MUHAMMAD KHAN Versus THE STATE

1. MUHAMMAD AFZAL CHEEMA, J .-This is an appeal as of right by Muhammad Khan appellant who was tried alongwith his brother Sardar Khan by the Sessions Judge, Mianwali, for the murder of one Fateh Muhammad resident of village Mehr Khanwala, Police Station, Sadar Mianwali, allegedly committed on 16-12-1969 at peshivela five miles away from the Police Station. Muhammad Khan was acquitted by the trial Court while his brother and co-accused Sardar Khan was convicted and sentenced to death. The State filed an appeal against the acquittal of Muhammad Khan while Sardar than challenged his conviction and sentence. Both these appeals and the Murder Reference were heard by a D. B. of the Lahore High Court which reversed the findings of the trial Court, acquitted Sardar Khan and accepting the appeal filed by the State convicted Muhammad Khan instead with an award of a sentence of life imprisonment vide judgment dated 25-'-1974 now under challenge before us.

2. The prosecution case as revealed in the F. I. R. promptly lodged by Shah Johan (P. W. 12) father of the deceased at 3-30 p.m. at the Police Station giving an eye-witness account briefly is that on the fateful day at about peshivela, Shah Johan and his son Fateh Muhammad diseased loaded on a she-ass a gunny bag of gurr from their crushing centre and both started for their house in Wandba Mohr &hanvala. Fateh Muhammad deceased was walking ahead alongwith the loaded animal followed by Shah Jehan. Ghafar Khan (P. W. 13) and Sher Ali (P. W. 14) also accompanied them and were talkirlis to Shah jehan. As their reached near Bridge No: 2 R they were accosted by Muhammad Khan appellant and his brother Sardar Khan the former held a .12-bore nistnl while the lars.cr wielded a .12-bore gun. ? They challenged Fateh Muhammad saying that he would .not had sparest for having beaten their father Auranszeb on the previous day. Fatah Muhammad invain tried to flee for life as both the assailants fired at him with their respective weapons. The shot fired by the appellant bit him in the left flank and he fell to the ground. The three eye-witnes3es did not go near out of fear. The assailants then left and proceeded towards their house. Fateh Muhammad died instantaneously. The motive mentioned by Shah Jehan was that on the previous morning herd of the complainant had damaged the grain crop of the appellant. At this the appellant and his father gave a beating to Muhammad Zaman brother of Fateh Muhammad deceased. In retaliation, the same afternoon Fateh Muhammad gave a beating to the appellant and his father Aurangzeb. It was to avenge this injury-cum-insult that the two sons of Aurangzeb had murdered Fateh Muhammad.

3. Medical evidence has assumed special significance in the circumstances of the case. Post-mortem examination of the dead body of Fatah Muhammad revealed the following three injuries :

(1) Nine fire wounds on the left arm outer side 41/2 x 4' area lower 1/3rd including elbow joint. Fracture of the lower end of the humerus present. Them nine wounds are entries.

(2) Eight exit wounds in the area 4? x 3? on the inner side of the left upper arm. One pellet is removed from subcutaneous tissue within this area.

(3) Entry wound eight in numbers ? ? x ? abroaded area 4? x 3? on the left side of the chest 6' from the mid line and 4' below the left nipple. The area is in mid axillary line.

4. Although according to the ocular testimony furnished by the eye-witnesses, namely, Shah Jehan (P. W. 12), Ghatiar Khau (P. W. 13), and Sher Ali (P. W. 14), both the shots fired one each by the two assailants, namely, the appellant and his brother hit the deceased yet having regard to the locale and contiguity of the three injuries, the nine wounds of entry on the outer side of the upper left arm of the deceased, the eight wounds of exit on the inner side coupled with the extraction of one pellet from the subcutaneous tissue of the arm and another bunch of eight wounds of entry in the left chest of the deceased as depicted in the pictorial diagrams led to a concurrent finding by the trial Court as well as the High Court that these were the result of a single shot. In their appraisement of evidence, both the Courts believed the ocular testimony of the three eye-witnesses, namely, Shah Jahan (P. W. 12), Ghafar Khan (P. W. 13) and Sher Ali (P. W. 14). The principal ground for credibility was that the evidence of Shah Jehan father of the deceased and Sher Ali whose brother was married to the sister of Shah Jehan and niece was the widow of the deceased, received corroboration from the testimony of Ghafar Khan who was an independent witness and his only connection with the complainant party was that he happened to be a landlord of Sher Ali (P. W). However, notwithstanding this consistent and harmonious assessment, the trial Court attributed the fatal shot to Sardar Khan brother and co-accused of the appellant convicting him with an award of death sentence while the High Court reversed this finding holding Muhammad Khan appellant responsible for firing the solitary shot at the deceased which proved fatal.

5. Unfortunately, learned counsel for the appellant did not appear before us to argue the appeal which was earlier fixed for 19-14977 and was adjourned at his request. In the absence of any prayer for grant of a fresh adjournment, we decided to proceed with the help of the Assistant Advocate-General who took us through the record.

6. As regards the point as to whether the three fire-arm injuries on the person of the deceased were the result of one shot or two shots, having perused the medical evidence. the pictorial diagrams and the reasoning of the Court below I would readily endorse the view taken by them that in al! probability all the three injuries were the result of a single shot fired from a close distance though not a point blank range. Since however, according to the eye. witnesses, both the appellant as well as his brother Sardar Khan had effectively fired at the deceased with their respective weapons and according to their consistent version, the first shot was fired by Sardar Khan with his gun, the trial Court held him responsible for the killing and without applying section 34, P. P. C. and holding the appellant vicariously liable acquitted him as a matter of abundant caution. On the other hand, the learned Judges in the High Court attached more importance to the version revealed in the initial report by Shah Jehan and later deposed to at the trial. According to this, the first shot was fired by Sardar Khan with his gun while the second was fired by the appellant with his .12-bore pistol hitting the deceased in his left flank. Since it was specified in the initial report that the shot fired by the appellant hit the deceased in his left flank corresponding to injury No. 3 of the deceased and to that extent it was supported by medical evidence, the learned Judges in the High Court took the view that the solitary shot was fired by the appellant and not his brother and accordingly reversed the findings acquitting the convict and convicting the acquitted accused.

7. If I may say so with respect, the unfortunate aspect of the matter is that while on the one hand the trial Court as well as the High Court believed the presence of the eye-witnesses as also the account furnished by them, they erred in ignoring the invocation of section 34, P. P. C. which was fully attracted to the facts and circumstances of the case. Surely, it was a case of day-light occurrence. Both the brothers equally shared the strong motive of wreaking vengeance of the insult and beating of their father as well as of the appellant himself. The occurrence took place at peshivela and the report was lodged with the utmost promptitude at the police station five miles away from the scene of the crime. Two different types of weapon were attributed to the two assailants. In these circumstances there could be neither any question of mistaken identity nor of inherent improbability as regards the number of assailants. In a situation like this, if two assailants lying in ambush having suddenly surprised the complainant party had fir in quick succession almost simultaneously the possibility of bona fide error of perception as to whose shot hit and whose missed could not be completely excluded from consideration and once the witnesses were believed, both the assailants should have been convicted without anyone of them being found entitled to benefit of doubt. Without proper appreciation of this important aspect of the matter, both the Courts below proceeded to act on the presumptive tendency of the complainants to exaggerate the facts and rope in innocent person' and thus erred in applying the, correct principle on ground of abundant caution.

8. The legal position in this regard made wellsettled by a chain of authorities such as Mehbub Khan v. The King-Emperor (72 I A 148), Mamand v. The King-Emperor (A I R 1946 PC 45) Sardar Ali v. The Crown (P L D 1956 F C 425) and Mst. Hamida Bano v. Ashiq Hussain (P L D 1963 S C 109). In the first mentioned case it was held by their Lordships that common intention implied a pre-arranged plan and to apply section 34, P. P. C. a very reasonable and natural inference that the act was done in concert pursuant to a pre-arranged plan should be deducible from the facts and circumstances of the case. In Mamand v. The King-Emperor it was clarified that the existence of preconcert could be established even by proof of acts performed by individuals subsequent to the completion of the main crime. Mehbub Shah's case was examined by this Court In Sardar Ali v. The Crown and it was observed that "a common intention developing in the course of the events which constitute the incident as a whole, although such intention may not have been present in the mind of any of the culprits at the commencement of the incident". In Hayat v. The State (1957 P S C R 268), the application of section 34, P. P. C. in the circumstances of that case was upheld by the High Court and the contention! raised on behalf of the convict appellant that be bad taken no part in the assault on the deceased was rejected by this Court on the applicability of section 34, P. P. C. and on that ground the appeal was dismissed.

9. It is a well-accepted principle that an unembellished version disclosed) with promptitude in the initial report containing no inherent improbabilities and prima facie giving a natural and convincing account of occurrence which inspires confidence and later supported at the trial by ocular evidence is received by the Courts without scapticism and is usually accepted as true unless of course the circumstances of the case or the defence evidence revealed the existence of a plausible alternative hypothesis. In the instant case while reversing the findings of the trial Court, the learned judges of the High Court appeared to have been impressed by the specific reference to the shot fired by the appellant having hit the deceased in the left flank whereas no such specification was made in the case of the first shot attributed to his brother Sardar Khan. Normally, when an eye-witness in his statement before the police or at the trial attributes a shot to a particular assailant without specifying that it missed the target, the presumption would be that it was fired effectively. In this police report Shah Jehan (P. W.) referred to the shot having been fired by Sardar Khan without specifying as to where did it hit the deceased. At the trial, however, he clarified this position and stated that it hit the deceased on the left arm. In this, he was supported by Ghafar Khan and Sher Ali P. Ws. Thus there was a conflict between the ocular testimony in regard to the two effective shots fired at the deceased and the medical evidence which disclosed only one shot causing all the three injuries. Notwithstanding this, however, there is hardly anything to justify the rejection of the consistent ocular testimony of the three eyewitnesses that the attack was opened by Sardar Khan with his gun whose shot hit the deceased in the left arm. Even otherwise, having regard to the fact that a .12-bore pistol would have caused through and through injuries in the arm, followed by eight wounds of a gun shot fired from a close range, it appears to me that the view taken by the learned trial Court was correct and based on a true appreciation of the evidence. In the circumstances, the High Court was not justified in reversing this judgment. Unfortunately, the case of Sardar Khan is not before us and with his acquittal by the High Court the proceedings against him came to an end. However, on the view taken by me that this was a case in which the application of section 34, P. P. C. was fully attracted, I hold the appellant vicariously liable for the murder of Fateh Muhammad even though the fatal shot may not have been fired by him. In fact the proposition is not devoid of authority that where the infliction of the solitary fatal injury or the firing of the effective shot proving fatal cannot be attributed with certainty to one of the two or more p assailants whose participation in the attack otherwise, stands established by satisfactory evidence, the non-participation could at best be a valid ground for award of lesser penalty.

10. The upshot of the discussion therefore, is that while I do not uphold the finding of the High' Court in the ultimate analysis I maintain the conviction and sentence of the appellant whose appeal fails and is hereby dismissed.

11. ANWARUL HAQ, J.-I agree.

12. QAISER KHAN, J.-I agree.

13. MUHAMMAD HALEEM, J. -I agree.

14. S. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.