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Criminal Appeal No. 425 and Murder Reference No. 148 of 1984, heard on 4‑2‑1986.

‑‑Ss. 302/34 & 324/34‑‑Motive set up by prosecution not disputed by accused‑‑Eve‑witnesses disinterested, having no axe to grind against accused nor having any link or connection with deceased‑‑Ocular version gaining support from medical evidence‑‑First Information Report lodged very promptly and no time left at disposal of complainant to make deliberation or consolidation‑‑Defence plea advanced by accused appearing to be patently false and no evidence led by accused in support thereof‑ Only one Chhuri injury found on person of deceased which was attributed to accused who intended his death‑‑Conviction and sentence maintained in circumstances.

--‑‑S. 34‑‑Common intention‑‑Some kind of pre‑planning and vicarious liability could not be visited unless some strong circumstances existed showing common intention.

‑‑S. 302/34‑‑Common intention‑‑Co‑accused‑‑Co‑accused not proved to have shared common intention with main accused and not alleged to have caused any injury to deceased‑‑No motive attributed to them‑‑No weapon was carried by them and element of pre‑planning or concerted attack not proved against them‑‑Conviction and sentence under S. 302/34 set aside.

‑‑S. 302/34‑‑Co‑accused empty handed, causing no injury to deceased‑‑Only role attributed to him was of holding deceased in Japha when main accused inflicted solitary Chhuri blow on deceased ‑‑Co‑accused having no motive against deceased and his participation appearing to be doubtful‑‑Co‑accused given benefit of doubt and acquitted.

‑‑‑S. 324/34‑‑Accused causing a simple injury blow to a prosecution witness‑‑Conviction under 5.324/34, P.P.C. maintained but sentence of imprisonment reduced to period already undergone.

‑‑‑S. 324/34‑‑Accused merely giving a head push to a prosecution witness resulting in simple hurt to him‑‑Conviction altered from S.324/34 to 323/34, Penal Code, and his sentence of imprisonment reduced to period already undergone.

Kh. Haris Ahmed for Appellants.

Rafiq Butt for A.‑G. Punjab for the State.

M. Anwar Bhour for the Complainant.

Date of hearing: 4th February, 1986.

Ijaz alias Jajji (24), his brother Muhammad Zafar Alam (25) and Khurshid Alam (18) sons of Abdul Hameed and Safdar Ali alias Arshad alias Sheeda (17) son of Mukhtar Ahmed were tried for the murder of Muhammad Yousaf deceased (23) and for murderously assaulting Mumtaz Hussain P.W. 13. The learned Additional Sessions Judge by his judgment, dated 29‑7‑1984 convicted all of them under sections 302 34 P.P.C. and 324/34 P.P.C. and sentenced Ijaz alias Jejji and Khurshid Alam appellants to death, Muhammad Zafar Alam and Safdar Ali to imprisonment for life and to pay a fine of Rs.5,000 each or in default to undergo two years' R.I. each. Half of the fine was ordered to be paid to the legal heirs of the deceased. Under section 324/34, P.P. C., they were sentenced to two years" R.I. each plus a fine of Rs.2,000 or in default to undergo one year's R.I. each. Half of the fine was ordered to be paid to Mumtaz Hussain, the injured P.W.

2. Ijaz alias Jajji, Muhammad Zafar Alam and Khurshid Alam appellants have filed Criminal Appeal No. 425 of 1984, Safdar alias Arshad alias Sheeda has filed Criminal Appeal ,No. 592 of 1984 while the trial Court has made a reference under section 374, Cr.P.C. for the confirmation of the death sentence awarded to Ijaz alias Jajji. All the three matters are being disposed of by this judgment.

3. Ijaz alias Jajji, Muhammad Zafar Alam and Khurshid Alam appellants are real brothers while Safdar Ali appellant is stated to be the friend.

The prosecution case is that on 31‑8‑1982 Bashir Ahmad P.W. 11 got registered a theft case of a cycle against Ijaz alias Jajji appellant. Three days prior to the occurrence i.e. on 13‑1‑1983 Ijaz alias Jajji and the other appellants approached Bashir Ahmad P.W. when he was present alongwith Muhammad Yousaf deceased and Mumtaz Hussain P.W, at the canteen situated near the outer gate of Sessions Court premises and asked him not to depose against Ijaz alias Jajji appellant in the said theft case to which he refused. Ijaz alias Jajji appellant threatened Bashir Ahmad with dire consequences. Muhammad YOUSUf deceased and Mumtaz Hussain P.W. condemned the behaviour of the appellants who left while issuing threats to avenge the insult and the refusal by Bashir Ahmad P.W.

4. On 16‑1‑1983 at 5.00 p.m. the appellants picked up an altercation with Muhammad Yousal deceased and Mumtaz Hussain P.W. They were abusing each other when Khurshid Alam appellant held the deceased in Japha. Ijaz alias Jajji appellant gave a Chhuri blow to him in the flank. Safdar alias Arshad alias Sheeda gave a head push to Mumtaz Hussain P.W. while Muhammad Zafar Alam inflicted a Chhuri blow on him on his right thigh., On the alarm Zafar Iqbal P.W. 14 and Muhammad Ijaz (given up) reached the spot. Many other persons also collected there whereupon the appellants fled away. Riaz Hussain P.W. 12, brother, of Mumtaz Hussain the injured P.W. also witnessed the occurrence. The injured were carried to the hospital where they were medically examined. Muhammad Yousaf died in the hospital on the next day. Before his death, he narrated the incident to his father Muhammad Rafiq P. W . 10.

After obtaining the medico‑legal report Riaz Hussain P.W. left for the Police Station to report the matter but on the way met S.I. Khurshid Alam P.W. 15 who recorded his statement Exh. P.A. at 6‑30 p.m. The said statement was sent to Police Station Peoples Colony, Faisalabad where the formal F.I.R. Exh. PA/1 was recorded on its basis by Habibullah Khan, Moharrar Head Constable P.W. 4.

5. Khurshid Alam S.I. P.W. 15 visited the spot wherefrom he proceeded to the Civil Hospital, Faisalabad. He recorded the statement of Mumtaz Hussain P.W. in the hospital. Muhammad Yousaf deceased was not fit to make a statement. After his death the S.I. prepared his inquest report. Exh. P.M. He arrested Ijaz alias Jajji, Khurshid Alam and Safdar alias Arshad alias Sheeda appellants on 1‑2‑1983 while Muhammad Zafar Alam was arrested on 4‑2‑1983. Ijaz alias Jajji while in custody led to the recovery of blood‑stained Chhuri P. 5 from his house which was secured through memo. Exh. P.M. attested by Abdul Ghani P.W. 9 and Sabir Ali (not examined). The Chhuri was sent for chemical examination and according to the report of Serologist Exh. P.Q. (page 12 of the printed paper book) it was found stained with human blood. Nothing incriminating was recovered from the possession of the other appellants.

6. Dr. Muhammad Nazir Chatta, P.W. 7 examined Mumtaz Hussain P.W. on 16‑1‑1983 at 5‑30 p.m. and found the following injuries on his person:

(1) An incised wound 2 c.m. x 3/4 c.m. x deep to the muscle freshly bleeding. Shirt and Shalwar having corresponding cuts and blood‑stained.

(2) Swelling 4 c.m. x 3 c.m. on left cheek.

(3) Laceration 3/4 x 1/2 c.m. on underneath the upper lip on right side.

Injury No. 1 was caused with sharp‑edged weapon while injuries Nos. 2 and 3 were caused with blunt weapon. All the injuries were simple in nature.

On the same evening, he examined Muhammad Yousaf deceased (23) and found the following injuries on his person:

(1) A stab wound with sharply cut edged 3 c.m. x 3/4 c.m. depth not probed on back and lateral and middle part of left side.

On 17‑1‑1983 at 2‑20 p.m. he conducted the post‑mortem examination on the dead body of Muhammad Yousaf deceased and found the following injuries thereon:‑‑

(1) A stitched stab wound 3 c.m. x 3/4 c.m. deep to thorax cavity on left and also to abdominal cavity on back and lateral and middle parts of left side of back.

(2) Stitched left sided abdominal operation wound 1 c.m. in length of left side of abdomen and middle.

(3) a wound 3 cm with drainage tube on outer and middle of front of abdomen.

(4) A wound 1 c.m. x 1/2 c.m. on upper and lateral part of left chest.

The walls and ribs etc. of chest of left side were injured at the stab sites, on back side Left pleurae was injured. Left lung was injured. Peritoneum and stomach were also injured. Death was due to shock and haemorrhage as a result of injury to chest on the left back, left lung, diaphragm and stomach.

6. Except Ijaz alias Jajji appellant the other appellants pleaded not guilty to the charge and denied the prosecution allegations. Ijaz alias Jajji appellant admitted the theft case got registered by Bashir Ahmad P.W. and stated that he was not named as an accused. Explaining the occurrence he made the following statement:‑‑

"I have been falsely involved in this case. Few days before this occurrence, I had requested Bashir Ahmad P.W. to give me some concession in the theft case to which he did not agree and rather, exchanged hot words with me and he felt annoyed and took it his insult and asked his brothers and his friend Yousaf deceased to take revenge from me. For that reason, Yousaf deceased Mumtaz P.W. when Mumtaz P.W. was armed with a Chhuri assaulted me when I was sitting on a chair in front of tea‑stall near Qadri Sweet House. I hurled the chair on Mumtaz P.W. hitting him on his face and due to that blow Chhuri fell down from his hand. I picked it up immediately and when the deceased and Mumtaz P.W. further proceeded towards me to overpower me then I out of apprehension of any harm at the hands of both of them and further apprehending that Yousaf deceased might be having any weapon like Chhuri with him, I gave one blow to Mumtaz P.W. and one blow to Yousaf deceased to save myself from them, and I ran away by throwing the Chhuri at the spot. Later on the complainant party cooked up a false story and falsely implicated myself, my brothers and Safdar accused with the connivance of police in this case."

Neither Ijaz alias Jajji appellant nor any of the other appellants led any evidence in defence.

7. The prosecution examined 15 prosecution witnesses to prove its case. Riaz Hussain P.W. 12, Mumtaz Hussain P.W. 13 (the injured) and Zafar Iqbal P.W. 14 furnished the ocular account. Bashir Ahmed P .W. 15 deposed about the motive. Abdul Ghani P.W. 9 and S.I., Khurshid Alam P.W. 15 testified to the recovery of blood‑stained Chhuri P. 5 at the instance of Ijaz alias Jajji appellant.

8. The learned trial Court disbelieved the recovery of blood‑stained Chhuri but relied on the ocular testimony and the motive and convicted and sentenced the appellants as described above.

9. Criticising the judgment the learned counsel for the appellants state that the prosecution has fabricated a false story and has thrown the net too wide to implicate all the real brothers of Ijaz alias Jajji appellant and further that the eye‑witnesses examined by the prosecution were interested and their evidence remains uncorroborated.

10. The motive set up by the prosecution is not disputed by the appellants. The registration of case about the theft of cycle of Bashir Ahmed P.W. is even admitted by Ijaz alias Jajji appellant. In his statement under section 342, Cr.P.C. he stated to have requested Bashir Ahmed P. W. to give him some concession in the theft case to which he did not agree and rather exchanged hot words with him.

As regards the ocular evidence, Riaz Hussain P.W. 12 and Mumtaz Hussain P.W. 13 had absolutely no axe to grind against the appellants nor had they any link or connection with the deceased. Zafar Iqbal is also a disinterested witness. Nothing is suggested against him as to why he is deposing against the appellants. The only criticism made in respect of him is that he was an employer of the deceased. In the absence of any background of enmity with the appellants it is difficult to dub him as an interested witness and discard his testimony. Mumtaz Hussain P.W. is an injured witness. The duration of his injury tallies with the injuries of the deceased. The ocular version gains support from the medical evidence. The F. I. R. was lodged very promptly showing that there was no time at the disposal of the complainant to make deliberation or consolidation. The occurrence took place at 5 p.m. whereas the report was lodged at 6‑30 p.m. after obtaining the medico legal reports of the injured persons from the District Headquarters Hospital, Faisalabad.

The defence plea advanced by Ijaz alias Jajji appellant appears to be patently false. According to him he was assaulted by Muhammad Yousaf deceased and Mumtaz Hussain P.W. when he was sitting in front of Tea‑stall near Qadri Sweet House. But no injury whatsoever was found on his person, nor did he lead any defence evidence to support his version. It was, therefore, rightly rejected by the trial Court.

11. The important question that falls for consideration is as to whether all the appellants participated in the occurrence sharing common intention of doing away with Muhammad Yousaf deceased or it was an individual act of all or some of them. It would not be out of place to mention here that the motive is attributed to Ijaz alias Jajji appellant only. It was he who was involved in the cycle theft case and was reprimanded by the deceased and Mumtaz Hussain P.W. for having issued threats to Bashir Ahmed P.W. on his refusal to refrain from deposing against him in the said case. The other appellants had nothing to do with that case. Only one Chhuri injury was found on the person of the deceased which ‑ is attributed to Ijaz alias Jajji appellant. None of the other appellants are alleged to have caused any' injury to him. Khurshid Alam appellant, real brother of Ijaz alias Jajji was said to be empty‑handed and the only role attributed to him is of holding the deceased in Japha. His other brother Muhammad Zafar Alam appellant and his friend Safdar alias Arshad alias Sheeda are also not alleged to have caused any injury to the deceased. Muhammad Zafar Alam appellant though H said to be armed with a Chhuri did not attempt to cause any blow to the deceased. He is merely alleged to have caused a simple injury to Mumtaz Hussain P.W. on the thigh. Likewise Safdar Ali alias Arshad alias Sheeda appellant was said to be empty‑handed. He it neither alleged to have grappled with the deceased nor caused any injury to I him. The only role assigned to him is of giving a head push to Mumtaz Hussain P.W. on his face. It is in the evidence of Mumtaz Hussain P.W. 13 that Khurshid Alam appellant was holding the deceased in Japha when Ijaz alias Jajji gave Chhuri blow to the deceased on his left flank. Section 34, Cr.P.C., envisages some kind of pre‑planning and vicarious liability cannot be visited unless some strong circumstance exists showing common intention.

In the instant case no motive is attributed to Muhammad Zafar Alam, Khurshid Alam and Safdar alias Arshad alias Sheeda qua the deceased. They are not alleged to have caused any harm to him. Khurshid L Alam and Safdar appellants are not said to be even carrying any weapon of offence with them. Khurshid Alam is stated to have grappled with the deceased while Safdar Ali and Muhammad Zafar Alam appellants are attributed simple injuries to Mumtaz Hussain P.W. In the circumstances discussed above the element of pre‑planning or concerted attack do not stand proved and the most probable and logical conclusion that can be M arrived at is that it was Ijaz alias Jajji appellant alone who intended the death of Muhammad Yousaf deceased and none else. Consequently, only he can be held liable for his act.

Since there was no extenuating circumstance to mitigate the offence, he was, therefore, rightly convicted and properly punished. Accordingly, we maintain his conviction and sentence under section 302, P.P.C., and dismiss his appeal.

12. So far as Muhammad Zafar Alam and Safdar alias Arshad alias Sheeda appellants are concerned, they are not proved to have shared the common intention with Ijaz alias Jajji appellant. We, therefore, accept their appeal and set aside their conviction and sentence under section 302/34, P.P.C., and acquit them of the said charge. Since Muhammad Zafar Alam appellant caused a simple Chhuri blow to Mumtaz Hussain P.W., we maintain his conviction under section 324/34, P.P C., but reduce his sentence to the period of imprisonment already undergone by him and a fine of Rs.2,000 or in default to undergo six month, R.I. Safdar alias Arshad alias Sheeda appellant merely gave a head push to Mumtaz Hussain P.W. resulting in simple hurt to him. Accordingly, his conviction is altered from section 324 /34, P .P.C. , to e section 323/34, P.P.C. and he is sentenced to the period of imprisonment already undergone by him and a fine of Rs.1,000 or in default to undergo three months' R.I.

The participation of Khurshid Alam appellant, real brother of Ijaz alias Jajji appellant appears to be doubtful for the reason that he was empty‑handed and is not said to have caused any injury either to the deceased or Mumtaz Hussain P.W. and the only role attributed to him is of holding the deceased in Japha when his brother inflicted a solitary Chhuri blow on him. Furthermore, he had no motive against the deceased. Accordingly, we accept his appeal, set aside his conviction and sentence and acquit him of the charges by giving the benefit of doubt. He shall be released forthwith, if not required in any other case.

Half of the fine, if realized from Ijaz alias Jajji appellant shall be paid to the legal heirs of the deceased as compensation. Half of the fine, if recovered from Muhammad Zafar Alam and Safdar Ali alias Arshad alias Sheeda appellants shall be paid to Mumtaz Hussain P.W. as compensation.

The death sentence of Ijaz alias Jajji appellant is confirmed.

M.Y.H. Appeal dismissed .

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