1987 PLP 449 (SCMR)

SHAFIUR RAHMAN J.‑‑Three petitions seeking leave to appeal have been filed against the judgment of the Lahore High Court, dated 18th of March, 1986 whereby Ata Muhammad was acquitted, Muhammad Saeed was acquitted of the charge under section 302, P.P.C. but his conviction under section 307, P.P.C. was maintained and his sentence of life imprisonment there for was altered to seven years rigorous imprisonment and the conviction of Muhammad Rafiq under section 302, P.P.C. and under section 307, P.P.C. was maintained and the sentence of death awarded to him, was confirmed. Ghulam Muhammad, complainant, has by two separate petitions challenged the clean acquittal of Ata Muhammad of all the charges; of Muhammad Saeed of the charge under section 302, P.P.C. and has sought enhancement of his sentence on conviction under section 307, P.P.C. Muhammad Rafiq, the convict has sought leave to appeal against his convictions under sections 302 and 307, P.P.C. and the sentence awarded there for which in the case of the offence under section 302, P.P.C. is death. According to the prosecution case, Ghulam Muhammad (P.W. 10) the complainant happened to be a cousin of Muhammad Rafiq, petitioner being the son of maternal‑uncle of Ghulam Muhammad. In the month of April, 1982 or near, about, Muhammad Rafiq had tried to outrage the modesty of Mst. Nasreen, a daughter of Ghulam Muhammad for which he was severely reprimanded and had given a dagger blow on the right hand of Ghulam Muhammad. That matter was, however, patched up between the parties. On the 23rd of May, 1982 at about 10‑15 p. m. when the deceased Muhammad Ashraf aged about 18 or 19 years a son of Ghulam Muhammad along with Muhammad Riaz (P.W. 9) was on way to the house in the neighbor hood for watching T.V. programme and Ghulam Muhammad was following them, they found in the Chauk near an electric pole Muhammad Rafiq, Muhammad Saeed and Ata Muhammad standing. As Muhammad Ashraf passed near them Muhammad Rafiq fired a pistol shot hitting him in the face and he fell on the ground. Rafiq fired two shots at Muhammad Riaz hitting him and at that time Muhammad Saeed fired a pistol shot hitting Muhammad Riaz. Ata Muhammad, the acquitted accused remained standing armed with a dagger. Muhammad Ashraf and Muhammad Riaz were removed to the hospital. Ghulam Muhammad (P.W. 10) followed them. The report was lodged at 2 a.m. at the hospital where Abdul Khaliq, S.I. (P.W. 14) had also reached. Dr. Imtiaz Elahi Piracha (P.W. 7) performed next day the autopsy of Muhammad Ashraf as he died of the solitary injury received by him. He found the following injury‑‑ "(1) Oval shape entry wound of fire‑arm with inverted edged 1? c.m. x 1 c.m. about on left side of nose near inner angle of left eye. Left eye‑lids blackened and swollen. On dissection it had pierced through the base of anterior cranial fossa on left side and entered the left cerebral hemisphere (left part of brain) it punctured the brain from below. There was frank blood in skull cavity. Brain was highly congested deformed bullet recovered and sealed." Muhammad Riaz who survived had the following injuries noted by Dr. Tariq Farooq M.O. (P.W. 6) at 11‑15 p.m. on 23‑5‑1982‑‑ "(1) Circular injury of ? c.m. diameter on the left lower thorax. edges were inverted skin around was black, corresponding side of the shirt had a hole. It was 10 c.m. below and lateral to the left nipple. (2) Circular wound roughly ? c.m. in diameter on the back of the left shoulder. Corresponding holes on the shirt present. Skin around the wound normal in colour. (3) Circular wound roughly ? c.m. in diameter on the lateral aspect of the left buttock, 15 c. m. from the iliac crast. Corresponding hole in the clothe present." The X‑ray revealed that bullets were present in the soft tissue corresponding to the wounds. At the trial Muhammad Riaz injured and Muhammad Ashiq (P.W. 11) appeared as witnesses of the occurrence. Ghulam Muhammad (P.W. 10) complainant claimed to be at a short distance away and to have reached immediately after the deceased and Muhammad Riaz were‑ fired at and to have followed the removal of the injured to the hospital. ? The three accused denied their presence or participation in the crime and even the earlier motive for it. They alleged that they had been falsely implicated. They produced in de; ; two witnesses why stated about the electric pole where the occurrence had taken place tc be out of order and a complainant with regard to it having been made on 22nd of May, 1982 and the rectification having taken place on 26th of May, 1982. The trial Court recorded the following finding with regard to Ghulam Muhammad (P.W. 10)‑‑ "Ghulam Muhammad P.W. also deposed that he did not witness the actual occurrence. In view of the above, discussion I am of the view that Ghulam Muhammad P.W. was not present at the spot during the occurrence." Ashiq (P.W. 11) was considered to be a disinterested truthful witness who had satisfactorily explained his presence at the spot. His testimony considering with that of injured Muhammad Riaz (P.W. 9) was found to establish the case. As regards the common intention of three accused standing their trial, the trial Court held as follows:‑ ?"In the present case the position is that Saeed accused did take part in the occurrence. One of his pistol fire shot hit Riaz P.W. According to above‑said ruling Saeed accused shared with the intention of his co‑accused Rafiq. The case of Atta Muhammad accused is also at par with the case of his two accused. The dagger was in his hand and he was waiting for the chance to take part in the crime." The trial Court convicted all of them under section 302 read with section 34, P.P.C. for the murder of Muhammad Ashraf, sentenced Muhammad Rafiq and Muhammad Saeed to death and Atta Muhammad to life imprisonment, All three of them were ordered to pay a fine of rupees five thousand each or in default to undergo R.I. for three years each. All three of them were also convicted under section 307/34, P.P.C. for injuries to Muhammad Riaz and a fine of rupees five thousand each or in default to undergo R.I. for three years each. Out of the fine rupees twenty thousand were to be paid to the heirs of the deceased as compensation and rupees ten thousand as compensation to Muhammad Riaz, the injured. Muhammad Rafiq land Muhammad Saeed jointly and Atta Muhammad separately appealed to the High Court against their conviction and sentence. The evidence on the record was re‑appraised. As regards Ghulam Muhammad, the learned Judges of the High Court held as follows:‑‑ "Although the trial Court has held that the presence of Ghulam Muhammad complainant P.W. 10 at the time of occurrence was doubtful, yet this observation will not adversely affect the evidence of the other two eye‑witnesses because Ghulam Muhammad has himself stated in the cross‑examination that he being at some distance had not seen the actual occurrence and details thereof were told to him by Muhammad Riaz P.W. Muhammad Riaz P.W. has also stated that after having received the injuries when he was running in the street, he came across Ghulam Muhammad and told him about the occurrence." Muhammad Riaz the injured and Muhammad Ashiq were considered to be competent reliable witnesses and no infirmities, material contradictions, discrepancies or dishonest improvements were found in their statements. It was held that the evidence given by them did not require further corroboration. However, considering that it was a chance encounter between the two on the complainant side and the three on the side of the accused, with no pre‑concert or planning, no exhortation or incitement, the element of common intention was in accordance with the principle of safe administration of criminal justice held not made out. On this finding, each individual accused was made responsible for his own acts. Muhammad Rafiq for causing the death of Muhammad Ashraf and the injuries to Muhammad Riaz, Muhammad Saeed for causing the injuries to Muhammad Riaz and Atta Muhammad having played no role except of being present was acquitted. The death sentence of Muhammad Rafiq was confirmed. Muhammad Saeed was convicted only of the offence under section 307, P.P.C. as he had fired a single shot. The sentence of life imprisonment was reduced to that of seven years' rigorous imprisonment. Mr. Ijaz Hussain Batalvi, the learned counsel for convict Muhammad Rafiq, has contended that the motive for the occurrence was not established as there was a bald statement with regard to it by Ghulam Muhammad and no other evidence. He also contended that the presence of Ghulam Muhammad has been rightly disbelieved by the trial Court and doubted by the High Court and in view of the positive false statement about his presence being made by Muhammad Riaz (P.W. 9) and Ashiq Hussain (P.W. 11) they could not be considered truthful witnesses with regard to the occurrence and for this the learned counsel has placed reliance on the decision in Mst. Nasim Akhtar v. The State P L D 1968 Lah.

841. According to the learned counsel, the eye‑witnesses were related and interested and the necessary corroboration was not forthcoming. The question of identification was also, according to the learned counsel, open to serious doubt. Sh. Masud Akhtar, the learned counsel representing the complainant, on the other hand has urged that all the three accused were present at the scene by concert and design having armed themselves effectively. They happened to be in the locality different and removed from theirs. The firing initiated by Muhammad Rafiq was aggravated by the firing of Muhammad Saeed and the place where the occurrence took place, the nature of the weapon used and the presence of all the three clearly indicated that they shared the common intention and being desperate characters as held by the trial Court, had to be dealt with under section 34 of the Pakistan Penal Code and made responsible for every criminal act committed by any one of them. As regards the presence of Ghulam Muhammad and his being an eye‑witness to the occurrence, the two Courts have doubted the claim and he has not made any such claim either. He had lodged the report at the hospital. The record showing that the injured were brought by Muhammad Amin, Constable, and the doctor handed over the report of the examination of Muhammad Riaz to Amin Constable is capable of an explanation. The police party had come to know of the occurrence and had immediately gone to the hospital and it being a medico‑legal case belonging to their jurisdiction the police had to take charge of it. It accounts for the mention of Muhammad Amin in the record as the one who brought the injured to the hospital. Muhammad Riaz being the injured person and in a position to identify is indeed the most important witness in the case. His statement cannot be rejected merely because he states that Ghulam Muhammad happened to be there shortly after the occurrence or was following them when the occurrence took place. The trial Court and the High Court have justifiably treated Muhammad Riaz and Ashiq to be truthful witnesses and on the facts of the case, it could not be one of substitution of real culprit for they successfully stood the test of cross‑examination. The effective firing on the deceased had been attributed to Rafiq. The contention of the learned counsel for the convict that possibly one shot caused three injuries of Muhammad Riaz, is belied by the opinion of the doctor that bullets and not pellets were palpable under the wounds of Muhammad Riaz. The delay in lodging the First Information Report has been satisfactorily explained. The sentence of Muhammad Rafiq for the commission of the offence in the manner in which he did, exhibits no particular feature to require further examination or interference. As regards the acquittals, once it is held that the accused did not share the common intention, the consequence follows that each has to be punished for his own criminal act. Atta Muhammad indulged in none and he was rightly acquitted. Muhammad Saeed fired one shot at Muhammad Riaz and he could be made liable to only under section 307, P.P.C. Muhammad Rafiq fired at both and he was accordingly made liable under section 302 as well as under section 307, P.P.C. We do not think that the High Court has committed any legal error in adopting the recognized principle for the safe administration of criminal justice that where common intention does not appear either from the events at the time of the commission of the crime or before it, the vicarious liability does not follow. In the circumstances and for the foregoing reasons, there is no merit in any of the three petitions before us and leave to appeal is refused. M.I. /4426/S??????????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.