1. ' HAMID ALI MIRZA, J.----This criminal appeal by leave of this Court is directed against the judgment of the Lahore High Court, dated 19-3-1994 passed in Criminal Appeal No.124 of 1991, whereby appellant Muhammad Hanif was convicted under section 302, P.P.C. And sentenced to life imprisonment and fine of Rs.20,000 and in case of default in payment of fine, to suffer four years'
2. R.I., and fine recovered was directed to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. So far appellants Abdul Aziz and Abdul Majeed they were convicted under section 307/34, P.P.C. And sentenced to imprisonment for seven years and fine of Rs.20,000 and in case of default in payment of fine, to suffer one year R.I., and fine if realized from appellants Abdul Aziz and Abdul. Majeed was directed to be paid to Mst. Farzana as compensation under section 544-A, Cr.P.C. Who have compromised with the injured Mst. Farzana as per order of this Court, dated 25-8-1994 during the pendency of petition No.131-L of 1994. Co-accused Muhammad Hafeez was acquitted and all the accused-convicts including the appellant were given benefit of section 382-B, Cr.P.C.
3. The brief facts of the case are that on 254-1989 at about 7-00 p.m. Muhammad Yousaf (P.W.10) lodged F.I.R. With Police Station Badyana, District Sialkot, stating therein that he alongwith many people of his village had gone to Pasroor to attend a public meeting of Islami Jamhoori Itehad in a tractor trolley owned by his uncle Ali Muhammad. After attending the public meeting when they were returning to their village and passing through the circular road of the village, at about 5-15 p.m., when they reached near the house of Muhammad Hanif, Abdul Aziz, Muhammad Jamil, they opposed to their using the circular road, on which the first informant (P.W.10 Muhammad Yousaf) explained that it was a public thoroughfare and that there was no other way leading towards their Dera. An exchange of hot words took place between them, but the matter was patched up by the persons riding on the tractor trolley, However, Muhammad Hanif, accused-appellant, threatened P.W.10 of dire consequences to which the latter did not give any importance and got parked the said trolley there. The first informant Muhammad Yousaf, Wali Muhammad, Mumtaz alias Kala, Umar Din, Muhammad Shafi and Abdul Sattar were present in the Dera when accused Muhammad Hanif, Abdul Aziz, Muhammad Hafeez and Abdul Majeed, all armed with guns, Muhammad Jameel, armed with a revolver, and Sardar Muhammad armed with Dang, arrived at the Dera from the water pond side while raising Lalkara. Sardar Muhammad and Muhammad Jamil exhorted their companions that the complainant party be not spared and that they be done to death because they had been opposing them on every matter. Thereupon Muhammad Hanif fired a shot at Mumtaz alias Kala, which hit, him and resultantly he fell down. Muhammad Hafeez fired at Mst.
4. Farzana hitting her on her right arm. Abdul Majeed and Abdul Aziz also fired shots from their respective guns, at her, and a shot of Abdul Majeed hit her left hand, whereas the shot fired by Abdul Aziz hit her on her right leg, consequently, she fell down. Muhammad Jameel fired from his revolver, which did not hit anybody. Muhammad Yousaf, the first informant, dispatched the injured to the Civil Hospital, Pasroor and approached the police for lodging a report. Mumtaz alias Kala, while being taken to Mayo Hospital, Lahore, succumbed to his injury. The trial Court examined Muhammad Yousaf, (P.W.10) and Wali Muhammad (P.W.13) on the point of motive that the immediate cause of the incident was the exchange of hot words between the complainant and accused parties when the latter objected .To the passing of the complainant party through the circular road of the village near their house. The ocular account was furnished by P.W.10 Muhammad Yousaf, Mst. Farzana, P.W.18, and Wali Muhammad, P.W.13, who had witnessed the incident. P.VV.12 Dr. Gul Nawaz, the medical officer, furnished the evidence with regard to deceased Mumtaz alias Kala in respect of injuries inflicted upon the deceased, so also about the cause of his death. The said doctor also gave the account of injured Mst. Farzana and also stated about the injuries inflicted upon her. P.W.8 Qudratullah attested the recovery memo. (Exh.P.E) of blood- stained earth, which was sent to the Chemical Examiner who opined that it was stained with human-blood. P.W.15, Ghulam Rasool, deposed about the recovery of four empty cartridges of .12 bore gun Exh.P.10/1-4 recovered from the place of occurrence, which memo. Too was attested by P.W.8 Qudratullah. Gun (P.8) was recovered at the pointation of accused Abdul Aziz in presence of P.W.7 Hakeemuddin and P.W.15 Ghulam Rasool as per memo. Exh.P.D. Gun (P.11) was recovered at the pointation of accused Muhammad Hand in presence of P.W.9 Rehmatullah and P.W.16, Ahmed Hussain and the said memo. Exh.P.G. Was prepared. Revolver (P.12) was recovered at the pointation of accused Muhammad Jameel in presence of P. W.21 Rehmatullah and Muhammad Rafiq P.W.16 as per memo. Exh.P.H. Four empty cartridges so recovered were sent to the Superintendent of Police Technical Services Punjab Crime Branch, Lahore, who opined that two out of the four crime empties matched with the guns recovered from accused Muhammad Hanif and Abdul Aziz. The appellant and co-accused were examined under section 342, Cr.P.C. Wherein they stated that the occurrence took place after the sunset and before 7-00 p.m. And further that they were falsely implicated because of political rivalry and further that appellant Muhammad Hafiz was not present at all in the village and that Mst. Farzana P.W.13 did not receive injuries in the occurrence but in another incident, which took place in her house, with a gunshot.By her own brother Muhammad Shafique incidentally while cleaning the gun. The appellant and co-accused in defence produced two D.Ws. And also got recorded the statement of the two Court-witnesses. The trial Court after scrutiny of the prosecution and deference evidence convicted appellant Muhammad Hanif under section 302, P.P.C. For causing intentional murder of Mumtaz alias Kala and sentenced him to life imprisonment with fine of Rs.20,000 and in case of default in payment of fine to undergo R.I. For a period of four years and fine in case realised to be paid to the legal heirs of the deceased as compensation. Whereas appellant Abdul Majeez and Abdul Aziz were convicted under section 307/34, P.P.C. For inflicting murderous assault by injuring Mst. Farzana and sentenced them to undergo R.I. For seven years with fine of Rs.2,000 each and in case of default in payment of fine to further undergo one year R.I. And fine if so recovered to be paid to Mst. Ferzana as compensation.
5. However, accused Sardar Muhammad and Muhammad Jameel were acquitted giving them benefit of doubt. The convicted accused appellant Muhammad Hanif, Abdul Aziz, Muhammad Hafeez and Abdul Majeed preferred Criminal Appeal No.124 of 1991 before the Lahore High Court, which appeal was dismissed so far appellant Muhammad Hanif, Abdul Aziz and Abdul Majeed are concerned, but accepted to the extent of Muhammad Hafeez accused who was acquitted on the plea of alibi. However, during the pendency of Criminal Petition No.131-L of 1994 before this Court, accused/petitioners Abdul Majid and Abdul Aziz compromised with the injured Mst. Farzana as per order, dated 25-8-1994 passed by this Court.
6. ' We have heard the learned counsel for the parties perused the record and proceedings of the case minutely and have gone through the case-law cited by the learned counsel for the respective parties.
7. ' The learned counsel for the appellant has referred to paragraph 18 of the High Court judgment wherein it has been observed that "to some extent the complainant party invited the trouble itself and that it cannot be said that the accused party was altogether innocent". He also referred to paragraph 19 of the said judgment that the learned Judge did not appreciate that C.W.1, Muhammad Shafique, in his statement under section 161, Cr.P.C., stated before Mushtaq Sukhera, Additional S.P. That Mst. Farzana was injured while her brother was cleaning his gun. The learned counsel has further argued that learned Judge of the High Court has observed that "no doubt when the accused party was firing at the complainant party at the latter's Dera in the evening it was difficult to determine as to whose pellet hit Mumtaz resulting in his death after some time" yet the learned Judge convicted appellant Muhammad Hanif under section 302, P.P.C. He further submitted that the Courts below have failed to appreciate the evidence on record in favour of the appellant, considering that appellant Muhammad Hanif being an educated person and teacher by p'rof'ession was not expected to participate in the fight and that the medical evidence belied the testimony of Mst. Farzana that she had received the injuries at the hands of the accused party when Muhammad Shafique, C.W. 1, in his statement under section 161, Cr.P.C., stated that Mst.
8. Farzana sustained injuries when he was cleaning gun in the hcuse and that the High Court has disbelieved her testimony while acquitting accused Muhammad Hafeez on his plea of alibi, therefore, her testimony also cannot be believed so far appellant Muhammad Hanif is concerned in view of maxim "falsus in uno falsus in omnibus". The learned counsel has placed reliance upon Muhammad Jehangir alias Badshah and another v. The State (1995 SCM R 1715), Rehmat v. The State (PLD 1959 SC 109), Muhammad Aslam v. The State (1988 SCM R 940), Ata Muhammad v. The State (1995 SCM R 599), Tariq Khan v. The State (1997 SCM R 254) and Sheral v. The State (1999 SCM R 697) in support of his contention.
9. ' The learned counsel for the State has argued that the prosecution has proved the motive through the testimony of P.W.10, Muhammad Yousaf, and P.W.13, Wali Muhammad, when passing of the complainant party through the circular road in front of the house of the accused party was objected, and at the same time the accused party threatened the complainant party of dire consequences and after some time, the accused party, armed with deadly weapons, attacked the complainant party at their Dera. He also submitted that the incident is also proved by the ocular testimony of P.W.10, Muhammad Yousaf, and P.W.13, Wali Muhammad, who deposed that Muhammad Hanif fired at Mumtaz alias Kala, which hit him on his forehead and he fell down. He submitted that all the said P.Ws. Have implicated the accused-appellant with the commission of the crime and that their testimony is consistent, considering that the testimony of the said witnesses could not be shaken even in the cross-examination. He also submitted that the ocular account of the incident furnished by the P.Ws. Is supported by medical evidence in respect of the injuries sustained by the deceased Mumtaz alias Kala. He submitted that accused Abdul Aziz and Abdul Majid have compromised with the injured Mst. Farzana in this Court. He further submitted that the prosecution has proved the guilt of the appellant beyond doubt, therefore, no exception could be taken to the impugned judgment. He also submitted that in fact section 149, P.P.C. Would be applicable in the circumstances of the instant case, considering that the appellant and other members of the acquitted accused party knew that they being armed with deadly weapons were likely to commit offence by going to the Dera of the complainant party when earlier they had given threats of dire consequences to the complainant party. In the circumstances, the learned counsel submitted that the appellant, the acquitted accused and the accused who have compromised being members of the unlawful assembly, were liable to be punished for the offence committed, though some of the accused persons may not have inflicted any injury upon any member of the complainant party. He also submitted that the accused, after commission of the offence, absconded and they were arrested after some time, which conduct of the accused itself would corroborate the version of the prosecution in respect of the commission of the offence. He also submitted that the F.I.R. Was promptly lodged and therefore, there was no possibility of any concoction of the names of the eye-witnesses, assailants, the weapons, which the accused party carried, and the part which they played in the commission of the offence. He also contended that in the circumstances there could be no substitution of the names of the accused in place of the real culprits. He also submitted that mere fact that appellant Muhammad Hanif was an aged person of seventy years would not be a mitigating circumstance for awarding lesser punishment.
10. He submitted that Mst. Farzana remained unconscious till she gave her statement on 2-2-1989, therefore, nothing adverse could be drawn to the late recording of her statement. He submitted that the maxim falsus in uno falsus in omnibus has no universal application but grain is to be sifted from chaff in view of the evidence on record and technicalities, if any, are to be overlooked. He also submitted that this Court would not interfere in the findings of the Courts below unless serious questions of law or findings are otherwise palpably perverse, but in the instant case findings of the Courts below could not be said to be palpably perverse, therefore, no interference is called for. He also submitted that mere relationship of the witnesses with the complainant and the deceased is not per se sufficient to treat them interested. He has placed reliance upon Ghulam Hussain v. State (PLD 1966 (W.P.) Pesh. 255, Bacha Said v. State (PLD 1978 SC 102), Muddassar v. State (1996 SCM R 3), Abdul Subhan v. Raheem Balchsh (PLD 1994 SC 178), Irshad Ahmad v. State (PLD 1996 SC 138), Azhar Hussain v. State (1983 SCM R 978), Noor Muhammad v. State (PLD 1997 SC 507), Muhammad Khan v.
11. State (PLJ 1977 SC 370), Abdul Rehman v. State (PLD 1975 SC 275), (PLD 1976 SC 44), Ashiq Ali v. State (PLD 1994 SC 879), Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445) and Muhammad Ashraf v. State (PLD 1977 SC 444) in support of his contentions.
12. ' The contention of the learned counsel for the appellant that the learned Judge of the High Court has observed in the impugned judgment that the complainant party itself invited the trouble and that the accused party was also not innocent and that the learned Judge did not appreciate that Muhammad Shafique stated in his 161, Cr.P.C. Statement that Mst. Farzana sustained injuries of fire- arm at the hands of her brother, viz. Muhammad Shafique when he was cleaning his gun and further that it was difficult to determine as to whose pellet hit Mumtaz alias Kala resulting in his death, therefore, the appellant should alsO have been given benefit of doubt as extended to other co-accused, namely, Muhammad Hafeez, by the High Court and to accused Sardar Muhammad and Muhammad Jamil by the trial Court. We do not find substance in the above contention. The learned Judge of the High Court has mentioned in paragraph 20 of the impugned judgment that accused Muhammad Hafeez has pleaded and proved his alibi, but there has neither been any discussion nor any reasons in the judgment as to how it could be said that the said accused Muhammad Hafeez had proved his plea of alibi. On the contrary, the trial Court in paragraph 29 of its judgment has observed as under:-- "29. As far as the plea of alibi of Muhammad Hafeez accused is concerned it is to be seen if it has come from a reliable source and can serve the purpose of discharging the onus shifting upon the accused. The register of attendance has been brought by Muhammad Asghar D.W.1, Neither the register nor its entries inspire confidence. Muhammad Hafeez accused was arrested on 14-2-1989 after about 21 days of the occurrence. The timing of the duty has not been given either against the name of Muhammad Hafeez accused or against any other employee of the department.
13. Muhammad Asghar D. W.1 has also admitted that he did not give the time of the duty against those persons. He has also admitted that he did not mention the Serial numbers of Mst. Bashiran and Nawazish Ali incorporated in the same roster. He has further admitted that there was no certificate of the register by any other senior officer of the department. The statement of Muhammad Ashraf D.W.2 is also not confidence-inspiring and the same is not sufficient to rebut the statement of the P.Ws. As discussed above. Moreover, the possibility of fabrication of entries in such-like improperly maintained register, cannot be ruled out when the accused was arrested after about 21 days of the occurrence."
14. The reasons given and the evidence discussed by the learned trial Court appear to be sound and proper and, therefore, it could not be said that because the plea of alibi in respect of accused Muhammad Hafeez has been believed by the High Court, therefore, the testimony of P.W. Mst.
15. Farzana should be disbelieved in respect of appellant Muhammad Hanif as well, considering that accused Muhammad Hafeez was wrongly acquitted by the High Court on his plea of alibi. The learned Judge of the High Court has not given any cogent reason and ground for believing the plea of the alibi raised by Muhammad Hafeez considering that the accused raising plea of alibi has to discharge the burden by producing satisfactory, reliable and authenticated evidence that his presence at the place of incident at the relevant time was not possible because of his presence at the relevant time at another place. Reference may be made to Ameenullah v. State (PLD 1976 SC 629), Muhammad Ayub v. State (PLD 1964 Peshawar 288 (F.B), and Azhar Hussain v. State (1983 SCM R 978). Mere production of the attendance register, which was not properly maintained and unaccompanied with a certificate of any responsible officer of the department, could not be termed to be reliable, satisfactory and authenticated evidence to believe the plea of alibi of the acquitted accused, considering also that the learned Judge in para. 19 of the impugned judgment observed that "I have no reason to disbelieve her despite the statement of Mr. Mushtaq Ahmed Sukhera, Additional S.P., most of which was not even admissible in evidence".
16. ' So far the contention of the learned counsel for the appellants that the learned Judge of the High Court failed to appreciate that Muhammad Shafiq, C.W.1, in his statement under section 161, Cr.P.C.
17. Has stated that his sister Mst. Farzana sustained injuries of the fire-arm at his hands when he was cleaning his gun has also no merit because the statement was made before a police officer and therefore, cannot be termed to be a piece of evidence especially when C.W.1 in his deposition before the Court, has clearly denied making any such statement. On the contrary, he has deposed that his sister sustained injuries during the incident.
18. ' The next contention of the learned counsel for the appellants is that 'the maxim falsus in uno falsus in omnibus should have been followed and the appellant should have been acquitted as Mst. Farzana, the injured eye- witness, has been disbelieved so far accused Muhammad Hafeez's presence at the spot was concerned. We find no substance in this contention because the said maxim has no universal application as the grain is to be sifted from the chaff; evidence is to be scrutinized and assessed to ensure safe administration of justice. Reference may be made to Ahmad Khan v. State (1991 SCMR 803) and Irshad Ahmad v. State (PLD 1996 SC 138). We have already observed that the learned Single Judge has believed the plea of alibi raised by accused Muhammad Hanif without discussing evidence and assigning any reason therefor. Therefore, mere fact that accused Muhammad Hanif has been acquitted by the High Court would not in itself entitle the appellant to acquittal, because, in our opinion, the High Court has wrongly acquitted accused Muhammad Hanif. The State has not approached this Court against his acquittal as such the case of Muhammad Hanif is not before us, consequently, his acquittal by the High Court cannot be interfered with in this appeal.
19. A perusal of the evidence on record would show that the first ipcident took place on 25-1-1989 at about 5-15 p.m. When the complainant party was passing through the circular road near the house of the accused party. The accused party objected to the use of the circular road by the complainant party and this led to the exchange of hot words between them, but the matter was patched up on the intervention of certain persons riding in the trolley of the tractor. Thereafter the second incident took place when the members of the accused party, after arming themselves with deadly weapons, went to the Dera of the complainant party and made attack upon them as a result whereof Mumtaz alias Kala was hit on the forehead with a fire-arm shot fired by appellant Muhammad Hanif who ultimately died. In this incident, Mst. Farzana also sustained injuries at the hands of other accused, namely Muhammld Haneef, Abdul Majeed and Abdul Aziz who have subsequently compromised with the injured Mst. Farzana. All this would show that the appellant- accused party went to the Dera of the complainant party with premeditation knowing that they were armed with deadly weapons and were likely to commit offence when earlier they had threatened the complainant party of the dire consequences, and in the said circumstances if any offence is committed each member of accused party forming unlawful assembly would be liable to be punished for the offence committed under section 149, P.P.C. It may be mentioned that the trial Court has acquitted accused Sardar Muhammad and Muhammad Jameel on the ground that they had not made any overt act in the commission of the crime and the State did appeal against and the High Court also acquitted co-accused Muhammad Hafeez believing his plea of alibi and the State did not move this Court against his acquittal and co-accused Abdul' Aziz and Abdul Majid have compromised with the injured Mst. Farzana in this Court hence the case of said acquitted accused is not open to interference by this Court. So far appellant Muhammad Hanif before the case against him stands proved beyond reasonable doubt in view of the confidence-inspiring ocular evidence corroborated by motive and medical evidence, considering also the concurrent finding of two Courts below and further that there has been no misreading or non-reading of evidence in the case.
20. ' In view of the above reasons, we are of the view that this appeal has no merits, consequently, same, is, hereby dismissed.