P L D 1996 Supreme Court 122 (PLP)

ZIA MAHMOOD MIRZA, J.‑‑‑This appeal by leave of the Court is directed against the judgment of Lahore High Court, dated 4‑5‑1992 whereby Criminal Appeal No.544/89 filed by the appellants against their conviction under section 302/307/34, P.P.C. was dismissed and the death sentence of Muhammad Arshad appellant was confirmed.

2. Muhammad Arshad, Muhammad Akram and Muhammad Afzal, all real brothers were put on trial on the charge of committing the, murder of one Khadim. Hussain and making murderous assault on Mst. Irshad Begum, wife and Mst. Naseeb Akhtar and Mst. Surraya Akhtar, daughters of the deceased. Trial Court found all the three appellants guilty of the charge under section 302/34, P.P.C., sentenced Arshad appellant to death and the other two appellants to imprisonment for life with 'a fine of Rs.5,000 each. All the appellants were also convicted under section 307/34, P.P.C. and sentenced to seven years with a fine of Rs.2,000 each. On appeal by the appellants and the Reference received from the trial Court for confirmation of death sentence of Arshad appellant, the learned Judges of the High Court maintained the convictions and sentences of all the appellants on both the counts and confirmed the death sentence of Arshad appellant. In addition therefore, each appellant was directed to pay Rs.15,000 each to Mst. Surraya Akhtar and Mst. Naseeb Akhtar as compensation under section 544‑A of the Code of Criminal Procedure.

3. In this Court, at the leave stage, learned counsel for the appellants did not challenge the, conviction of Muhammad Arshad appellant under section 302, P.P.C. but submitted that in the circumstances of the case, capital punishment awarded to him was not justified. The counsel also did not challenge the conviction of Afzal and Akrarn appellants under section 307/34, P.P.C. but contended that they could not be held vicariously liable for the offence of murder. Leave to appeal was accordingly granted to consider the question of sentence of Muhammad Arshad appellant and to examine whether section 34, P.P.C. was rightly invoked to burden Akram and Afzal appellants wit vicarious liability for the offence of murder.

4. Case of the prosecution in nutshell is that Khadim Hussain, an A.S.‑I. in Police Department had constructed a house in Hussain Park 5/6 years prior to the occurrence. He had also acquired a piece of land, measuring about 7 Marlas situate in front of his house which land belonged to the Auqaf Department. Muhammad Akram appellant had also purchased a plot of land measuring about 5 Marlas adjacent to the aforementioned plot of Khadirn Hussain deceased. 2/3 days prior to the occurrence, Khadim. Hussain started construction of a wall on the western side of his plot. Muhammad Akram objected to the construction claiming that it was being raised on his area. On the day of the occurrence at about Asarwela, all the three appellants out of whom Arshad and Akram were armed with guns came at the spot and demanded of the deceased to resolve the dispute. The latter asked the appellants to bring Anwar, the property dealer and if according to his measurement, the area in dispute fell within their plot, he would surrender the same to them. At this, Muhammad Afzal appellant lost temper and caught hold of the deceased whereupon the wife and two daughters of the deceased pelted stones on Muhammad Afzal with a view to rescue the deceased from him. Thereafter, Arshad appellant fired a shot with his gun which hit the back of the deceased who fell down. Akram appellant also fired a shot which hit Mst. Naseeb Akhtar on her left knee. Afzal appellant took out a knife and inflicted an injury on the back of the deceased's other daughter Mst. Surraya Akhtar. Muhammad Arshad appellant also gave a blow on Mst. Irshad Begum's head with butt of his gun. Similar blow was given by Akram appellant on the head of Mst. Naseeb Akhtar.

5. During the spot inspection, the S.H.O. found an empty cartridge P‑14 and a wooden part of gun P‑12 at the place of occurrence. Muhammad Arshad appellant while in police custody produced gun P‑7, wooden part of which was found missing. Akram appellant also led to the recovery of his licensed gun P.20 and a blood‑stained knife was recovered at the instance of Afzal appellant The crime empty, two .12 bore guns and the wooden part of the gun P‑12 were sent to Forensic Science Laboratory. According to the report received from the Laboratory, the wooden part was a part of the gun recovered from Arsha appellant and the crime empty was also found to have been fired from the said gun.

6. To substantiate its case, prosecution relied upon oral testimony of three inured P.Ws. viz. Mst. Irshad Begum, Mst. Naseeb Akhtar and Mst surraya Akhtar, evidence of motive and the recoveries and, of course, medical evidence.

7. Of the three appellants, Akram and Arshad denied their presence an participation in the occurrence while Afzal appellant in his statement under section 324, Cr.P.C. took the plea that after purchasing the piece of Ian adjacent to the plot of the deceased, he came to be on visiting terms with the complainant's family‑, that on the day of the occurrence he was sitting in the house of the deceased when he (the deceased) suddenly came home and o seeing the appellant in his house sitting with his family members got infuriated picked up a Churri and started giving injuries to his daughter Mst. Surraya that the appellant intervened and snatched Churri whereupon the decease picked up a 'Danda' with which he caused injuries to his wife; that the appellant caught hold of the deceased and started grappling with him an during the course of grappling, the deceased managed to inflict injuries on the person of the appellant with 'Danda'. The appellant snatched 'Danda' from the deceased whereafter the deceased overpowered him and fell him on the ground; the deceased then took up a 'Toka' which was lying there but in the meantime Yaseen, a son of the deceased fired with a gun which hit the deceased and Mst. Naseem. Akhtar P.W.; that the appellant reported the incident to the police but the S.H.O. who was a close friend of the deceased manoeuvred to implicate the appellant and his two brothers in the case.

8. Learned trial Court took note of the aforementioned defence version and did not believe it in the face of the eye‑witness account of the occurrence furnished by the prosecution witnesses whose testimony, it was held, deserve full credence for the reason that their presence at the time and place occurrence could not be doubted as they had received the injuries at the hands of the accused. 'The ocular testimony, it was observed by the learned trial Judge, was also corroborated by the recoveries, the motive and the medical evidence. The learned trial Judge held that if the two versions are placed in juxtaposition and their value adjudged, the prosecution version was "more reasonable and probably correct". The appellants were accordingly found guilty of the charges under sections 302/34 and 307/34, P.P.C. and convicted and sentenced as afore‑stated. Learned Judges of the High Court on examination of the two versions and the attendant circumstances also found the defence plea unbelievable and affirmed 'the trial Court's view of the prosecution evidence. When considering the defence plea, it has been observed by the learned Judges: "It is not believable that on being offended by Afzal appellant's presence in his house, the deceased would, after picking up a Churri spare the offender and would instead start inflicting injuries on his own daughter. The claim of the appellant that despite his intervention and despite his snatching the Churri from the deceased, the deceased ' paid no attention to him and after picking up a Danda from the spot, the deceased again went after his wife and the other daughter and did not assault the said appellant, is a claim which is not reasonably believable". It has also been very pertinently observed by the learned Judges that at the time of the occurrence, the deceased was stated to be in his uniform and had a service revolver with him and, therefore, it was not understandable as to why he should be running around picking up a Churri and a Danda to cause injuries as alleged by the defence, when he had a revolver available with him. As regards the prosecution case, the learned Judges of the High Court have held that it was supported by the ocular testimony of three eye‑witnesses all of whom were the natural witnesses of the occurrence which took place just outside their house and had suffered injuries during the occurrence and therefore, their presence at the place of occurrence was not open to doubt. It has also been observed by the learned Judges that the eye witnesses had no enmity or ill‑will against the appellants nor was any suggestion put to them that they had any motive to falsely implicate them in the case. It has been further found that "the motive alleged by the prosecution stands proved on record; the evidence regarding the recovery of the service revolver of the deceased from Arshad appellant is reliable and the wooden part of a gun found at the spot having been found by the Forensic Science Laboratory to be the part of a gun P‑7 recovered at the instance of Arshad appellant was another reliable piece of evidence; the injuries received by the deceased and the three eye‑witnesses were in consonance with the number of assailants who had allegedly taken part in the occurrence in question and in the circumstances, nothing exists on record which could persuade us to find that the prosecution had not been able to prove its case against the said appellants". Consequently, the learned Judges maintained the conviction of the appellants and the sentences awarded to them by the trial Court and confirmed the death sentence of Arshad appellant.

9. We have heard the learned counsel for the appellants and the learned Advocate‑on‑Record appearing for the State. Before proceeding to examine the questions to consider which, the leave was granted by this Court, we would like to observe that the learned trial Court as also the learned Judges of the High Court rightly disbelieved the defence plea and accepted the prosecution evidence particularly the ocular testimony of the widow of the deceased and his two daughters whose presence at the spot for the reasons stated by the two Courts was not open to any doubt. It has also not been denied that the eye witnesses had no previous enmity or ill‑will against any of the appellants so as to falsely implicate them in the case. In the circumstances, implicit reliance could well be placed on their testimony though the Courts below also found it corroborated by the recoveries and the medical evidence. Be that as it may, in view of the leave‑grant order, conviction of Arshad appellant on the charge of murder and that of the other two appellants namely Afzal and Akram under section 307/34, P.P.C. is not under challenge before us. We have only to consider the question of sentence of Arshad appellant under section 302, P.P.C. and whether Afzal and Akrain appellants could be held vicariously liable for the murder of Khadim Hussain deceased by virtue of section 34, P.P.C.

10. We first take up the question of sentence of Arshad app6flant under section 302, P.P.C. He has been awarded death sentence on the charge of murder which undoubtedly is a normal penalty for the offence of murder but in appropriate cases where some extenuating circumstances are available, the Courts have the discretion to award lesser punishment of imprisonment for life provided under section 302, P.P.C. Now, in the present case, there are circumstances forthcoming from the record which could be taken as extenuating/mitigating circumstances for the purpose of awarding lesser sentence but the learned Courts below have not duly attended to them when considering the question of sentence to be imposed on the appellant. It is an admitted position that there existed no background of any previous enmity or deep‑rooted hostility between the appellants and the deceased. There was only a minor dispute between them regarding the demarcation of their adjacent plots which resulted in the unfortunate occurrence. It is also in evidence that the act of firing by Arshad appellant at the deceased was preceded by a dialogue between the accused and the deceased allowed by a scuffle/grappling between Afzal accused and the deceased and the pelting of stones by the daughters of the deceased at Afzal accused who as a result sustained some injuries. It is also significant that Arshad appellant fired only one shot and did not repeat it. All these factors in our view cumulatively make out a case for mitigation of sentence. We, therefore, hold that the extreme penalty of death awarded to Arshad appellant was not called for and the lesser sentence of life imprisonment would meet the ends of justice. 11 Next question requiring determination is whether section 34, P.P.C has been rightly invoked by the Courts below so as to hold Afzal and Akrarn appellants vicariously liable for the murder of Khadim Hussain. Section 34 P.P.C. which embodies the rule of vicarious liability contemplates an act done in furtherance of common intention of all. The essence of liability envisaged under this section lies in the existence of a common intention and to attract the application of this provision, it has. to be shown that the criminal act complained of was done by one of the accused in furtherance of common, intention of all. Now the intention is a state of mind which is not susceptible of direct proof and can only be inferred from the attendant circumstances of the crime. A prior the existence of common intention which usually consists of motive, pre‑content and pre‑arrangement cannot always be proved by direct evidence. In some cases, direct evidence such as confessions or testimony of approver may be available to prove the common intention but in most of the . cases, it has to be gathered from the facts disclosed in evidence and surrounding circumstances of the case. Refer "Khushi Muhammad and others v. The Crown" 1969 SCMR 599 wherein the contention that in the absence of any direct or circumstantial evidence to show previous concert or arrangement ,between the accused‑appellants, inference of a common intention was not justified, was repelled and it was observed, "intention is a mental condition and has often to be gathered from the facts and the surrounding circumstances. One cannot always expect direct evidence to be forthcoming on a matter of this nature". Similar view was expressed by the Federal Court in an earlier case "Bahar v. Crown" reported in PLD 1954 FC 77.

12. Viewed in the light of ‑the aforesaid principles, section 34, P.P.C. is fully attracted to the factors of the present case. From the evidence brought on the record, it is quite clear that all the three appellants, who are real brothers, had a common motive/grievance against the deceased for his having constructed or attempting to construct a wall on a piece of land which the appellants claimed was part and parcel of the plot owned by one of them. It is also in evidence that on the day of the occurrence, all the three appellants came to the spot together, two of them were armed with guns and the third was having a knife with him and on reaching the spot, they asked the deceased whether he would settle the dispute about the land or not. On the latter's reply that they should bring Anwar, the Property Dealer who would decide about the dispute, the appellants told him that they would take the land from him whereupon Afzal appellant raised Lalkara and grappled with the deceased. As stated above, Arshad appellant then fired at the deceased who fell down and later expired. He also gave a blow with the butt of his gun at the head of Mst. Irshad Begum wife of the deceased. Afzal and Akram appellants did not lag behind and fully participate in the occurrence. on the facts found by the Courts below, Akram fired at the deceased's daughter Mst. Naseeb Akhtar which hit her leg and he also gave a blow on her head with the butt of his gun. Afzal too gave a knife blow at the back of Mst. Surrya Akhtar, another daughter of the deceased. The evidence on record quite clearly shows the appellants came fully prepared and with common intention to take the land in dispute from, the deceased forcibly. In the overall circumstances, we are satisfied that the act of ruing by Arshad appellant at the deceased was in furtherance of common intention fully shared by Afzal and Akrain appellants. They were, therefore, rightly held vicariously liable for the murder of Khadim Hussain deceased. Their conviction under section 302/34, P.P.C. is thus not open to any exception.

13. Upshot of the above discussion is that we partly allow this appeal, converting the death sentence of Arshad appellant into life imprisonment for the offence under section 302, P.P.C. and dismiss the appeal qua Afzzl and Akram appellants upholding their convictions and sentences under section 302/34, P.P.C. We, however, direct that benefit of section 382‑B, Cr.P.C. be extended to all the three appellants. N.H.Q./M‑3137/S Order accordingly.