1988 PLP 1197 (SCMR)

MUHAMMAD HALEEM, C.J.‑‑Eight persons namely Muhammad Iqbal, Qayyum, Zulfiqar son of Ahmad, Muhammad Akhtar, Munawar, Riasat Ali, Munawar Ali and Zulfiqar Ali son of Bashir Ahmad were tried for causing the murder of Nasir Ali on 11th of February, 1981 at about 3.00 p. m. in front of New Mianwali Hotel, Railway Road, Shujabad. The statement of Mehmood Ali Shah (P.W.10) was recorded at 4.45 p. m. at the Civil Hospital, Shujabad in regard to the incident which was later transcribed in 154, Cr.P.C. Book at Police Station Shujabad. The trial Court acquitted Zulfiqar son of Bashir, Muhammad Akhtar and Qayyum, and convicted Riasat Ali and Munawar son of Himayat only under section 323, P.P. C. for causing injuries to Iftikhar Ali and each of them was sentenced to undergo rigorous imprisonment for one year. Riasat Ali was further awarded the same sentence for causing injuries to Mehmood Ali Shah (P.W.10). The remaining three namely, Muhammad Iqbal, Munawar son of Younas and Zu1fiqar son of Ahmad were convicted under sections 302 and 307 read with section 34, P.P. C. Each of them was sentenced to death under section 302, P . P. C . for causing the murder of Nasir Ali and to pay a fine of Rs.2,000 or in default to undergo R.I. for one year. Under section 307, P.P.C. each of them was sentenced to undergo rigorous imprisonment for 5 years for causing injuries to Iftikhar Ali and Irshad Ali and to pay a fine of Rs.2,000 or in default to undergo R.I. for one year. On appeal and reference, the High Court acquitted Zulfiqar son of Ahmad, and as for the other two namely Muhammad Iqbal and Munawar son of Younas, they were absolved of the charge of murder, but their convictions and sentences under section 307, P.P.C. were maintained although the amount of fine was raised from :2s.2,000 to Rs.5,000 for causing injuries to deceased Nasir Ali. As for the injuries inflicted on Iftikhar Ali they were convicted under section 324, P.P. C. and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000 each or in default to undergo R.I. for six month‑s. They were, however, acquitted of the charge of causing injuries to Mehmood Ali Shah and Irshad Ali (not examined). Against the judgment of the High Court dismissing the Criminal Revision No.68 of 1984 seeking to set aside the acquittal of Zulfiqar Ali son of Bashir, Muhammad Akhtar, Qayyum, Riasat Ali and Munawar son of Himayat on the capital charge and for attempted murder, Criminal Petition for Leave to Appeal No.307 of 1985 is preferred, while Criminal Petition for Leave to Appeal No.306 is directed against the acquittal on the capital charge of Munawar son of Younas, Muhammad Iqbal and Zulfiqar son of Ahmad Khan and for his further acquittal on the charge under section 307, P.P.C. by the same judgment of the High Court. The trial Court disbelieved the evidence of the recoveries of the blood‑stained clothes and weapons and so also the presence of Muhammad Hanif (PW.12). It also discounted the common object of those participants in the attack on deceased Nasir Ali, and, accordingly, convicted Riasat Ali and Munawar son of Himayat for their individual roles, i.e. causing Lathi blows to Iftikhar Ali. Riasat Ali was further convicted for having caused injuries to Mehmood Ali Shah (PW.10), and both of them were acquitted under section 302/307/ 148/149, P.P.C. In holding so, the trial Court was of the view that none of them had any motive to join Muhammad Iqbal, Munawar son of Younas and Zulfiqar son of Ahmad to commit the murder of deceased nor was there any evidence to show their malice against the complainant or deceased, but as the witnesses, who had no enmity against them, had established their participation, it was, therefore, that their participation could not be denied. The trial Court individually considered the cases of the acquitted respondents. Taking the case of Qayyum, the trial Court held that the complainant party had a motive to falsely implicate him as he was a witness in a pending case against the deceased. Besides, he was of a different caste and had no reason to join the others for taking the revenge of insult, if any, given to Muhammad Iqbal and Munawar son of Younas by the complainant party. Similarly the Court also held that complainant party was inimical towards Zulfiqar son of Bashir and in the absence of any corroboration it was not safe to convict him. In regard to Muhammad Akhtar, the trial Court held that as he was a witness against the deceased in a criminal case, there existed enmity between him and the complainant party, and that the role attributed to him for having caused a Chhura blow on the back of chest of the deceased was substituted for that of causing a blow or the foot of the deceased and, accordingly, felt doubtful as to the role assigned to him. The High Court in the background of the findings of the trial Court that there was no common object of the participants to kill the deceased, held, upon an appraisal of the evidence that the occurrence was a sudden affair on the passing of Muhammad Iqbal and Munawar son of Younas in front of the hotel of Mehmood Ali Shah when a demand of Rs.20 was made from them by the deceased as price for the cigarettes sold earlier on credit. Accordingly, it took the individual roles attributed to them as the criterion for their culpability which did not exceed beyond the causing of simple incised injuries on the deceased. As for the fatal injury, the High Court held that it was alleged to have been caused by Muhammad Akhtar who has since been acquitted, and if that be so then these respondents could not be held responsible for the causing of his death. It may here be mentioned that the causing of the fatal injury was held by the trial Court to be doubtful even by Muhammad Akhtar and, therefore, the High Court rightly disregarded it. As for the acquittal of Zulfiqar son of Ahmad, the High Court further found that he had no motive to participate, but was implicated as he happened to be the real brother of Muhammad Iqbal, and, on this view of the matter, he was given the benefit of doubt. The Courts below upon an appraisal of the evidence have held that the injuries were not caused in furtherance of common object of unlawful assembly as the occurrence was sudden and unpremeditated, and, on this view of the matter, had assessed the roles of the individual participants and gave to them the benefit wherever it was possible. It cannot be said that this assessment was unreasonable or that it did not flow from the evidence on record. Accordingly, we see no substance in these petitions, which are dismissed. M.I./M‑434/S Petitions dismissed