' FAZAL-UR-REHMAN, J.---The appellants Khan Muhammad alias, Khanoo and Muhammad Siddique were convicted by Sessions Judge, Naseerabad at Dera Murad Jamali for offence under sections 302(a) P.P.C. For Qatl-e-Amd of Khadim Hussain, son of Feroze Khan having been committed on 6-11-1998 at about 8-30 a.m near Bus Adda Dera Murad Jamali and were sentenced to death as Qisas by judgment, dated 31-1-2000 and to pay Rs,50,000 each as compensation to the legal heirs of the deceased and in default of payment of compensation to suffer S.I for a period of six months. The convicts submitted Criminal Appeal No,(S) 10 of 2000. The matter has been referred by the learned trial Court vide Murder Reference No,(S) 2 of 2000 of confirmation of sentences of death imposed on convicts. Both the Criminal Appeal and Murder Reference have been taken together and will be disposed of by one and the same judgment.
2. The occurrence is stated to have taken place on 6-11-1998 at about 8-30 a.m. On National Highway near Bus Adda, Dera Murad Jamali. The F.I.R. No,107 of 1998, dated 6-11-1998 (Exh.P.6-A) was got registered at the instance of P.W.1 Alam Zaib, I.P./S.H.O., Dera Murad Jamali stating, therein that he along with P.W. Muhammad Hussain and other police personnel was patrolling the area of the Police Station, Dera Murad Jamali. It is stated that at about 8-30 a.m. The police party reached near Bus Adda, Dera Murad Jamali and saw a crowd on the Western side of National Highway and accordingly the party went there. It is stated that deceased Khadim Hussain was lying in injured condition on the ground. It is stated that both the accused persons who had been apprehended along with their crime weapons by P.Ws. Rozi Khan, Majeedullah, Muhammad Asghar and Muhammad Arif were also present at the spot P.W. I Alam Zaib after preparation of the injuries statement sent Khadim Hussain to Civil Hospital, Dera Murad Jamali. He then sent Murasila Exh.P.1-A for registration of case which was accordingly incorporated in the F.I.R being Crime No,107 of 1998 Police Station, Dera Murad Jamali under section 324/34, P.P.C. The investigation of the case was entrusted to P.W.-Muhammad Hussain who was a member of the police party which was patrolling the area and accompanying P.W. Alam Zaib, S.H.O. The Investigating Officer took into possession crime weapons i.e two knives vide Recovery Memos. Exh.P.2-A and Exh.P.2-B. He inspected the place of occurrence, prepared the inspection note Exh.P.2-C and site plan vide Exh.P.6-B. P.W.1 Alam Zaib who went from the place of occurrence to hospital recorded the dying declaration of Khadim Hussain in the hospital in presence of P.W.4 Dr. Faiz Rasool vide Exh.P.l-B. The Investigating Officer is stated to have recorded the statements of P.Ws. Who apprehended the accused persons. He then went to hospital where he was told by Medical Officer regarding expiry of injured whose dying declaration had been recorded by the S.H.O. Vide Exh.P.1-B. The Investigating Officer prepared inquest report vide Exh.P.6-C and took into possession blood-stained clothes of the deceased vide Exh. P 2-D .
3. The external post-mortem examination was conducted by Dr. Faiz Rasool, Medical Officer, Divisional Headquarter Hospital, Dera Murad Jamali, P.W.4 who found the following injuries on the person of Khadim Hussain.:--
(1) 3-1/2 x 1 incised wound (muscle deep) on left cheek.
(2) Incised wound in front and behind of left ear.
(3) Incised wound oblique on left eye brow.
(4) Incised wound 1 one muscle deep on face head.
(5) Incised wound 1/2 muscle deep in base of nose.
(6) 1-1/2 muscle deep incised wound on eye brow.
(7) 1-1/2 muscle deep incised on left cheek.
(8) 1/2 muscle deep incised wound on Right upper lip.
(9) 1/2 skin deep incised wound on right side of chin.
(10) 1 x 1/2 muscle deep incised wound on index finger of right hand dorsal surface.
(11) 3 x 2 incised wound on (R) iliac fossa intestines are out from abdomen.
(12) Incised wound on 4 x 2 muscle deep below (Lt) thumb.
(13) Multiple incised wound on (Rt) hand.
(14) 3 x 3 deep incised wound on occipital region of skull.
' In the opinion of Doctor the cause of death was hemorrhage and shock due to multiple incised wounds and death. The injuries are stated to have been caused by Knife. According to Doctor he had provided first aid treatment to the injured Khadim Hussain who was brought in the hospital at about 9-00 a.m. In injured condition. It is stated that after giving treatment he gained senses and the statement was recorded by the S.H.O. In presence of Doctor vide Exh.P.1-B. Khadim Hussain then expired in the hospital, the time between the death and examination has been indicated as twenty minutes.
4. The motive for the occurrence is the old enmity as indicated in the dying declaration recorded vide Exh-P/1-B. After usual investigation the accused were sent up to face their trial before the learned Sessions Judge, Nasirabad at Dera Murad Jamali.
5. On 19-4-1999 Charge under section 302/34, P.P.C. Was framed against the accused by the trial Court to which they pleaded not guilty and claimed trial.
6. The prosecution in support of its case examined P.W.1 Alam Zaib, I.P./ S.H.O. (Complainant), P .W .
2 Majeedullah , Head Constable, P.W.3 Muhammad Asghar, P.W.4 Dr. Faiz Rasool, Medical Officer, P.W.5 Rozi Khan, S.-I. And P.W.6 Muhammad Hussain, S.-I.
7. In their statements recorded under section 342, Cr.P.C., the accused have disputed the case of the prosecution and pleaded their innocence. Regarding motive and existence of old enmity between them and deceased Khadim Hussain they have stated that it is not fact. When asked as to why the prosecution witnesses had deposed against them, to which they stated that P.Ws. Are police officials and wrongly implicated them with the commission of alleged offence. They have neither made their statements on oath nor led any evidence in their defence.
8. The learned trial Court relying on the ocular evidence furnished by P.Ws. Majeedulah, Muhammad Asgher and medical evidence furnished by Dr. Faiz Rasool, dying declaration reduced to writing by P.W.1 and recoveries of the weapon of offence found the accused/appellants guilty of the Offence under section 302-A/34, P.P.C. And on conviction sentenced them to death as Qisas.
They were ordered to be hanged by neck till they are dead. They were also directed to pay compensation amounting to Rs, 50,000 to the legal heirs of the deceased or in default to suffer simple imprisonment ' for six months.
9. We have heard Mr. Muhammad Mohsin Javed, learned counsel for appellants and Mr. Ikhtiar Khan Marghzani, learned Assistant Advocate-General for State while M. Akber Ali Balch, Advocate has appeared for Complainant.
10. Learned counsel for the appellants has mainly contended that the occurrence having taken place in broad daylight on the road but the prosecution failed to produce private witness and relied on the ocular evidence furnished by P.W. Majeedullah, P.W. Muhammad Asgher and P.W. Rozi Khan, Police Officials whose evidence is not inspiring confidence and there are material discrepancies in the statements made by the eye-witnesses. He has also argued that the report of Chemical Expert indicating the knives to be stained with blood and one of the knife was a broken one makes the prosecution case doubtful and the Chemical Expert has been examined under section 510, Cr.P.C. It has been submitted that since motive has been alleged, therefore, the same should have been proved and nothing has been brought on record except the dying declaration which cannot be relied upon. Learned counsel has also argued that the prosecution has failed to bring on record which can indicate that there was common intention and as to which injury was caused by which of the accused. Learned counsel has further contended that no postmortem examination had been conducted, therefore, in the absence of same, the exact cause of death cannot be ascertained. Learned counsel has submitted that the evidence has not been appreciated by the trial Court and the conviction is based on surmises and conjectures, therefore, the same is not sustainable. Reliance has been placed by the learned counsel for the appellants on the authorities reported in 1999' YLR 2360, 2000 PCr.LJ 11 (Lahore), 2000 SCM R 163, 2000 SCM R 338 and 2000 PCr.LJ 47.
11. Learned Assistant' Advocate-General representing the State has opposed the acceptance of appeal and supported the impugned judgment. Argued that the presence of the witnesses at the spot was natural, it was a broad daylight occurrence, F.I.R. Was prompt.
12. The eye account of the occurrence has been furnished by P.Ws. Majeedullah, Muhammad Asghar and Rozi Khan. According to P.W. Majeedullah he was performing his duties in his capacity as Traffic Head Constable at Bus Stand, Dera Murad Jamali and at about 8-30 a.m. He witnessed that the appellants who were assaulting deceased Khadim Hussain with knives. It is stated that he along with P.Ws. Rozi Khan, Muhammad Asgher and one Muhammad Arif, Constable reached the place of occurrence and caught hold of the accused who were holding knives in their hands. He identified both the accused/appellants in the Court. According to him Khadim Hussain was lying on the ground in injured condition and meanwhile P.W. Alam Zaib, I.P./S.H.O., P.W. Muhammad Hussain, S.-I. And other police personnel reached in an official vehicle. P.W. Muhammad Hussain, S.-I. To whom the investigation was entrusted prepared the Recovery Memos. In respect of knives to which he stood as marginal witness. He also stood as a marginal witness of inspection Memo. Which was prepared by Investigating Officer vide Exh.P.2-C. He then accompanied Investigating Officer to Civil Hospital, Dera Murad Jamali where the blood-stained clothes of the deceased was taken into possession vide Exh.P.2-D. According to P.W. Muhammad Asgher while he was on his way to Police Station he saw the accused assailants who were assaulting the injured. It is stated that he along with P.W. Rozi Khan, Majeedullah and one Muhammad Arif, Constable apprehended the accused/appellants at the spot that were holding knives in their hands. I-"e stated that after a short while P.W. Alam Zaib, I.P./S.H.O., Muhammad Hussain and other police employees reached the spot and they handed over the accused alongwith their knives to S.H.O. He also identified both the accused/appellant in the Court. According to P.W. Rozi Khan he was coming from his house to Police Line, Dera Murad Jamali and reached Bus Stand at about 8-00 a.m., he saw that accused persons were assaulting one person with knives. It is stated that he, Majeed, Head Constable, Muhammad Asgher, Constable and Muhammad Arif, Constable apprehended both the accused persons and recovered two knives from their possession. He also deposed that both the accused disclosed their names as Khan Muhammad and Muhammad Sidfique caste Pandrani. According to him in the meantime Muhammad Alam Zaib, I.P./S.H.O., Muhammad Hussain, S.-I. And other police employees reached the place of occurrence. Both the accused along with recovered Knives were handed over to I.P./S.H.O. The injured was sent to Civil Hospital, Dera Murad Jamali by the S.H.O. He also identified both the accused in the Court.
13. In cross-examination of these witnesses nothing has been elicited to detract the value of their testimony. It is held that all the three eye-witnesses are natural witnesses and that their version of the occurrence was plausible, consistent and confidence inspiring. It was also held that the testimony of the eye-witnesses could not be discredited or rendered in creditably in the cross- examination. The perusal of evidence indicates that all the three witnesses are consistent in their statements about place of occurrence, assaulting the deceased by both of them with knives, their apprehension at the spot along with crime weapons etc. Etc. 14 We have no reason to suspect their words, about the member of incident took place, presence of both of the accused persons at the place of occurrence and sustaining of injuries by deceased Khadim Hussain. They are natural and also independent witnesses. Interested witness is one who has an animus for false charge against accused. Eyewitnesses were not inimical towards accused persons, therefore, their evidence is not unworthy of belief, minor contradictions in oral evidence of no consequence. We found that none of the three eye-witnesses could be termed as interested witnesses only for the reason that they are police personnel as none had any previous or grudge against the appellants. Merely because the witnesses belong to Police Department would not make them interested as they had no reason to substitute the appellants for the real killer as the occurrence took place in broad daylight and both the appellants were apprehended at the place of occurrence along with their crime weapons.
15. There is evidence that the accused/ appellants who were armed with knives attacked upon deceased and caused him injuries. We see no force in the contention of learned counsel for accused/appellants that there was no common intention. Common intention has to he gathered from facts disclosed in evidence and surrounding circumstances. Common intention can be formed at the spur of the moment. It may, therefore, be stated that once it is found that the accused had common intention to the crime, it is immaterial as to which part was played by whom. Section 34, P.P.C. Clearly lays down that when a crime is committed in furtherance of common intention of several persons each one of such persons would be liable for the offence as if he alone had perpetrated it. The very purpose of this provision of law is to create joint liability for those who indulge in the organized commission of crime. In the nature of things, it cannot be said of certain the exact part of each one if several accused persons acting with common intention and object. In the instant case both of them are stated to have assaulted the deceased and caused knives injuries and were caught hold of by the witnesses at the place of occurrence along with their crime weapons. Chemical Examiner Report (Exh. P.6-D) is on record. It indicates that Article (knives) were stained with human blood.
16. Regarding motive it has been contended that the same has not been established by the prosecution. God alone knows the mind of man. The proof of motive is not necessary in every case, yet in the instant case the motive for the occurrence is indicated to be an old enmity in the dying declaration vide Exh.P.1-B. The defence of the appellants was bear denial of the prosecution allegations. There is no substance in the plea of appellants and the explanation given by them is neither reasonable nor worthy of reliance.
17. In criminal cases the evidence of Police Officers who are natural witnesses cannot be discarded without considering the same on merits. Police Officials who have no ill will against accused persons would be competent witnesses and their evidence cannot be discarded for the reason that they are police employees. In the circumstances the defense version has rightly been disbelieved.
18. In this case, the trial Court recorded conviction of the appellants under section 302(a)134, P.P.C. i.e Qatl-e-Amd punished with death as Qisas. We are, however, of the view that this was a case for conviction under section 302(b). For conviction and sentence under section 302(a), P.P.C., the quality of evidence is laid down in section 304, P.P.C. And it has obviously nexus with Article 17 of the Qanun-e-Shahadat Ordinance, 1984. Evidence of the witnesses also did not satisfy the test provided in Article 17 of Qanun-e-Shahadat, 1984 as the said witnesses had not been subjected to the test of Tazkiya-tul-Shahood. Tazkiya-tulShahood is obligatory in cases punishable with Hadd and Qisas, even if the competency of a witness is not challenged by the Mashood Alaih (PLD 1991 FSC 186). In the case of Ghulam Ali v. The State PLD 1986 SC 711, it was held that where proper Tazkiya-tul-Shahaood was not done of an eye-witness the conviction under Islamic Law could not be sustained. In the present case, this requirement having not been satisfied the conviction under Injunctions of Islam could not be awarded. Reliance is also placed on the Authority of Hon'ble Supreme Court Pakistan reported in 2000 SCM R 338.
20. We are, accordingly, of the view that in this matter where the prosecution had established its case against the appellants for the Qatl-e-Amd of Khadim Hussain, convictions were required to be recorded under section 302(b), P.P.C. Death as Tazir and not under section 302(a), P.P.C. The convictions of the appellants are, therefore, converted from section 302(a), P.P.C. To that of under section 302(b), P.P.C. Death as Tazir.
21. For the aforesaid reasons we are of the view that the guilt of the appellants has been proved on record by the prosecution by the ocular account, medical evidence, dying declaration, supported by the recoveries of incriminating articles and circumstantial evidence beyond any reasonable doubt. The learned counsel for the appellants was not able to refer any mitigating reason/ circumstances which could be considered for awarding the lesser penalty of life imprisonment.
This was a brutal murder without any justification and the appellants acted as disparate and hardened criminals by inflicting as many as fourteen injuries with knives and so the imposition of normal penalty of death was fully justified.
22. For the aforesaid reasons, Criminal Appeal No, 10 of 2000 stands dismissed.
23. Murder reference is answered in affirmative with the observations hereinabove made regarding conversion of section 302(a), P.P.C. To that of under section 302(b), P.P.C. Death as 'Tazir' and accordingly confirmed.