1994 P Cr (PLP)

5. S.I. Muhammad Iqbal P.W., after recording the statement of Muhammad Yousuf complainant, whom he came across on the way, despatched the same to the police station for the registration of the case and himself went to Civil Hospital, Pasrur, where Mst. Farzana P.W. stood admitted in an injured condition. He tried to record her .statement but could not because the doctor did not found her fit. However, he collected her blood stained clothes from her father and recorded the statement of certain P.Ws. A little before the mid-night, S.I. Ghulam Rasul P.W. took over the investigation of the case. On the following day he went to the spot, prepared the injury statement and inquest report of the dead body of Mumtaz alias Kala, which had been brought back by that time, and 4espatched it to the mortuary for post-mortem examination. While carrying out the inspection of the spot, he collected blood-stained earth and seized four empties of .12 bore cartridges. He recorded the statement of a few more witnesses. On 14-2-1989 he arrested Abdul Aziz and Muhammad Hafeez appellants and Sardar Muhammad acquitted co-accused. On 22-2-1989 Abdul Aziz appellant, while in custody, led to the recovery of .12 bore gun from his house which was seized by the Investigating Officer. On the same day he recorded the statement of Mst. Farzana P.W. On the following day the investigation was transferred to D.S.P. Ghulam Muhammad Kaliar. On 26-3-1989 S.I. Rafique Ahmad Hussain P.W. arrested Muhammad Hanif and Abdul Majid appellants and their acquitted co-accused Muhammad Jamil. On 1-4-1989 Muhammad Hanif appellant, while in police custody, led to the recovery of gun which was seized by the Investigating Officer. On the same day he seized revolver got recovered by Muhammad Jamil acquitted co-accused. In this way he completed the investigation and submitted the challan.

6. On the commencement of trial, the appellants and their acquitted co -accused were charged under sections 148/302 and 307/149, P.P.C. and on their pleading not guilty, the prosecution led evidence against them by producing as many as 19 witnesses. Prominent amongst them were Muhammad Yousuf complainant (P.W.10), Mst. Farzana (P.W.11) and Wali Muhammad (P.W.13). They all gave the eye=witness account. The complainant and Wali Muhammad also deposed about motive. They supported the prosecution case as stated above in all material respects. Their testimony shall be subjected to a detailed appraisal, where necessary, in due course.

7. Dr. Gul Nawaz, Medical' Officer (P.W.12) had first medically examined Mumtaz alias Kala injured and, after his death on the same day, he had carried out post-mortem of his dead body. During the medical examination and at the time of autopsy he had noticed a fire-arm injury 1 c.m. x 1 c.m. on the skull with inverted margins. On dissection he found under this injury, frontal bone fractured, scalp, membranes of brain and its frontal lobes injured. He removed one pellet from the floor of left anterior cranial fossa and sealed it in the phial. He saw clotted blood present in the skull. In his opinion, death occurred due to shock and haemorrhage on account of the aforesaid injury to the brain which was sufficient in the ordinary course of nature to cause death. He proved post-mortem report, Exh.P.O. and the diagram of injuries, Exh.P.O./1.

8. On 25-1-1989 at 11-30 p.m. he had conducted medical examination of Mst. Farzana P.W. and had noticed the following injuries on her person:-- (1) Fire-arm wound 15 c.m: x 14 c.m. front and inner side of right upper arm in lower half. Whole the muscle and the blood vessels were crushed. Slight blackening was present on the wound margins. Corresponding tear was present on the shirt. (2) Fire-arm wound 1 c.m. x 1 c.m. on each of left index, middle and ring finger and on front aspect. Slight blackening present on wound margins inverted. (3) Fire-aria wound 2 c.m. x 1 c.m. x muscle deep outer aspect of right knee joint. Slight blackening present on Shalwar and wound margins. The margins were inverted. Corresponding tears were present on Shalwar.

9. Hakim Din (P.W.7) and Rehmat Ullah (P.W.9) had witnessed the recovery of gun from Abdul Aziz and Muhammad Hanif appellants, respectively. Both of them deppsed accordingly.

10. S.I. Ghulam Rasul (P.W.15) and S.I. Rafique Ahmad Hussain (P.W.16) gave the details of investigation. The role played by them as Investigators has already been outlined.

11. On the completion of the prosecution evidence, the appellants and their acquitted co-accused were examined under section 342, Cr.P.C. They denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implication, professed innocence.

12. Muhammad Hanif appellant had, however, stated that the accused party were supporters of Pakistan People's Party, while the complainant party was supporters of LJ.I. and on the day of occurrence the workers of both the parties had exchanged fire as a result of which some stray pellet hit Mumtaz alias Kala and he was fatally injured. He explained that Mst. Farzana P.W. was not injured on the spot, rather, she was incidentally hit by her own brother Muhammad Shafique who was handling his own licensed gun and it went off accidentally. Abdul Majid and Abdul Aziz appellants made similar statements. Muhammad Hafeez appellant pleaded alibi and produced Muhammad Asghar, Havaldar Central Excise and Customs Office as D.W.1 and Muhammad Ashraf, constable (D.W.2) to prove it.

13. Muhammad Shafique, a given up P.W., was examined as a C.W.1 and Mushtaq Ahmad Sukhara, Additional Superintendent of Police, Gujranwala as C.W.2 on the application of the accused.

14. On the conclusion of the trial, by the judgment now under appeal, the appellants were convicted and sentenced in the manner aforesaid and aggrieved by it, they filed this appeal.

15. It was argued on behalf of the appellants that the complainant party returned to the village from the public meeting of IJ.I. at Pasrur in the evening of the day of occurrence and, after quarrelling with the accused party in front of their "Dera", went to their own "Dera" where the accused party, annoyed by the earlier incident, allegedly went and fired at their opponents, resulting in the fatal injury to Mumtaz alias Kala (deceased) and also to Mst. Farzana. According to the learned counsel, the occurrence took place some time in the evening or even thereafter and it was not possible for the eye-witnesses to pin point as whose stray pellet hit the forehead of Mumtaz alias Kala (deceased), especially when, according to the defence version, both parties, which were politically poised against each other, were firing at each other as a result of the unruly conduct displayed by the complainant party which returned from the village charged with political emotions. He contended that Muhammad Hanif appellant, who is an educated person and a teacher by profession, was not expected to participate in this fight but since he was one of the influential persons of the accused party, he was falsely implicated and the fatal injury of Mumtaz alias Kala (deceased) was attributed to him. He submitted that Mst. F4rzana was not hit at the place of occurrence and in fact she was injured by her own brother Muhammad Shafique in their house when he was cleaning his licensed gun some time after the occurrence, but the accused party, making this incident as a part of the main occurrence, alleged her presence at the "Dera" of the complainant party and her having received the injuries there. In support of this contention, the learned- counsel referred to the statement of Mr. Mushtaq Ahmad Sukhera, Additional Superintendent of Police, Gujranwala, who was examined as C.W.2, with reference to the statement of Muhammad Shafque C.W.1, a given up prosecution witness.

16. With regard to Muhammad Hafeez appellant, he contended that he was an employee of Central Excise and Custom Department working at the place of his duty at the time of occurrence and his alibi was duly proved by Muhammad Asghar, Havaldar of Excise and Custom Department (D.W.1) and Muhammad Ashraf, Constable (D.W.2) with the help of relevant record but it was erroneously not accepted by the trial Court and he too was convicted for the attempted murder of Mst. Farzana alongwith two appellants.

17. On .the other hand, the learned State counsel, assisted by Mr. Tasawar Hussain Qureshi Advocate, tried to support the impugned judgment of the trial Court by contending that Mst. Farzana was injured in the same incident at the "Dera" of the complainant party, where she had gone to call her brother Muhammad Shafique C.W., in which Mumtaz alias Kala had received a fatal injury at the hands of Muhammad Hanif appellant.

18. It appears that the occurrence took place in the evening but it was not sufficiently dark. The complainant party, while returning to the village after attending the public meeting of UL at Pasrur, to which they belonged, had passed in front of the house of the accused party, may be in unruly fashion being charged with political emotions, and a quarrel took place between them. If they had passed in front of the "Dera" or house of their opponents in a peaceful manner, they (accused) would not have reacted violently and to some extent the complainant party invited the trouble itself. This incident, however, ended due to the intervention of certain co-villagers. If it was so, then there was no justification for the accused party to have armed themselves with deadly weapons and gone to the "Dera" of the complainant party to attack them. It is an admitted position, coming even from the mouth of the accused party, that there had been an exchange of fire at the time of occurrence between the two factions. Therefore, it cannot be said that the accused party was altogether innocent,

19. Now it is to be seen as who amongst the appellants had participated in the occurrence and what role they had played? The case, was repeatedly investigated by a number of Police Officers, including some senior ones. It was only Mr. Mushtaq Ahmad Sukhera, Additional S.P., Gujranwala, who, on the statement of Muhammad Shafique C.W.1 recorded under section 161, Cr.P.C., had come to the conclusion that his sister Mst. Farzana had been injured in the house while he was handling his licensed gun. Muhammad Shafique P:W., who was given up by the prosecution as unnecessary, was later examined as C.W.1 on the request of the accused and he denied having made any such statement before Mr. Mushtaq Ahmad Sukhera, Additional S.P., Gujranwala (C.W.2). The case of the prosecution is that Mst. Farzana, whose house was probably situated near the place of occurrence, hurriedly went to call her brother Muhammad Shafique from the "Dera" of the complainant party, perhaps apprehending the attack on them by their adversaries, and she was hit during the incident by the shots fired by Abdul Aziz, Muhammad Hafeez and Abdul Majid appellants. Muhammad Hafeez appellant pleaded alibi and led evidence in support of his version, while two' others alongwith Muhammad Hanif appellant resorted to simple denial. Mst. Farzana, being an injured eye-witness, having emphatically repudiated the defence version of her having been hit in her house by her own brother while carelessly handling his licensed gun, I have no reason to disbelieve her despite the statement of Mr. Mushtaq Ahmad Sukhera, Additional S.P., Gujranwala, most of which was not even admissible in evidence. No doubt, when the accused party was firing at the complainant party at the latter's "Dera" in the evening, it was difficult to determine as whose pellet hit the forehead of Mumtaz alias Kala, resulting in his death after some time. In a situation like this, the provisions of law relating to vicarious liability are attracted and in fact section 34 and section 149, P.P.C., according to the numbers of the accused, are attracted. It was, therefore, not necessary for the trial Court, nor it is necessary for this Court, to determine as whose pellet had hit the deceased at the time of occurrence and to single out that assailant for the commission of murder.

20. In my opinion, the appellants, excepting Muhammad Hafeez, who pleaded and proved his alibi, on account of their participation in the occurrence by actually firing at their opponents, were vicariously liable for the murder of Mumtaz alias Kala and the attempted murder of Mst. Farzana P.W. and should have been convicted and sentenced accordingly. Muhammad Hanif appellant was, therefore, rightly convicted and sentenced for the murder of Mumtaz alias Kala (deceased). Abdul Aziz and Abdul Majid appellants should also have been convicted accordingly with him but they were erroneously acquitted. However, since, the learned trial Judge acquitted them of the charge of murder, I do not want to direct their retrial at this stage. As regards Mst. Farzana P.W., she vans grievously injured in the same occurrence at the hands of the appellants, excepting Muhammad Hafeez appellant, Abdul Aziz and Abdul Majid appellants alongwith Muhammad Hanif appellant for the same vicarious liability should have been convicted and-sentenced for her attempted murder. Abdul Aziz and Abdul Majid appellants were, therefore, rightly convicted and sentenced under section 307/34, P.P.C. Since Muhammad Hanif appellant was acquitted by the trial Court of this charge and, he stands convicted for a more serious offence, I do not deem proper to direct his retrial for this offence now.

21. In view of the above, where the appeal of Muhammad Hanif, Abdul Aziz and Abdul Majid appellants is dismissed, that of Muhammad Hafeez appellant is accepted. His conviction and sentence under section 307/34, P.P.C.I are set aside and he is acquitted. Being on bail, he stands absolved of his liability under the bail bonds. Abdul Aziz and Abdul Majid appellants, who are on bail, have to be arrested and sent to the prison for serving out remaining sentence with all the benefits of section 382-B, Cr.P.C. District Magistrate concerned should be asked to do so. . N.H.Q./M-1548/L Order accordingly.