P L D 2004 Supreme Court 533 (PLP)

Date of hearing: 28th January, 2004: HAMID ALI MIRZA, J.‑‑‑This criminal appeal with leave of this Court is directed against the judgment, dated 6‑11‑1996 passed by learned Division Bench of the Lahore High Court Multan Bench, Multan whereby while disposing of Criminal Appeal No.63 of 1992, Murder Reference No.186 of 1992 and Criminal Revision No.234 of 1992, the conviction" against respondent Muzammal Hussain for commission of Qatl‑i‑Amd of Mulazim Hussain deceased was maintained and his sentence of death was modified to that of imprisonment for life under section,302(b), P.P.C. when his conviction under section 324, P.P.C. was set aside and converted it under section 337‑F(ii) P.P.C., also set aside the sentence of fine and further sentences passed were ordered to run concurrently extending benefit of section 382B, Cr.P.C. So for Ghulam Shabbir, respondent/accused, his conviction under section 302(b), 324/34, P.P.C. and sentence were set aside and was converted under section 337‑F(ii), P.P.C. with sentence of two years imprisonment which he had already undergone thereby ordered to be released forthwith. So far finding of acquittal of accused Allah Wasaya, Muhammad Afzal and Ghulam Akbar was not interfered with and thereby Criminal Appeal No.234 of 1992 was dismissed so also Murder Reference No. 186 of 1992 was answered in negative and Criminal, Appeal No.63 of 1992 was disposed of as stated above.

2. Brief facts of the case are that five real brothers, namely, Muzammal Hussain, Ghulam Shabbir, Allah Wasaya, Ghulam Akbar and Muhammad Fazal, on 12‑11‑1990 formed unlawful assembly when two members were armed with lethal weapons viz. chhura and chhuri. All the said accused persons went to the scene of occurrence at about Mugharabwela in front of tea shop of one Umar Hayat at Phullowali Mori about four kilometers from Police Station City Alipur of District Muzaffargarh with common attention to seek revenge over a children's quarrel which took place few hours earlier. At the scene of occurrence two brothers, namely, Ghulam Akbar and Muhammad Afzal held Mulazim Hussain in Japha and third brother, namely, Muzammal Hussain inflicted injury with lethal weapon viz. chhura; Nabi Bakhsh was also held in Japha by Allah Wasaya while grievous injury was inflicted by respondent/accused Ghulam Shabbir on the front of his chest as well as on his back on his vital part. Respondents and acquitted accused were challaned before the competent Court of law and were tried by the learned Additional Sessions Judge Muzaffargarh who acquitted three accused and convicted the respondents/accused Muzammal Hussain and Ghulam Shabbir as said above. In appeal conviction of Ghulam Shabbir under section 302, P.P.C. and 324, P.P.C. was set aside and he was only convicted under section 337‑F(ii), P.P.C. while conviction of respondent Muzammal Hussain was maintained under section 302(b), P.P.C. but his sentence was altered from death to imprisonment for life and further his conviction under section 324, P.P.C. was converted under section 337‑F(ii), P.P.C. and was sentenced to two years imprisonment which he had already undergone, so also sentence of fine was also set aside, hence the present appeal with leave of this Court by the appellant Haq Nawaz, complainant, for enhancement of sentence whereas in the petition filed by Ghulam Shabbir, respondent/accused, leave to appeal was declined and the petition was dismissed. It may be observed that during the pendency of this appeal respondent/convict accused Muzammal Hussain expired in jail therefore, appeal against him abated.

3. We have heard learned counsel for the parties and perused the record with their assistance minutely.

4. Sardar Muhammad Latif Khan Khosa, learned counsel for the appellant/complainant submitted that he would, at present, press the appeal against respondent Ghulam Shabbir only as respondent Muzammal Hussain has expired during the pendency of appeal. He further submitted That respondent Ghulam Shabbir has caused fatal injury to deceased Mulazim Hussain and grievous injury to Nabi Bakhsh considering that he with respondent/accused Muzammal Hussain (now deceased) having commonality of interest came armed with deadly weapon viz. Churri and caused death of deceased Mulazim Hussain who was Patwari having five children. He further submitted that P.W.7 Haq Nawaz and P.W.8 Nabi Baksh, injured, in their testimony deposed that the respondent/accused Mulazam Hussain (now deceased) was armed with chhura while respondent/accused Ghulam Shabbir was armed with chhuri when accused Allah Wasaya caught hold of P.W. Nabi Bakhsh from his arm and then respondent/accused Ghulam Shabbir inflicted two chhuri blows on the chest of Nabi Bakhsh and one chhura blow was given by respondent/accused Muzammal Hussain (now deceased). He in the end submitted that the learned High. Court has not appreciated the unimpeachable and confidence‑inspiring evidence on record so also legal provision of law considering that incident of causing murder of deceased Mulazam Hussain and murderous assault by causing fatal injury on the vital part of Nabi Bakhsh were with pre‑meditation, hence liable to be convicted under section 302/34, P.P.C. Learned counsel for the respondent/accused Ghulam Shabbir has taken us through the evidence on record but he could not satisfactorily explain as to why the respondent Ghulam Shabbir and the deceased accused Muzammal Hussain went armed with chhuri and chhura respectively if they had no intention of causing murder of deceased Mulazam Hussain and murderous assault by causing fatal injury to P.W. Nabi Baksh when they were called by the Lumbardar over the dispute of minor children and why the present respondent/accused Ghulam Shabbir first opened the attack upon deceased Mulazam Hussain and injured Nabi Bakhsh. Learned counsel also could not point out anything from the evidence on record lacking which could lead to show that the evidence on record was not confidence‑inspiring, reliable and unimpeachable.

5. We find merit and substance in the submissions of the learned counsel for the appellant and do not find substance and force in submissions of the learned counsel for the respondent.

6. P.W.7 Haq Nawaz, in his testimony has fully implicated the respondent/accused Ghulam Shabbir and Muzammal Hussain (now, deceased) by deposing about beating of Khizar Hayat son of Nabi Bakhsh by Safdar Hussain son of Muhammad Afzal and consequent upon the same, P.W. Nabi Bakhsh, injured, had given slaps to Safdar Hussain and thereafter the respondents/accused Ghulam Shabbir and Muzammal Hussain alongwith three others came to his house for quarrel but said Nabi Bakhsh injured P.W., did not come out due to fear hence the said respondents/accused went away, thereafter P.W.10 Haq Nawaz son of Faiz Bakhsh, the Lambardar, called him through Chowkidar where Nabi Bakhsh went alongwith his brother deceased Mulazim Hussain to Mori Phullowali who reached there and sat on Bench in front of the shop of Umer Hayat. At sunset time the said respondents/accused alongwith three others reached Mori Phullowah when P.W. Nabi Bakhsh was narrating the earlier incident to the Lambardar Haq Nawaz before the arrival of said respondents/accused, when it was seen that respondent/accused Ghulam Shabbir was armed with churri and respondent/accused Muzammal Hussain (now deceased) was armed with churra. He deposed that respondent/accused Ghulam Shabbir inflicted churri blow at the chest of Nabi Bakhsh. Respondent/accused Ghulam Shabbir repeated another churri blow and that also hit at the chest of Nabi Bakhsh. Respondent/accused Muzammal Hussain inflicted churra blow on the back of Nabi Bakhsh. Deceased Mulazim Hussain went forward to save his uncle when respondent/accused Muzammal Hussain gave churra blow at the chest of Mulazim Hussain. Accused/respondent Muzammal Hussain, was going to inflict his second churra blow on the person of Mulazim Hussain but he saved himself running about one Begha away from the occurrence. After departure of the respondents/accused they took the injured Mulazim Hussain and Nabi Bakhsh to hospital when on the way Mulazim Hussain succumbed to injuries near brick Kiln. P.W.7 Haq Nawaz is fully corroborated by injured P.W. 8 Nabi Bakhsh who has also in detail deposed in respect of earlier incident as well as subsequent occurrence at the Mori Phullowali wherein he has implicated the said respondents/accused of inflicting churri and churra blows. P.W.10 Haq Nawaz son of Faiz Bakhsh, the Lambardar, has also deposed of sending for Nabi Bakhsh through Qasim, Chowkidar, and on reaching respondents/accused Ghulam Shabbir started giving churri below on the chest of Nabi Bakhsh when Allah Wasaya was holding Nabi Bakhsh. Muzammal accused gave churri blow on the back of Nabi Bakhsh. Mulazim Hussain deceased stepped forward in order to save Nabi Bakhsh when accused Ghulam Akbar and Muhammad Afzal caught hold of Mulazim Hussain and the accused Muzammal Hussain gave churra blow to Mulazim Hussain. Mulazim Hussain got himself released from the respondents/accused and tried to run away towards east but fell down one Begha away from the place of occurrence. All the three P.Ws were cross‑examine by the defence at length but their veracity so far the implication of the respondents/accused is concerned could not be discredited or shaken on the material points. The above ocular evidence is also corroborated by medical evidence of P.W.11 Dr. Muhammad Iqbal, Seriologist's report Exh.P.Q. and chemical examiner's report with regard to the earth secured from the place of incident and churra secured from the respondent/accused Muzammal Hussain which was found to be stained with human blood. It may also be observed that the trial Court as well as the learned Division Bench of the High Court have concurred in not believing the defence version of respondent/accused Ghulam Shabbir that the incident has occurred at the shop of co‑accused Allah Wasaya and after having snatched the churri from the hands of Nabi Bakhsh in exercise of right of self‑defence caused him injuries so also to deceased Mulazim Hussain. On minute assessment and scrutiny of evidence we find that the learned Division Bench of the High Court and trial Court have rightly arrived at the said finding after proper appreciation of evidence in accordance with law laid down by this Court. It may also be observed that the evidence produced on record was rightly appreciated and believed by the two Courts that the respondents/accused came fully prepared armed with deadly weapons to take revenge‑of earlier incident for which they had also earlier gone to the house of injured P.W. Nabi Bakhsh. It has also come on record that attack of infliction of churri injuries was started by respondent/accused Ghulam Shabbir in furtherance of common intention when the co‑accused respondent Muzammal Hussain (now deceased) inflicted churra blows to the deceased Mulazim Hussain. In case they never wanted to commit the said offence of commission of murder of Mulazim Hussain and of causing of injuries upon P.W.8 Nabi Bakhsh then there was no need on the part of the respondents/accused to have come fully prepared armed with deadly weapons viz. churri and churra when they came at the call of the Lambardar at Mori Phullowali. All these acts and circumstances brought on record would prove common intention of both of the respondents out of whom one Muzammal Hussain died during the pendency of appeal in jail when, the respondent Ghulam Shabbir was acquitted by the High Court in appeal holding him to be individually liable for the act which finding on the face of record cannot be sustained considering the overwhelming reliable, confidence‑inspiring and unimpeachable evidence of his being vicariously liable for murder of deceased and of causing of injuries to P.W.8 Nabi Bakhsh. Reference may also be made to decision of this Court (i) Muhammad Arshad and 2 others v. The State PLD 1996 SC 122 at page 128, (ii) Javed Iqbal and others v. The State NLR 1998 Criminal 449 wherein this Court observed: "The offenders who armed themselves with deadly weapons and pre‑planned an attack on their opponents would realize and know that such an attack can result in murder and injuries to the rivals and the Court should be justified to draw an inference that the offence so committed was in furtherance of common intention of each one, irrespective of the role played by each of them." (iii) Amir and 3 others v. The State 1987 SCMR 270 and (iv) Abdul Jabbar v. The State PLD 1964 SC 81.

7. Admittedly there is overwhelming, evidence on record implicating the respondent/accused with the commission of crime which was committed in furtherance of common intention and mere fact that some of the accused have been acquitted because of want of sufficient evidence against them would not itself be a ground for the acquittal of the respondent/accused before us. So far the respondent Ghulam Shabbir, we have found that the learned Division Bench of the High Court has misread the evidence on record and has not properly applied the law laid down by this Court which has resulted in the miscarriage of justice by holding him only liable to the extent of causing injuries to Nabi Bakhsh individually and sentenced him only for the said offence to two years which he had already undergone under section 337‑F(ii), P.P.C. As discussed, the evidence on record implicate the respondent Ghulam Shabbir had acted and conducted in furtherance of common intention of causing murder of Mulazim Hussain as well as made murderous assault upon P.W.8 Nabi Bakhsh which caused injuries to him, therefore, he would be jointly liable for the criminal acts done in furtherance of common intention. It has been found that respondent/accused Muzammal Hussain (now deceased) and Ghulam Shabbir had acted in furtherance of common intention, therefore, it would be immaterial as to what part was played by each of them and what part was played by respondent/accused Muzammal Hussain considering that he being vicariously liable would stand together and would also fall together. Further as the respondent Ghulam Shabbir has been held vicariously liable for the commission of murder of deceased Mulazim Hussain, therefore, the same would be considered as mitigating circumstances in awarding the sentence. We, therefore, are not inclined to award capital sentence but sentence of imprisonment for life would meet the ends of justice in view of the decision of this Court reported in (i) Abdul Jabbar v. The State PLD 1964 SC 81, and (ii) Muhammad Arshad and 2 others v. The State PLD 1996 SC 122.

8. Accordingly, we set aside the judgment of acquittal passed by l learned Division Bench of the High Court, dated 6‑11‑1996 and allow the appeal to the extent of respondent/accused Ghulam Shabbir thereby I convict him under section 302(c)/34, P.P.C. and sentence him to undergo R.I. for fourteen years and to pay compensation amounting to Rs. Thirty thousand, out of which sum, 2/3rd would be given to L.Rs of the deceased and 1 /3rd of it shall be paid as Daman to the injured/victim P.W.8 Nabi Bakhsh for causing him injuries. So far conviction under section 337‑F(ii), P.P.C. and sentence are maintained. Sentence so passed would run concurrently. We also award benefit of section 382‑B, Cr.P.C. to the respondent/accused Ghulam Shabbir. N.H.Q./5‑5SC Appeal accepted.