1. ' MUHAMMAD NAWAZ ABBASI, J.---Muhammad Aslam son of Khan Muhammad and Sufi Sher Muhammad son of Ghulam Muhammad, the petitioner in this Criminal Petition No, 90 of 2001, alongwith their co-accused namely, Muhammad Yar, Muhammad Akram and Muhammad Tufail were tried for the charge under sections 302(b), 307, 148 and 149, P.P.C. By the learned Additional Sessions Judge, Mianwali. The case was registered against them on 25-8-1989 at Police Station Wan Bhachran, District Mianwali for the allegation of committing the murder of Amir Muhammad and causing injuries to witnesses namely Fateh Sher and Mst. Moondan in the .Village Wan Bhachran. The learned Trial Judge, having come to the conclusion that the occurrence was the result of sudden fight, convicted Muhammad Aslam and Sher Muhammad under section 302, P.P.C.
2. And sentenced them to imprisonment for life for committing murder of Amir Muhammad. The petitioners were also directed to pay Rs,2,000 each as fine and in default of payment thereof each one of them was ordered to undergo S.I. For six months. Muhammad Akram accused was also convicted under section 307, P.P.C. For attempting on the life of Mst. Mandoon and was sentenced to three years' R.I. With fine of Rs,2,000. In default of payment of fine he was directed to undergo R.I.
3. For three months. The remaining two accused namely, Muhammad Yar and Muhammad Tufail were acquitted from all the charges. The petitioners and Muhammad Akram, their co-convict, challenged their conviction and sentences through Criminal Appeal No,515 of 1991 in the Lahore .High Court, Lahore, whereas Khanan Khan complainant in the case who is petitioner in the connected Petition No,95 of 2001 filed a criminal revision against acquittal of Muhammad Yar, Muhammad Tufail and Muhammad Akram from the charge under section 302/34, P.P.C. And also for enhancement of sentence of Muhammad Akram under section 307, P.P.C. The appeal of the convicts and criminal revision filed by the complainant were disposed of by a learned Division Bench of Lahore High Court vide single judgment, dated 20-3-2001. The conviction and sentences of the present petitioners were maintained and the sentence of Muhammad Akram under section 307, P.P.C. Was reduced from three years to the period already undergone by him but the sentence of fine awarded to him was maintained. The petitioners while challenging their conviction and sentences through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, have sought leave to appeal against the judgment of the High Court.
4. ' The occurrence in the present case took place at 12 noon on 25-6-1989, the report of which was lodged by Khanan (P.W.) at Police Station Wan Buchran at 2-15 p.m. On the same day. The relevant facts as narrated in the F.I.R. Are that first informant, Amir Muhammad deceased, Fateh Sher and Mst. Mandoon were attacked by the petitioners who were armed with .12 bore guns and their co- accused namely Muhammad Tufail and Muhammad Yar while armed with rifle and Sota respectively. Sher Muhammad and Muhammad . Aslam having raised Lalkara that they would not spare Amir Muhammad on that day, simultaneously fired at him and as a result of their firing Amir Muhammad having sustained injuries fell on the ground. Muhammad Akram fired at Mst. Mandoon whereas Muhammad Yar caused a Sota blow on the head of Fateh Sher. The occurrence was witnessed by Fateh Khan and Muhammad P.Ws who while present in their land in the nearby, were attracted to the scene of occurrence on the alarm raised by the witnesses. The motive -as stated in the F.I.R. Was that about 34 months prior to the occurrence Masood Ahmed, a brother of Aslam and Akram accused, was injured by Fateh Khan for which a case was registered against him and Amir Muhammad. The accused being revengeful of the'said incident in furtherance of their common intention being armed with lethal weapons, attacked on the complainant party as a result of which Amir Muhammad, Fateh Sher and Mst. Moodan sustained injuries and Amir Muhammad succumbed to the injuries at the spot. Abdul Razzaq, Sub-Inspector (P.W.13) on reaching at the spot prepared injury statement and inquest report of the deceased and sent the dead body through Muhammad Latif, constable (P.W.2) to the mortuary at District Headquarters Hospital, Mianwali for post-mortem and also secured blood-stained earth from the spot. Mst.
5. Mandoon and Fateh Sher who, sustained injuries in the occurrence were examined by Dr. Muhabur- Rehman (P.W.5) on the same day. The detail of injuries sustained by them is given as under:--- Mst. Moondan P.W.
(1) A fire-arm wound of entry with blackening of margins 2 c.m. x 1 c.m. Over the left shoulder girdle, 7 c.m. Away from the tip of left shoulder joint and 3 c.m. Above the upper border of the left scapula.
(2) A setallic hard. Swelling, 2 c.m. x '1 c.m. Very painful on touching over the left shoulder gridle in the supra clavicular fossa, 6 c.m. From mid cluvicular joint, 5 c.m. From the tip of the left shoulder- joint and 3 c.m. Away from injury No,1 ' The injuries were found to have been caused with fire-arm and were declared simple.
6. ' Hafiz Sher Muhammad sustained the following injuries: ' A lacerated wound 2 c.m. x 1 c.m. x scalp deep over the right parietal region of the skull with a swelling around the wound measuring 3 c.m x 3 c.m. The wound was bleeding profusely.
7. ' The injury was found simple in nature. The post-mortem examination of deceased was conducted by Dr. Mehr Khan Niazi (P.W.9) on the next day of the occurrence and following injuries were traced by the doctor on the dead body:--
(1) An entry wound of fire-arm, measuring 3 c.m, x 2 c.m. Over the front and upper part of chest 2 c.m. From the midline, 10 c.m. From the right nipple and 1 c.m. Below medial end of the right clavical.
(2) An entry wound of fire-arm, 3 c.m. x 2 c.m. Over from the right upper chest, 2-1/2 c.m. Exactly to the right side of injury No,1
(3) Two exit wound of fire-arm on the left scapula being 1/4 c.m. Apart. 7 c.m from midline and II c.m. From the base of neck each having a size of 1/2 c.m. x 1/12 (In Urdu evidence sheet, the size is mentioned as 1/2 c.m. x 1/2 c.m. It appears that 1/12 was written inadvertently and is a clerical mistake).
8. ' Four bullets were recovered from left lung cavity of the deceased and in the opinion of the doctor death was the result of injuries Nos.1 and 2 which were caused with tire-arm and were sufficient to cause death individually and collectively. The injuries were anti-mortem and probable time between the injuries and death was immediate and between the death and post-mortem was 15 to 23 hours. The last-worn clothes of the deceased handed over to Muhammad Latif constable alongwith the sealed file by the doctor, were taken into possession by Abdul Razzaq (P.W.13). The statements of Mst. Mandoon and Fateh Sher were recorded by the Sub-Inspector in the hospital with the permission of doctor and later on their pointation Ata -Muhammad, Patwari prepared the site plan in triplicate. Sher Muhammad while in custody led to the recovery of licensed gun (P-1), whereas Muhammad Aslam got recovered gun (P-6) with two cartridges from a box lying in his residential house and similarly the remaining accused also got recovered the weapons of offence.
9. The eye-witnesses namely Fateh Sher and Mst. Mandoon, while narrating the story as contained in the F.I.R ha\ e corroborated each other on each material point and also deposed in support of the motive part of the story in their statements at the trial.
10. ' The accused while denying the charge pleaded innocence and false implication in their statements under section 342, Cr.P.C. But none of them had made a statement on oath under section 340(2), Cr.P.C. Muhammad Aslam while taking the plea of alibi produced Aslam Khan, Atta Muhammad, Abdul Sattar Niazi in his defence. These witnesses have stated that Muhammad Aslam, was a school teacher, and was present in the school at the place of his duty at the time of occurrence. Asghar (D.W.3), stated that the turn of water of complainant party was from 9-50 a.m.
11. To 12-24 p.m.
12. ' Learned counsel for the petitioners has argued that sufficient evidence was available on record to establish that Muhammad Aslam was not present at the spot at the time of occurrence and that the presence of witnesses near their land at the relevant time was not established beyond doubt as the turn of their water had not yet started and they despite being injured were not truthful witnesses. The learned counsel next argued that the occurrence took place at 12 noon in the village, the report of which was lodged at 2-15 p.m. At the Police Station which was situated only at a distance of 5 kilometres from the place of occurrence, therefore, the possibility of deliberations and false implication would not be ruled out. The learned counsel while pointing out the contradictions in the statements of eye-witnesses submitted that they being closely related to the deceased and inimical to the accused were not reliable without, independent corroboration. Learned counsel next argued that it was not clear that the injuries sustained by the deceased were the result of more than one shot or the same were caused with single shot and thus it would be difficult to ascertain that who was individually responsible for causing death and in the light of findings of the learned trial Judge that occurrence was sudden, it was not legal to fix collective responsibility of both the petitioners and convict them.
13. We have heard the learned counsel for the petitioners and also having perused the record with his assistance, find that consumption of two hours time in lodging F.I.R. At the police station which was situated at a distance of 9.5 kilometres from the place of occurrence was quite natural, therefore, the delay in question in lodging the report would be of no significance and similarly the presence of eye-witnesses at the spot who sustained injuries in the occurrence was not questionable. As per defence version the turn of water of the complainant party, had to start shortly after the time of occurrence which took place near the land owned by the complainant party and thus the presence of the witnesses near their land was natural. Having perused the statements of the witnesses we have not been able to trace out describeable contradiction to create even a minor dent in the prosecution case to make the story doubtful. The deposition of the witnesses to the extent of sustaining injuries at the hands of accused is fully supported by the medical evidence and further the motive part of the prosecution story would also suggest that the accused having grudge against the complainant party caused them injuries, therefore, it was difficult to digest that due to the above said enmity between the parties, the petitioners would be involved falsely.
14. ' We having considered the plea of alibi raised by Muhammad Aslam accused, find that except oral statements made by his senior colleagues that he was present in school at the time of occurrence, no documentary evidence was produced to substantiate this plea. We may observe that the petitioner as per plea taken by him, being on duty was holding a meeting with his senior colleagues in connection with the audit work but he did not bother to produce the official record relating to his presence in the school and thus failed to establish the plea of alibi taken by him in his defence.
15. ' We having considered the contentions of the learned counsel for the petitioners regarding the possibility of sustaining the injuries by the deceased with a single shot, find that entry wounds on the person of deceased would not be the result of single shot and even if for the sake of argument it is presumed that the injuries were the result of single shot still in view of attribution of firing to both the petitioners, they would be equally responsible for causing death by virtue of section 34, P.P.C. We therefore, do not find any substance in the arguments of the learned counsel for the petitioners and while making scrutiny of the evidence have reached to the conclusion that prosecution had been successful in proving the charge against the petitioners beyond all reasonable doubts.
16. For the foregoing reasons, we dismiss Criminal Petition No, 90 of 2001.
17. ' In the light of above conclusions, we also do not find any legal or factual infirmity in the acquittal of co-accused of the petitioners who are respondents in Criminal Petition No,95 of 2001 and consequently dismiss this petition. Leave to appeal is accordingly refused in both these petitions.