1999 P Cr (PLP)

The appellants‑accused were charged under section 302/34, P.P.C. for the commission of the murder of deceased Inayat Masih to which they pleaded not guilty, therefore, prosecution examined P.W.1 Shahid Exh.6 who produced his 154, Cr.P.C. statement, memo of Wardat Exh.8, memo of arrest of appellants Exh.9, memo of recovery of knife from the house of appellant Ayub Masih Exh.10, P.W.2 Wilayat Masih Exh.11, who produced memo of inspection of dead body Exh.12, inquest report Exh.13, P.W.3 Ashaque Masih Exh.14, P.W.4 Iqbal Masih Exh.15 who' also produced his 164, Cr.P.C. statement Exh.16, C.W. No.1 Muhammad Yousuf the process‑server, P.W.5 Abdul Jabbar"Exh.24 who was examined in place of Investigating Qfficer Wahab ‑Noor who produced F.I.R. Exh.25, Chemical Examiner's Report Exh.26, examined P.W.6 Dr. Naseem Ismail Exh.27, who produced medico‑legal certificate of Inayat Masih and post‑mortem report as Exhs.27 and

28. He also produced medico‑legal reports of appellants Ayub Masih and Silvester Masih as Exhs.30 and 31 and also medico‑legal reports of Shahid Masih son of Khushi Gulab as Exhs.32 and

33. The appellants were examined under section 342, Cr.P.C. who denied the charged offence. Appellant Ayub has stated that he was injured by Shahid Masih and 25 others and his brother was also assaulted by Silvester Masih. Appellant Silvester Masih stated that he was injured by Shahid and 25 others and his brother Ayub was also assaulted. Both appellants did not examine themselves under section 340(2), Cr.P.C. However, they in defence examined D.W.1 Shahid Saghar and D.W.2 Younus Masih brother of appellants. After recording of above evidence and hearing the learned counsel for the appellants‑accused and the State Counsel the appellants accused were convicted and sentenced as said above. I have heard the learned counsel for the appellants, Mr. Sardar M. Ishaque, Mr. S. Sayeedain Zaidi, learned A.A.‑G. for the State and perused the evidence. The prosecution case rests on following pieces of evidence:‑‑ (i) Occular evidence of P.W.1 Shahid Masih, P.W.2 Wilayat Masih and P.W.4 Iqbal Masih. (ii) Recovery evidence of Chhuri as per memo of recovery Exh.10 secured from the house of appellant Ayub Masih in presence of Mashirs Shahid Masih and Willayat Masih and Chemical Examiner's Report Exh.26 with his opinion that grey shirt, gray Shalwar and red and yellow jacket of deceased and Chhuri were found to be stained with human blood. (iii) Medical evidence of P.W.6 Dr. Naseem Ismail. (iv) Motive as described b P. W . Shahid Masih and P. W.2 Willayat Masih. (v) Evidence of injuries on the person of the appellants‑accused. Occular testimony of P. W. I Shahid Masih, P. W.2 Willayat Masih and P. W. Iqbal Masih when P. W. Shahid Masih in his deposition Exh.6 has deposed in respect of the first incident which took place on the same day at 10‑00 a.m. when a woman namely SIIammo Bhabi of appellant Ayub abused and told him that her Daiwar would see him in the evening. He has also deposed about the second incident took place at about 8‑30 p.m. when appellants Ayub and Silvester came to his house, when appellant Silvester gave him Danda blow on his head and then both appellants went away after abusing him and then he has deposed about the third incident, when he was asked by Inayat Masih to accompany him to the house of appellants to have a talk with them as to why he (Shahid) was beaten and then door of the appellant's was knocked, appellant Ayub came out of with a Chhuri in his hand while appellant Silvester came with a Danda in his hand when Silvester caused Danda blow on the head of Inayat Masih (deceased) when Ayub gave Chhuri blow on the chest of (deceased) lnayat Masifi which incident was witnessed by P.W.2 Willayat Masih and Iqbal Masih and others also were standing there. Inayat Masih was taken to hospital where tie expired at about 12‑00 midnight. P.W.1. Shahid Masih is fully corroborated and supported by Willayat Masih P.W.2 (Exh.l l) and P.WA Iqbal Masili (Exh.15) so far the third fatal incident is concerned which resulted the death of deceased Inayat Masih. All the aforesaid witnesses have, fully corroborated and supported the main, occurrence as detailed above. So far the recovery evidence of Chhuri used in the commission of offence, P. W .1 Shahid Masib has deposed that appellant Ayub took the police party to his house arid under the box from his house he produced blood‑stained Chhuri which was secured as per memo Exh.10. P. W.2 Willayat Masih has deposed that after about 3/4 days blood‑stained Chhuri was produced by appellant Ayub under the box and such memo Exh.10 was prepared in his presence which bore his signature. P.W.5 Abdul Jabbar deposed that Exh.10 bore signature of Investigating Officer Mr. Wahab Noor. Blood‑stained Chhuri secured by S.‑I. Wahab Noor, Investigating Officer was sent to Chemical Examiner who as per his report Exh.26 has opined that Chhuri was found stained with human blood. Investigating Officer, S.‑I. Wahab, Noor had also sent clothes of deceased vie. Grey Shirt, Grey Shalwar and Red and Yellow jacket which were also found to be stained with human blood. So far the medical evidence P.W.6 Dr. Nasim Ismail (Exh.27) has deposed that deceased had two injuries vie. (i) incised would just above the nipple of the right side of the chest measuring about 1" x 1/4" suspected to be cavity deep and corresponding cut mark present on the cloths of deceased; (ii) lacerated wound on the back of the head measuring 2" x 1/2" bone deep when the injured deceased Inayat Masih expired in the emergency room at 0045 hours. The doctor has further deposed that on opening the chest right side of the chest was full with blood, a deep cut was seen in the right lung which passed through the length of the lung upto the base of the right lung. The doctor has opined that the cause of death was haemorrhage and shock resulting from the stab wound of the chest which had been caused with some sharp cutting weapon. The medical evidence corroborates the occular version in the case. So far the motive, P.W. Shahid has given the details of the first incident when Shammo Bhabi of appellant No.1 used abusive language to him and threatened him that her Daiwar (appellant No.1) would see him to tile evening whereupon on the said petty matter the appellants came in the evening time to the house of P. W. Shahid when appellant Silvester gave Danda blow on his head, abused them and went away whereafter Inayat Masih (deceased) took P.W.1 with him to the appellant's house where the fatal incident took place when inayat Masih sustained fatal stab wound at the hands of the appellant No.2 which resulted his death. P.W.2 Willayat Masih has also deposed in respect of the second and third incidents. This proves the motive of the incident as the appellants came at the instance of Shamoo who had threatened the P.W.1 Shahid Masih. Besides the above prosecution evidence, the medical evidence of injuries on the person of the appellants, though P.W.1 has suppressed the iniuries sustained by the appellants and stated in the cross‑examination that the appellants had no injuries and again stated that he was not there when accused/appellants had received injuries would prove the presence and active participation of the appellants in the commission, of crime. It will not be out of place to state here that memo of arrest of the appellants Exh.9 did mention about the injuries on the persons of appellants for which P.W.1 stated in the cross that the said memo was not read over to him. The incident had taken place .gin 24‑3‑1990 whereas P.W.1 Shahid was examined on 29‑4‑1991 after about one year, therefore, such discrepancies are likely to occur while recording the evidence of the witnesses. Injuries on the persons of appellants also proved their presence at the time of occurrence. Even the appellants in their 342, Cr.P.C. statements have admitted to have been injured by P.W.1 Shahid and others. P.W.6 Dr. Naseem Ismail has also deposed about the injuries on the person of appellants Ayub and Silvester Masih and has also produced such medical reports as Exhs.30 and 31 so also in respect of P.W.1 Shahid Masih Exhs.32 and

33. I have heard and carefully considered the arguments addressed by learned counsel for the parties and have reviewed the entire evidence on record that has been produced by prosecution, statements made by the appellants under section 342, Cr.P.C. and the statements of defence witnesses in disproof of the charge against them and circumstances appearing in the case, I find that on the prosecution side Inayat Masih met with unnatural death while P.W.1 Shahid sustained simple injuries whereas both appellants received simple injuries in the last fatal incident. In my independent assessment of evidence I feel that P.W. Shahid has suppressed the injuries inflicted upon the person of appellants with intent to minimize the part played by the prosecution side but it would not affect the merits of prosecution case as otherwise also prosecution has proved the case against the appellants beyond reasonable doubt. The incident has taken place in the street which is thickly residential place but it is normal and it has been observed that all persons who witnessed the incident generally are not willing to come forward to become witness of incident but only few who are near and dear, who witnessed the incident come forward to become the witness of the incident. Nobody is interested to be dragged in the Courts and waste one's time when they know that they would not be examined on the first date when they are summoned for evidence because of various reasons beyond the control of the Court. In the circumstances, the contention of the learned counsel for the appellants was that except the relations of the deceased and friends of complainant none else who resided near the place of incident have been made witness consequently, adverse presumption be drawn has no merit and substance. The ocular version in the peculiar circumstances of the case is quite confidence inspiring and it is not possible to discard the prosecution case and evidence produced, and believe the defence version. So far the main occurrence is concerned there is reliable and confidence inspiring evidence from the prosecution side that Inayat Masih was given fatal stab wound on the vital part on his person which cut the lung resulting into his death. It has also come in the evidence that the incident took place near the house of appellants when the appellants Ayub came out of the house with a Chhuri in his hand while appellant Silvester came armed with Danda with common intention to commit the said offence when neither the deceased nor Shahid nor other witnesses has been said to be armed with any weapon, therefore, it could be said that appellants had acted harshly and had taken undue advantage of the situation because of initial incident of trival nature of 's; of abusive language between the parties. Learned counsel for the appellants has placed reliance upon Ahmad Hayat and others v. The State 1983 SCMR 350, Abdul Hakeem and another v. The State PLD 1982 Kar. 975, Gulan and 2 others v. The State PLD 1982 Kar. 983; Muhammad Tasneem v. The State 1985 SCMR 160, Muhammad Abdullah v. Muhammad Safdar Khan and another 1973 SCMR 26, Sahib Masih and others v. The State 1982 SCMR 178, Zahoor Bakhsh v. Waddon and 3 others 1980 SCMR 979, Muhammad Afzal and another v. The State 1976 PCr.LJ 1169, Muhammad Sharif and another v. The State 1972 PCr.LJ 1259, A.K.M. Reza and others v. The State PLD 1958 Dacca 111, Qamar v. The State PLD 1979 Lah. 436, Bashir Ahmed and others v. The State PLD 1988 SC 86, Misbahuddin and others v. The State PLD 1983 SC 79, Munawar Ali alias Munawar Hussain v. The State PLD 1993 SC 251, Muhammad Younas v. The State 1992 SCMR 1592, Shamir alias Shamla v. The State PLD 1968 SC (Pak.) 242, Noor Khan v. The State 1996 PCr.LJ 790, Zafar Iqbal v. The State 1985 PCr.LJ 2619, Muhammad Waqar v. The State 1991 PCr.LJ 197, Hazartullah and another v. The State 1958 SCMR 1361 and Miran Bux v. Niaz and others 1975 SCMR 337 but the facts of cited cases are quite different and distinguishable to the facts of the instant case considering that principles laid down in criminal cases are always found on facts and circumstances of each case and could not be loosely applied in a Omni bus manner. Reference may be made to Safdar Abbas and 2 others v. The State PLD 1987 SC

467. Learned counsel for the appellants has also argued that there are contradictions and discrepancies in the evidence of the prosecution. I have minutely gone through the referred alleged discrepancies and contradictions but the same are not material in nature effecting the merits of prosecution case when the confidence inspiring prosecution evidence has proved beyond reasonable doubt that appellant Ayub gave Chhuri blow on the vital part of the body of deceased while appellant Silvester with common intention gave Danda blow on the head of the vital part of the body of the deceased. The next point for my consideration in this case is the extent to which the appellants would be responsible as to what occurred at about 8‑30 p.m. on the fateful day when the third incident took place. Medical evidence shows that Inayat Masih died due to injury No. l which according to the prosecution was caused by appellant Ayub while the injury caused by the appellant Silvester on the head was also on the vital part of body though simple in nature but both the appellants came out armed together from their house, attacked the deceased Inayat Masih in furtherance of common intention, caused the injuries to the deceased who was admittedly unarmed, therefore, the appellants would be vicariously liable for the commission of offence punishable under section 302, P.P.C. It is immaterial as to what injuries were inflicted by a particular accused for the application of section 34, P.P.C. as the principle underlying the section is that where two or more persons act with a common intention, each is liable for the act committed as if it was done by him alone. Reference may be made to Khanam and another v. The State PLD 1961 Kar. 684 and (ii) Sultan Muhammad and 2 others v. The State PLD 1955 Lah.

575. It would not be out of place to state here also that the deceased was unarmed while appellants came armed from their house and forcibly stabbed on the vital part of the body which pierced the right lung of the deceased resulting his death though a single blow but with force, therefore, act of the appellants accused of killing Inayat Masih would not be covered by exception 4 of section 300 or 304(2), P.P.C. and would amount to a murder punishable under section 302, P.P.C. So far the sentence, I have considered the said question with utmost care and caution, since Inayat Masih died in the said incident in which appellants only sustained simple injuries when the appellants came armed with Chhuri and Danda in furtherance of their common intention from their house when the deceased and the P.Ws. were unarmed, appellants should have deserved the capital punishment prescribed under section 302, P.P.C. but the trial Court awarded the lesser punishment of life imprisonment; which could not be interfered with in this appeal and further I am not inclined to exercise the revisional jurisdiction of this Court for enhancement of sentence, considering that facts and circumstances stated above and the judicial discretion exercised by the trial Court. Accordingly, the conviction and sentence passed by trial Court are maintained and appeal is dismissed. H.B.T./A‑210/K Appeal dismissed