2011 SCMR 1148 (PLP)

KHILJI ARIF HUSSAIN, J

Through this Criminal Appeal, by leave of the Court, the appellant Sh. Muhammad Ayub, impugns the judgment dated 20-7-2010, passed by a learned Division Bench of Lahore High Court, Rawalpindi Bench, Rawalpindi, in Criminal Appeals Nos.176 of 2007, 78-J of 2010 and M.R. No.336 of 2007, whereby the conviction and sentence awarded to hint by the trial Court under section 302(b), P.P.C. for committing the murders of the deceased Adeel Ahmed and Haider Ali, were confirmed and the murder reference was answered in the affirmative.

2. Facts of the case have already been discussed, in detail, in the judgments of the Courts below hence it is not necessary to reiterate the same in extenso. However, we shall give a brief resume of the prosecution case, which resulted in the murders of Haider Ali and Adeel Ahmed, both sons of the complainant, that reads as under: "Briefly the facts of this case as mentioned in the F.I.R. are that on. 25-10-2005 at 7-25 p.m. Naseer Ahmad complainant (P.W.12) recorded his statement to Jehangir Khan SI (P.W.16) to the effect that on the said day, he along with his sons Haider Ali, Adeel Ahmad, Khawar Ali, Zeeshan and his real brother Naveed Ahmad, Tariq Mehmood and also Ghaffar son of Abdul Haq, Adil Butt son of Muhammad Hussain was present in his house at Iftaar time. His son Raheel Ahmad was observing Aitkaf in Allahwali mosque. After giving Iftaari to his said son in the mosque, he had come back to his house before the Iftari along with his son Khawar Ali. Naveed Ahmad, his brother Tariq Mehmood, Ghaffar and Adil Butt after Mughrab prayer came to house of the complainant. After the Iftaar, Haider Ali and Adeel went out of the house for recreation. At about 6-30 p.m., complainant along with Naveed Ahmad, Tariq Mehmood, Ghaffar and Adil Butt went after his sons in street No.2. When they reached in center of the said street, he and his companions saw that Sh. Abid accused present in the court, Sohail Ahmad, Nasir Mehmood (Since Pos) were abusing to his sons Haider Ali and Adeel Ahmad and they were ready to grapple with them. Meanwhile, they all three who were armed with pistols started making straight firing and within the view of complainant and his companions, his elder son Haider Ali was hit by bullets and being seriously injured, fell on the ground. At some distance, his other son Adeel when for the purpose to save his life turned backwards all, the three also made straight firing at him and he also was seriously injured and fell to the ground. A girl of 10/11 years old who was passing through the street also received firearm injuries on her legs. Sh. Abid accused present in the court from the turn of street No.2 escaped away whereas Sohail and Nasir (Since Pos) after crossing Glass Factory Road ran towards street No.11. The complainant chased them up to Glass Factory Road but they both disappeared in the street and he along with his companions shifted his injured sons and Kiran Sana in two taxi cars to the RGH Hospital. Haider Ali died on the way to the hospital, whereas Adeel Ahmad who was seriously injured by firearm injuries was admitted in the emergency ward of the hospital and Kiran Sana was also admitted in the said hospital for treatment. Motive for the' occurrence statedly was that about 1-1/2 years earlier, brother-in-law of the complainant Abdul Waheed alias Khalidi and his nephew Asad had caused firearm injuries to Sohail and in this regard, a case was registered which was later on compounded. Sohail however nourished grudge in his mind and many times in between sons of the complainant and Sohail, Nasir and Sh. Muhammad Abid hot words were exchanged and their terms were extremely strained. That complainant complained the matter to their father but they showed their helplessness with the explanation that their sons are not in their control. That on the basis of previous grudge, Sohail, Nasir (Since Pos) and Sh. Muhammad Abid accused present in the court being motivated by their common intention made firing with their .30 bore pistols and lunching murderous attack in result of which his son Haider Ali was murdered whereas his other son Adeel Ahmad was seriously injured and a passer by girl namely Kiran Sana also received firearm injuries."

3. At the trial, the prosecution in order to prove its case examined 17 witnesses, in all, and also 'produced reports of the Chemical Examiner, Serologist and Foresnsic Science Laboratory, duly exhibited. The appellant in his statement recorded under section 342, Cr.P.C. pleaded false implication and produced two witnesses in his defence, but he did not opt to make any statement as required under section 340(2), Cr.P.C. The trial Court, after hearing the parties and examining the evidence made available before it, came to the conclusion that the appellant is guilty of committing qatl-e-amd of the deceased Haider Ali and Adeel Ahmed, and as such convicted and sentenced him to death on two counts under section 302(b), P.P.C. and also to pay a sum of Rs.100,000 as compensation to the legal heirs of each deceased or in default thereof to undergo SI for six months on two counts. In appeal, the High Court through a well reasoned judgment, impugned herein, upheld the conviction and sentence awarded to him and the murder reference sent by the trial Court for confirmation of death sentence or otherwise was answered in the affirmative. Hence this appeal, by leave of the Court.

4. Heard Ch. Muhammad Hussain, learned Advocate Supreme Court, representing the appellant, and Ch. Zubair Ahmed Farooq, Additional Prosecutor-General, Punjab, appearing for the State.

5. Learned counsel for the appellant after taking us to evidence on record and the statement of the appellant recorded under section 342, Cr.P.C. has argued that it has not been specifically alleged by the complainant that whose fire hit on which part of the bodies of the deceased and as such he is entitled for acquittal or at least to the lesser sentence. On the other hand, learned Additional Prosecutor-General, Punjab, has argued that the case has been proved against the appellant beyond any reasonable doubt; that appellant's two co-accused .are proclaimed offenders; that- the ocular account is fully corroborated by the medical evidence; and that five empties secured from the spot matched with the weapon of offence recovered on the pointation of the appellant.

6. We have taken into consideration the arguments advanced by learned counsel for the parties and carefully perused the record. From the medical evidence, it appears that the deceased Adeel Ahmed received five firearm injuries on his chest and abdomen, whereas the deceased Haider Ali received four firearm injuries on his person. The ocular account in this case was furnished by the complainant Malik Tariq (P.W.13), Naseer Ahmed (P.W.12) and Abdul Ghaffar (P.W.15). The complainant and Naseer Ahmed deposed the same facts, which were narrated to the police in the complaint. P.W.15 Abdul Ghaffar, who is a neighbour of the complainant, also deposed almost the same facts, as stated by the complainant and Naseer Ahmed. We find that though these witnesses were subjected to the lengthy cross-examination, but the defence could not put any dent in their evidence.

7. We have also gone through the evidence of these witnesses and did not find any notable or major discrepancy in their statements. It is not the case of the appellant that the P.Ws. 12 and 13 being inimical to the appellant have falsely deposed against him. In the ocular account, it has been stated by the eyewitnesses that all the assailants, including the appellant, caused injuries to the deceased by firing at them from the front side. The medical evidence, as a whole, is corroborated by the ocular version of the prosecution.

8. As regards the recovery of 30 bore pistol on the pointation of the appellant. From the evidence, it appears that 13 empties of .30 bore pistol were secured by the Investigating Officer from the place of occurrence, vide Exh.PL. On 12-11-2005, the parcel of empties was handed over to P.W.2 Manzoor Hussain, who delivered it in the office of Forensic Science Laboratory on the same day, whereas the pistol was recovered on 23-11-2005 during investigation, from the residence of the appellant on his own pointation after the dispatch of the parcel of empties to the concerned office. According to the FSL report, the empties which were marked as C1, C4, C8, C9 and C12 were fired from .30 bore pistol recovered on the pointation of the appellant, which means that out of 13 empties of .30 bore pistol secured from the place of occurrence, five were fired from the pistol recovered from the appellant.

9. We have given anxious consideration to the submissions made by learned counsel for the appellant and find that apparently, in the circumstances of the case, it was very difficult for the complainant and the eye-witnesses to give account of each tire specifying that whose tire hit on which part of the bodies of the deceased, when indiscriminate firing was made by the appellant and the absconding accused.

10. Once it is found that the accused persons had common intention to commit the crime, it is immaterial as to what part was played by whom as law as to vicarious liability is that those who stand together, must fall together. The question what injuries were inflicted by a particular accused in cases to which section 34, P.P.C. applies is immaterial, the principle underlying the section being that where two or more persons acted with a common intention each is liable for the act committed as if it had been done by him alone.

11. The trial Court as well as the High Court have believed the ocular evidence in the case which found confidence inspiring and there is no reasons for us to disagree with the appreciation of the evidence by the two Courts below.

12. For the foregoing reasons, we do not find any merit in this appeal, which is accordingly dismissed. M.H./M-34/SC Appeal dismisse