2000 PLP 1859 (SCMR)

ABDUR REHMAN KHAN, J.

The two appellants alongwith Muhammad Ali, were tried for the murder of Hakim Ali, Police Constable, by the learned Additional Sessions Judge, Lahore. On conclusion of the trial they were convicted and sentenced as under by judgment, dated 14-9-1991:-- Sections Sentence 302/34, P.P.C. Each of them was sentenced to imprisonment for life with a fine of Rs.10,000 each or in default to suffer 3 years' R.I. 323/34, P.P.C. One year R. I. each plus fine of Rs.2,000 each or in default to undergo 4 months' R.I. 353/34, P.P.C Each one of them sentenced to one year R.I. and to pay Rs.2,000 fine or to spend more six months in, jail. The sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was extended to the appellants.

2. Allah Ditta, Head Constable, Police Lines, Qila Gujarsingh, who made the F.I.R. in this case, appeared as P.W.6 at the trial. He stated that during the days of occurrence he was posted as Constable in Police Station Factory Area and that he and Hakim Ali, FC (deceased) were deputed to effect service on some persons. They went to Police Station Defence Area to ask for help in the matter of service as the persons on whose service was to be made resided in the said area. Muhammad Ali, Head Constable was allowed to accompany them. After execution of the warrant they came back to the Defence Road and waited for a vehicle. This witness further stated:-- , "The accused present in Court passed besides us and at a distance of 40 feet he loaded magazine in the pistol Mausar. We both saw Mausar in the hand of Muhammad Ali. We called them and they ran away. I and Hakim Ali chased them. When we reached near the office of disposal pump Muhammad Ali accused fired two shots in the air. Iqbal and Maqsood accused present in Court held Hakim Ali and Muhammad Ali accused fired from his Mausar at Hakim Ali and the same hit him on the chest. I was standing behind near the wall. Muhammad Ali heard our noise and report of the fire and he also came running there. I also ran after the accused. I apprehended Muhammad Ali who was in possession of pistol. All the three accused started grappling with me also gave me beating when the accused saw Muhammad Ali P.W. coming and also on my noise Iqbal and Maqsood ran away from the post and I held Muhammad Ali accused. Muhammad Ali also gave me head blow on chin, cheeks and head." The other eye witness of the occurrence is P.W.4 Muhammad Ali, Head Constable. This witness while describing the actual occurrence stated:-- "I returned on hearing alarm when I saw Muhammad Ali, Maqsood Parvaiz and Iqbal accused raising Lalkaras. Then encircled Hakim Ali Constable and Muhammad Ali accused fired at Hakim Ali, Constable and it hit at his chest whereon he fell down and expired. I saw the occurrence with my own eyes. Allah Ditta held Muhammad Ali in his arms while remaining accused fled away while seeing me."

3. Leave to appeal was refused to Muhammad Ali as he was arrested alongwith the weapon of offence and that there was sufficient evidence to hold him guilty. However, leave was granted to the appellants in these terms:-- "Leave is granted in Criminal Petition No.5501-L of 1995 to Maqsood Pervez alias Billa and Muhammad Iqbal alias Bala as their case is distinguishable on the grounds firstly that they were not arrested at the spot but their names were given in the F.I.R. on the disclosure of Muhammad Ali; secondly, they were empty-handed and did not play any part in causing injuries to the deceased as well as Allah Ditta; and lastly, the question of their vicarious liability on the ground of sharing a common intention requires further enquiry and in that context evidence produced is inadequate."

4. The learned counsel appearing for the appellants argued that there is serious contradiction between the statement of P.W.4 and P.W.6 in respect of the role played by the two appellants in the commission of the offence because the former stated "they encircled" while the latter deposed "Iqbal and Maqsood accused present in Court held Hakim Ali and Muhammad Ali accused fired from his Mausar at Hakim Ali and the same hit him on the chest". This is not contradiction of the type which may nullify the evidence of the two eye-witnesses which otherwise appears to be confidence inspiring, consistent and natural. He also stressed that presence of the appellants at the spot is not established. The learned counsel was, however, unable to show as to what prompted P.W.4 and P.W.6 to involve the appellants when it could not even be remotely suggested in the evidence of these witnesses that they implicated the appellants for an ulterior motive, ill will or malice; what to say of proving any animosity of the two witnesses against the appellants. We, therefore, have no doubt about the presence of I the appellants on the spot. But the crucial point that arises for determination is; what offence the appellants had committed in view of the evidence on record. In other words whether they could be held vicariously liable under section 302/34, P.P.C. alongwith the principal accused Muhammad All for sharing common intention to commit the murder of the deceased. In order to determine this point the evidence on record and the attending circumstances are to be kept in mind. It is admitted position that the appellants were not armed. It is also not denied that the appellants had no enmity with the deceased or any of the P.Ws. It is also established on record that the appellants, the deceased and the P.Ws. met all of a sudden. It is also admitted that initially the trouble between the P.Ws. and Muhammad Ali, principal accused, started because the said accused had a pistol in his possession and when called by the P.Ws. he started running and when he was chased he fired two shots in the air. It is not believable that the principal accused could have fired at the deceased when the appellants had either caught hold of the deceased or had encircled him because that act was not only dangerous to their lives but there appears no reason to resort to it when they in the beginning started running after noticing the P.Ws. There is also 1A no denying the fact that all that occurred between the deceased and the P.Ws. on one hand and the principal accused on the other was abrupt and all of a sudden as admittedly fixing by the principal accused was not the result of any pre-arranged plan. Moreover common intention is to be inferred from the entire conduct of the accused and not from an individual act which he committed on the spot. It is clear that evidence on record is not sufficient to come to a conclusion that the appellants had at any stage common intention I with the principal accused to commit the murder. In the absence of the common intention the appellants would be liable for their individual act which they committed in the episode. We thus hold that the prosecution has not been able to prove beyond any reasonable doubt the common intention of the appellants alongwith the main accused to commit the murder of Hakim Ali in furtherance of pre-planned design. Thus we extend the benefit of doubt to the appellants and acquit them of the charge of murder and while accepting their appeal to that extent modify the II impugned judgment. However, prosecution evidence is sufficient to prove the offence under sections 323/34 and 353/34, P.P.C. against the appellants as the act committed by them on the spot constituted the commission of the said offence. Therefore, we uphold the conviction of the appellants under the said two sections and to that extent the impugned IA judgments are maintained. M.B.A./M-100/S Order accordingly.