' JAVED IQBAL, J.---These criminal appeals by leave of the Court are directed against judgment dated 30-6-1997 passed by the Lahore 'High Court, Lahore, where by the appeal preferred on behalf of all the appellants were dismissed but the death sentence as awarded by the trial Court was modified to that of life imprisonment. Conviction and sentence of Ghulam Qadir was, however, not modified and sentence of death was confirmed. We, therefore, propose to dispose of the above said appeals by this common judgment since they involve common question of facts and law arising out of the common judgment.
2. Briefly stated the facts of the case as enumerated in the impugned judgment are to the effect that "about 6/7 years prior to this occurrence Mst. Shahnaz his daughter was abducted by Mansab (P.O.) and a Hudood case was got registered against both -of them and they were convicted and sentenced. Mst. Shahnaz after serving her sentence was released and she was taken away by one Muhammad Sarwar Luk. On 10-9-1998 Sarfraz his son and Muhammad Rafique murdered Muhammad Sarwar Luk and brought Mst. Shahnaz to their house. For the murder of Muhammad Sarwar Luk a case was registered against Sarfraz, Rafique and 10 others who were lacing trial. The present occurrence was to avenge the murder of Muhammad Sarwar Luk deceased. On 8-1-1990, Bahadur complainant, Sarfraz (deceased), his son, Rafique 'deceased), Khizar Hayat P.W. Accused in the murder case lodged by Mansab (P.O.) alonwith Muhammad Khalid (deceased) an accused in a narcotic case were brought by the police guard from District Jail, Jhang to District Courts, Toba Tek Singh on a prison van and reached the District Courts premises at about 9.30 p.m. Sarfraz, Rafique, Muhammad Khalid and Khizar Hayat P.W. Deboarded from the van and were returning after urinating near the Bar Room premises, at that time Mansab (P.O.) armed with rifle, Anwar armed with rifle, Hafeez son of Anwar armed with pistol, Saeed (P.O.) armed with pistol, Ghulam Qadir armed with sten-gun, Amin (P.O.) armed with gun, Gulsher armed with rifle Hazoor armed with rifle, Shamman armed with pistol, Hakim Ali armed with rifle, Fazal Hussain armed with pistol and one unknown person armed with gun came there raising Lalkaras and at once Mansab (P.O.) fired with his rifle which hit Sarfraz deceased on the right temporal region when the unknown person fired with his gun which hit Sarfraz deceased on his chest, Anwar fired at Sarfraz deceased which hit him on the right thigh, Hafeez fired with his pistol, which hit Sarfraz deceased on left upper arm. After receiving, these injuries Sarfraz deceased fell down. Amin (P.O.) fired with his rifle at Rafique alias Kala deceased which hit him on the back side of the left shoulder. Saee (P.O.) fired with his pistol which hit Rafique on the back of the neck who after receiving these injuries fell down.
Ghulam Qadir fired with his sten-gun which hit Muhammad Khalid deceased on his right side chest, Fazal Hussain fired with his pistol which hit Muhammad Khalid on chest who also fell down.
Gulsher fired shot with his rifle which hit Mopal on right leg, Hazoor fired with his rifle which hit Khizar Hayat P.W. On right thigh. Shamman fired with his pistol which hit Khizar Hayat on his left thigh.
Hakim Ali fired shot which hit Bahadur complainant on the right thigh. Muhammad Sharif constable No,477 member of the police guard fired with his official rifle at the accused to save his and their lives whereby one person was injured from the accused side while the other accused ran away from the spot firing with their weapons. The injured person from the accused party was over- powered by the police guard and he disclosed his name as Rahmat. Sarfraz, son of complainant Muhammad Rafique and Muhammad Khalid succumbed to the injuries and died at the spot." After usual investigation the appellants were sent up for trial and on conclusion whereof they were convinced and sentenced as under:-- "(i) Under section 148, P.P.C. All the appellants have been convicted and sentenced to 3 years R.I.
And a fine of Rs,5,000 each or in case of default further R.I. For six months.
(ii) Under sections 302/149 all the appellants were convicted and sentenced to death on each count and a fine of Rs,50,000 each or in default to suffer further R.I. For 5 years. They were also ordered to pay Rs,50,000 as compensation each to the legal heirs of the deceased and in case of default to suffer further R.I. For 6 months.
(iii) Under sections 307/149, P.P.C., all the appellants were sentenced to 10 years R.I. Each and a fine of Rs,5,000 each and in case of default to suffer 2 years further R.I. Rs,5,000 as compensation was ordered to be paid to the injured P.Ws. In equal shares and in case of default to suffer further R.I. For six months.
(iv) Lastly all the appellants were convicted under sections 353/149, P.P.C. And sentenced for two years R.I. Each and a fine of Rs,5,000 each and in case of default to suffer further R.I. For six months."
Being aggrieved an appeal was preferred which has been dismissed as per details mentioned hereinabove.
3. Leave to appeal was granted by this Court vide order dated 27-11-1998 which is reproduced herein below for ready reference:-- "It has been argued by the learned counsel that eye-witness account provided by Bahadur P.W.12 (father of Sarfraz, deceased and uncle (Phoophan) of Rafiq, deceased), Khizar Hayat P.W.23 (nephew of the complainant), Ghazanfar Ali P.W.17 (A.S.I.) and Muhammad Sharif P.W.18 (headconstable), has not been corroborated by some evidence of unimpeachable character. He adds that witnesses are inimical and interested. This being so, rule of caution has to be pressed into service in a case like this. It is further submitted that recovery of weapons of offence has been found to be of no avail.
2. This appears to be a fit case for reappraisal of prosecution evidence to ensure safe administration of justice. Leave is accordingly, granted."
4. Mr. M.A. Zafar, learned Advocate Supreme Court has argued this appeal at some length but subsequently confined himself to the appeal of Ghulam Qadir whose death sentence has been maintained vide impugned judgment. He urged emphatically that in view of the identical evidence, similar circumstances and joint action of all the appellants the death sentence awarded by the learned trial Court could not have been maintained which was modified to that of life imprisonment regarding rest of the appellants and according to learned Advocate Supreme Court it was not only violative of the natural principle of justice but the well-entrenched concept of consistency which is to be maintained while awarding punishment in such like cases.
5. Ch. Dil Muhammad Tarar, learned Advocate Supreme Court appeared on behalf of State and has supported the impugned judgment but found it difficult and rightly so to defend the impugned judgment upto the extent of Ghulam Qadir that as to why he was picked up amongst the lot for capital punishment while the role assigned to him was similar qua the other appellants.
6. We have carefully examined the respective contentions as agitated on behalf of Ghulam Qadir appellant and for State in the light of relevant provisions of law and record of the case. It seems appropriate to examine the role which has been assigned to Ghulam Qadir. As per the case of the prosecution Ghulam Qadir fired by means of his sten-gun which hit Muhammad Khalid on right side of his chest and resultantly lie succumbed to the injuries. It is, however, to be noted that as per the case of prosecution Fazal Hussain appellant also fired with his pistol which hit on the chest of Muhammad Khalid who fell down. Blood-stained earth was secured from the place of occurrence and taken into possession vide recovery memo. Exh.P.S. Eighteen crime empties of 38 bore (Exh.P- 2611-18), 2 crime empties of 12 bore (Exh.P.27/1 2) and a lead bullet (Exh.P.28) which were sealed in a parcel vide memo. Exh.P,T., a magazine (Exh.P,24) and bag containing 35 live 12 bore cartridges (Exh.P.25) were also secured vide recovery memo. Exh.P.R. Three more crime empties (Exh.P.30/1-3) produced by constable namely Muhammad Sarif were taken into possession vide memo. Exh.P.V.
At the instance of Ghulam Qadir appellant, a 7 MM rifle (Exh.P.22) alongwith 5 live bullets (Exh.P.23/1-5) were got' recovered from an abandoned brick kiln. The reports of Chemical Examiner (Exh.PHH) and the report of Serologist (Exh.PJJ) were positive and the blood-stained earth secured from the place of occurrence was found to be stained with human blood. Dr. Abdur Rahim Bhatti and Dr. Muhammad Khalid conducted the post-mortem examination on the dead body of Muhammad Khalid and found the following injuries:- "(1) A fire-arm entrance wound 0.8 c.m. In diameter on the outer side of upper part of right chest.
(2) A fire-arm exit wound 1.5 c.m. x 1.0 c.m. On the outer side of upper part of left chest."
' As per his opinion, the abovementioned injuries were caused by fire-arm. Ghulam Qadir has adopted the defence version as put forth by Hakim Ali who stated in is statement got recorded under section 342, Cr.P.C. As follows:--.
' "All the three deceased stated above had many enemies, and Sarfraz deceased in particular. On the day of occurrence about 6/7 unknown persons having muffled faces being armed with fire- arms had attacked on the deceased and the injured P.Ws. On that very day the file of murder case of Sarwar stated above was already lying in the Office of S.P. Toba Tek Singh. The complainant party due to enmity in collusion with the police after deliberation and consulting the file of abovementioned murder case, involved the present accused and the accused since absconders on account of enmity and that I am a prosecution witness in that very murder case. The first two I.Os. Made dishonest and perfunctionary investigation. On my application the investigation of this case was withdrawn from those I.Os.. D.S.P. Jarranwala and A.S.P., Chiniot investigated this case thoroughly and found the entire case doubtful. The challan was submitted due to the reason that some of the accused were absconder. The prosecution with ulterior motive and to my extreme prejudice did not mention the names of D.S.P. And A.S.P. In the calender of witnesses."
' He did not opt to get his statement recorded on oath. The learned High Court while dilating upon the aspect of vicarious liabilities has observed as follows:-- ' "Before adverting to discussion on the points raised by the learned counsel it would be relevant and appropriate to appreciate in the backdrop of the motive as to how the accused had the common object to make themselves into an unlawful assembly. Mansab accused (absconder) is brother of Anwar accused, Hafeez accused is son of Anwar accused and they are Gadhis by Caste.
Ameen accused (absconder), Sayee accused (absconders), Gulsher, Hafeez, Shaman, Hakim Ali and Ghulam Qadir are Ink by Caste. Qadir and Sayee accused (absconders) are real brothers.
Ameen (accused) is brother-in-law of Sarwar deceased in whose case Sarfaraz and Rafique deceased were accused. Hakim Ali, Shaman, Hafeez and Gulsher are closely related inter se. They are also related to Sayee accused (absconder) and Ghulam Qadir. Fazal Shah accused has got friendly relations with the accused and the absconders accused. Similarly Rehmat accused had also friendly relations with the present accused and the absconders. Abduction of Mst. Shehnaz daughter of Mansab has been admitted and it has also been admitted that after her abduction she went to the house of Sarwar Luk (deceased) from where Sarfaraz and his co-accused recovered her after committing the murder of Sarwar. Thus, all the accused had a common object to join hands and act in prosecution of the said assembly. No doubt motive being a double-edged weapon, it could not be argued that the accused have been falsely involved on account of the motive. But by admission of the accused to the fact of motive it becomes clear that the accused did carry the grouse and were waiting for the opportunity."
7. A careful scrutiny of the entire evidence would reveal that prosecution has established the accusation by producing cogent and concrete eye account duly corroborated by motive and medical evidence. There is absolutely no lawful justification to discard the statements of Bahadur and Khizar Hayat who sustained injuries during the attack. They have narrated the details of incident in simple and straightforward manner and stood firm to the test of an exhaustive cross- examination and nothing beneficial could be extracted. The prosecution witnesses namely Ghazanfar Ali Shah and Muhammad Sharif have fully supported the eye account as furnished by Bahadur and Khizar Hayat which has been scrutinised thoroughly by the learned High Court as under:-- ' "Bahadur and Khizar Hayat are closely related and stand accused for the murder of Sarwar but then their statements cannot be doubted for the reason that they were in police custody and had been brought from the District Jail, Jhang to appear in the murder case of Sarwar which was fixed for hearing in Court on that day and the presence of injuries on their person further tends to strengthen their presence and veracity of their evidence. Similarly, the evidence of Ghazanfar Ali and Muhammad Sharif Head Constables who were on guard duty with the prison van on that day establishes their presence and at the spot and the fact that Sharif P.W. Used his official rifle to protect his life and lives of the under-trials with him and causing injuries to Rehmat deceased accused also establishes the presence and makes their evidence trust worthy. Mopal the injured witness who was given up, his evidence even if recorded would not have improved the prosecution case as he never knew the accused and in presence of the evidence of two injured witnesses and two police officials who were natural witnesses of the occurrence it was not necessary to produce all the injured witnesses. It was right of the prosecution to produce any witness it chose to. Hence the argument of the learned counsel that the witnesses were not independent and trustful is repelled. The presence of all the eye-witnesses is established at the spot and their evidence is credible and worth reliance . "
8. We have perused with care and caution the statements of Ghazanfar Ali Shah and Muhammad Sharif who are police officials having no enmity or friendship with the complainant or appellants and highlighted the factual aspects of the controversy in a convincing manner. It is to be noted that in order to save their lives and to protect the undertrial prisoners (deceased and injured) they opened fire upon the assailants which resultantly injured Rehmat who subsequently expired which makes it abundant clear that Ghazanfar Ali Shah and Muhammad Sharif have not only witnessed the occurrence but also attempted to save the lives of under trial prisoners and thus, their version has rightly been considered and relied upon by the learned trial and appellate Courts.
9. In such view of the matter we are of the considered opinion that prosecution has established its case beyond shadow of doubt and the impugned judgment being unexceptional hardly calls for any interference except on the point that no reasoning whatsoever has been given by the learned High Court for alteration of the death sentence of all the appellants to that of life imprisonment except Ghulam Qadir. We are persuaded to agree with learned Advocate Supreme Court that it is not known as to why Ghulam Qadir was picked up amongst the lot for capital punishment. The impugned judgment is silent that why the sentence as awarded to Ghulam Qadir was not altered when the High Court itself has concluded that all the assailants were vicariously liable for the attack launched in a broad daylight upon the victims who were handcuffed and could do nothing to save themselves. It also transpires from the scrutiny of record and as mentioned hereinabove that Fazal Hussain also fired by means of his pistol which hit Muhammad Khalid on his chest and thus, Ghulam Qadir alone cannot be held responsible for firing. In view of the similarity of roles assigned to each of the culprits and similar nature of evidence it is really difficult to support the impugned judgment on the point that as to why the capital punishment of Ghulam Qadir was kept intact while rest of the appellants to whom similar role has been attributed were considered for lesser sentence. Be that as it may we are of the view that since all the appellants were iound vicariously liable for the attack by the learned trial and appellate Courts which resulted in death of Sarfraz, Muhammad Rafique and Muhammad Khalid, appellant Ghulam Qadir deserves the same punishment as awarded to rest of the appellants. We are, therefore, inclined to alter the sentence of death of. Appellant Ghulam Qadir confirmed vide impugned judgment to that of life imprisonment with benefit of section 382-B, Cr.P.C. The remaining sentences as awarded to Ghulam Qadir shall also run concurrently as the same benefit has been awarded to rest of the appellants. In this regard we are fortified by the dictum laid down in a case titled Saifur Rehman v.
The State 1988 SCM R 443.
10. In view of what has been stated above, these appeals being devoid of merits are dismissed subject to above modification.