MUHAMMAD EJAZ SWATI, J.---On 3rd December 2013 at about 3:15 p.m., the complainant Abdul Hadi after closing his shop situated at Killa Saifullah Bazar along with his cousin Asmatullah and Mehboob Khan were going back to their home on their motorcycle Honda 125-CC, when reached at Tanki Mori near Raza Shah Orchard Zhob Road, the appellants Azeem Khan and Juma Khan suddenly came in front and attacked upon the complainant and his cousins. It was alleged that the appellant Juma Khan started fighting with the complainant Abdul Hadi, whereas Asmatullah tried to rescue him and the appellant Azeem Khan while taking out pistol fired upon Mehboob Khan son of Muhammad Ashraf, who fell down on the ground. During this, Muhammad Sharif son of Saddar-ud-Din also reached at the spot. The appellants escaped from the place of incident. The injured Mehboob Khan was taken to the hospital, but he succumbed to the injuries and died. The motive behind the incident was stated to be an old enmity. The matter was reported to Police Station, Killa Saifullah on 3rd December 2013 at about 4:10 p.m. by the complainant Abdul Hadi, whereon, an FIR No. 50 of 2013 under section 302/34, P.P.C. was registered. On the same day at about 6:00 p.m. on spy information, about presence of the appellants in Raza Shah Orchard, it was cordoned off, from where, the appellants were arrested. During search of appellant Azeem Khan, a pistol along with a magazine containing 4 live cartridges and a Hamail Charmi containing 5 live cartridges total 9 live cartridges were recovered, which was taken into possession.
2. During trial, the prosecution examined 8 witnesses. When examined under section 342, Cr.P.C. the appellant denied the allegations of the prosecution. They neither recorded their statements under section 340(2), Cr.P.C. nor produced any witness in their defence.
3. The learned Sessions Judge, Killa Saifullah (hereinafter the "trial Court") vide judgment dated 30th May, 2015 (hereinafter the "impugned judgment") convicted the appellants to the following effect: "Under section 302(b)/34, P.P.C. for committing murder of deceased Mehboob Khan liable to Taz'ir.
As the convict Juma Khan's role is different than that of convict Azeem Khan, as such the accused Juma Khan son of Hazar Khan resident of Ali Khail, Killa Saifullah is punished with imprisonment of life. He is further directed to pay Rs. 2-lac to the legal heirs of deceased as contemplated by section .544A, Cr.P.C. and in default to suffer six (6) months' S.I. Benefit of section 382-B, Cr. P. C. is also extended in his favour. Whereas the convict Azeem Khan has committed murder of a young boy aging about eighteen (18) years in brutal manner by firing his forehead, as such the convict does not entitle any leniency, further there is no mitigating circumstance in his favour. Thus the convict Azeem Khan son of Alam Khan caste Akhtarzai resident of Killa Saifilllah is sentenced to death. He is further ordered to pay compensation amounting to Rs. 2-lac to the legal heirs of deceased Mehboob Khan in default thereof to further suffer six (6) months' S.I. The convict Azeem Khan is directed to be hanged by the neck till he is dead as provided by section 368, Cr. P. C. the death sentence shall not be executed unless it is confirmed by the Hon'ble High Court of Balochistan."
4. The appellants had assailed their conviction and sentences by way of filing Criminal Appeal No. 183 of 2015, whereas Murder Reference No. 12 of 2015 has also been sent by the trial Court for confirmation or otherwise of death sentence of appellant Azeem Khan.
5. Learned counsel for the appellants contended that the impugned judgment reflects misreading and non-reading of evidence; that the eye-witnesses PW-1 Abdul Hadi, PW-2 Asmatullah and PW-6 Muhammad Sharif had failed to justify their presence at the place of incident; that the alleged pistol recovered from the possession of the appellant Azeem Khan was not sent for analysis and the FSL report was also not produced in accordance with law, which lost its credibility; that PW-1, PW-2 and PW-6 are interested witnesses, having relationship with the deceased, therefore, in absence of any independent corroboration, their statements were not sufficient to award major penalty to the appellant; that the statements of the prosecution witnesses including eye-witnesses suffer from material improvements and contradictions, which aspect of the matter has totally been ignored by the trial Court; that the medical evidence further contradicts the ocular account furnished by PW-1, PW-2 and PW-6; that in absence of any role on the part of the appellant Juma Khan, his conviction on the basis of common intention does not attract from the evidence of the prosecution; that the motive was alleged, but has not been proved by the prosecution, therefore, normal penalty awarded to the appellant Azeem Khan cannot be sustained; that the incriminating articles were sent for chemical examination with unexplained delay, therefore, the corroborative piece of evidence lost its evidentiary value; that the prosecution has failed to prove its case beyond reasonable doubt, as such the impugned judgment is liable to be set aside.
The learned DPG assisted by the learned counsel for the complainant contended that it was a case of promptitude FIR implicating the appellants in the commission of the offence with reference to eye-witnesses, therefore, no question of deliberation or consultation arises in the case; that the prosecution through ocular evidence proved the commission of offence on the part of the appellants beyond any shadow of doubt; that there was an old enmity between the parties, therefore, to revenge the same, the appellants blocked the road, pre-planned and in meeting of mind, in furtherance. of common intention committed the murder, which reflects their pre-intend to commit the offence; that the ocular evidence produced by the prosecution has further been corroborated by the medical evidence and recovery of crime weapon matched with empties secured from the spot, which was further proved from the positive report of FSL; that mere relationship of eye-witnesses with the deceased in absence of false implication on their part, same cannot be discarded; that the ocular evidence has been found reliable, trustworthy and truthful by the trial Court, therefore, in such circumstances, rule of independent corroboration does not arise; that direct role of firing has been attributed to the appellants and the appellant Juma Khan also restrained the complainant to rescue the deceased and their presence at the place of incident along with pistol further established their meeting of mind and pre-arrangement prior to the incident, as such the prosecution has well established the participation of the appellant Juma Khan in furtherance of common intention; that the prosecution while alleging the motive also proved the same through ocular evidence and the facts related to motive have also been reflected from the suggestion put to PW-1 by the defence, therefore, the motive has also been established; that no mitigating circumstance existed in the case for lesser punishment of the appellant Azeem Khan; that the prosecution through overwhelming evidence of truthful witnesses proved its case, as such the appeal filed by the appellants is liable to be dismissed; that there is no inordinate delay in sending the incriminating articles to the expert and furthermore sending of such articles with delay is not fatal as no suggestion was put to the witness with regard to tampering or manipulating the report. They placed reliance on the judgments reported in 2003 SCM R 581, 2003 SCM R 647 and PLD 2001 SC 107.
6. We have heard the learned counsel for the parties and perused the record. The ocular account furnished by the prosecution witnesses comprises on PW-1 Abdul Hadi and PW-2 Asmatullah, who were accompanying the deceased on a motorcycle and on 3rd December 2013, they after closing the shop were returning to their home and when at 3:00 p.m. they reached at Tanki Morr near Raza Shah Orchard Zhob Road, the appellants were ambushed and suddenly appeared in front of the motorcycle and attacked upon them. According to PW-1 Abdul Hadi, PW-2 Asmatullah tried to rescue him. During this, the appellant Azeem Khan took out a pistol and started firing upon deceased Mehboob Khan. who fell down on the ground. During this, PW Muhammad Sharif reached at the spot. PW-6 Muhammad Sharif further corroborated the version of PW-1 and PW-2 and they had taken the injured to the Hospital, where Mehboob Khan succumbed to the injuries in the way and died. The ocular evidence furnished by the above three prosecution witnesses has not been shaken with regard to firing by the appellant Azeem Khan, during the lengthy cross-examination.
The overwhelming evidence of above truthful prosecution witnesses related to appellant Azeem Khan cannot be discarded merely on the ground that they are related to the deceased Mehboob Khan. The ocular evidence has further been corroborated by the medical evidence produced by PW-5 Dr. Abdul Samad, who produced the death certificate of the deceased indicating "gunshot wound at .head" by means of bullet and injures were found fresh. The incident was taken place at about 3:00 p.m. while the deceased was examined by PW-5 at about 3:12 p.m. According to PW-5, the deceased was brought by PW-1 Abdul Hadi, therefore, in such circumstances, the ocular evidence produced by the prosecution has further been corroborated by the medical certificate and there is no element of doubt with regard to presence of aforesaid eye-witnesses at the place of incident at the relevant time. The bloodstained earth and two empties of pistol as well as motorcycle 125 CC Honda bearing red colour model 2009 were taken into possession through the recovery memo Ex.P/4 (memo of bloodstained earth), Ex.P/4-A (memo of two empties), Ex.P/4-B (recovery of motorcycle) from the place of incident, which facts had also been brought on record by PW-4 Muhammad Khalil, ASI and report of the Chemical Examination with regard to bloodstained articles were also produced as Ex.P/8-F. The appellants were arrested on the same day i.e. 3rd December 2013 from Raza Shah Orchard Zhob Road and during their arrest, a pistol .30 bore along with magazine and 9 live cartridges were recovered from the appellant Azeem Khan vide recovery memo Ex.P/III. The empty secured from the place of incident and crime weapon was sent to Punjab Forensic Science Agency, who after examination through Ex. P/8-H drawn its conclusion indicating that the item "C-1 and C-2" cartridges cases were identified has having been fired in the item pistol. The positive report of crime weapon recovered from the appellant Azeem Khan and crime empties secured from the place of incident matched with crime weapon further corroborates the case of prosecution. The argument of the learned counsel for the appellants that these incriminating articles were sent with delay, therefore, it has lost its admissibility, is not tenable, though the aforesaid incriminating articles were sent on 20th December, 2013 after 16 days of the incident and received its report on 24th February, 2014. In presence of truthful and reliable ocular evidence, the report of FSL with regard to crime weapon recovered from the appellant Azeem Khan and crime empties secured from the place of incident cannot be treated fatal, as no question has been raised by the defence with regard to tampering or manipulating of the report.
The FSL report was produced by PW-8 Muhammad Yousaf, SI, but during cross-examination, no suggestion has been put to him either the report Ex.P/8-II had been tampered or manipulated.
Reference in this respect is to be made to the case titled Muhammad Mushtaq v. The State PLD 2001 SC 107, wherein the Hon'ble Supreme Court of Pakistan observed as under: "Learned counsel for appellant objected on the delay of sending the incriminating articles i.e. empties and shotgun for expert opinion without offering plausible explanation. A perusal of record revealed that no such objection was raised either before trial Court or the learned Appellate.
Court. As per settled law the delay in sending the incriminating articles to the concerned quarter for expert opinion cannot be fatal in absence of objection of tampering or manipulating the articles as held in the case of Muhammad Iqbal v. Muhammad Tahir and others (PLD 1985 SC 361)."
7. The argument of the learned counsel for the appellants that PW-1, PW-2 and PW-6 are related to deceased, therefore, in absence of independent corroboration, conviction of the appellants cannot be sustained is also not tenable. The evidence given by PWs-1, 2 and 6 were not impeachable and it could not be discarded, as stated by the learned counsel for the appellants that they were related to deceased. If such a wide proposition is to be accepted, the evidence of witnesses, who were relatives of the victim of a violent crime, would be rendered unacceptable, merely because they happened to be the relatives of deceased. The evidence of above three ocular witnesses are consistent evidence given by them, which has further been corroborated by the medical evidence, recovery of crime weapon coupled with positive report matching the crime empties with the pistol recovered from the possession of the appellant Azeem Khan. In such circumstances, these witnesses are natural and seem to be possible eyewitnesses in the circumstances of the case. It is settled principle that any eye-witness's version cannot be discarded by the Court merely on the ground that such eye-witness happened to be a relative or friend of the deceased. In the case titled Muhammad Aslam v. The State 2012 SCM R 593, the ocular version had been furnished by PW- 6, who was real son of deceased and PW-7, the other eyewitness, who was cousin of the complainant and their statements were not discarded on the ground that they made consistent statement against the accused persons and specific role of firing was attributed and in Mirza Zahir Ahmed v. The State 2003 SCM R 1164, two eye-witnesses PW Muhammad Zaheer and Muhammad Shafiq were closely related to deceased, but they had furnished trustworthy evidence to support the prosecution case. It was held by the Hon'ble Supreme Court that "the statements of both the witnesses get corroboration from each other. As far as the medical evidence is concerned, it being in the nature of conformity has also substantiated their version, therefore, the evidence of these prosecution witnesses cannot be discarded merely for the reason that they were closely related to Tariq Javed deceased".
8. In the instant case, the overwhelming evidence of truthful witnesses coupled with corroborative evidence as mentioned hereinabove, the prosecution has successfully proved its case beyond any reasonable doubt against the appellant Azeem Khan.
9. Whereas the case of prosecution against appellant Juma Khan is concerned, he has been charged for committing the offence in furtherance of common intention. In order to bring home the charge of common intention, the prosecution has to establish by evidence whether direct or circumstantial that there was plan or meeting of mind of all the accused persons to commit the offence. It is pre-arranged or in spur of moment, but it must necessarily be before the commission of the crime. The true concept of section 34, P.P.C. is that, if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them had done it individually by himself.
The existence of common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that act of all participants in an offence must be the same or identically similar; the act may be different in character, but must have been actuated by one and the same common intention. The existence of common intention is a state of mind to get or procure direct proof of common intention. It is to be gathered from the act or conduct of the accused or other relevant circumstances of the case: This criminal liability can arise only when such inference can be drawn with a certain degree of assurance. In the instant case PW-1 and PW- 2 though stated that when they reached at Tanki Morr near Raza Shah Orchard Zhob Road, the appellants suddenly emerged and the appellant Juma Khan started fighting with PW-1 Abdul Hadi.
In absence of any injury on the person of PW-1 Abdul Hadi or PW-2 Asmatullah, their version in this respect has not been corroborated through any corroborative or circumstantial evidence, as no medical certificate came on record to further corroborate the version of PW-1, PW-2 in this respect.
Admittedly, appellant Juma Khan was empty handed. Had he any intention, he would have equipped with weapon. In absence of any weapon in his hand, it is difficult to believe that he had shared common intention during said episode. There is no proof of some overt act done on his part in furtherance of common intention. From the evidence of PWs it has only been proved that appellant Juma Khan was present at the scene of incident along with appellant Azeem Khan and they were found running from the place of incident. Now it is to be seen whether mere presence of appellant Juma Khan empty handed at the scene of incident attracts the provision of section 34, P.P.C. The Hon'ble Supreme Court of Pakistan examined the same point in case of Hassan v. The State 1969 SCMR 455 and observed as under: "The Sessions Judge had applied section 34 of the case and in order to support conviction under that section mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention. Here the evidence is clear that the appellant was empty handed and he did not assault Suleman, as was stated by P. W. 3.
Neither of the Courts has considered the case of this appellant separately or the evidence against him. He went to the place empty handed and there is no evidence that he assaulted anybody or that in the circumstances he could have intended to cause a grievous hurt to anybody. Judged by the standard applied by both the High Court and the Sessions Judge to the case of the three acquitted persons, the case of the appellant stands on a much more favourable ground and we see no justification for upholding his conviction. The appeal is, therefore, allowed and the conviction and sentence on the appellant are set aside and he is acquitted.
In case titled Hasan Din v. Muhammad Mushtaq and 2 others, 1978 SCM R 49 and at page No.51, it was observed as under: "In our view the learned counsel has misconceived the correct application of section 34, P.P.C. The mere presence of a person on the spot does not necessarily attract section 34, P.P.C. This section is not to be applied lightly, particularly in acquittal cases. Vicariously liability cannot be visited unless there is some strong circumstance to show common intention. In view of the foregoing discussion, we think Bashir respondent has been rightly given the benefit of doubt."
In the case titled Maqsood Pervez alias Billa and another v. The State, 2000 SCM R 1859, the Hon'ble supreme Court of Pakistan observed as under: "It is admitted position that the appellants were not armed. It is also not denied that the appellants had no enmity with the deceased or any of the P. Ws. It is also established on record that the appellants, the deceased and the P. Ws. met all of a sudden. It is also admitted that initially the trouble between the P. Ws. and Muhammad Ali, principal accused, started because the said accused had a pistol in his possession and when called by the P. Ws. he started running and when he was chased he fired two shots in the air. It is not believable that the principal accused could have fired at the deceased when the appellants had either caught hold of the deceased or had encircled him because that act was not only dangerous to their lives but there appears no reason to resort to it when they in the beginning started running after noticing the P. Ws. there is also no denying the fact that all that occurred between the deceased and the P. Ws. on one hand and the principal accused on the other was abrupt and all of a sudden as admittedly firing by the principal accused was not the result of any pre-arranged plan. Moreover common intention is to be inferred from the entire conduct of the accused and not from an individual act which he committed on the spot. It is clear that evidence on record is not sufficient to come to a conclusion that the appellants had at any stage common intention with the principal accused to commit the murder. In the absence of the common intention the appellants would be liable for their individual act which they committed in the episode. We thus hold that the prosecution has not been able to prove beyond any reasonable doubt the common intention of the appellants along with the main accused to commit the murder of Hakim Ali in furtherance of pre planned design. Thus we extend the benefit of doubt to the appellants and acquit them of the charge of murder and while accepting their appeal to that extent modify the impugned judgment."
In the case of Ghulam Haider and others v. Muhammad Nadeem Sajid and another 2006 SCM R 1251, it was alleged that on the fateful day accused persons emerged on the motorcycle driven by accused Danish, confronted PWs and deceased, who were on the way to District, Court. Effective firing from .30 bore pistol was attributed to main accused persons; while accused Danish was only driving the motorcycle, the Hon'ble supreme Court observed as under: "As regards respondent Danish, the High Court has dealt with this case elaborately and noticed that he did not play any active role in the commission of the crime except being an innocent driver of the motorcycle. Indeed he had neither any motive for taking the life of the deceased nor had he any intention or reasonable knowledge of Qatl-i-amd of the deceased on the part of the principal accused. Undisputedly he was not carrying any weapon therefore, High Court appears to be right in taking the view that he might not have shared a common intention with his co- accused to cause the death of the deceased. On examination of the record, we are inclined to endorse the same view and do not find any strong ground for reappraisal of evidence against the said respondent."
10. In the instant case, we find that prosecution has failed to prove the part of any instigation. No other overt act has been assigned to appellant Juma Khan, nor there is any material on record to show that appellant Juma Khan shared common intention with the main accused. As such, appellant Juma Khan is entitled for benefit of doubt, therefore, impugned judgment passed by the trial Court to his extent is not sustainable.
11. Now adverting to the quantum of sentence awarded to the appellant Azeem Khan, the complainant in his report Ex.P/1-A mentioned that the incident was result of enmity between the parties; but through evidence produced by the prosecution, no such enmity/motive has been established. There is no cavil to the proposition that motive is not a conditional precedent to warrant a finding of guilt, however, it has been found by the Hon'ble Supreme Court to be relevant while considering the question of sentence. In Ahmed Khan v. Abdul Rasheed and others, 2008 SCM R 378, the Hon'ble Supreme Court did not interfere with conversion of death sentence into life as it found that the prosecution has failed to prove the motive and it was observed as under: "There is no reason to disagree with the said finding because the prosecution after having alleged the motive, has failed to establish the same in order to show the involvement of the accused.
However, there is other sufficient material available on record against the accused/respondent, therefore, it has rightly been concluded and convict has been found entitled for the lesser punishment in the facts and circumstances of the case. As such we find that so far as conviction of respondent is concerned it is in accordance with law and the arguments put forwarded by the convict in his jail petition are without any substance."
In Muhammad Yaseen v. The State 2011 SCM R 905, the Hon'ble Supreme Court partly allowed the appeal and converted the sentence of death into life inter alia on the ground that the prosecution has failed to prove the motive and observed as under: "The occurrence took place in a broad-daylight on a thoroughfare when Pervaiz Iqbal was on his way back to his house after purchasing ice, therefore, the story of substitution propounded by learned counsel for the appellant cannot be accepted. In the absence of any corroboration, the Courts are expected to follow the rule of abundant care and caution in the matter of sentence. It is not denied that no resident of the lane in which the occurrence took place appeared and supported the prosecution story. The prosecution has failed to prove the motive for the offence.
The appellant allegedly fired only one shot and decamped from the place of occurrence. The PWs. were at a considerable distance from the place where Pervaiz Iqbal was done to death. Thereafter, in the above circumstances, we consider it just and proper to convert the sentence of death into imprisonment for life."
12. In the instant case, the statements of PW-1 Abdul Hadi, PW-2 Asmatullah and PW-6 Muhammad Sharif are quite silent with regard to motive, therefore, in view of the above, a case of mitigation in the sentence of the appellant Azeem Khan is made out.
In view of the above, the conviction of the appellant Azeem Khan under section 302(b), P.P.C. and compensation awarded by the trial Court vide impugned judgment is maintained, however, his sentence of death awarded by the trial Court is converted into life imprisonment with benefit of section 382-B. Cr.P.C. In the aforesaid modification in the impugned judgment, the appeal to his extent is otherwise dismissed.
Consequently, Murder Reference No. 12 of 2015 is answered in negative.
The appeal to the extent of appellant Juma Khan son of Hazar Khan is allowed, the impugned judgment dated 30th May 2015 passed by the learned Sessions Judge, Killa Saifullah to the extent of appellant Juma Khan is set aside and he is acquitted of the charge. He be released forthwith, if not required in any other case.