Abdul Sami Khan, J:- Through this single judgment, we intend to decide Criminal Appeal No.349 of 2010 filed by Zaheer-ud- Din Babar and Dawood Baig, Criminal Appeal No.473 of 2010 filed by Sabir Hussain and Irshad Ali appellants against their conviction and sentences, Criminal Appeal No. 511 of 2010 filed by Waris Baig appellant (complainant) against the acquittal of Shehnaz Begum, Farah Sabir , Waqar Ali, Mazhar Baig and Ansar Ali respondents, Criminal Revision No. 184 of 2010 filed by Waris Baig petitioner (complainant) for enhancement of sentence and Reference sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Zaheer-ud-Din Babar and Dawood Baig appellants, numbered as Murder Reference No.50 of 2010. All these matters have arisen out of one and the same judgment dated 31.05.2010, passed by learned Additional Sessions Judge, Jhelum, in case FIR No.132/2008 dated 03.08.2008 under Sections 302, 324, 337 A(I), 337 A(II), 337 F(I), 337 F(III), 337 F(V), 337 L(I), 337 A (II), 452, 148, 149 PPC, Police Station Mangla Cantt, District Jhelum, whereby Zaheer-ud-Din Babar , Dawood Baig, Sabir Huss ain and Irshad Ali appellants were convicted and sentenced as under:- Zaheer-ud-Din Babar appellant:- Under Section 302 (b) PPC read with Section 34 PPC to death for the murder of Mst. Azra with direction to pay compensation of Rs.1,00,000/- (Rupees one hundred thousand only) as envisaged under Section 544-A Cr.P.C. to the legal heirs of deceased and in default thereof to further undergo 06- months S.I.
Under Section 302(b) PPC read with Section 34 PPC for the murder of Mazhar Hussain to undergo Life Imprisonment with direction to pay compensation of Rs.50,000/- (fifty thousand only) as envisaged under section 544-A Cr.P.C. to the legal heirs of deceased and in default thereof to further undergo 06-months S.I.
Under Section 324 PPC read with Section 34 PPC for attempt to commit murder (Qatl-e-Amad) of Asghar Ali as 10 years R.I. alongwith payment of fine Rs.10,000/- or in default of payment of fine to further undergo 01 month S.I.
Under Section 324 PPC read with Section 34 PPC for causing injury to Ali Raza in attempt to Qatl-e-Amd for 10 years R.I. alonwith payment of fine Rs.10,000/- or in default of payment of fine to further undergo 01 months S.I.
Under Section 324 PPC read with Section 34 PPC by way of awarding the punishment for attempt to murder (Qatl-e-Amd) as 05 years R.I. alongwith payment of fine Rs.5,000/- or in default of payment of fine to further undergo 01-months S.I. for causing firearm injury to W aris Baig.
Under section 452 PPC read with Section 34 PPC for two years R.I. alongwith fine of Rs.5,000/- or in default of payment of fine to further undergo S.I. for one month.
Dawood Baig appellant:- Under Section 302 (b) PPC read with Section 34 PPC to Death for the murder of Mazhar Hussain with fine Rs.1,00,000/- as compensation to the legal heirs of said deceased or in default of payment of compensation to further undergo S.I. for six months.
Under Section 302(b) PPD read with Section 34 PPC for imprisonment for life for the murder of Mst. Azra deceased alongwith Rs.50,000/- (fifty thousand only) as compensation to her legal heirs or in default of payment of compensation to further undergo 06 months S.I.
Under Section 324 PPC read with Section 34 PPC for attempt to murder (Qatl-e-Amd) of Asghar Ali as 05 years R.I. alongwith payment of fine Rs.5,000/- or in default of payment of fine to further undergo 01-month S.I.
Under Section 324 PPC read with Section 34 PPC for causing injury to Ali Raza in attempt to Qatl-e-Amd by way of awarding punishment as 05 years R.I. alongwith payment of fine Rs.5,000/- or in default of payment of fine to further undergo 01 months S.I.
Under Section 324 PPC read with Section 34 PPC by way of awarding the punishment for attempt to commit murder (Qatl- e-Amd) of Waris Baig as 05 years R.I. alongwith payment of fine Rs.5,000/- or in default of payment of fine to further undergo 01-month S.I. or in default of payment of fine to further undergo S.I. for one month.
Sabir Hussain appellant:- Under Section 302(b) read with Section 34 PPC by way of awarding sentence of Imprisonment for Life for the murder of Mazhar Hussain with fine of Rs.50,000/- as compensation to the legal heirs of said deceased or in default of payment of compensation to further undergo SI for six months.
Under Section 302(b) read with Section 34 PPC by way of awarding the sentence of imprisonment for life for the murder of Mst. Azra with fine of Rs.50,000/- as compe nsation to her legal heirs or in default of payment of compensation to further undergo S.I. for six months.
Under Section 324 PPC read with Section 34 PPC by way of awarding the punishment for attempt to commit murder (Qatl- e-Amd) of Asghar Ali as 05 years S.I. alongwith payment of fine Rs.5000/- or in default of payment of fine to further undergo 01-months S.I Under Section 324 PPC read with Section 34 PPC for causing injury to Ali Raza in attempt to commit his Qatl-e-Amd by way of awarding the punishment as 05 years R.I. alongwith payment of fine Rs.5,000/- or in default of payment of fine to further undergo 01 months S.I.
Under Section 324 PPC read with Section 34 PPC by way of awarding punishment for attempt to commit murder (Qatl-e- Amd) of Waris Baig as 05 years R.I. alongwith payment of fine Rs.5000/- or in default of payment of fine to further undergo 01 months S.I Under Section 452 PPC read with Section 34 PPC sentenced to two years R.I. alongwit h fine of Rs.5,000/- or in default of payment of fine to further undergo S.I. for one month.
Irshad Ali appellant:- Under Section 302(b) PPC read with Section 34 PPC by way of awarding the sentence of imprisonment for Life for the murder of Mazhar Hussain with fine of Rs.50,000/- as compensation to the legal heirs of said deceased or in default of payment of compensation further undergo SI for six months.
Under Section 302(b) PPC read with Section 34 PPC by way of awarding the senten ce to imprisonment for life for the murder of Azra deceased alongwith Rs.50000/- as compensation to her legal heirs or in default of payment of compensation to further undergo six months S.I.
Under Section 324 PPC read with Section 34 PPC by way of awarding the punishment for attempt to commit murder (Qatl- e-Amd) of Asghar Ali as 10 years R.I. alongwith payment of fine Rs.10,000/- or in default of payment of fine to further undergo 01 months S.I.
Under Section 324 PPC read with Section 34 PPC for causing injury to Ali Raza in attempt to commit Qatl-eAmd by way of awarding the punishment as 05 years R.I. alongwith payment of fine Rs.5000/- or in default of payment of fine to further undergo 01 months S.I.
Under Section 324 PPC read with Section 34 PPC by way of awarding the punishment for attempt to commit murder (Qatl- e-Amd) of Waris Baig as 10 years R.I. alongwith payment of fine Rs.10,000/- or in default of payment of fine to further undergo 01 months S.I.
Under Section 452 PPC read with Section 34 PPC sentenced to two years R.I. alongwit h fine of Rs.5,000/- or in default of payment of fine to further undergo S.I. for one month.
All the accused persons/appellants were extended benefit provided under section 382-B Cr.P.C. and all the sentences awarded to the appellants/convicts shall run concurrently .
2. The prosecution' s case unfolded in the FIR (Ex.PJJJ) got lodged by Waris Baig complainant (PW-16) is that he was present in the house of his uncle namely Asghar Hussain alongwith Asghar Hussain, Ali Raza, Mst.Razia Begum, Khyzar Husain and Jahangir Khan when at about 9.00 p.m. Sabir Husain armed with hatchet, Zaheer-ud-Din armed with 12 bore gun, Dawood Baig armed with 12 bore gun, Irshad Ali armed with 30 bore pistol, Waqar Ali armed with 30 bore pistol, Mazhar Baig armed with Danda, Ansar Qureshi armed with Danda, Mst. Shahnaz Begum empty handed, Mst. Farah empty handed alongwith three unknown persons in furtherance of their common object reached in front of gate of Asghar Hussain' s house. Sabar Hussain, Mst. Shehnaz Begum and Mst. Farah raised lalkara that they will teach them a lesson for pelting stones on the women and entered into the house. Zaheer-ud-Din accused made two consecutive fires shots with 12 bore gun which hit Asghar Hussain on his both legs and different parts of his body . Irshad Ali accused made three consecutive fires from his pistol on Ali Asgh ar which hit him on his head and shoulder who fell down after sustaining serious injuries. Then Zaheer-ud-Din Babar accused made a straight fire with his 12 bore gun on Ali Raza which hit him on the knee of left leg. Then Zaheer-ud-Din made a fire shot with his gun 12 bore which hit Mst. Razia Begum on her head, left thigh and fingers of left foot. When the complainant tried to lift Asghar Hussain, Irshad Ali accused made fire at him with 30 bore pistol which pierced through his right foot. The accused dragged and took the injured persons in the street and on the alarm Mst. Munawar Bibi, Arif Baig, Mst.Azra Bibi and Muhammad Ali reached at the spot. Whereupon Irshad Ali accused fired from his pistol 30 bore on Mst. Munawar Bibi which hit on her back. Then Zaheer-ud-Din Babar accused made two consecutive fires with 12 bore gun on Arif Baig father of the complainant which hit him on his both legs, then Dawood Baig accused made two consecutive straights fires on Muhammad Ali which hit him on his right leg and right knee, then Zaheer-ud-D in Babar accused made a fire with 12 bore gun on Mst.Azra Bibi which hit her on her right knee. Meanwhile Mudassar Hussain, Javed Khan, Mst. Fouzia Jehangir , Mst.T ahmina Mughal, Mst. Mussarat Shaheen, Mst. Safia Begum, Mst. Zohra Kalsoom and Mst. Maimoona Mughal also reached at the spot and Zaheer-ud-Din Babar , Dawood Baig, Irshad Ali and Waqar Ali accused persons made fires on them with their respective weapons who also sustained injuries. Mazhar Baig, Ansar Qureshi and three unknown persons also inflicted Danda blows on the injured persons. Meanwhile Mazhar Hussain who came in the street from the side of the house of Mansoor Ali Qureshi and asked the accused as to why they have committed such a brutal act, whereupon Sabar Hussain raised lalkara that this persons should not go alive. Then Dawood Baig made a straight fire from 12 bore gun which hit him on front of his belly who fell down, Sabar Hussain inflicted a hatchet blow on him which hit him on right side of his head. The accused while firing and raising lalkara fled away from the spot. The complainant also came to know that Mst. Nasreen Akhtar and Mst. Andaleeb also had sustained injures due to the firing of the accused.
Motive behind the occurrence was that two days before the occurrence, an altercation took place which resulted into stone pelting between the women folk of both the sides on dispute of drain course and the complainant and Asghar Hussain cursed the women folks of the accused side and due to that grudge the accused with their common object made a murderous assault on the complainant party . Mazhar Hussain succumbed to the injuries on the way to hospital and later on injured Azra Bibi also succumbed to the injuries.
3. After registration of FIR, investigation of the case was conducted by Muhammad Bashir S.I. (PW-24) and after completion of the same, report under section 173 Cr.P.C. was accordingly submitted in the learned trial Court for initiation of regular trial. On commencement of trial, after observing legal formalities as provided under the Code of Criminal Procedure, 1898, learned trial Court framed charge against the accused under Sections 302, 452, 324, 148, 149 PPC on 26.10.2009 to which they pleaded not guilty and claimed a trial.
4. To substantiate its version at the trial, the prosecution produced as many as twenty six witnesses during trial before the learned trial Court. Ocular account was furnished by Waris Baig complainant (PW.16), Asghar Hussain (PW.19), Ali Raza (PW.20. Muhammad Bashir S.I. (PW-24) is the investigating officer. He testified about the investigation conducted by him. The medical evidence was furnished by Dr. Khalid Radiologist (PW.1), Dr. Anjum Riaz (PW.2) who on 3.08.2008 medically examined Asghar Hussain, Ali Raza, Muhammad Ali, and Mudassar Hussain. Dr. Zubair Khurshid (PW.8) medically examined Mst. Nasreen Akhtar . Dr. Adeela Kanwal (PW.9) medically examined Mst. Azra, Mst. Zohra, Mst. Razia Begum, Mst. Mehemona Azmat, Mst. Musarat Shaheen, Mst. Munawar Begum, Mst. Fouzia Jahangir and after the death of Mst. Azra Bibi she conducted post mortem on the dead body of Mst. Azra Bibi deceas ed. Dr. Fiaz Ahmad Malik (PW.11) medically examined Waris Baig, Muhammad Arif, Javed Iqbal. Dr. Fouzia Bajwa (PW.17) medically examined Mst.T ahmina Bibi on 03.08.2008. Dr. Hassan Ali (PW.18) conducted the post mortem on the dead body of Mazhar Hussain on 3.08.2008.
Rest of the prosecution witnesses are more or less formal in nature. After tendering in evidence the report of Chemical Examiner (Ex.PFFFF), report of Serologist (Ex.PFFFF/1), report of Chemical Examiner (Ex.PGGGG), report of Serologist (Ex.PGGGG/1) and that of the Forensic Science Laboratory (Ex.PHHHH), the prosecution closed its evidence.
5. The appellants in their statements recorded under Section 342 Cr.P.C. professed their innocence and pleaded false implication in the case. Neither they opted to get record their statements under Section 340(2) Cr.P.C. in disproof of allegations leveled by the prosecution against them, nor they produced any defence evidence.
6. At the end of trial, after thrashing entire evidence and evaluating the arguments advanced by learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence Zaheer-ud-Din Babar , Dawood Baig, Sabir Ali and Irshad Ali appellants as mentioned in paragraph No.1 of this judgment, whereas Mazhar Baig, Ansar Ali, Waqar Ali, Mst.Shehnaz Begum, Mst. Farah Sabir co-accused were acquitted of the charge by the learned trial Court and the co-accused Faisal Mehmood, Nadeem Abbas and Muhammad Sohail were acquitted on the basis of compromise.
7. Learned counsel for the appellants, in support of their appeals, submits that the appellants are absolutely innocent and they have been involved in this case with malafide intention and ulterior motives; the complainant and the alleged eye witnesses were not present at the spot and they have been manufactured by the prosecution only to create eye witness account against the appellants in the murder of Mazhar Hussain and Azra Bibi deceased: there are material contradictions between the statements of eye witnesses recorded before the trial Court and the medical evidence; the motive set up in FIR has not been proved by the prosecution during trial, the complainant has effected compromise with three accused and also recorded his statement regarding compromise with said accused during trial; so he must suffer; adverting to appeal against acquittal and criminal revision for enhancement of sentences of the appellants, learned counsel submits that the prosecution has failed to prove its case beyond any shadow of doubt and the evidence so produced is not confidence-inspiring and is not worthy of credence, so the appellants deserve clean acquittal and the appeal against acquittal as well as criminal revision deserve dismissal.
8. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes the submissions made by learned counsel for the appellants and submits that appellants while armed with deadly weapons construed unlawful assembly in prosecution of their common object launched murderous assault upon the complainant party , caused murder of two persons Mazhar Hussain and Mst. Azra Bibi deceased and also injured Waris Baig complainant, Asghar Hussain, Ali Raza, Muhammad Ali, Mudassar Hussain, Mst. Nasre en Akhtar . Mst. Zohra, Mst. Razia Begum, Mst. Mehemona Azmat, Mst. Musarat Shaheen, Mst. Munawar Begum, Mst. Fouzia Jahangir , Muhammad Arif, Javed Iqbal and Mst.T ahmina Bibi; the matter was reported to the police within shortest possible time, which excluded the element of deliberation and consultation; appellants are named in promptly lodged FIR with specific role and the roles attributed to them are borne out from medica l evidence; the eye witness account is consi stent against the appellants, that is duly corroborated by the medical evidence and apart from confidence inspiring evidence of the eye witnesses, there is strong corroborative evidence on the file of this case in the shape of weapons of offence recovered on the pointing out of appelalnts and the report of Forensic Science Laboratory suggests that the empties shown to have been recovered from the place of occurrence match with the shot gun recovered from appellants Dawood Baig and Zaheer-ud-Din Babar . Waris Baig complainant (PW-16), Asghar Ali (PW.19) and Ali Raza (PW.20) are injured witnesses and the injuries on their persons prove that they were present at the time of occurrence and inspite of lengthy cross-e xamination, the defence failed to demolish/dislodge their presence at the spot; the accused have not brought on record any material showing malafide or ulterior motive of the eye witnesses so as to establish that they have made false statements against the accused; the motive part of the prosecution case is also proved through the statements of eye witnesses and suggestion on complainant that the complainant party had abused women of accused party and for that reason the occurrences took place; the prosecution case stands proved from all corners against the appellants; substitution of the appellants for the real culprits is rare phenomena and it cannot be imagined that one can involve innocent persons in such a heinous offence by letting of the real culprits. While arguing on appeal against acquittal, learned counsel for the appellant/complainant contends that Mst.
Shahnaz Begum, Mst. Farah Sabar , Waqar Ali, Mazhar Baig and Ansar Ali respondents are named in FIR with specific roles, which is clearly borne out from medical evidence, but the learned trial Court has acquitted them on conjectures and surmises, which practice adopted by the learned trial Court is absolutely against the norms of criminal justice and the commands of law; the prosecution has successfully proved its case against the appellants as well as the acquitted co- accused, so while maintaining the convic tion of Zaheer-ud-Din Babar , Dawood Baig, Sabir Hussain and Irshad Ali appellants, the sentences of imprisonment for life awarded by the learned trial court to Sabir Hussain and Irshad Ali appellants be enhanced to death penalty , murder reference be answered in affirmative and the amount of compensation imposed by the learned trial court on them be also enhanced. Similarly , Mst. Shehnaz Begum, Mst. Farha Sabar , Waqar Ali, Mazhar Baig and Ansar Ali respondents be also convicted and sentenced in accordance with law .
9. We have considered the arguments advanced by learned counsel for the appellants, learned Deputy Prosecutor General and learned counsel for the complainant and have also scrutinized the entire record with their valuable assistance.
10. According to the narrations of FIR (Ex.PJJJ), the occurrence took place at about 9.00 a.m. After the occurrence, Mazhar Hussain and Mst Azra Bibi deceased alongwith other injured PWs were being shifted to District Headquarter Hospital Jhelum but Mazhar Hussain succumbed to the injuries on the way to hospital. On receipt of information about the occurrence, Muhammad Bashir S.I. (PW-24) reached at DHQ Hospital, Jhelum, where he recorded statement under Section 154 Cr.P.C. (Ex.PMMM) of Waris Baig complainant (PW-16) on the same day at 01.00 p.m. and forwarded the same to Police Station Mangla Cantt District Jhelu m, situated at a distance of 13 kilometers from the place of occurrence.
Resultantly , FIR (Ex.PJJJ) was chalked out at the police station at 01.40 p.m. Although there is a delay of about four hours and forty minutes in reporting the matter to the police, yet the fact remains that after the occurrence the deceased as well as injured persons were shifted to hospital by the complainant and his relatives as saving the lives of injured is always considered prime consideration, this definitely took considerable time. Moreso, keeping in view the distance between the place of occurrence, the Police Station and District Headquarter Hospital Jhelum, such delay is not so fatal to the case of the prosecution.
11. Before starting discussion over the ocular account, we feel appropriate to mention here that we have observed certain distinctive features in the case of prosecution against Zaheer-ud-Din Babar , Dawood Baig, Sabar Hussain and Irshad Ali appellants. As regards the case of Zaheer-ud-Din Babar is concerned, he was armed with 12 bore gun and made one fire shot at Mst. Azra Bibi deceased hitting her at right knee. He also caused firearm injury to Asghar Hussain (PW.19), Ali Raza (PW.20), Mst. Razia Bibi (given up PW), Arif Baig (given up PW). Similarly , Dawood Baig was armed with 12 bore gun and he made a fire shot at Mazhar Hussain deceased hitting on front of his belly and also caused firearm injury to Muhammad Ali (given up). Irshad Ali appellant was armed with pistol 30 bore and he caused firearm injury to Asghar Hussain injured (PW.19), Waris Baig complainant injured (PW.16) and Mst. Munawar Bibi injured (given up). We would, therefore, firstly like to discuss the case against Zaheer-ud-Din, Dawood Baig and Irshad Ali appellants. It has been observed by us that Waris Baig complainant while appearing before the learned trial Court as PW-16 leveled same allegations and elaborated the roles of Zaheer-ud-Din Babar , Dawood Baig and Irshad Ali appellants. His statement got full support from the deposition of Asghar Hussain injured (PW.19) and Ali Raza injured (PW.20) who remained unison with the complainant (PW-16) on all material aspects of the case to the extent of Zaheer-ud-Din Babar, Dawood Baig and Irshad Ali appellants. As far as the presence of these witnesses is concerned, they have successfully proved their presence at the place of occurrence and the defence could not shatter the same. Even otherwise, the presence of complainant Waris Baig (PW.16), Asghar Hussain (PW.19) and Ali Raza (PW.20) is also established from the injuries and questions put by the learned defence counsel during cross examination on them.
During arguments, learned counsel for the appellants emphatically urged that Waris Baig complainant (PW-16), Asghar Hussain injured (PW.19) and Ali Raza injured (PW.20) are related with each other as well as with the deceased and as such they are interested witnesses. We have observed that Waris Baig complainant (PW.16) nephew of Asghar Hussain injured (PW.19) whereas Ali Raza injured (PW.20) is son of Asghar Hussain injured (PW.19), however , it is sell settled by now that relationship of witnesses inter-se or with the deceased, alone, cannot be made basis to disqualify them from being truthful witnesses. Similarly law is also settled on the point that mere relationship with the deceased does not make any witness interested, because such witness is neces sarily not the interested witness in true sense of the term and as such his statement cannot be disbelieved solely on the plea that he is related to the deceased because an interested witness is the person who has motive to falsely implicate the accused. Viewing the testimony of eye witnesses in the light of aforesaid criteria, we do not find their testimony as tainted or they had any motive to falsely implicate Zaheer-ud-Din Babar , Dawood Baig and Irshad Ali appellants nor the defence has been able to bring on record any previous enmity between these appellants and the eye witnesses for their false implication in this case.
As already discussed above, Zaheer-ud-Din Babar , Dawood Baig and Irshad Ali appellants are named in FIR (Ex.PJJJ) and specific roles have been attributed to them therein. Admittedly it is a daytime occurrence and the parties are known to each other , so there is no chance of mistaken identity of the appellants at the time of occurrence. After thorough investigation conducted by Muhammad Bashir S.I./I.O. (PW-24), they were found fully involved in the instant case and Waris Baig complainant (PW-16) and Asghar Ali (PW.19) and Ali Raza (PW.20) injured eye witnesses also remained consistent before the learned trial Court qua their involvement in the instant case. Thus, we do not find any reason to discard their statements against Zaheer-ud-Din Babar , Dawood Baig and Irshad Ali appellants, because, the same inspired confidence to their extent.
12. The medical evidence in this case has been furnished by Dr. Khalid Radiologist (PW.1) who gave his opinion after conducting X-rays of injured persons, Dr. Anjum Riaz (PW.2) who on 3.08.2008 medically examined Asghar Hussain injured (PW.19), Ali Raza injured (PW.20, Muhammad Ali injured (given up), and Mudassar Hussain injured (given up). Dr. Zubair Khurshid (PW.8) medically examined Mst.Nasreen Akhtar injured (given up). Dr. Adeela Kanwal (PW.9) medically examined Mst. Azra Bibi deceased in injured condition, Mst. Zohra injured (given up), Mst. Razia Begum injured (given up), Mst.
Mehemona Azmat injured (given up), Mst. Mussarat Shaheen injured (given up), Mst. Munawar Begum injured (given up), Mst. Fouzia Jahangir injured (given up) and after the death of Mst. Azra Bibi on 26.08.2008 conducted post mortem examination on the dead body of Mst. Azra Bibi deceased. Dr. Fiaz Ahmad Malik (PW.11) medically examined Waris Baig complainant (PW.16), Muhammad Arif injured (given up), Javed Iqbal injured (given up). Dr. Fouzia Bajwa (PW.17) medically examined Mst. Tahmina Bibi injured (given up) on 03.08.2008. Dr. Hassan Ali (PW.18) conducted post mortem examination on the dead body of Mazhar Hussain on 03.08.2008. During postmortem examination of Mst. Azra Bibi, Dr. Adeela Kanwal (PW.9) observed as many as two entries and one exist wounds on different parts of her dead body whereas Dr. Hassan Ali (PW.18) during post-mortem examination on the dead body of Mazhar Hussain observed nine lacerated entry wounds on umbilicus and multiple pallets were recovered by the Doctor from lumber region. We have observed that the postmortem reports (Ex,PQQQ) of Mazhar Hussain deceased and (Ex.PJJ) of Mst. Azra Bibi deceased fully corroborates the ocular account regarding nature of injures, weapons of offence used and locale of injuries sustained by the deceased. In spite of the fact that statements of doctors PW.1, PW.2, PW.8, PW.9, PW.11, PW.17 and PW.18 made before the learned trial Court were subjected to cross-examinati on by the defence but nothing helpful to the appellants could be extracted from their mouths. So the learned trial Court was fully justified in holding that medical evidence is absolutely in line with the ocular account and we are also of the considered view that the same has lent full support to the case of prosecution.
13. As far as the recoveries of weapon of offence from Zaheer-ud-Din Babar , Dawood Baig and Irshad Ali appellants are concerned, during spot inspection on 03.08.2008, Muhammad Bashir SI (PW.24) collected 12 empties cartridges (P-9/1- 12) of 12 bore and 09 empties (P-10/1-9) of pistol 30 bore vide memo Ex.PVVV , the same were received in the office of Forensic Science Laboratory on 09.08.2008. Afterwards, 12 bore shot gun (P-15) was recovered on the pointing out of Zaheer-ud-Din Babar appellant on 05.06.2009 which was taken into possession by the investigating officer vide recovery memo Ex.PYYY and on the same day, Dawood Baig appellant also got recovered doub le barrel gun 12 bore (P-16) vide recovery memo Ex.PZZZ. Similary , Irshad Ali appellant also led to the recovery of pistol 30 bore (P-17) which was taken into possession vide memo Ex.PAAAA. All these weapons (P-15, P-16 and P-17) were received in the office of Forensic Science Laboratory on 09.06.2009. According to the report of Forensic Science Laboratory (Ex.PHHHH) empties collected by the Investigating Officer during spot inspection matched with the weapons recovered from Zaheer-udDin Babar , Dawood Baig and Irshad Ali appellants. Thus, the recovery of weapons of offence on the pointing out of appellants and positive report of Forensic Science Laboratory (Ex.PHHHH) has provided reasonable corroboration to the case of the prosecution against them.
14. Coming to motive, Waris Baig complainant (PW-16) has mentioned a specific motive behind the incident. As per FIR (Ex.PJJJ), two days before the incident, women folk of the parties exchanged hot words and stone were pelted on each other due to dispute of a drain and Waris Baig complainant (PW.16) alongwith Asghar Hussain injured (PW.19) cursed the women folks of the accused side. During trial, though, the witnesses of ocular account have stated about the motive alleged but the prosecution failed to bring on record any medico legal certificate in respect of earlier occurrence inspite of the fact that the complainant has leveled allegation of stone pelting by women folk of both parties on each other . Similarly , the prosecution also failed to support its case to the extent of motive through any documenta ry evidence as if any such incident had happened two days prior to the occurrence, the same must have been reported to the police, but nothing is available on record which could suggest so. Even otherwise, the deceased persons particularly Mazhar Hussain deceased do not exist anywhere in the whole episode of motive. In this scenario, it is quite hard to understand as to why the accused picked Mazhar Hussain and murdered him and showed their satisfaction only by causing some injuries to Waris Baig complainant (PW-16) and Asghar Hussain (PW-19). Furthermore, the present occurrence took place two days after the earlier alleged incident of stone pelting, but no untoward incident took place between the parties who were admittedly residing in the same street. Even otherwise, no time and date of earlier alleged occurrence has been brought on record by the prosecution during investigation as well as trial. In these circumstances, we are clear in our minds that the motive set up by Waris Baig complainant (PW-16) in FIR (Ex.PJJJ) was not the reason behind the incident and in fact something else had happened which resulted into the present occurrence. Even otherwise, the mode and manner in which the occurrence took place clearly suggest that it was not a preplanned occurrence, because as per FIR Ex.PJJJ), women folk of both sides took part in the occurrence and possibility cannot be ruled out of consideration that while separating the women folk, the accused also indulged in the quarrel. This also resolves the question of sharing common intention by the appellants. Since it was not a preplanned or premeditated incident rather occurrence took place at the spur of moment, which clearly reflects that it is a case of sudden flare-up and provisions of section 34 PPC are not attracted. In this regard , guidance can be sought from the verdict of the Hon'ble Supreme Court of Pakistan in the case of Hassan Din vs. Muham mad Mushtaq and 2 others (1978 SCMR 49). To further fortify our view, reliance is also placed on Muhammad Yaqoob Sub-Inspector vs. The State (PLD 2001 SC 378 ), wherein, at page 383, the Apex Court was pleased to observe as under:-- "....It was held few decades earlier by this Court which still holds the field that `it is well-established that a common intention pre-supposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another , the act must have been done in furtherance of the common intention of them all. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.
All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis. (1955) SCR 1083, (1955) Cr .L.J. F 572)".
The above-referred view was reiterated in a latest judgment of the Hon'ble Supreme Court of Pakistan in the case of Shakeel and 5 others vs. The State (PLD 2010 Supreme Court 47), wherein, at page 59, the Apex Court has been pleased to observe as under:-- "....It is worth-mentioning that to have some intention independently each other is not to have common intention. Common intention requires a prearranged plan. There must be a prior meeting minds. (emphasis provided). Several persons can simultaneously attack a man may have the same intention, namely , the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention as there was no prior meeting of mind to form a pre- arranged plan. In a case like that each would be individually liable for whatever injury be caused but none could be convicted for the act of the other vicariously (PLD 1956 SC Ind. 176)".
In these eventualities taking guidance from the above pronouncements of Hon'ble Supreme Court of Pakistan, we can safely hold that Zaheer-ud-Din Babar , Dawood Baig and Irshad Ali appellants can be made liable only for their individual roles played during the occurrence and not for the acts and omissions of each other .
15. After a deep evaluation of the prosecution case, we have come to an inescapable conclusion that the prosecution has brought on record sufficient material in the shape of confidence inspiring evidence of ocular account furnished by injured PWs, which is supported by medical evidence and corroborated by recovery of weapons of offence as well as positive report of Forensic Science Laboratory (Ex.PHHHH) to bring home the guilt of Zaheer-ud-Din Babar , Dawood Baig and Irshad Ali appellants. However , we differ with the quantum of sentences awarded to these appellants by the learned trial court due to the following reasons:-
1. The motive specifically alleged by the prosecution in FIR (Ex.PJJJ) could not be proved during the trial and remained shrouded in mystery . It is settled law that when the prosecution sets up a specific motive in FIR, then it is none other than the prosecution itself who is duty bound to prove the same through reliable and confidence inspiring evidence and non- proving of motive can be taken as a mitigating circumstance in favour of the appellant. Reliance in this regard can be placed on the case of "Hasil Khan vs. The State" reported as ( 2012 SCMR 1936 ).
2. The occurrence took place at the spur of moment and what happened between the appellant and the deceased immediately before the occurrence remained shrouded in mystery .
16. It is settled law that while deciding question of sentence, the accused are entitled to the benefit of every mitigating circumstance. In this regard, reliance can be placed upon the case of "Mir Muhammad alias Miro vs. The State" (2009 SCMR 1 188) wherein Hon'ble Supreme Court of Pakistan observed as under:-- "It will not be out of place to emphasize that in Criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
In another judgment reported as "Ansar Ahmed Khan Barki vs. The State and another" (1993 SCMR 1660 ), the Hon'ble Supreme Court of Pakistan has held that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to an accu sed for award of normal penalty of death. We have also fortified our view qua the quantum of sentence from the case reported as "Sharafat Ali Khan vs. The State" (2010 SCMR 1205 ), wherein the Hon'ble Supreme Court has observed as under:- "In Muhammad Riaz and another v. The State (2007 SCMR 1413 ), while considering the penalty for an act of commission of qatl-e-amd it was observed "No doubt, normal penalty for an act of commission of qatl-e-amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case.
Reference in the context may also be made to Iftikhar Ahmed Khan vs. Asghar Khan and another ( 2009 SCMR 502 )."
We have further fortified our view from the judgment reported as "Haji Muhammad Sadiq vs. Liaquat Ali and others" (2014 SCMR 1034 ), wherein the Hon'ble Supreme Court of Pakistan has held as under:- "A single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment. No clear guideline, in this regard can be laid down because facts and circumstances of one case differ from the other , however , it becomes the essential obliga tion of the Judge in awarding one or the other sentence to apply his judicial mind with a deep thought to the facts of a particular case. If the Judge/Judges entertain some doubt, albeit not sufficient for acquittal, judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows. So it is better to respect the human life, as far as possible, rather to put it at end, by asses sing the evidence, facts and circumstances of a particular murder case, under which it was committed. ..........
In any case, if a single doubt or ground is available, creating reasonable doubt in the mind of Court/Judge to award death penalty or life imprisonment, it would be sufficient circumstances to adopt alternative course by awarding life imprisonment instead of death sentence."
17. As a result of above discussion, the conviction and sentences of Zaheer-ud-Din Babar , Dawood Baig and Irshad Ali appellants are altered/modified as under:- Zaheer-ud-Din Babar appellant:- Under section 302 (b) PPC to undergo imprisonment for life instead of death for the murder of Mst. Azra Bibi deceased with direction to pay compensation of Rs.1,00,000/- (Rupees one hundred thousand only) as envisaged under section 544-A Cr.P.C. to the legal heirs of deceased and in default thereof to further undergo 06- months S.I. Under section 324 PPC for attempt to commit murder (Qatl-e-Amad) of Asghar Hussain injured (PW-19) to undergo 10 years R.I. alongwith payment of fine Rs.10,000/- or in default of payment of fine to further undergo 01-month S.I. Under section 324 PPC for attempt to commit murder (Qatl-e-Amad) of Ali Raza injured (PW20) to undergo 10 years R.I. alongwith payment of fine Rs.10,000/- or in default of payment of fine to further undergo 01-month S.I. Under section 452 PPC to undergo two years R.I. alongwith fine of Rs.5,000/- or in default thereof to further undergo S.I. for one month.
Zaheer-ud-Din Babar appellant has not caused any injury to Mazhar Hussain deceased, whereas Mst. Razia Bibi (injured) and Arif Baig (injured) have not appeared before the learned trial court to prove the factum of sustaining injuries during the occurrence at the hands of Zaheer-ud-Din Babar appellant, therefore, his remaining conviction and sentences under sections 302(b) PPC and 324 PPC read with section 34 PPC are set aside.
Dawood Baig appellant:- Under section 302 (b) PPC to undergo imprisonment for life instead of death for the murder of Mazhar Hussain deceased with direction to pay compensation of Rs.1,00,000/- (Rupees one hundred thousand only) as envisaged under section 544-A Cr.P.C. to the legal heirs of deceased and in default thereof to further undergo 06- months S.I. Under section 452 PPC to undergo two years R.I. alongwith fine of Rs.5,000/- or in default thereof to further undergo S.I. for one month.
Dawood Baig appellant has not caused any injury to Mst. Azra Bibi deceased, whereas Muhammad Ali (injured) has not appeared before the learned trial court to prove the factum of sustaining injuries during the occurrence at the hands of Dawood Baig appellant, therefore, his remaining conviction and sentences under sections 302(b) PPC and 324 PPC read with section 34 PPC are set aside.
Irshad Ali appellant:- Under section 324 PPC for attempt to commit murder (Qatl-e-Amad) of Waris Baig complainant/ injured (PW-16) to undergo 10 years R.I. alongwith payment of fine Rs.10,000/- or in default of payment of fine to further undergo 01-month S.I. Under section 324 PPC for attempt to commit murder (Qatl-e-Amad) of Asghar Hussain injured (PW-19) to undergo 10 years R.I. alongwith payment of fine Rs.10,000/- or in default of payment of fine to further undergo 01-month S.I. Under section 452 PPC to undergo two years R.I. alongwith fine of Rs.5,000/- or in default thereof to further undergo S.I. for one month.
Irshad Ali appellant has not caused any injury to Mazhar Hussain and Mst. Azra Bibi deceased, whereas Mst. Munawar Bibi (injured) has not appeared before the learned trial court to prove the factum of sustainin g injuries during the occurrence at the hands of Irshad Ali appellant, therefore, his remaining conviction and sentences under sections 302(b) PPC and 324 PPC read with section 34 PPC are set aside. All the sentences awarded to Zaheer-ud-D in Babar , Dawood Baig and Irshad Ali appellants shall run concurrently and the benefit of section 382-B Cr.P.C. is also extended to them. Criminal Appeal No.349 of 2010 stands dismissed, death sentence of Zaheer-ud-Din Babar and Dawood Baig appellants is not confirmed and murder reference is answered in negative, whereas Criminal Appeal No.473 of 2010 to the extent of Irshad Ali appellant also stands dismissed.
18. Now adverting to the case of Sabir Hussain appellant, we have observed that according to FIR (Ex.PJJJ) Sabir Hussain appellant was armed with a hatchet at the time of occurrence and had been burdened with the role of raising "lalkaras", twice at different times and inflicting hatchet blow on the head of Mazhar Hussain deceased. Although, a sharp edge wound was observed by the doctor on the head of Mazhar Hussain deceased during his postmortem examination, but it was muscle deep only which raises serious doubt in our mind as to if this injury was caused by a hatchet, then how it could not even touch the scull-bone. We are of the definite view that the sharp edge injury on the head of Mazhar Hussain deceased may be the result of falling on any hard material i.e. brick or stone after receiving firearm injuries at the hands of Dawood Baig appellant, which torn the muscle, because, had this injury been caused by hatchet, it must have crushed or fractured the scull bone. So far the remaining allegation of raising "lalkaras" is concerne d, such allegation is very easy to level and hard to prove. Furthermore, when the prosecution case to the extent of role of Sabir Hussain appellant of inflicting hatchet blow on the head of Mazhar Hussain deceased is not establish, the allegation of raising "lalkaras" also becomes doubtful. Even otherwise, the allegation of first "lalkara" is joint with Mst. Shahnaz Begum and Mst. Farah Sabir and it is settled law that joint "lalkara" has got no evidentiary value. It emerges from the readin g of evidence that Sabir Hussain appellant is the father of Zaheer-ud-Din Babar and Dawood Baig appellants and is also closely related to the remaining accused, so possibility cannot be ruled out of consideration that Sabir Hussain appellant has been falsely implicated by the complainant and other PWs in the instant case by spreading the net wide being head of the family , which is common practice in our society . As such, we have come to an irresistible conclusion that the prosecution has failed to prove its case against Sabir Hussain appellant beyond the shadow of doubts. Law is settled on the point that not many circumstances in the prosecution story creating doubt agains t an accused are required rather a single circumstance creating a doubt is enough for acquittal of the accused. It is hardly necessary to reiterate that the prosecution is obliged to prove its case beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him.
The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. In this regard, reliance can be placed on the cases of "Ayub Masih vs. The State" (PLD 2002 Supreme Court 1048) and "Muhammad Akram vs. The State" ( 2009 SCMR 230 ).
19. For what has been discussed above, Criminal Appeal No.473 of 2010 to the extent of Sabir Hussain appellant is allowed , his conviction and sentences are set aside and he is acquitted of the charge. He is on bail, his surety stands discharged from the liability of surety bonds.
20. In view of discussion made in preceding paragraphs Criminal Revision No.184 of 2010 filed by Waris Baig petitioner/complainant for enhancing senten ces of Zaheer-ud-Din Babar , Dawood Baig, Irshad Ali and Sabir Hussain respondents/ appellants is dismissed.
21. So far as Criminal Appeal No.51 1 of 2010 filed by Waris Baig appellant (complainant) against the acquittal of Shehnaz Begum, Farah Sabir , Waqar Ali, Mazhar Baig and Ansar Ali respondents is concerned, although Shehnaz Begum, Farah Sabir , Waqar Ali, Mazhar Baig and Ansar Ali respondents are named in FIR (Ex.PJJJ), yet the fact remains that no role whatsoever has been attributed to Waqar Ali, Mazhar Baig and Ansar Ali respondents in the commission of alleged occurrence whereas an allegation of raising joint "lalkara" alongwith Sabir Hussain appellant (since acquitted) has been leveled against Shehnaz Begum and Farah Sabir respondents. Mst. Shehnaz Begum is the wife of Sabir Hussain appellant and she is real mother of Zaheer-ud-Din Babar and Dawood Baig appellants. Similarly , Farah Sabir is real daughter of Sabir Hussain appellant and she is sister of Zaheer-ud-Din Babar and Dawood Baig appellants. Rest of the respondents are also closely related to the main culprits/convicts, so possibility of false implication of respondents by the complainant by spreading the net wide cannot be rule out of consideration as it is common phenomena in our society that people do involve the whole family so that nobody would left behind to pursue the case. Even otherwise, the respondents have not caused any injury to injured as well as deceased persons.
22. Law is well settled by now that the standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction. There is a marked difference between reappraisal of evidence in the appeal against conviction and in the appeal against acquittal. In appeal against conviction appraisal of evidence is done strictly and in appeal against acquittal, the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the trial court after proper analysis of record. In appeal against acquittal, interference is made only when it appears that there has been gross misreading of the evidence which amounts to miscarriage of justice. As held by the Hon'ble Supreme Court of Pakistan in "Muhammad Usman and 2 others vs. The State" (1992 SCMR 498), and "The State vs. Muhammad sharif and others" (1995 SCMR 635), the ordinary scope of appeal against acquittal of accused/respondent is considerably narrow and limited. We have observed that the acquittal of Shehnaz Begum, Farah Sabir , Waqar Ali, Mazhar Baig and Ansar Ali respondents did not suffer from any illegalit y so as to call for our interference with the impugned judgment to their extent. The learned trial Court has advanced valid and cogent reasons for passing the findings of acquittal in favour of respondents and we see no legal justification to disturb the same. Even otherwise, when a court of competent jurisdiction acquits an accused of the charge, then double presumption of innocence will always attach with the order of acquittal and very strong and exceptional grounds are required to set aside the order of acquittal.
Reference can be made to the case of Iftikhar Hussain and others vs. The State (2004 SCMR 1185) wherein the Hon'ble Supreme Court of Court has held as under:- "It is well-settled principle of criminal administration of justice that when an accused is acquitted of the charge, he enjoys double presumption of innocence in his favour and Courts seized with acquittal appeal under section 417 Cr.P.C. are obliged to be very careful in dislodging such presumption. Undoubtedly , two views are always possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplic ity of litigation, it is always insisted that the Court should follow the recognized principles for interference in the acquittal judgment as held in the case of Ghulam Sikandar and another versus Mamaraz Khan and others PLD 1985 SC 11 that the Appellate Court seized with the acquittal appeal under section 417, Cr.P.C. is competent to interfere in the order challen ged before it provided it has been established that the trial Court has disregarded material evidence or misread such evidence or received such evidence......"
23. For what has been discussed above, Criminal Appeal No.51 1 of 2010 is dismissed.