1998 PLP 1854 (SCMR)

RAJA AFRASIAB KHAN, J.

On 29th of August, 1982, initially, a case under section 307/379/34, P.P.C. read with section 14 of the Offences against Property (Enforcement of Hudood) Ordinance, 1979 was registered with Police Station Hujra Shah Muqeem, District Okara on the statement of Rao Abdul Manan against Muhammad Yousaf, Muhammad Inayat, Muhammad Saeed alias Rashid Dogar (hereinafter called Muhammad Saeed) and Muhammad Nawaz for causing injuries to Rao Luqman Khan and Rao Abdul Manan, which on death of Rao Luqman Khan, was converted into section 302/307/379/34, P.P.C. read with section 14 of the Ordinance, 1979. Rao Abdul Manan is a farmer. On the day of occurrence, at about 7-00 p.m., he and his brother Rao Luqman Khan went to Hujra Shah Muqeem on a motor cycle in order to meet Ch. Nazir Ahmad, a revenue Patwari for preparation of some papers: After seeing the Patwari, they were coming back to their village via Haveli Pacca Road. Muhammad Luqman Khan was driving the motorcycle while Rao Abdul Manan was sitting behind him. At about 8-30 p.m., when they reached near the village Lale Wala More where four accused were already sitting in ambush. At the sight of the complainant party, they suddenly came out and stood on the road just in front of the complainant party. In the light of motorcycle, the accused were identified to be Muhammad Yousaf, Muhammad Inayat, Muhammad Saeed and Muhammad Nawaz. Muhammad Yousaf and Muhammad Saeed were holding sticks. Muhammad Inayat was armed with a 12-bore gun. The fourth accused, Muhammad Nawaz had a 12-bore pistol. They intercepted the complainant party and stopped their motorcycle on the road. Muhammad Inayat tired from his gun which hit Rao Luqman Khan on his left flank. Both Rao Luqman Khan and the complainant fell down from the motorcycle. Muhammad Nawaz fired from his pistol which 'injured right buttock of Rao Abdul Manan. Muhammad Saeed gave three stopa blows to the complainant which hit him on his left shoulder, left calf and upper side of the right eye. Muhammad Yousaf caused three Sota blows to the complainant which landed` on his face on the right side, cheeks and lower portion of the chin. On hue and cry, Jehangir, Muhammad Tufail and Faiz Ahmad reached the spot to see the occurrence. The accused ran away while shouting. Muhammad Saeed also took away the licenced 32-bore pistol of Rao Luqman Khan. The injured were taken to Civil Hospital, Hujra Shah Muqeem. The motive was that about three days ago, Muhammad Inayat and Muhammad Saeed were roaming aimlessly in the village- Rao Luqman Khan gave them abuses and compelled them to leave the village. They were directed not to again come. in the village. On account of this insult, the a forenamed four accused in execution of their common intention committed the murder of Rao Luqman Khan and caused injuries to Rao Abdul Manan. The prosecution, in order to prove its case, produced Nazir Ahmad P.W.1, Abdul Manan P.W.2, Dr. Zakir Hussain P.W.3, Ahmad Ali P.W.4, Muhammad Hussain P.W.5, Jehangir P.W.6, Muhammad Tufail P.W.7 and Ch. Muhammad Ibrahim P.W.8. The accused denied the allegations levelled against them in their statements under section' 342, Cr.P.C. They produced Ahmad Yar, Motor Taxation Clerk as D.W.1, who produced a register relating to the registration of Vehicle No. OK-4896. Muhammad Yousaf stated that he had enmity with his co-accused and as such, he could not join hands with them in the commission of the crime. He disclosed that about 10 years ago, the father-in-law of his co -accused, Muhammad Nawaz was done to death. In that connection, a case under section 302, P.P.C. was registered against his co-accused Muhammad Inayat, his father and brother. They were, however, acquitted by the trial Court. The plea of Muhammad Inayat was that he had been involved in the case on account of suspicion. He pleaded that there was enmity between him and the family of Muhammad Nawaz. Muhammad Saeed pleaded his innocence and stated that he had falsely been implicated due to suspicion and enmity with his co-accused. According to him, on 21st of March, 1987, a case under section 307/34, P.P.C. was registered against him and his father. In the said case, Muhammad Siddique, the brother-in-law of Muhammad Nawaz, his co-accused was cited as an eye witness against him. Muhammad Nawaz made the following reply to a question put to him:- "I have been falsely involved in this case due to suspicion and enmity with Jehangir and Tufail P.Ws. because on 27-7-1987 Muhammad Tufail P.W. got registered a case under section 324/148/149, P.P.C. against me and others for inflicting injuries on the person of his brother Muhammad Siddique, Jehangir P.W. is an eye-witness in that case against us. Moreover, on 2-1-1981 my father-in-law Noor Samand was murdered and in that case Inayat co-accused, his brother Hayat and their father Noor Samand were challangd as an accused. On 21-3-1987, Saeed, co-accused and his father Noor Samand were challaned under section 307/34, P.P.C. in case registered on the statement of one Ahmad Ali Dogar and in that case my brother-in-law Muhammad Siddique was an eye-witness against them and that case is still pending. Now Saeed co-accused and his father Noor Samand had fatally injured my brother-in-law Sanaullah and a case under section 307/34, P.P.C. has been registered on the statement of Faiz real brother of Sanauyllah aforesaid and both of them are in Jail in that case nowadays." The Sessions Judge, Okara vide his judgment dated 10-7-1990 concluded that the offences under section 302/307/379/34, P.P.C. were proved against all the accused beyond any shadow of doubt. He awarded the sentences to the accused in the following manner:-- "The upshot of what has been stated above is that the offence against all the accused persons under sections 302/34 and 307/34, P.P.C. is proved beyond any slightest shadow of doubt. The mere fact that Muhammad Yousaf and Muhammad Saeed were not armed with deadly weapons or they did not injure the deceased does not make any difference in view of 1990 PCr.LJ 887 titled Mahboob alias Booba and others v. The State. It was held in this ruling that were two or more persons make preparations, armed themselves with deadly weapons, go to a place at dead of night with intention to kill a person who is killed by one of them, then all of these persons will be liable for killing for the reason that they also serve who wait and see and it would make little difference that some persons did not cause injury to the deceased. All the accused are, therefore, responsible under section 302/34, P.P.C. and there is no mitigating circumstances in favour of the accused. All of them are, therefore, convicted under section 302/34, P.P.C. and sentenced to death. They shall be hanged by their neck till they are dead. They are imposed fine of Rs.20,000 each which if recovered shall be paid to the legal heirs of Rao Luqman deceased and in default of payment of fine they shall undergo two years R.I. each. Similarly Muhammad Yousaf and Muhammad Saeed are convicted under section 307/34, P.P.C. and sentenced to ten years R.I. and a fine of Rs.5,000 each and in default of payment of fine they shall further undergo one year R.I. The amount of fine if realised shall be paid to Abdul Manan injured P.W. on whom the murderous assault was launched. The sentence imposed under section 302/34, P.P.C. is subject to confirmation by the Honourable High Court, Lahore. It was conceded by the learned District Attorney and learned counsel for the complainant that there is no evidence in support of the charge under section 379, P.P.C. The accused are, therefore, acquitted of this charge. The office shall send the record to Honourable High Court, Lahore for confirmation of sentence within seven days from today. All the accused are present in the Court in police custody and they have riding. Muhammad Inayat fired from his gun which hit Raoa Luqman Khan on his left flank. They fell down from the motorcycle. Muhammad Nawaz injured .Rao Abdul Manan on his right buttock. Muhammad Saeed gave sota blows which injured the complainant. Muhammad Yousaf gave sota blows which injured the complainant on right side of his cheek. The testimony of Abdu: Marian P.W.2 is materially corroborated by Jehangir Wattoo P.W.6 and Muhammad Tufail P.W.

7. These witnesses also proved the motive part of the prosecution story. Medical evidence of Dr. Zakir Hussain is in line with the ocular account. Rao Abdul Manan P.W. 2 is an injured witness. His presence at the spot, therefore, cannot be doubted. His evidence coupled with the statement of Jehangir Wattoo P.W. 6 and Muhammad Tufail P.W. 7 was sufficient to record conviction against the accused. The Courts below have rightly convicted and sentenced Muhammad Inayat because fatal fire shot injury was attributed to person of Rao sufficient to cause his death in the ordinary course of nature, 2 to 7 on the person of Rao Abdul Manan could be caused as a result of fall from motorcycle on a metalled road. It is essential to refer to the reasons having been adopted by the High Court while upholding the sentence awarded to Muhammad Inayat and also acquitting the remaining three accused. The observations are:-- "Coming to the ocular account, the evidence of Muhammad Jehangir and Muhammad Tufail even if excluded from consideration because of their enmity with Muhammad Nawaz, the evidence of Abdul Manan complainant real brother of the deceased who was traveling with the deceased at the relevant time and received injuries in the occurrence being sound enough is sufficient to establish the prosecution case. He being a natural witness having no enmity with the appellants is not supposed to depose falsely against them, therefore, the solitary statement of his witness is of the nature and standard to be relied upon even in absence of any other corroboratory evidence. The recovery of the weapons of offence is of no use and value to be helpful to the prosecution for want of recovery of crime empties and the sota being not blood stained. Keeping in view the special feature of the case, it is to be ascertained and determined carefully as to whether all the four appellants participated in the occurrence and are guilty or their case is distinguishable to one and other. Admittedly there was enmity between the appellants inter se, therefore, there is remote possibility of their joining each other to commit the murder of deceased. The solitary fire arm injury to the deceased is attributed to Inayat, whereas, the remaining three appellants are attributed the injuries to the complainant against whom neither there is any motive nor grudge or enmity. The non-causing of any injury to the deceased and their attack on the complainant who was admittedly empty handed and had shown no resistance is not understandable. The enmity of Jehangiz .and Muhammad Tufail with Muhammad Nawaz appellant is not denied, therefore, it is not safe to rely upon their testimony even qua the other appellants for want of any- other confirmatory evidence. The complainant while sitting on motorcycle could not with certainty say that in the circumstances of the case, he was caused fire-arm injury by Nawaz. It is not clear in the medical evidence that the injury was result of bullet. The doctor has not ruled out the possibility of injury to have been caused with pellet, therefore, this possibility that the injury was the result of the fire made by Inayat at the deceased with a stray pellet cannot be excluded. The doubt arising in the case is to be extended favour of defence, Similarly, the opinion of the doctor with regard to the injury Nos. 2 to 7 on the person of complainant as a result of all on the mettaled road creates reasonable doubt about the participation and Muhammad Saeed and charge giving stands on different footing assigned complainant, an injured witness of the occurrence is corroborated by the medical evidence and motive. The case against Inayat appellant is, therefore, proved beyond any doubt Consequently, his appeal fails. The conviction and sentence of death awarded to him by the trial Court is maintainable. The appeal of Muhammad Nawaz, Saeed and Yousaf appellants is accepted and the appeal of Inayat is dismissed. The murder Reference is answered with the confirmation of death sentence of Inayat appellant. " 4.In our view, the case against Muhammad Inayat, appellant stands roved beyond any reasonable doubt on the basis of credible evidence. The testimony of Rao Abdul Marian inspires confidence. He is an injured witness. The motive plus the evidence of Dr. Zakir Hussain P.W. 3 has corroborated his evidence to our entire-satisfaction. This being so, he was correctly convicted and suitably sentenced. No case for grant of lesser punishment has been made out inasmuch as he caused the fatal blow to Rao Luqman Khan. 5. 'So far the remaining accused are concerned, the prosecution evidence against them is not sufficient to convict them. Even the presence of all the accused at one place, who have inimical background, is highly doubtful and is surely not believable. As per the medical evidence, injuries Nos. 2 to 7 on the person of Rao Abdul Manan, could be the result of fall from motorcycle on the mettaled road. This approach of the High Court to acquit these accused appears to be reasonable inasmuch as the occurrence has taken place on a Pacca road. The possibility could not be ruled out that fire-arm injury on the body of Rao Abdul Marian might be the result of stray pellet of shot which was fired by Muhammad Inayat as was opined by Dr. Zakir Hussain P.W.

3. Rao Abdul Marian and Rao Luqman Khan fell down from the motorcycle on the road when Muhammad Inayat fired from his gun which hit Rao Luqman Khan. The judgment of acquittal qua Muhammad Yousaf, Muhammad Sated and Muhammad Nawaz cannot, in the given situation, be termed as perverse or foolish inasmuch as the view having been taken by the High Court can possibly be taken for acquitting them in the peculiar facts and circumstances of this case. It cannot be said that the impugned judgment of the High Court acquitting Muhammad Yousaf and two others is fanciful, artificial, shocking or ridiculous. 1t is based on convincing reasons. On the controversy, this Court in case of Ghulam Sikandar v. Mamraz Khan (PLD 1985 SC 11) observed as follows:-- "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualised from the cited and other case-law on the question of setting aside an acquittal by this Court. They are as follows:-- (1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt r should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence. (2) The acquittal will not carry the second presumption and will also thus, loose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally. (3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason. (4) The Court would not interfere with acquittal merely because on re appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same, and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous." The above rule applies with full force to the case in hand. It still holds the field. Reference in this behalf may also be made to Hassan Din v. Muhammad Ismail (1990 SCMR 1115), Yar Muhammad v. The State (1992 SCMR 96), Mirza Noor Hussain v. Farooq Zaman and others (1993 SCMR 305), Muhammad Asghar v. The State (1994 SCMR 301), Muhammad Sadiq v. Najeeb Ali and others (1995 SCMR 1632), Abdul Latif v. Bagga Khan (PLD 1996 SC 152), Muhammad Iqbal v. Sana Ullah (PLD 1997 SC 569) and Imran Hussain v. Amar Arshad and 2 others (1997 SCMR 438).

6. Upshot of the above discussion is that both the appeals are dismissed being without any substance. N.H.Q./M-168/S Appeals dismissed.