1980 P Cr (PLP)

(4) An abrasion I/4' x 1/4" on the dorsum of right big toe on the distal part. (5) An abrasion 1/4" x 1/6' on the dorsum of right big toe middle part. (6) Punctured wound 1/6' x 1/6' x not probed on the left patellar surface. (7) Punctured wound 1/6" x 1/6' x skin deep on the dorsum of little finger. (8) Two punctured wounds near each other 1/6' x 1/6' x on the right supra pubic region. (9) Punctured wound 1/6' x 1/6' on the right groin near the route of scrotum. (10) Punctured wound 1/6' x 1/6' on the left iliac fossa near groia. (11) Punctured wound 1/6" x 1/6' on the right shoulder. (12) Punctured wound 1/6" x 1/6' x 1 /3' on the left biceps lower part. The duration of the injuries was 6 to 9 hours. Injuries Nos. 4 and 5 were declared as simple. Or. Iqbal Ahmad Javed (P. W. 2) on 28th April 1974, at 9‑35 p.m. examined Sadaqat Ali (P, W. 15) and found the following injury on his person ;‑‑ (1) A circular lacerated wound of fire‑arm of entrance on the front of the chin, slightly on the right side of the midline, 1; 8" 1/8' x skin deep. The injury was simple caused by a fire‑arm within the duration o one day. The same doctor on the same day at 10 p.m. examined Mst. Ghulam Fatima (P. W. 13) and found the following injury on her person :‑ (1) A circular lacerated wound of entrance 1/8" x 1/8" on the front right side of abdomen in lower portion. The injury was simple in nature caused by a fire‑arm within the duration of one day. On 30th April 1974 at I1‑30 a.m. the same doctor examined Muhammad Latif (P. W. 14) and found the following injury on his person :‑ (1) A fire-arm wound of entrance on the front of the left of the chest about 3" below the left nipple, 1/8" x 1/8" x only superficially skin deep. The injury was simple in nature caused by a fire‑arm within the duration of three days. Sultan (not produced) had five circular lacerated injuries on his person, Nizam Din I) 44 four such injuries on his person, Muhammad Afzal had one simple injury, Abdul Aziz had one simple injury, Mst. Maqool Bibi one simple injury and Mst. Zainab had also one simple injury on her person. The medical evidence clearly establishes that fairly large number of shots had been fired.

6. The appellants have raised the plea of denial simpliciter, but have made a suggestion that there was a talk in the village that on the day of occurrence when a storm was growing, there was a fight between Sikandar, Muhammad Husain absconder in this case and some others on the one side and Ghulam Rasul, Muhammad Husain P. Ws. and others on the other side in which the parties exchanged firing The dispute between them was over the demolition of a wall. The above suggestion is given by Ziaul Hassan appellant in answer to question No. 9 and is reproduced in extenso :‑ "I produce attested copies of the F. I. R, Exh. D. E., attested copy of the challan Exh. D. F., Exh. D. F./1‑3, attested copy of the summon Exh. P. G. showing Latif P. W. was $ P. W. in a case under section 307/'48/149, P. P. C. on the report of Nazir Ahmad son of Noor Din Kashmiri resident of Chak No. 152/RB against Muhammad Sadiq and four others. I have no personal knowledge of the occurrence, but it was a talk of the village that on the day of occurrence when a storm was growing, there was a fight between Sikandar, Muhammad Husain absconder in this case and some others on the one side and Ghulam Rasul, Muhammad Husain P. Ws. and others on the other side in which the parties exchanged fire. The dispute between them was over the demolition of a wall. We appeared before the police and narrated the above facts. There were brickbats present at the place of occurrence. We have been falsely implicated in this case as Muhammad Hussain, the absconding accused is said to have good relations with me." The other appellants have adopted the same line.

7. Mr. M. B. Zaman, the learned counsel for the appellant cognizant of .the weight and quality of the ocular evidence has not chal lenged the convictions of the appellants, but has primarily argued for the conversion of the death sentence of Ziaul Hassan and Ali Hussain appellants to one of imprisonment for life. He has contended (i) That the prosecution has given a very weak motive for such an attack. There is something more which has been kept back from the Court, in particular, the immediate cause of the attack was shrouded in mystery, and that the alleged incident of the preceding evening between Muhammad Yunas P. W. and the accused does not sound true for the reason that Muhammad Yunas, though present at the time of the incident, has not received any injury ; (ii) that the prosecution has given an exaggerated account of the incident. The version that nearly 20/25 shots were fired is pot believable ; and lastly (iii) that the learned trial Court had awarded imprisonment for life to Riazul Hassan and Din Muhammad appellants on the ground that they were not attributed the fatal shots. In the context of the indiscriminate firing in such an attack, it would not be possible to establish with certainty the fatal shots qua the assailant and as such, the case of Ziaul Hassan and Ali Hussain appellants was at par with that of Riazul Hassan and Din Muhammad appellants and, therefore, their penalty of death also merited to alteration of a sentence of imprisonment for life. ,

8. No doubt, on the face of it in normal circumstances the motive appears to be not too strong for such an attack, but human reactions differ from person to person. Some people pocket an insult, while some people feel offended over very trifle matters. A Badamsh is very sensitive to a challenge to his awing posture or authority as an uncrowned king of the area, as his very existence is raised on the foundation of his notoriety. We have in evidence that the appellants and their co‑accused Muhammad Hussain absconder were people of ill repute, and it is described in the F I R". We have in evidence that Muhammad Yunas (P. W. 11) had two young sisters aged 20 and 24 years, respectively, in his house. It was, therefore, natural on his part to take objection to their standing outside his house. The version of Muhammad Yunas P. W. that on his objection the accused abused him and he replied in the same way and that they also grappled one another, besides abusing one another, and that his mother and his uncle Muhammad Hussain son of Sultan Ali intervened and separated them, sounds to be a truthful account of the incident, though we cannot rule out the possibility that on consi derations of family honour Muhammad Yunas may have stopped short of stating his actual suspicions of the appellants being present outside the house on a purpose of following his young sisters or keeping an eye on them. Withholding of this aspect, even if true, would not help the appellants in any manner. We accept it that on account of bad reputa tion of the appellants and there being young women in the house Muhammad Yunas P. W. objected to the presence of the appellants out side their house and this led to an exchange of abuses, grappling etc. and the appellants may have felt insulted and they avenged the insult in such a dastardly manner. There is no other reason or motive suggested for an attack on the complainant party. Therefore, we believe that the incident of the preced ing evening referred' to above, whatever its worth, is the cause of attack on the complainant party. We are inclined to believe that the above‑referred incident was very much felt by the appellants, they boiled over the matter throughout the bight, planned the manner of avenging the insult and the very next morn ing, while armed with guns. they entered the house of the complainant party and made this massacring attack. There was nothing immediately preceding the attack and nothing in this regard has been withheld from the Court as suggested by the learned counsel for the appellants. We attach no importance to the argument of the learned counsel that Muhammad Yunas P.W. escaped without a scratch, even though he was the person who had objected to the presence of the appellants outside his house, indulged in abuses and grappling etc. and thereby insulted the appellants. Muhammad Yunas P.W. and other witnesses have ex plained that as soon as the appellants opened the fire, he took shelter behind the wall, which was meant for household effects and that thereafter he ran into the room and took shelter there. He escaped the firing aimed at him and the pellets instead hit the wall and an almirah in the room where he took shelter. The reason for Chiragh deceased having received most of the fire shots appears to be that he being a very elderly person and unconcerned with the previous incident, instead of running away, may have thought it prudent to talk to the assailants and dissuade them from their intentions. In the case reported as Muhammad Sharif v. Muhammad Javed (P L D 1976 S C 452) it was observed :‑ "In a case of broad daylight occurrence like this, where all the accused were specifically mentioned in a promptly lodged report and the version disclosed therein received full support from the medical evidence, it would not be necessary to look for corroboration and even excluding the evidence of motive or that of recoveries, the rest of the evidence would be good enough to bring home the guilt to the accused." Similarly, in Abdul Hakeem v. The State (1977 S C M R 225) their Lordships were pleased to observe :‑ "The contention of the learned counsel for the appellants that the motive is weak is of no consequence. Even if the motive is weak, there is direct evidence on the record to show that the appellants were responsible for the murder of the deceased." We, therefore, accept and rely on the motive as alleged by the prosecution.

9. The learned counsel for the appellants has referred us to the testi mony of the injured witness Muhammad Ashraf (P.W. 10) where hr, states that all the guns with the accused persons were single barrel guns and that every one of them had fired several times and that 20/25 fires were shot by the accused persons and further that some of these fires hit the injured persons, while the other shots hit in the wall. The learned counsel has argued that this certainly is an exaggerated version of the incident and despite all that not a single empty, had been recovered from the spot and that there was no evidence that any of the appellants collect ed the empties from the spot. It will be difficult for us to imagine that in such a dastardly attack any one could have stood out counting the exact number of fires. Im mediately on the opening of the attack each person present there would have run for his life and taken some cover and in a confused and puzzled manner witnessed the incident, primarily concerned with. his own safety, from behind a cover or the scene of his own refuge. In the confusion and excitement of a fatal attack it is usually not possible to count down with exactitude the number of shots or the number of injuries. Nor would was expect the witnesses taking note of the appellants' conduct in throwing the empties at the spot or picking them thereafter or straightaway placing them in their pockets. In the case in hand since a large number of people were present in the house and there were rooms as well as the walls for taking refuge, the assailants of the deceased who bore the main brunt, had been taken note of. The analysis of the medical evidence makes it clear that the injuries suffered by the deceased and the ten injured persons are not the result of one, two, three or four shots. Certainly many more shots bad been fired. The learned counsel has further contended that in such an indiscrimi nate firing it would not have been possible to identify each of the assailants firing shots vis‑a‑vis the victim and, therefore, the learned counsel has referred us to the cases reported as Sadiq Ali v. Abdur Rashid etc. (1979 9 C M R 35), Mir Alam etc. v. The State (1971 P Cr. L J 5) Sarfraz etc. v. The State (1971 P Cr. L J 205), Muhammad Khan v. The State (1975 P Cr. L J 153) and Sibtain Shah etc. v. The State (1978 P Cr. L J 490) for the argu ment that the sentence of the two appellants, condemned to death, be reduced to one of imprisonment for life for the reason that the fatal shot could not be discerned. As observed by the Supreme Court of Pakistan in Rab Nawaz's case (P L D 1974 S C 87) each case proceeds on its own facts and more particularly so a criminal case. Sadiq Ali's case referred to by the learned counsel for the appellant is distinguishable on facts. The Supreme Court has declined to interfere with the order of the High Court reducing the death sentence to life imprisonment on the following basis :‑ "In view of the conflict between the oral and the medical testimony it is difficult to attribute specifically any of the injuries to a particular appellant, Mahand Bakhsh appellant is stated to have fired twice, but five empties are linked with his gun, Rehmat son of Khuda Bakhsh is said to have fired one rifle shot but none of the injuries has been established to have been caused by that shot. We are, therefore, of the view that the distinction of fatal and non‑fatal injuries as drawn by the learned trial Court in awarding the sentence will not be safe or proper criterion. This‑is a case where the fatal shots cannot be attributed to any of the appellants and they are all deser ving of similar treatment. Since three of them have been award ed the sentence of imprisonment for life, it will be discrimi nating against the other three if their sentences of death are not reduced to one of imprisonment of life." The factual position in the case in hand is in contra‑distinction of the case referred to above. The ocular evidence consistently attributes the injuries on the person of the deceased to the shots fired by Ziaul . Hassan, Ali Hussain appellants and Muhammad Hussain absconder and the same is fully corroborated by the medical evidence. , The evidence of these natural and disinterested (P. W. 14 Muhammad Latif) witnesses is in herently true and consistent with the circumstantial evidence. In the same case i.e. Sadiq Ali's case their Lordships have re affirmed the principle of "constructive liability" in the following terms :‑ . 'The plain language of this section (149, P.P.C.) would show that it deals with the liability of every member of an unlawful assembly if in the prosecution of the common object of that assembly an offence is committed or such as the members of the assembly know to be likely to be committed in prosecution of the object. If these ingredients are proved then every member of the said assembly would he guilty of the said offence regardless of whatever role they had played in that connection." Similarly, Sibtain Shah's case is distinguishable on facts. In the cited case both the accused were armed with sticks and there were only two contusion marks and two abrasions on the person of the deceased and from the evidence it was not clear who gave to solitary fatal injury. It is obvious from the facts in the cited case that every person using ordinary stick cannot be burdened with a positive intention of caus ing such injury which would be sufficient in the ordinary course of nature to cause death. Therefore, their Lordships bad to bear this aspect in mind and while recording the conviction unier section 302, P.P.C. on the principle of "constructive liability" were quite justified in giving the benefit of lesser penalty when the assailant of the solitary fatal injury by a stick was not established beyond reasonable shadows of doubt. In the case in hand, the medical evidence clearly establishes that a large number of shots had been fired resulting in the death of one and injuries to ten, which is a confirmatory circumstance qua the number of the alleged assailants. Similarly, the other cases cited by the learned counsel for the appel lants are distinguishable on facts.

10. Mst. Salima Bibi (P. W. 12) wife of Muhammad Husain (P. W. 9) was in the family way and had started bleeding two days prior to the incident and later gave birth to a dead child of a few days less than nine months pregnancy. It was for this reason that Mst. Zainab, a midwife: and her son Muhammad Ashraf (P.W. 10) were in attendance in her house at the time of the incident and for the same reason the other family members had collected there. Muhammad Latif (injured P. W.) a wholly independent witness also visited the house on hearing about the condition of Muhammad Hussain (P. W. 9). The fact that Mst Salima Bibi P. W. was in the family way and had started blending since about two days prior to the incident and that she gave birth to a dead child is not challenged by the defence. In this view of the matt r, the presence of family member Mst. Zainab midwife and her son Muhammad Ashraf an injured P.W. and neighbours was very natural arid all the P. Ws. namely, Muhammad Husain. Muhammad Ashraf, Muhammad Yunas, Mst. Salima Bibi. Mst. Ghulam Fatima, Muhammad Latif and Sadaqat Ali are natural witnesses in the circumstances of the case. Out of these witnesses, Muhammad Ashraf, Mst. Ghulam Fatima, Muhammad Latif and Sadaqat Ali are injured which in juries are by gunshots and there is not even a suggestion that any of the injuries on any of the witnesses was self‑suffered. None of these witnesses has any reason to falsely implicate the appellants or substitute them for the real assailants who would have been certainly identified in such a broad daylight occurrence. The testimony of any one of these witnesses, and to be more particular, any one of the injured witnesses or the independent witness Muhammad Latif, by itself, without any further corroboration, is sufficient to uphold the convictions of the appellants. In this case, the principle enunciated by the Supreme Court of Pakistan in Roshan v. The State (P L D 1977 S C 57) and Muhammad Sharif v. Muhammad laved (P L D 1976 S C 452 ) would be appli cable. A half‑hearted suggestion in defence that there was a talk in the village that on the day of occurrence when a storm was growing there was a fight between Sikandar, Muhammad Hussain absconder and some others on the one side and Ghulam Rasul. Muhammad Hussain P.Ws and others on the other side in which the parties exchanged fires, is not worth any consi deration. We see no reason for the P.Ws. to have spared the real assai lants and instead to have substituted the appellants. One person has died and ten persons have received gunshot injuries. The complainant party could have conveniently implicated Sikandar etc. as well if they were the real assailants. Nothing is brought on record to show that the appellants had any greater enmity with the complainant party which should have persuaded them to implicate the appellants rather than the actual murderers. In the case in hand, all the eye‑witnesses are natural witnesses, have no reason to falsely implicate any of the appellants and each of them has positively attributed to Ziaul Hassan and Ali Husain appellants and. Muhammad Husain absconder fire shots on Chiragh deceased. Their assertion is corroborated by the medical evidence. There is no ambiguity about the assailants of Chiragh deceased. All the appellants by pre concert in a determined manner had come armed with ‑12 bore guns and indulged in firing. The community of purpose is fully established and in the incident they had caused gunshot injuries to Chiragh deceased and to ten others and there is no mincing of the matter about the intentions of the assailants. It is just a matter of prudence and good luck that the ten injured ran for their lives and took cover and refuge behind the wall or inside a room. We are of the opinion that the principle enunciated by the Supreme Court in Noor Muhammad v The State (P L.D 1979 S C 507) is aptly applic able to the particular circumstances of this case‑ . Their Lordships . have been pleased to observe as follows :‑ "Once the community of intention to murder stands established, the question of the fatality of injuries would be wholly irrele vant. Where the interest of justice is at variance with consi deration of consistency, the former roust prevail and merely on that pretext we would not repeat the mistake committed by the High Court, as two wrongs would not make one right." Bearing the aforesaid observations in mind, we would not attach any importance to the consideration that the learned trial Court has awarded only imprisonment for life to Riazul Hassan and Din Muhammad appel lants and in fact, we are not in agreement with the view taken by the learned trial Court in this regard, but these appellants are lucky that neither the State has filed any State appeal nor the complainant a revision for the enhancement of the sentence of Riazul Hassan and Din Muhammad C to one of death which is the normal penalty. Since the occurrence relates to the year 1974 and the sentence was passed in the year 1977, and the responsibility of these two appellants for the murder of Chiragh, is one on the basis of "constructive liability", we are refraining from issuing notice to them for the enhancement of sentence, though we have given al very serious consideration to this question, In this view of the matter, the learned counsel for the appellants was well advised in not challenging the convictions of the appellants and laying stress on the reduction of the sentence of Ziaul Hassan and Ali Hussain appellants. The learned counsel has referred us to the case reported as Sher Muhammad v. Muhammad Hayat etc. (1979 S C M R 210) for the reduction of the sentence of Ziaul Hassan and Ali Hussain appellants on the ground that there being no previous enmity, the matter had flared up only on account of Muhammad Yunas taking objection to the standing of the appellants in front of his house for reason of their being . The cited case is distinguishable on facts. The accused in the cited case were sitting out side their own baithak and the deceased had gone to the scene of incident and initiated the quarrel by blaming the accused for molesting the women folk of the other village and their Lordships were of the view that such an accusation in its own nature was a humiliating accusation especially when coupled with abuses and the possibility of mishandling of situation by the deceased and some heat of passion could not be ruled out and for this reason the High Court had reduced the sentence of death to life imprisonment. Their Lordships in the Supreme Court did not interfere with the view taken by the High Court as it was neither arbitrary nor baseless, nor such as to warrant an interference by the Supreme Court. In the case in hand, the appellants were standing outside the house of Muhammad Yunas P. W. They were, according to the prosecution,; people of ill repute. Muhammad Yunas P. W. h Ad two young sisters in' his house and, therefore, he was perfectly justified in asking them to' move away. It was the refusal of the appellants which led to the exchange of abuses and grappling. The appellants cannot be permitted to take ad vantage of their own conduct w rich is unbecoming of a gentleman. Nor in principle anyone cal be permitted to raise the plea of provocation which he himself seeks. The appellants by standing in front of the door of Muhammad Yunas P. W. were themselves responsible for inviting an objection. Secondly, in the cited case, the incident flared up and then and there, the murder took place, while in the case in hand, the appel lants had the entire night at their disposal and instead of cooling down they spent the same in planning the attack. Similarly, the case reported as Ghulam Abbas v. The State (1978 P Cr. 1 I 9135) a Single Bench case from the Lahore High Court cited by the learned counsel for the appellants, is distinguishable on facts. In the cited case the deceas ed had taken exception to the appellant's singing obscene song while pass ing through the street and after exchanging abuses the appellant had whipped out a knife from his pocket and stabbed the deceased fatal in the chest. As pointed out earlier, the case in hand is entirely distinguish able on facts. Same is the position in regard to the ‑other cases cited by the learned counsel for the appellants.

11. Summing up the correct legal position, we would rely on the observations made in Shaheb Ali v. The State (P L D 1970 S C 447) :‑‑ "If several persons combine to destroy one human life dastardly and with a deliberate design with no extenuating circumstances to mitigate the offence of any one of them, the long arm of the law, according to its dictates, must reach all of them sternly and remorselessly in an equal manner. In the same judgment their Lordships were pleased to observe; "If on the facts of a given case, law and justice demand a heavier toll for the extinction of a single life at the hands of more than one culprit, it has to be exacted." The aforesaid principle has been reiterated in the cases referred to above and the main submission of the learned counsel that the two appel lants Riazul Hassan and Din Muhammad having been awarded imprison ment for life by the learned trial Court and for that reason the sentence of Ziaul Hassan and Ali Hussain appellants be altered to the same,‑is well answered by the Supreme Court in Muhammad Sharif v, Muhammad; Javed cited above in the following terms :‑ Coming now to the facts and circumstances of the instant case, I find that even if the trial Court had erred in awarding the lesser sentence to Nisar accused against which two revisions cane by the State and the other by the complainant were moved before the High Court, it would have been more appropriate to rectify the error by enhancing the sentence of Nisar to death rather than reducing instead the death sentence of Jeda Ted] and Latif and repeat the same mistake on the pretext of equality of treatment"

12. In the light of what has been stated above, we are fully con vinced of the prosecution case as well as the implication of each of the appellants. We are of the view that their convictions and sentences are well merited and their appeal deserves dismissal. Accordingly, we maintain the convictions and sentences of the appellants recorded by the learned trial Court and dismiss the appeal. We confirm the sentence of death awarded to Ziaul Hassan and Ali Hussain appellants by the trial Court. Appeal dismissed,