' ABDUR REHMAN KHAN, J.---As all the above matters arise from a common judgment, dated 28-5- 1995, passed by a learned Division Bench of the Lahore High Court, therefore, they are all disposed of through this single judgment.
2. The learned Sessions Judge tried (1) Mudassar alias Jimmi, (2) Muhammad Aslam alias Niazi, (3)
Saeed Akhtar, (4) Muhammad Yousaf, and (5) Muhammad Bakhsh, for the murder of Malik Mumtaz Hussain and his son Muhammad Imran. They were convicted and sentenced by judgment dated 15-7-1991 as under:--
(1) Mudassar alias Jimmi.---Convicted under section 302/149, P.P.C., on two counts and was awarded death sentence and a fine of Rs,10,000 on each count or in default to undergo R.I. For 2 years; and to pay Rs,15,000 as compensation on each count to the legal heirs of the two deceased, failing which to suffer 6 months' R.I. For each.
(2) Muhammad Aslam ailas Niazi.----The same conviction and sentence as that of Mudassar alias Jimmi.
(3) Saeed Akhtar.----He was convicted under sections 302/149, P.P.C., on two counts and on each count was sentenced to imprisonment for life and a fine of Rs,10,000 on each count or R.I. For 2 years and also to pay Rs,15,000 as compensation on each count under section 544, Cr.P.C., to the legal heirs of the two deceased or to suffer 6 months' R.I. On each count.
(4) Muhammad Yousaf.----The same conviction and sentence as that of Saeed Akhtar.
(5) Muhammad Bakhsh.---The same conviction and sentence as that of Saeed Akhtar.
' All the accused were also convicted under section 148, P.P.C. And every one of them was sentenced to 2 years' R.I. Thereunder, ' The sentence of substantive imprisonment for life was directed to run concurrently. The accused sentenced to substantive imprisonment for life were given the benefit of section 382-B, Cr.P.C.
3. Criminal Appeal No,528 of 1995 has been filed by Saeed Akhtar, Muhammad Yousaf and Muhammad Bakhsh, who have been awarded life imprisonment while Criminal Appeal No,529 of 1995 has been moved by the complainant for enhancement of their penalty to death. Jail Petition No,11 of 1996 has been moved by Muhammad Aslam alias Niazi and has been linked with the said appeals so as to be heard together. Criminal Miscellaneous No,108 of 1998 has been submitted by Mudassar in Criminal Appeals Nos.528 and 529 of 1995. It is important to note at this stage that Mudassar alias Jimmi had filed Criminal Petition No,242-L of 1995 against the impugned judgment of the High Court whereby his appeal was dismissed and the penalty of death sentence awarded to him, was confirmed. This petition was heard by a learned Bench of this Court and was dismissed on 25-7-1995. He then filed Suo Motu Review Petition No,25-L of 1995, which was also dismissed on 13-11-1995. But it is curious to note that in spite of that he has submitted Criminal Miscellaneous No,108 of 1998, under Article 187 of the Constitution read with Order XXXIII of Supreme Court Rules in Criminal Appeals 528, 529 of 1995 and Jail Petition No,11 of 1996, alleging therein that while deciding these appeals the benefit, if any, can also be extended to the persons who are not parties to the appeal as the entire matter stands reopened before the Court and that no person can be prejudiced by the Acts of the Court and that this Court under Article 187 of the Constitution and Order XXXIII of Supreme Court Rules, is empowered to interfere, in order to do complete justice. The office note on this Criminal Miscellaneous of Mudassar is as under:-- "After dismissal of his review petition as stated in para 4 above, when date for execution of the death sentence of condemned prisoner Mudassar @ Jimi was fixed as 2-9-1998, on the last date when there was no Court at Islamabad, Mr. M.A. Zaidi, Advocate - on - Record, during the last minutes of the filing time without any power of attorney from Mudassar, condemned prisoner, by concealing true facts and playing unfair and misleading role filed Cr.M.A. No,108 of 1998 in Cr. As.
528, 529 of 1996 and J.P.11 of 1996 and succeeded in getting the file processed under the impression that in case on the grounds stated in the application the file does not reach Lahore for stay of death execution, Mudassar condemned prisoner will be Changed.
' Now after perusal of all files it is submitted that so far as Mudassar condemned prisoner is concerned after dismissal of his petition for leave to appeal as also his review petition which both were filed and argued by some other Advocates, his present Criminal Miscellaneous Application No,108 of 1998 drawn by Muhammad Ibrahim Satti, Advocates, and filed by Mr. M.A. Zaidi, Advocateon-Record without proper power of attorney duly attested by the Superintendent (Jail) was not entertainable."
4. The background as stated by (P.W.11) Zamurrad Hussain in the F.I.R., in which the two murders were committed, is that the complainant alongwith Malik Mumtaz Hussain (given up P.W.) and Malik Muhammad Aslam (P.W.12) went to the 'chamber' of Malik Mumtaz Hussain, Advocate, who was a practising lawyer at Bhakkar, to accompany him to attend the 'Valeema' of the sons of Amanullah Shahani, an ex-M.N.A. Malik Mumtaz Hussain told them that his son Muhammad Imran had gone to school to take his examination and on his return they would proceed to attend the 'Valeema'. The reason that he gave to wait for Muhammad Imran was that his servant Muhammad Iqbal (P.W.10) had told him that Mudassar alias Jimmi and others "Ghundas" tease his son with bad intention. He and his companions alongwith Malik Mumtaz Hussain, started toward the school in the Jeep of Malik Mumtaz Hussain and when at 11-30 a.m. They reached the house of one Rafi Ullah Khan, they noticed (i) Mudassar alias Jimmi, (ii) Muhammad Aslam alias Niazi both armed with 32 bore revolvers, (iii) Saeed Akhtar, (iv) Muhammad Yousaf and (v) Muhammad Baldish each armed with knife, who had encircled Muhammad Imran. Malik Mumtaz Hussain got down from his car and went towards them and wanted to interfere, when Mudassar fired at Muhammad Imram which hit him on right eye and he fell down. At this juncture Saeed Akhtar, Muhammad Yousaf and Muhammad Bakhsh raised 'Lalkara' that father of Imran should not escape. Muhammad Aslam then fired at Mumtaz Hussain hitting him on right side of chest and he also fell down. The three P.
Ws. Then got down from the Jeep and made hue and cry at which the accused threatened them not to come near them otherwise they will be killed. The accused then, while firing in the air, decamped. Muhammad Imran was found dead on the spot while Malik Mumtaz Hussain, in injured condition, was taken to the hospital, who later on succumbed to his injuries. Motive for the crime was that Mudassar etc. Were vagabond type who used to force Muhammad Imran to submit their sexual lust and when they failed in their design they jointly committed the offence.
5. The learned trial Judge held that the testimony of the two eyewitnesses, P.W.11 and P.W.12, was confidence inspiring as they could not be termed interested witnesses; that the motive for the offence stood established; that the F.I.R. Was lodged without any delay and that there was no reason for the complainant to substitute the accused for the real assailants, if any. The learned Division Bench of the High Court agreed with the trial Court and its appreciation of evidence and confirmed finding of the trial Court to the effect that it was a prompt F.I.R.; that the witnesses had no ill-will against any-one of the accused to prompt them to involve the accused in false case; that the presence of the eye-witnesses stood established; that the medical evidence supported the ocular account and that the motive for the crime was also proved. The appeal of all the appellants was therefore, dismissed.
6. The learned counsel appearing in Jail Petition filed by Muhammad Aslam alias Niazi, argued that the imposition of death sentence on this appellant was not legally warranted as; firstly, he had no intention to murder; and secondly, that motive was shrouded in mystery. From the tenor of these submissions it is clear that the conviction of Muhammad Aslam under section 302, P.P.C. Was not challenged, but the effort was to reduce his sentence to life imprisonment. This accused is charged for firing at Malik Mumtaz Hussain which hit him in his chest and as that was a vital part, therefore, it cannot be said that he had no intention to kill; because, he was firing at the deceased on his vital part and the only shot on such portion of body was sufficient in ordinary course of nature to result in death. Moreover, motive stands established by the evidence of P.W.10 which has not been discredited on any count by the defence. Therefore, both the submissions of the learned counsel are without substance.
7. The learned counsel appearing in Criminal Miscellaneous No,108 of 1998, Criminal Appeals 528 of 1995 and 529 of 1995, for Mudassar alias Jimmi appellant, argued that in a criminal case in which one and the same judgment of the High Court is impugned through various petitions, if leave is granted in one petition, then the other accused who are similarly placed can avail the leave granting order and can present their view-point for their acquittal etc. To support his submission he relied on:--
(i) Muhammad Aslam and another v. The State (PLD 1978 SC 298);
(ii) Mst. Bibi Jan v. Habib Khan and another (PLD 1975 SC 295);
(iii) Khushdil Khan and 3 others v. The State (PLD 1981 SC 582);
(iv) Mst. Safyya and another v. Muhammad Rafique and 6 others (PLD 1993 SC 62).
' He also referred to Article 187 of the Constitution and to various Rules of Order XXXIII to emphasize that no legal technicalities would come in the way of this Court to do complete justice. This submission is misconceived and is without any legal basis. It is to be noted that criminal petition for leave filed by. Mudassar, applicant, was dismissed by a learned Bench consisting of two Honorable Judges through a very elaborate and exhaustive judgment on 25-7-1995. Similarly, Review Petition submitted by the appellant was also dismissed on 13-11-1995. We went through the said judgment and found that it had dealt with every aspect of the case and has discarded the contention advanced from the applicant (petitioner's side). We are at a loss to understand how the learned counsel tried to make efforts to persuade us to interfere in the judgment of this Court which was decided on merits and the review petition was also dismissed; and when no second review petition is competent. None of the judgments relied on is either relevant or applicable. In 'PLD 1978 Supreme Court 298' the learned Assistant Advocate-General raised objection that the learned counsel for the appellant should not be allowed to raise additional point and that the scope of appeal should be limited to the points on which leave was granted, This argument was repelled in this way:-- "We regret we do not see any substance in the objection raised by the learned Assistant Advocate- General, as once leave has been granted in a criminal matter, the whole case is open for examination, unless some points have been specifically repelled in the order granting leave to appeal. This is not the case here, and it would not be appropriate to shut out discussion of the additional points sought to be raised."
' It is, thus, apparent that the question involved was; whether the ppellant's counsel in that case could be allowed to argue points in addition to those on which leave was granted and the answer was that he could be allowed so, provided the additional points to be raised have not been specifically repelled in the leave granting order. Here in this case the petition of the applicant was dismissed on merits and the Review Petition also failed, therefore, the points raised from his side were specifically repelled. Thus, this case rather goes against the submission of the learned counsel. Similarly, the rule laid down in 'PLD 1975 SC 295' would also not apply as in that case the scope of the leave granting order was enlarged. PLD 1981 'SC 582 would also not help the applicant, as that proceeds on distinct facts, because in that case to the scope of leave granting order was extended. Article 187 of the Constitution and Order XXXII' of the Supreme Court Rules, can also not be applied as the matter stands finally concluded by judgment of this Court. The applicability of said two provisions cannot be extended to re-open past and closed transaction or to re-agitate a matter which stands finally determined by this Court. The conduct of Mr. M.A. Zaidi, the learned Advocate-on-Record in this case, has been termed by the office as unfair and misleading, as he has filed the application without obtaining proper power of attorney from the convict and has concealed the correct factual position. We, therefore, warn the said attorney to be careful in future otherwise he will be proceeded against under the law and rules. The learned counsel next submitted that under Article 10 of the Constitution the convict has a right to be represented by a counsel of his choice, but the convict Muhammad Aslam alias Niazi has not been given this choice.
The learned counsel who argued for Muhammad Aslam alias Niazi, has been engaged for him at State expenses and the said convict has not expressed any dissatisfaction before any authority against the said Advocate, therefore, the counsel appearing for Mudassar alias Jimmi or other convicts has no locus standi to raise any such objection on his behalf.
8. The learned counsel then arguing about the merits of Cr.A. 528 of 1995 submitted that it was an unseen occurrence and that both the deceased were done to death by some unidentified assailants, but the appellants were involved on account of party faction and enmity. The learned trial Judge and the learned High Court in their judgments have reproduced that statements of all the convicts to appreciate reason for their false involvement and have dealt with this aspect of the case very exhaustively. These statements reveal that none of the convicts had any direct enmity with the two deceased or their family members. They have given very far-fledged reason for their implication in the crime at the behest of other people. However, it is clear that the family of the deceased and the eye-witnesses had no against the appellants and had no reasons to substitute them for the real culprits. It was an occurrence which took place at 11-30 a.m. And was reported very promptly at 12-00 Noon. The eye-witnesses reside in different villages therefore their presence could not be procured within such a short time to lodge F.I.R. About the murders. They have given very reliable reason for their presence with the deceased at the time of occurrence which could not be discredited. They had no axe of their own to grind and it could not be shown that they substituted the appellants for any ulterior motive. Trial Judge and the High Court have evaluated and dilated upon the evidence in detail and have, for cogent and sound reason, held the appellants responsible for the commission of the offence. There is no need to emphasize that mere relationship of the witnesses with the deceased would not detract from their veracity as they had absolutely no motive of their own to involve the appellants. It was next contended that there is material contradiction in the ocular account and evidence of the eye-witnesses. However, the learned counsel did not take this argument to its logical conclusion as he did not refer to the alleged contradiction. It was next argued that all the P.Ws. Had reason for their own to involve the appellants in the case, but this was just stated for arguments' sake as it could not be clarified or explained. We have already held that the eye-witnesses were entirely independent and disinterested witnesses. It was pointed out that there was no evidence of pre-concert or consultation about participation of the appellants in the crime and, therefore, the case against them is doubtful. There was no need for the prosecution to prove their deliberation and consultation before the occurrence which was not possible but the appellants were held guilty on the basis of what they did on the spot and that was sufficient to determine their guilt. It was pointed out that one of the eye-witnesses cited in the F.I.R. Was not produced therefore, adverse inference should be drawn. It has been repeatedly held that the prosecution is not bound to produce all the witnesses. In this case, if the defense was of the view that the left out eye-witness would support them or that he would not support the prosecution, then they could either examine him as their own witness or could request for his examination as a Court-witness. It was also submitted that firstly, motive has not been proved and even if it is held to have been proved, then it was not sufficient to prompt the appellants to commit the crime. Motive has been proved from the statements of the eye-witnesses and that of Muhammad lqbal (P.W.10) which could not be controverted in any respect. It could also not even remotely be proved that the appellants were implicated on account of any ulterior motive. Sufficiency or otherwise of the motive is not a sine qua non for the commission of the offence. It has been noticed that some desperate, reckless and ruffian type of people commit murder or other offences just at their whims while on the other hand people who have been properly nourished, educated and disciplined, do not loss their temper in most challenging situation, but rather act with patience and sobriety. Therefore, in a case where murder is proved, insufficiency of motive would not be a bar for imposition of normal penalty of death. It is not a case where motive can be said to be shrouded in mystery but even if for arguments' sake it had been so even then awarding of lesser penalty would not have been justified in absence of proving any mitigating circumstance.
9. The learned counsel also argued for extending the benefit of section 382-B, Cr.P.C., but probably he had not noticed that the trial Court had extended this benefit. It was also argued that Saeed Akhtar and the other two appellants have not been given any effective role in the commission of the offence, therefore, they could not be convicted. This argument has no substance as the learned trial Court and the High Court have held that the evidence indicated that these appellants did participate in the commission of the offence and that it was proved that they were members of unlawful assembly and that they had exhorted their co-accused to do away with Malik Mumtaz Hussain deceased and that they had encircled Muhammad Imran at the time when he was shot dead by the co-accused. Therefore, they were rightly held vicariously liable being members of the unlawful assembly and the two murders having been committed in prosecution of common object of the said assembly.
' We are, therefore, of the view that the learned trial Court had rightly punished petitioner Muhammad Aslam alias Niazi in Jail Petition No,11 of 1996, and appellants in Criminal Appeal No,528 of 1995, and the High Court was legally justified in maintaining their conviction and sentence. We also find no merit in Criminal Appeal No,529 of 1995 filed by the complainant side for enhancement of sentence. We also hold that Criminal Miscellaneous No,108 of 1998 in Criminal Appeals Nos.528 of 1995 and 529 of 1995 is misconceived and not maintainable. Accordingly, all the above matters are dismissed and the impugned judgments are I maintained.