ABDUL WAHEED Versus THE STATE

MUHAMMAD MUNIR KHAN, J .‑‑This Criminal Appeal No.106 of 1985, Murder Reference No. 24 of 1986 and connected Criminal Revision No. 135 of 1985 filed by Zia Ullah Khan complainant for the enhancement of sentence of Jamal arise from the judgment of learned Additional Sessions Judge, Multan whereby he on 27‑5‑1985 convicted Abdul Waheed (23) and Jamal (20), appellants, under section 302/34, P.P.C. for the murder of Sana Ullah Khan (30) and sentenced them as under:‑---

(1) Abdul Waheed, appellant .‑‑ to death and a fine of Rs.5,000, in default whereof R.I. for one year.

(2) Jamal, appellant. ‑‑-----------to imprisonment for life and a fine of Rs.5,000, in default whereof R.I. for one year.

It was directed that the fine if recovered half of the same be paid to the legal heirs of the deceased. I propose to dispose of three matters through single judgment.

2. The occurrence took place on 28‑1‑1983 at 10‑00 a.m. in Killa No. 11 of Square No. 32 in the area of Mauza Kotli Bhutta, at a distance of 6 miles from Police Station Kabirwala. The F.I.R. Exh.P.G. was lodged by Zia Ullah Khan P.W.5, brother of the deceased, on the same day at 11.30 A.M. and was recorded by Ata Ullah Khan Sherwani, S.H.O. P.W. 9.

3. The appellants are real brothers. According to the prosecution, the appellants had double motive to kill the deceased: Firstly, Mst. Najam‑un‑Nisa, sister of the appellants was engaged to Sana Ullah Khan deceased since about 18/19 years. About six months before the occurrence, Sana Ullah Khan deceased and his father Abdul Karim Khan dishonoured the engagement and instead decided to marry Sana Ullah among relations in Gojra. Secondly, a day before the occurrence a quarrel took place between Bashir, a servant of the appellants and Muhammad Younas, younger brother of Muhammad Qayyum P.W.6, first cousin of Sana Ullah Khan deceased, hence this occurrence.

4. As far the main occurrence, it has been stated that at the eventful time, Sana Ullah Khan deceased, Zia Ullah Khan P.W.5 and Muhammad Qayyum P.W.6 were going from Chah Rab Nawaz to their house. When they reached in Killa No. 11 of Square No. 32, the appellants came across them. Jamal was carrying .12 bore gun, and Abdul Waheed was empty handed. Abdul Waheed raised lalkara that the complainant party should not be spared whereupon Jamal fired ineffective shot on Muhammad Qayyum P.W. Abdul Waheed appellant then snatched gun from Muhammad Jamal and started loading it. Sana Ullah deceased, Zia Ullah Khan complainant and Muhammad Qayyum P.W. tried to apprehend the appellants. Jamal appellant struck his head on the left eye of Muhammad Qayyum and beat him. Abdul Waheed fired shot at Sana Ullah hitting in his neck. Sana Ullah fell down and expired on the spot. The alarm attracted Zulfiqar P.W.7 to the spot. Zia Ullah Khan with the help of Zulfiqar and Muhammad Qayyum snatched gun and bendolier containing live cartridges from Abdul Waheed appellant. The appellants, however, made good their escape.

5. On 28‑1‑1983 crime empty EXh.P.11 was picked up by Ata Ullah Khan S.H.O., P.W.9 from the spot and taker, into possession vide memo Exh.P.K, attested by Muhammad Akbar P.W.8 and Muhammad Siddiq (not produced). On the same day, Zulfiqar P.W.7 produced gun Exh.P.8 with empty cartridges Exh.P.9 in; barrel and bendolier Exh.P.10 containing 7 live cartridges Exh.P.10/1‑7 before, Ata Ullah Khan, S.H.0, P.W.9, which were taken into possession vide memo Exh.P.G. attested by Zulfiqar P.W.7, Muhammad Akbar P.W.8 and Muhammad Siddiq (not produced). The Forensic Science Laboratory report Exh.P.Q. reveals that crime empty EXh.P.11 was fired from Gun Exh.P.8 allegedly snatched from Abdul Waheed appellant by the complainant and others on the spot.

6. On 28‑1‑1983 at 2‑45 p.m. Dr. Muhammad Rafiq P.W.3 medically examined Muhammad Qayyum P.W. and found following injuries on his person:‑

(1) "A contused wound 1x c.m. on the temporal margin of left orbit.

(2) An abrasion c.m. on the upper part of sternum.

Both the injuries were simple and caused by blunt weapon within 5 to 6 hours of examination.

7. On the same day he conducted post‑mortem examination on the dead body of Sana Ullah Khan and found following injuries:

"A lacerated wound 4 x 2 c.m. on the front of the neck below the thyroid cartilage, horizontal in direction. There was lacking of the margin of the wound. Edges were inverted. There was no burning of clothes. There was no unburnt power on the clothes or skin. The direction was backward the oesophagus trachoea, survical vertibera, spinal card and muscles were lacerated. The lower survical vertibera was fractured into pieces. A pellet was recovered in the fractured vertibera.

A lacerated wound 6 x 3 c. m. with everted margin on the back of the neck at its base".

In his opinion, the death occurred due to shock and haemorrhage as a result of firearm injury found on the neck of the deceased. The injury was sufficient to cause death in the ordinary course of nature. The time between injury and death was sudden while between death and post‑mortem was about 5 to 6 hours.

8. The appellants were arrested on 8‑2‑1983 by Ata Ullah Khan Sherwani, S.I., P.W.9. Nothing incriminating was recovered from them.

9. To prove its case, prosecution produced 9 witnesses. Zia Ullah Khan P.W.5, Muhammad Qayyum P.W.6 and Zulfiqar P.W.7 have given the ocular account of the occurrence. They claim to have seen Jamal appellant firing ineffective shot on Muhammad Qayyum and Abdul Waheed firing fatal shot on Sana Ullah deceased after snatching gun from Jamal. They also claim to have snatched gun Exh.P.8 from Abdul Waheed appellant at the time of occurrence. Zia Ullah Khan P.W.5 and Muhammad Qayyum P.W.6 supported the alleged motive. Zulfiqar P.W.7, Muhammad Akbar P.W.8 and Ata Ullah Khan Sherwani, S. I., P. W.9 have deposed about the recovery of crime empty EXh.P.11 from the spot and the production of gun Exh.P.8 before the police on the day of occurrence. The Forensic Science Laboratory Report Exh.P.Q. shows that crime empty Exh.P.11 recovered from the spot was fired from gun Exh.P.8 Dr. Muhammad Rafi, P.W. 3 has proved the medico‑legal report of Muhammad Qayyum P.W. and post‑mortem examination report of Sana Ullah Khan deceased. The rest of the evidence is more of less of formal nature.

10. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. They raised plea of false implication on account of quarrel over the possession of the land. They stated that Sana Ullah Khan (deceased) had obtained 80/100 Bheegas of land from their father on lease and later on when their father demanded back the possession of the land, Sana Ullah declined to oblige and consequently bad blood developed between them. In defence they tendered copy of Roznamcha Waqiati dated 17‑2‑1983 Exh .D.E., copy of Roznamcha Waqiati dated 25‑8‑1984 Exh . D . F . , lease agreement between their father and Sana Ullah deceased Exh.D.G., agreement for the cancellation of lease‑deed Exh . D . H . , copy of stay order of Civil Court Exh.D.J., copy of letter dated 16‑5‑1974 of D.I.‑G., Police Multan Exh.D.K., copy of another letter dated 16‑5‑1974 of D.I.‑G., Multan, Exh.D.L., copy of the application dated 16‑5‑1974 to D.I.‑G. Multan submitted by Sana Ullah Khan deceased and others Exh.D.M. They also gave evidence in disproof of the charge against them and produced Muhammad Ajmal Khan D.W.1 to prove agreement of lease Exh .D. G. He stated that Sana Ullah had refused to surrender land to the father of the appellants whereon the father of the appellants filed suit and obtained stay order copy Exh.D.J. The witnesses further stated that Sana Ullah deceased had filed application Exh.D.M. to the D.I.G., Multan.

11. The learned trial Court while believing the alleged motive, ocular account of the occurrence given by the eye‑witnesses, recovery of gun from Abdul Waheed appellant, the Serologist Report and the medical evidence, has convicted and sentenced the appellants as stated above.

12. Learned counsel for the appellants contended that the eye‑witnesses are not reliable; that the occurrence did not take place in the manner as stated by them; that their statements are not in conformity with the medical evidence, in that the site‑plan shows that Abdul Waheed appellant was present at a distance of 20 feet from the deceased whereas the medical evidence shows that there was blackening of the margin of the wounds of the deceased and that there are indications that the gun went off accidentally while the deceased and Maqsood P.W. were trying to snatch it from Abdul Waheed appellant. Learned counsel argued that it was/is for the prosecution to show not only that the firing was intentionally but also that the same was prompted by any such intention or knowledge as is mentioned in section 300, I.P.C. and there was/is no burden on the appellants to prove that the firing resulting in the death of the deceased was accidental. Learned counsel for the State has supported the judgment of the trial Court. Learned counsel for the complainant not only supported the judgment of the trial Court but also prayed for the enhancement of the sentence of Jamal appellant on the ground that there was no mitigating circumstance in his favour for lesser penalty.

13. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statements of the accused appellant recorded under section 342, Cr.P.C., the statements of the appellants which they made on oath in disproof of the charge against them, the statement of Muhammad Jamal Khan D.W.1 and the documents tendered and proved by the defence, with care. We find that it is case of promptly lodged F.I.R. The occurrence took place an 10‑001 p.m. on 28‑1‑1983 and the F.I.R. Exh.P.C. was lodged at the police station on the same day at 11‑30 p.m. The F.I.R. contains the names of the. eye‑witnesses, the alleged motive, the names of the appellants, the weapon carried and used by them in the crime. There is nothing in evidence to show that the F.I.R. has not recorded at the time and place as it purports. The promptitude with which the was been lodged shows that there was no time for consultation deliberation and for procuring false witnesses.

14. Adverting to the most crucial piece of evidence i.e. the ocular account of the occurrence, we find that Zia Ullah Khan P.W.5, Muhammad Qayyum P.W.6 and Zulfiqar P.W.7 are quite dependable witnesses. No doubt, Zia Ullah Khan is the brother of the deceased and Muhammad Qayyum is the cousin of the deceased but their evidence should not be discarded on she account of mere relationship. By the fact of injuries on the person of Muhammad Qayyum P.W.6, his presence at the time of occurrence is very much established. Zia Ullah Khan and Zulfiqar P.Ws. have given plausible cause of their presence on the spot at the time of occurrence. The witnesses were subjected toll lengthy cross‑examination but their veracity and integrity could not be damaged. They have successfully faced the test of cross- examination. Their statements are in consonance with the probabilities and materially fit in with the rest of evidence and circumstances of the case. We do not see any major conflict between the statements of the eye‑witnesses and the medical evidence. Zia Ullah Khan P.W.5 has explained in cross‑examination that Abdul Waheed was at a distance of 20 feet when he loaded the gun and was at a distance of 6 feet when he fired at the deceased. He explained that the distance of 20 feet told by him to the Patwari, was of the place where Abdul Waheed was loading the gun. Since this explanation has come in cross‑examination and appears to be correct, therefore, there is not conflict in the medical evidence and ocular account of the occurrence given by the eye‑witnesses. The statements made by the eye‑witnesses do not suffer from infirmities such as material contradictions, dishonest improvements or major discrepancies, Zulfiqar P.W.7 is a quite independent witness. He is neither related to the deceased nor had animus against the appellants to involve them falsely in the case. The occurrence took place in the light of day and as such there was no difficulty in .the identification of the assailants. The statements of the eye‑witnesses find support from a strong circumstance i.e. recovery of licensed gun of Abdul Rahman, the father of the appellant. This gun was snatched from Abdul Waheed by the eye‑witnesses on the spot and subsequently produced before the police. Forensic Science Laboratory report shows that the crime empty EXh.P.11 was fired from this gun. There is nothing in 'evidence to show that the licensed gun of the father of the appellants was stolen away before the' occurrence or that it was procured from him during investigation. This circumstance not only confirms the presence of the eye‑witnesses on the spot but also proves the participation of the appellants in the occurrence. Had the eye‑witnesses not been present on the spot then the licensed gun of the father of the appellants could not have been produced before the police. The alleged motive has also been proved by Zia Ullah Khan and Muhammad Qayyum P.W. whose evidence has already been believed by us.

15. Coming to the plea of accidental firing raised by the learned counsel we find that this plea was neither suggested to the eye‑witnesses in cross‑examination nor stated by the appellants in their statements recorded under sections 340(2) and 342, Cr.P.C. The appellants have not produced any witness to substantiate this plea. In their statements recorded under sections 340(2) and 342, Cr.P.C., they do not admit their presence on the spot and as such the stand taken by the learned counsel for the appellants before us that gun Exh.P.8 went off accidentally during the scuffle between the eye‑witnesses and Abdul Waheed appellant is not acceptable. It may be noted that even before the Investigating Officer, the plea taken by the appellants was that the gun went off accidentally when Abdul Haleem, Fareed and Younas were trying to snatch the same from the assailants. Strangely enough, the names of the assailants and the person holding gun at that time were not disclosed to the police. There can be no denying that the burden remains on the prosecution to prove that the accused had deliberately aimed at or shot the deceased with the intention of murdering him and there is no onus on the accused to prove any special plea including that of accidental firing and the accused will certainly be entitled to acquittal of the charge of murder if the prosecution does not prove such intention or knowledge as is mentioned under section 300, P.P.C. In the instant case, the prosecution has successfully proved the motive of the appellants to kill the deceased. Abdul Waheed snatched gun from Jamal, loaded it and then fired snot hitting on the neck of the deceased. This shows that he had no other intention but to kill the deceased. Through documents Exhs.DE, DF, DG, DJ, DK, KL and DM. the appellants have tried to prove enmity of Sana Ullah deceased with their father over the possession of the land which was given by their father on lease to Sana Ullah deceased. The mere fact that the father of the appellants had asked Sana Ullah deceased to vacate the land does not show that the appellants have falsely been involved in a murder case by the complainant and the eye‑witnesses. The evidence given by the appellants under section 340(2), Cr.P.C. and the statements made by Muhammad Ajmal D.W.1 and documents tendered by the appellants in defence do not rebut the prosecution version of the occurrence and the ocular evidence produced by it. For all these reasons, we are convinced that the occurrence took place in the' manner as stated by the eye‑witnesses and there is no reasonable possibility of the version of the accidental fire pleaded by the learned counsel, being true. The trial Court has rightly believed the F.I.R. the motive alleged by the prosecution, the ocular account of the occurrence given by the three eye‑witnesses and the recovery of gun Exh.P.8.

16. This brings us to the question of constructive liability of Jamal appellant. The prosecution case is that he came armed with gun at the place of occurrence and fired ineffective shot on Maqsood Ahmad P.W. He did not cause any injury to the deceased. The question for determination is whether he should be held vicariously liable for the act of killing of his co‑accused namely Abdul Waheed and convicted under section 302/34 P.P.C. or not. The question of constructive liability in criminal cases needs utmost care on the part of the Court and the presumption of constructive liability must not be readily applied or pushed too far. The relevant section may be reproduced conveniently:‑--

"Section 34, P.P.C .‑‑ When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

On the examination of the aforesaid provisions of law, it is very much obvious that the leading feature of the section is the element of participation in action. The words "in furtherance of common intention of all used in section clearly mean that all the persons charged must have consented to the commission of the crime committed i.e. the act done must be the act contemplated by all. The existence of common intention is a question of fact and has to be determined in the circumstances of each case. In the instant case, there is n evidence to show that it has been mutually agreed between the two accused/ appellants, either before or during the occurrence that the gun would be used by abdul Waheed to kill Sana Ullah or any person who resisted them. No doubt, when a person accompanies other, who is armed with fire‑arm, he must know it to be likely that murder would be committed but further that it is not safe to go. Knowledge is not the same thing as intention. In the case in hand, Abdul Waheed. was not armed with a gun when the two appellants arrived on the spot. Jamal appellant although armed with gun yet he did not fire at the deceased. This immediate motive for attack was against Maqsood Ahmad. So he fired shot at Maqsood Ahmad which remained ineffective. Thereafter, Abdul Waheed unexpectedly snatched gun from him and fired at Sana Ullah without any instigation on the part of Jamal. Jamal appellant neither voluntarily delivered gun to Abdul Waheed nor did ask him to fire at the deceased. In the circumstances of the case, he could not imagine that Abdul Waheed could snatch gun from him and use the same with tragic consequences. It seems to us that the act of killing of the deceased was an individual act of Abdul Waheed and Jamal cannot be held vicariously liable. The mere fact that he took part in the crime is not sufficient to attract the provisions of section 34, P.P.C.

17. Now, we proceed to consider the question of sentence of Abdul Waheed appellant. We find that there are mitigating circumstances in his favour for lesser penalty inasmuch as deceased has dishonoured the engagement of the sister of the appellants with him; that he came empty handed to the place of occurrence and that he fired shot only when the deceased and others tried to apprehend him and his co‑accused.

18. The upshot of the above discussion is that while giving benefit of doubt, Jamal appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other case. The appeal to the extent of Abdul Waheed is dismissed. His conviction finder section 302 P.P.C. for the murder of Sana Ullah is upheld. The sentence of death is, however, altered to imprisonment for life. The fine awarded by the trial Court, the sentence in lieu thereof and directions for payment of fine to the legal heirs of the deceased are maintained. The connected revision automatically fails.

Death sentence is not confirmed.

M.Y.H./A‑260/L Appeal partly accepted.