ws. Abdullah, Abdul Manan, Masoom Khan and Abdul Wadood and the medical evidence in shape of Exhs.P.3/A and B coupled with the post-mortem report Exh.P/4-A as well as the recovery of Dandas i,e, crime weapon, at the instance of appellants.
47. ' Adverting to the argument of learned counsel for appellants regarding common intention, it may be observed, that P.W.1 Abdullah in the Fard-e-Biyan (Exh.P/1-A) stated that at about 10-15 a.m. On the day of incident, deceased Muhammad Yakub was taking mud in a Tractor from his lands, on which, accused Abdullah Jan (Absconder) came to the spot and forcibly stopped him. Thereafter, other accused persons armed with Dandas came and attacked the deceased. In the meanwhile the complainant also attracted to the scene of occurrence, where he was also attacked by accused persons. In his deposition, he stood firm to his earlier stand and proved the contents of the Fard-e-Biyan. Statement of P.W.1 has been further corroborated by P.W.2 Abdul Manan, P.W.6 Muhammad Masoom and P. W.8 Abdul Wadood, who were present nearby and attracted to the scene of occurrence, after receiving the information of quarrel. They in unequivocally supported the contents of Fard-e-Biyan and statement of P.W.1 Abdullah. All the witnesses were put to lengthy cross-examination, but the intrinsic value of their evidence could not be shaken and they also satisfactorily explained their presence at the place of incident.
48. ' It may also be noted that both the deceased and complainant received multiple injuries with blunt weapons, as evident from the Medical Certificates produced by P.W.2 and P.W.3 which further supports the version of prosecution witnesses.
49. ' It may be observed that the element of common intention can be adjudged from the manner of incident and the circumstances connected thereto, because the incident may not be pre-planned, but the common intention can develop at the spur of moment, during the commission of offence.
50. In the case in hand, there is nothing on record to show, that as to how appellants reached at the place of incident, but the fact remains that all appellants were seen at the place of occurrence, when the complainant Abdullah reached at the place of incident, immediately after the fight had started in front of their Orchard. According to him, when he received information and while he came out, during this span of period, he saw appellants, who had reached their hotel during the fight, which is situated opposite to the place from where the mud was being taken. The complainant in unambiguous terms deposed that all the appellants were armed with Dandas.
51. Inasmuch as fatal injury on the skull of deceased has been ascribed to absconding accused Abdullah.
52. ' From the statement of complainant, it can be inferred that all the accused persons jointly started giving Danda blows to deceased and the complainant and there is nothing on record to suggest that any one of the appellant had not participated in the commission of offence. Thus, the learned trial Court has rightly held, that appellants in furtherance of their common intention, attacked the deceased and complainant, and common intention developed at the spur of the moment. In this regard, reference can be made to the case of Muhammad Akbar and 2 others v. The State PLD 1991 SC 923, wherein the Honourable Supreme Court, has made following observations:-- "12. From the above-referred cases, it is evident that a joint action by a number of persons is not necessarily an action performed with common object, but it may be performed on the spur of the moment, as a reaction to some incident and such a case would fall within the ambit of section 34, P.P.C. However, it may be pointed out that section 34, P.P.C. Contemplates an act in furtherance of common intention and not the common intention simpliciter and that there is a marked distinction between similar intention and common intention and between knowledge and common intention.
53. It may also be observed that mere presence of an accused at the place of incident with a co- accused who commits offence may not be sufficient to visit the former with the vicarious liability, but there should be some strong circumstances manifesting a common intention. Generally common intention inter alia precedes by some or all the following elements, namely, common motive, pre-planned preparation and concert pursuant to such plan. However, common intention may develop even at the spur of moment or during the commission of offence as poinl.Ed out hereinabove. Conversely common intention may undergo change during the commission of offence."
54. Thus, in view of above discussion, the contention of learned counsel, that the element of common intention is lacking in the instant case, has no force.
55. ' Adverting to the next contention of learned Counsel for appellants, that all the witnesses produced by prosecution were interested witnesses and their testimony, without independent corroboration, cannot be relied upon. In this behalf, learned counsel argued that prosecution witnesses were inter se related to the deceased, thus, they were interested witnesses and had a motive to falsely implicate the accused persons. We are not persuaded to agree with the learned Counsel. It may be observed, that mere relationship of witnesses with the complainant or deceased, would not make them interested witnesses, to hold, that they had a motive to falsely implicate the appellants in commission of offence. In the case in hand, there is nothing on record, to show, that the complainant and the appellants had any enmity with each other. However, it has come on record, that civil litigation was going on between them, in respect of an immovable property and further it has also come on record, that appellants and complainant party are distant relatives. As observed hereinabove, the statements given by witnesses are confidence inspiring and have been believed by us. The witnesses were cross-examined at length and nothing was brought on record to show, that they were interested witnesses. All the witnesses have satisfactorily explained their presence at the place of incident.
56. ' In our opinion, mere factum of civil litigation going on between the parties, would not make the P.Ws. Interested witnesses. By the time, it is now well-settled that, statement of a witness, who is interested cannot be discarded or is not reliable, as relationship by itself is not a valid ground for discarding or rejecting the testimony of such a witness. In case of such evidence, it is, however, obligatory upon the Court to scrutinize the statement of an interested witness with care and caution and if on proper scrutiny, evidence of such a witness is found to be intrinsically reliable or inherently probable, then it is sufficient to base conviction on such evidence. In the instant case, appellants themselves have also not denied their presence at the place of incident, as in their statements, they have tendered the medical Certificates (Marks D/1 and D/2) as well as the F.I.R.
57. Got registered by them, against the complainant party, which confirm their presence at the place of incident. Thus, the contention of learned Counsel that the prosecution witnesses were interested and they had a motive to falsely implicate the appellants, is repelled. In this behalf, reliance'can be placed on Sharafat Ali v. The State 2000 PCr.LJ 47 and Muhammad Tariq etc. v. State 1999 SCM R 329.
58. ' In Sharafat Ali's case, the Honourable Supreme Court has observed as under:--- "It was urged before us that they are interested witnesses and being close relatives of the deceased, their testimony cannot be believed. No doubt, they are related, but mere relationship is no basis to discard their evidence. Furthermore, by no stretch of imagination they can be considered to be interested witnesses. An interested witness, as laid down by this Court on a number of occasions and particularly in the case of Niaz v. The State PLD 1960 SC 38 is a person, who has a motive to falsely implicate a person."
59. ' In Muhammad Tariq's case, the learned Division Bench of Lahore High Court, observed as under:-- - "All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may by itself, be sufficient, in the circumstances of a particular case, to base conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story, narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If answer to these questions be in the affirmative, and the evidence of the witness appears to the Court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness is generally fringed with embellishment and exaggerations, however, true in the main, the Court may look for some assurance, the nature and extent of which will vary according to the circumstances of a particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of these guidelines, which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all situations."
60. ' Reverting to the contention of learned counsel, that F.I.R. Was lodged with a considerable delay and no explanation has been offered. In this behalf it may be noted that though incident took place on 10-5-1998 and F.I.R. Was got lodged on 22-5-1998, but is mentioned in the F.I.R that the same could not be lodged on account of the intervention of Noteables, and such explanation given in the F.I.R. Seems to be convincing and probable. Admittedly, the appellants and the complainant party are inter se related and there is nothing on record to show that they had any previous enmity except the civil litigation going on between the parties and the incident also took place at the spur of moment, therefore, the possibility cannot be ruled out that, on the intervention of Noteables, the F.I.R. Could not be lodged in time. It is also worth to note that delay in lodging the F.I.R. Is not fatal to the prosecution case, because the incident has not been denied by the appellants. Inasmuch as, they have also lodged a counter case against the complainant party in which they alleged that, in fact, it was the complainant party who attacked them first. From the Fard-e-Biyan also it can be inferred that the complainant party at the first instance was under the impression that deceased might have received simple injuries, and therefore, on the intervention of noteables, they did not prefer to lodge the F.I.R.
61. ' Coming to the last contention of learned counsel that actual cause of death of deceased was not known. In this regard it may be observed here that after the deceased was admitted in hospital, on the very next day, he was shifted to National Hospital where he was operated upon by Nuero Surgeon Dr. Amir Muhammad Panezai. Though no medical certificate regarding the operation has been produced but the Medical Certificate (Exh.P/3-A) of deceased would show that he was discharged from the hospital on 11th May, 1998, on request meaning thereby, he was shifted to National Hospital for Surgery at the behest of his relatives and further the statement of P.W.4 confirms that the deceased died at National Hospital on 25-5-1998 and he was brought to Civil Hospital for post-mortem on the next day. The said fact has not been denied by defence. The Autopsy Report shows that deceased died due to injury received by him on his skull and it was opined by the doctor that the said injury was sufficient to cause death in ordinary course.
62. ' Syed Ayaz Zahoor, learned counsel, emphatically argued that since the real cause of death is not known, thus, it can be inferred that even if prosecution case is believed, then too, there is nothing on record to suggest that appellants had any intention to kill the deceased, as the matter flared up at the spur of moment in which the complainant and deceased sustained injuries.
63. The contention of learned Counsel has substance. Though the deceased received grievous injuries at his skull, which proved fatal, but there is nothing on record to show that all the appellants came with the intention to do away with the deceased. Therefore, it can be safely inferred from the facts and circumstances of case that appellants only came to teach a lesson to the deceased and complainant by attacking theta with Dandas. In such view of the matter, conviction recorded by trial Court under section 302(b), P.P.C. Is not sustainable and in the given facts and circumstances, the case of appellants falls within the ambit of section 302(c), P.P.C.
64. ' For the foregoing reason, appeal is dismissed. However, conviction recorded by trial Court against appellants under section 302(b), P.P.C. Is altered to that of section 302(c), P.P.C. And sentence of Life Imprisonment is reduced to that of 10 years R.I. Each. However, as for as the conviction and sentence awarded to appellants under section 337-A(i), P.P.C. Is concerned, the same is maintained. Both the sentences shall run concurrently. The appellants shall also be entitled to the benefit of section 382-B, Cr.P.C. As already granted by trial Court.