2013 PLP 2620 (YLR)

MEHMOOD MAQBOOL BAJWA, J.

Muhammad Hafeez, and Shahadat cited as respondents No.1 and 2, arrayed as an accused in case F.I.R. No.648 of 2005 registered under sections 302, 109, 148 read with section 149 of The Pakistan Penal Code, 1860 at Police Station Saddar Hafizabad were acquitted by learned Sessions Judge, Hafizabad through judgment dated 5-12-2006 though convicting Muhammad Amjad and awarding him sentence of death on two counts.

2. Judgment to the extent of acquittal has been assailed by complainant. However, the appeal against Shahadat, respondent No.2 was not pressed by learned counsel for the appellant (complainant) resulting in its dismissal as such.

3. Submitting arguments in appeal to the extent of Hafeez (respondent No.1), it was argued by learned counsel for the appellant that said respondent was named in the Crime Report, shown armed with rifle and specific role of causing injuries to Muhammad Asghar, (one of the deceased and father of the appellant) on his right elbow was levelled and the ocular account which is in line with the allegations finds corroboration from the medical evidence, sufficient to prove his guilt and as such conclusion drawn by learned trial Court acquitting him is perverse, result of misreading and non-reading of evidence. Referring to the reasons given by learned trial Court for acquittal of respondent, it was submitted that observation that respondent was not shown in possession of any rifle at the time of occurrence stands negated in view of specific allegations contained in Crime Report (Exh.PD) and statements of complainant, Ashfaq Asghar (P.W.7) and Muhammad Anwar (P.W.8). Submitted that plea of innocence on the ground of "Alibi" was not sufficient to record acquittal, not based on any material. Further contended that no specific conclusion was drawn by Investigating Officer regarding innocence of respondent, which even otherwise got no binding force. The learned Deputy Prosecutor-General adopted arguments of learned counsel for the appellant. Controverting the arguments, the learned counsel for respondent No.1 maintained that though respondent was nominated in the F.I.R. but motive is not attributed to him. Referring to the evidence led by prosecution, it was argued that there is old animosity between the complainant party and named accused except respondent over the landed property which is not disputed and as such his participation in the commission of crime being stranger to both the parties does not appeal to the reason. Submitted that evidence of complainant Ashfaq Asghar (P.W.7) and eye-witness Muhammad Anwar (P.W.8) does not inspire confidence which due to material contradictions is not worthy of credit. Also maintained that no weapon of offence was ever recovered at the instance of appellant, Making reference to the statement of Muhammad Waris, S.I. Investigating Officer (P.W.13), it was contended that the witness admitted that respondent pleaded plea of alibi during the course of investigation who produced witnesses in defence and plea was endorsed at the conclusion of investigation which cannot be lightly ignored. Argued that due to recording judgment of acquittal, the respondent earned dual presumption of innocence which neither can be lightly interfered nor calls for interference and that too on surmises and conjectures.

4. Crime Report bearing No. 648 of 2005 (Exh. PD) was lodged by Ashfaq Asghar (P.W.7) complainant on 10-12-2005 with the accusation that on the day at about 12-00 noon, he along with Muhammad Anwar (P.W.8), Muhammad Arshad (not produced) on one motorcycle while on the second motorcycle his father Muhammad Asghar being rided by Ihsan Ullah (both deceased) were going and at about 1-00 p.m., when they reached ahead of "Koloo morr", suddenly Tariq, Abid, Amin, Yasin, Nazir, Hafeez (present respondent) and Muhammad Afzal all armed with rifles along with two unknown assailants intercepted the motorcycle of his father, encircled the same and after that Abid raised lalkara to take revenge of murder of his brother Abdul Khaliq, upon which Nazir, Hafeez (respondent) made fire with their respective arms landed on the forehead and left elbow of his father Muhammad Asghar. Tariq accused made fire landed on the backside of head of Ihsanullah followed by another shot by Yasin causing injury on the back of the head of said Ihsanulah. Amin accused made fire landed on the neck of Ihsanullah while Afzal made fire causing injury on left thigh of said deceased. Father of the complainant and Ihsanullah succumbed to the injuries at the spot.

5. Motive behind the occurrence is previous litigation over the dispute of landed property.

6. Occurrence was stated to be committed by the named accused as well as unknown at the instance of Ali Muhammad, Sajid and Shahadat.

7. All the named accused except Hafeez, to whom overt act was attributed as well as Shahadat implicated on the allegation of abetment were declared proclaimed offenders. Ali Muhammad against whom there is allegation of abetment who was also declared proclaimed offender, however, died lateron.

8. Since role attributed to respondent is of causing injuries to Muhammad Asghar (deceased, father of the appellant), therefore, his injuries noted by Doctor Captain Khalid Farooq (P.W.5) at the time of autopsy are re-produced for ready reference:-- INJURIES (1) Firearm entry wound 1 cm x 3/4 cm x penetrating deep on the left side of forehead just on the inner margin of left eyebrow. Edges were inverted and margins were tattooed with exit wound 18 cm x 6 cm on the left side of head i.e. parietal region, 7 cm front left ear. Edges were everted and irregular Brain matter was avulsed. (2) Firearm entry wound 1/2 cm X 1/2 cm on the back of left elbow. Edges were inverted and margins were tattooed with exit wound 1 cm x 3.4 cm on the back of left elbow 3 1/2 cm behind the entry wound. Edges were everted. Probable time between injuries and death was immediate while between death and postmortem was 3 to 4 hours. Exh.PF is copy of post-mortem report and Exh.PF/1 is the pictorial diagram.

9. Dealing with the scope of interference in appeal against acquittal, the honourable Supreme Court of Pakistan while making reference to the case-law reiterated the yardstick in "THE STATE and others v. ABDUL KHALIQ and others" (PLD 2011 SC 554 at page 576) as follow:-- "From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The Courts shall be very slow in interfering with such an acquittal judgment unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgment should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal of evidence a different conclusion could possibly be arrived at, the factual conclusion should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. It is averred in The State v. Muhammad Sharif; (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals".

10. Keeping in view the above yardstick, we will examine the merits of the appeal.

11. Muhammad Hafeez, respondent, was named in Crime Report (Exh.PD) shown armed with rifle who along with six named, all armed with firearm and two un-known assailants intercepted the father of complainant Muhammad Asghar on motor-cycle being driven by Ehsan Ullah (deceased). Report further suggests that specific role was attributed to the respondent of causing injury to Muhammad Asghar on his left elbow. Scanning of the evidence of complainant, Ashfaq Asghar (P.W.7) and eye-witness Muhammad Anwar (P.W.8) supports the accusation contained in the first information report. The complainant, (P.W.7) in his direct statement while describing the mode and manner of occurrence stated that on 10-12-2005 at about 12-00 noon, he along with Muhammad Anwar (P.W.8) and Muhammad Arshad (not produced) on one motor-cycle and his father, Muhammad Asghar and Ehsan Ullah (both deceased) on another motor-cycle were coming from village Chak Bhatti to Hafizabad when at about 1-00 p.m., ahead of Kolo Morr were intercepted by Abid and 5 others (all proclaimed offenders) as well as Muhammad Hafeez (respondent) all armed with rifles and two unknown assailants. Describing the role of proclaimed offenders, raising lalkara and causing injuries to both the deceased, the complainant categorically maintained that Hafeez fired with his rifle which hit on the left elbow of his father. Statement of Muhammad Anwar, an eye-witness (P.W.8), when examined, dearly corroborates the stance of complainant regarding their departure on two motor-cycles from Bhatti Chak to Hafizabad, number of the assailants, named as well as unknown, nature of weapon of offence with which the assailants were armed. The witness also described the role of the respondent by adding that Muhammad Hafeez respondent armed with rifle fired shot landed on the left elbow of Muhammad Asghar (Deceased). Though the witnesses were cross-examined but their evidence stating association and arrival of respondent with proclaimed offenders all armed with fire arms and role attributed to him could not be shaken in cross-examination. Both the witnesses with one voice stated the mode, manner, time and place of occurrence.

12. Presence of both the witnesses at the spot was also questioned at the instance of respondent but the same can neither be validly pleaded nor could be established as the matter was reported to police without any delay. Occurrence took place at 1-00 p.m. while F.I.R. was lodged at 2-00 p.m. Police station is at the distance of eight kilometers from place of occurrence. If both the witnesses were not present at the spot, then it was not possible for the complainant to report the matter to the police at stated time in view of the distance of place of occurrence from Hafizabad, where the complainant is residing. The complainant in cross-examination stated the inter se distance of two points as 40-kilometer.

13. There is another aspect to be kept in view, sufficient to negate the defence version questioning the veracity of prosecution version. Occurrence took place at 1-00 p.m. while post-mortem was conducted in District Headquarter Hospital, Hafizabad at 4-00 p.m. Probable time between death and post-mortem stated by Dr. Capt. Khalid Farooq (P.W.5) corres-ponds with the time of occurrence. Autopsy of deceased at the earliest supports the stated time of registration of F.I.R., ruling out the false implication of respondent.

14. Examination of objection from different angles rules out the element of deliberation, false implication of the respondent as well as non-availability of the witnesses at the spot.

15. Referring to the enmity, it was argued that both the witnesses got motive to implicate the respondent falsely. Further submitted that no motive, whatsoever, was attributed to the respondent. It is not disputed that motive alleged is against the proclaimed offenders, six in number. The complainant (P.W.7), in cross-examination admitted that they got no litigation with Hafeez (respondent). However, he admitted that respondent used to support the complainant party of murder of Abdul Khaliq who got the case registered against complainant (P.W.7) and others. Relying upon this admission on the part of complainant and version of respondent in his statement under section 342 of The Code of Criminal Procedure, 1898, vehemently plea of false implication of respondent was argued. Factual position stated though cannot be questioned but by itself would not be sufficient to substantiate the allegation in view of convincing and worthy of credit evidence led by prosecution as discussed.

16. Ocular account dealt with regarding culpability of the respondent finds corroboration from the post-mortem report of Muhammad Asghar (Exh.PF) according to which said deceased sustained injury No. 2 on the back of his left elbow.

17. No doubt no incriminating article was recovered from the appellant but the fact by itself is not sufficient to prove otherwise. As referred earlier the respondent was shown armed with rifle not only in the Crime-Report but also disclosed by both the witnesses. One of the grounds which influenced the trial Court to record acquittal was non-recovery of weapon of offence. Rather, the trial Court granted premium holding that said respondent was not shown in possession of any arm at the time of occurrence. Failure to recover weapon of offence during the investigation for any reason by itself would not be sufficient to suggest that the accused was not armed. Recovery of incriminating material is not necessary to record conviction if ocular account is convincing and worthy of credit as in the present case which also finds support from medical evidence. Reliance is placed upon "MIR HASSAN and others v. STATE and others" (1999 SCMR 1418).

18. The learned counsel for the respondent while placing reliance upon the statement under section 342 of The Code of Criminal Procedure, 1898 and part of the statement of Muhammad Waris, S.-I., (P.W.13) maintained that right from the very beginning, the respondent raised plea of alibi and produced witnesses to substantiate it and as such the opinion of Investigating Officer has to be respected, due note of which was taken by trial Court. No doubt, the respondent pleaded plea of "alibi" and also produced witnesses during investigation as stated by I.O., but admittedly no specific findings was given by the I.O. Even if it is presumed that the I.O. (P.W.13) declared the respondent innocent, endorsing his plea of alibi, it would not be sufficient to prove defence plea because the respondent did not produce any of the said witnesses in the Court and such opinion in the circumstances would be inadmissible in evidence. Reliance is placed upon "MUHAMMAD IQBAL and others v. MUHAMMAD AKRAM and another" (1996 SCMR 908).

19. Lack of motive against the respondent was another ground, heavily 1 pleaded by respondent, also influenced the learned trial court while recording acquittal. Evidence of the prosecution as dealt with inspires confidence sufficient to prove guilt of the appellant. Hence absence of motive by itself would not put dent in proving the culpability of respondent in view of convincing ocular account finding support from medical evidence.

20. Pursuant to above discussion, we are convinced that prosecution produced confidence inspiring and worthy of credit, ocular evidence to prove the guilt of the respondent finding corroboration from medical evidence and as such we are of the view that the conclusion drawn by learned trial court is perverse, arbitrary, suffering from serious and material factual and legal infirmities, calling for interference by this court.

21. Charge under section 148 as well as section 149 of The Pakistan Penal Code, 1860 was framed, which aspect has also to be decided in order to determine the culpability and guilt of the respondent.

22. Doctrine of vicarious liability as envisaged by section 149 of The Pakistan Penal Code, 1860 requires co-existence of following ingredients:-- (i) That one should be member of un-lawful assembly. (ii) That in prosecution of the common object of that assembly offence should have been committed by the member of un lawful assembly, and (iii) That the offence should be of such a nature that the member of that assembly knew the offence to be likely to be committed in prosecution of their common object. It is further to be noted that proof of specific overt act is not necessary while determining the guilt of the accused being member of unlawful assembly and it will be sufficient if the prosecution is able to establish that the accused being member of un lawful assembly shared the common object of assembly and some accused in furtherance of that common object of un-lawful assembly committed offence. Reliance is placed upon "RANBIR YADAV v. THE STATE OF BIHAR" (1996 Pakistan Supreme Court cases (Crl.) 873 and "LALJI and others v. STATE OF U.P." (1990 MLD 1371) (Supreme Court of India).

23. Keeping in view the above yardstick, moot point before us is whether respondent can be held liable for commission of murder of both the deceased though he caused one injury to one deceased, Muhammad Asghar. Statements of both the witnesses (P.W.7, P.W.8) categorically suggest number of accused besides respondent and Amjad who was convicted by trial Court but stands acquitted by us while accepting Criminal Appeal No.517-1 of 2006 and answering Murder Reference No.766 of 2006 in negative. As per version of both the witnesses, the respondent and his associates more than five in number all armed intercepted them ahead of "Kolo Morr" encircled the motor-cycle of Asghar and Ehsan Ullah and caused fatal injuries to them resulting in their death. We have already discussed the credibility and evidentiary value of the statements of both the witnesses and have reached to a definite conclusion that their evidence can be safely believed, relied and acted upon. Evidence of both the witnesses deposing arrival of respondent with more than 5 persons, all armed with firearms, some of them having animosity resulting in occurrence of murder of two persons is sufficient to prove constitution of "unlawful assembly" and offence of "rioting" making respondent liable for murder of both the deceased.

24. We are not unconscious of the fact that six named accused to whom role has been attributed are proclaimed offenders, yet to put to face the trial but the fact by itself would not be sufficient to answer the query in negative keeping in view the language of sections 148, 149 read with section 141 of The Pakistan Penal Code, 1860 suggesting presence of five or more persons in order to constitute, "unlawful assembly' Use of expression "Five or More persons" in section 141 of The Pakistan Penal Code, 1860 suggests numerical strength and not named one (Emphasis supplied) to prove constitution of unlawful assembly. The prosecution is only obliged to prove number of persons and is always not bound to prove their identity. Evidence of both the witnesses when examined is sufficient to prove presence of more than five persons at the spot, participating in the occurrence. Identification of all the said persons is not essential to attract the provisions under discussion as same can only be determined at the conclusion of trial against proclaimed offenders at the appropriate time, if apprehended. We are also not mindful that Amjad who was convicted by trial Court has been acquitted by us but same would be totally immaterial for applicability of doctrine of vicarious liability.

25. Almost similar matter was moot point before the different courts. Proposition was dealt with in "Mangal Singh Partap Singh v. Emperor" (AIR (33) 1946 Lahore 309) and it was held that where the number of offenders is more than five, the fact that three or four of them could not be identified does not prevent the application of section 149 of The P.P.C. While dealing with the proposition it was held in "Dalip Singh and others v. The State of Punjab" (AIR 1953 SC 364 (Vol. 40, CN.81) that for purpose of application of section 149 there must be finding with certainty that there were at least five persons sharing the common object. Further held that applicability of section 149 would not be bad where it is possible to hold that identity of one or more is in doubt. Similar rule of law was enunciated in "Bharwad Mepa Dana and another v. The State of Bombay" (AIR 1960 Supreme Court 289) and "Nar Singh and another v. State of Uttar Pradesh" (AIR 1954 SC 457). Same proposition was moot point before the honourable apex court in "(1) MUHAMMAD SHAFI (2) MUHAMMAD SHARIF alias JATTA, AND 3) KARIM BUKHSH, SONS OF BASA v. THE STATE" (PLD 1967 SC 167), and it was held at page 175 as follow:-- "The Courts below have been careful to confine the conviction to those of the accused persons, who bore injuries on their persons at the time of their arrest. At the same time, they have accepted in full, the evidence of the non-partisan witness Karim Bakhsh, which would appear to have been a sufficient guarantee of the truth of the statement made by the partisan witnesses. The strength of the attacking party, as stated by the prosecution witnesses, was by no means disproportionate to the requirements, in view of the presence of a number of able bodied man in the complainant's house. The intention in using a firearm was clearly to cause death, and therefore, the two deaths which have been caused can be rightly held to be the result of a joint attack by the four persons before us thus attracting the application of section 34, P.P.C, which have been employed. Yet, it would have been simpler and in fact, not in any way in contravention of either fact or law, to hold that these four persons with others who had not been identified beyond doubt, carried out the attack in which case the liability would be extended to all of them under section 149, P.P.C." (underlining is our)

26. In view of above state of facts and law, arrival of more than five persons including respondent (number stand established as discussed) all armed with firearms, resulting in commission of murder of two persons, though bulk still proclaimed offenders having animosity and litigation would be sufficient to suggest sharing of common-object by respondent and committing rioting, attracting provisions of sections 148 and 149 of The Pakistan Penal Code, 1860 irrespective of acquittal of one-unknown accused (Amjad) and establishment of identity of rest of the named accused in the Crime Report.

27. Acquittal of Amjad (convict) by us would not be sufficient to grant premium to the respondent due to his distinguishable role and failure of prosecution to prove his identity as discussed in the judgment of even date recorded in Criminal Appeal No.517-J of 2006 as the said Amjad was not named in the F.I.R., whose features were not given in the F.I.R., to whom no role was either given in the Crime Report nor explained during the course of identification test.

28. Viewed from whichever angle, judgment of learned trial court recording acquittal against Hafeez respondent is perverse, arbitrary and speculative and as such while setting aside the judgment, Hafeez son of Khurshid, caste Rajput, resident of Chak Bhatti Police Station Jalalpur Bhattian, District Hatizabad is convicted (on two counts) under sections 148 and 302 (b) read with section 149 of The Pakistan Penal Code, 1860.

29. The convict is awarded sentence of two years' R.I. and fine to the tune of Rs.40,000 under section 148 of The Pakistan Penal Code, 1860 and in case of default, to further undergo three months' S.I.

30. Question of sentence under section 302(b) read with section 149 of The Pakistan Penal Code, 1860 to be awarded to the appellant has been seriously examined by us. Grant of sentence of death or otherwise (life imprisonment) was dealt with by Honourable Supreme Court in "SHARAFAT ALI KHAN v. THE STATE" (2010 SCMR 1205) and it was held at page 1209 as follow:-- "In Muhammad Riaz and another v. The State (2007 SCMR 1413) while considering the penalty for an act of commission of qatl-e-amd, it was observed "no doubt normal penalty for an act of commission of qatl-e-amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case. Reference in the context may also be made to Iftikhar Ahmad Khan v. Asgha Khan and another (2009 SCMR 502)."

31. Since no motive could be established against convict, therefore, is a mitigating circumstance to award alternate punishment of life imprisonment, as held in "MUHAMMAD ASHRAF v. THE STATE" (1998 SCMR 1764), "ANAR GUL v. THE STATE through Advocate-General, N.W.F.P. and another" (1999 SCMR 2303) and "FEROZE KHAN v. THE STATE" (2002 SCMR 99).

32. Another reason which prompted us to award alternate punishment is locale of injury sustained by Asghar deceased on his elbow which as per post-mortem report (Exh.PF) was not cause of death. Accordingly sentence of life imprisonment is awarded to respondent Muhammad Hafeez on two counts under section 302(b) read with section 149 of The Pakistan Penal Code, 1860 besides payment of compensation under section 544-A of The Code of Criminal Procedure, 1898 in a sum of one hundred thousand rupees (one lack) on each count, to be reimbursed among the legal heirs of both the deceased. In case of default, convict shall further undergo imprisonment of six months on each default.

33. Sentences awarded to the convict, shall run concurrently with extension of benefit of section 382-B of The Code of Criminal Procedure, 1898.

34. Warrant of commitment shall be issued by Court of Session at Hafizabad against convict-respondent sending him in prison after his arrest to serve the sentences awarded to him. HBT/A-561/L Appeal accepted.