M. Tabassum Aftab Alvi, C.J.--The captioned Appeals arise out of the same judgment dated 28.07.2016, passed by the learned Additional District Court of Criminal Jurisdiction, Mirpur; therefore, these are being consolidated and decided through the instant judgment.
2. The facts precisely stated are that complainant, Raja Shahzad Khan S/o Raja Shahnawaz Khan, lodged a written report at Police Station, Dudyal, on 21.11.2005, at 13:30, stating therein that he alongwith Sarfaraz, Pervaiz and Afraz, was sitting in Courtyard of P.C.0 of Raja Ghazanfar, situated near Hospital at Siyakh, meanwhile, (i) Jahangir Akbar, (ii) Naseer Akbar, (iii) Muhammad Asif, (iv)
Muhammad Tariq, (v) Ali Jan Shah, (vi) Muhammad Arshad and (vii) Muhammad Kabeer, riding in a blue coloured Jeep/Land Cruiser, owned by Jahangir Akbar, arrived- there. Jahangir Akbar, Naseer Akbar, Asif and Tariq were armed with Kalashnikov shape rifles, whereas others were armed with .12-bore guns. Accused, Jahangir Akbar, alighting from Jeep, at once raised lalkara' and fired a burst, out of which a bullet hit Sarfaraz, on his ribs and thereafter other accused-persons started straight firing, which hit on hip and legs of Sarfaraz. However, he (complainant) and his other companions had luckily a narrow escape, whereas, Sarfaraz, died at spot. The occurrence, besides complainant and his companions, was also witnessed by other people. The motive beyond the occurrence was that Jahangir etc used to demand hooligan-tax (Goonda-Tax) and in the morning of occurrence, Jahangir, accused, intercepting Sarfaraz and Pervaiz at Bathar curve, demanded money, but upon their refusal, an altercation took place between Jahangir and Sarfaraz, however, Jahangir, extended dire consequences and went away. The dead body of Sarfaraz, was brought in Hospital and application, was moved to initiate legal proceedings.
3. As per the aforesaid report, a case bearing F.I.R. No. 174/2005, in offences under Sections 302, 324, 147, 148 & 149, A.P.C. was registered against accused-persons at Police Station, Dudyal, on 21.11.2005 and postmortem of Sarfaraz, deceased, was conducted by Dr. Liaquat Ali, SMO, T.H.Q. Hospital, Dudyal, who found the following injuries on the person of deceased:-- I. Entrance Wound. 1/3" circular wound at 9th I/C space, 3" below the inferior angle of Rt. Scapular region & dark red blood coining out.
Exit Wound. 1/2" circular type situated at 10th I/C space, 2" above at the highest point of Lt. iliac crest.
II. Entrance Wound. 1/2" circular 2" Lt. to mid line of Lt. buttock.
Exit Wound. 2" circular type wound & irregular margins on anterior aspect of Lf. thigh nearby at mid.
III. Entrance Wound. 1" oblong type aforesaid aspect of the thigh, nearby at mid.
Exit Wound. 1(1/2)" X 1/2" (oblong type)at posterior lateral side of the thigh on lower 1/3rd posterior.
IV. Pellets Wounds (Small marks) 20 in Nos scattered at frontal region of Rt. thigh of various sides.
V. Small abrasion present at later aspect on upper 1/3rd of Rt. leg.
4. The police started investigation and accused-persons, namely, Naseer Akbar, Muhammad Arshad, Muhammad Kabeer, Ali Jan Shah and Asif, were arrested, whereas accused-persons, Jahangir Akbar and Muhammad Tariq, remained absconder, who, however, were arrested on 16.2.2007 and 19.5.2007, respectively. During investigation, weapons of offence, a Kalashnikov from Naseer Akbar, a .12-bore gun from Muhammad Arshad, a .12-bore gun from Muhammad Kabeer, a Kalashnikov, bearing No. 54262 alongwith magazine, from Jahangir Akbar, a .222-bore rifle, bearing No. A015 alongwith magazine, from Muhammad Tariq, accused-persons, were recovered. After completion of investigation, accused-persons, namely, Naseer Akbar, Jahangir Akbar, Muhammad Tariq, Muhammad Kabeer and Muhammad Arshad, were challaned in offences under Sections 302, 324, 147, 148, 149, A.P.C. and 13/20/65, Arms Act, before concerned Court, whereas Ali Jan Shah and Muhammad Asif, accused-persons, were exonerated by police under Section 169, Cr.P.C. The Additional District Court of Criminal Jurisdiction, Mirpur, after submission of challan, recorded statements of accused-persons, except Muhammad Tariq, under Section 265-D, Cr.P.C., and Muhammad Tariq's statement was recorded under Section 242, Cr.P.C., who pleaded not guilty.
Thereupon, prosecution was ordered to produce evidence in support of its case, which was produced. The evidence adduced by prosecution against accused-persons, was put to them as required by Section 342, Cr.P.C., who once again denied the guilt and opted to get record their statements under Section 340, Cr.P.C. Thereupon, the trial Court recorded statements of Jahangir Akbar and Naseer Akbar, accused-persons, under Section 340(2), Cr.P.C. on 14.06.2016.
5. The learned Additional District Court of Criminal Jurisdiction, Mirpur, after conclusion of trial and hearing arguments, awarded life imprisonment as `Tazie under Section 302 (b), A.P.C, to Jahangir Akbar, Naseer Akbar, Muhammad Tariq and Muhammad Kabeer, appellants-convicts, whereas they were acquitted under Section 13/20/65, Arms Act. They were also imposed compensation under Section 544-A, Cr.P.C. as Rs. 3,00,000/- each, which would be paid to legal heirs of Sarfaraz, deceased, and in case of default of payment, they shall have to undergo further 06 months simple imprisonment. Muhammad Arshad, accused, was awarded five years simple imprisonment with fine of Rs. 20,000/-, under Section 201, A.P.C. and in default of payment of fine, he shall have to undergo further 06 months simple imprisonment. However, all the appellants-convicts, were extended benefit of Section 382-B, Cr.P.C., vide the impugned judgment dated 28.07.2016. The appellants-convicts feeling aggrieved from their convictions and sentences, have filed Appeal Nos.39/2016 dated 05.08.2016, whereas, complainant, Raja Shahzad Khan, preferred Appeal No. 41/2016 dated 20.08.2016, against appellants-convicts for enhancing their sentences . upto extreme penalty.
6. Mr. Khalid Rasheed Chaudhary, the learned Counsel for appellants convicts, submitted that F.I.R. was concocted, fabricated and during investigation even its contents were negated by complainant in his Court statement. He pointed out that as per prosecution story, accused-party recklessly fired upon deceased, but surprisingly he did not receive any injury on upper vital part of his body, which negates prosecution story. He further contended that the given case was of no evidence and even prosecution failed to prove time, place and manner of occurrence, as alleged in F.I.R. and in statements recorded under Section 161, Cr.P.C. The learned Counsel argued that medical evidence was not in line with prosecution version rather it was in negation of prosecution story. He contended that most of the planted eye-witnesses were interested and chance witnesses and their statements were not in line with initial statements recorded under Section 161, Cr.P.C. and F.I.R., which were not corroborated by independent witnesses. He agitated that prosecution failed to prove motive, that an altercation took place between Jahangir Akbar, accused, and Sarfaraz, deceased, and accused-persons used to receive `Goonda-tax', because in this regard sole witness was Pervaiz (P.W.3), who was given up by prosecution while declaring that he was unnecessary witness, whereas other P.Ws. narrated hearsay story, which was a mitigating circumstance for acquittal of accused-persons, however, the Court below failed to ponder upon this aspect of the matter. The learned Counsel submitted that statements of so-called eye-witnesses, who are interested and inter-se related, were falsified to the extent of two accused-persons, hence, could not be relied upon to the extent of other co-accused-persons, but the Court below wrongly awarded them sentences, which are liable to be set-aside as such. The learned Counsel contended that it was celebrated precept of law that in case of different versions of eye-witnesses, the version favoring to accused should be relied upon, but the Court below failed to ponder upon this aspect of the case in judicious manner. He further contended that weak and unreliable oral evidence was not corroborated by recoveries and all accused-persons were entitled to . be acquitted of charge, while the other evidence in shape of statements of Investigation Officers, Patwari and Doctor were not in line with each other. He emphasized that all recoveries could not be proved; therefore, accused-persons were liable to be acquitted on this score too. The learned Counsel pointed out that site plan being important piece of evidence was also not in line with prosecution version rather fully negated the prosecution story. The learned Counsel, pressed into service that I.O. himself did not support prosecution version rather favoring complainant-party, it was planned trap of accused-persons in the case by LO and he behaved like complainant. He further contended that LOs. leveled serious allegations against accused-persons, like hardened, desperate and dangerous criminals, which means that they were inimical towards accused- persons. The learned Counsel agitated that important fact was suppressed by prosecution that accused-persons in all other cases were acquitted of charge, which creates serious doubt in prosecution story. He pointed out that in the instant case 07 accused-persons, namely, Jahangir Akbar, Naseer Akbar, Muhammad Asif, Tariq, Ali Jan Shah, Muhammad Arshad and Muhammad Kabeer, were implicated; however, during investigation, amongst them, two accused-persons, Asif and Jan Shah, were exonerated by police on the ground that they were not participants of the instant occurrence, but their exoneration was not challenged by prosecution at any forum, whereas all of the aforesaid accused-persons, were attributed to same role of firing at deceased.
The learned Counsel further contended that as per statements of Allah Dad P.W., dated 22.11.2005 and 08.01.2006, Muhammad Asif, Ali Jan Shah and Muhammad Tariq, accused-persons, were not present at spot, however, Muhammad Tariq, accused, was also awarded 25 years life imprisonment. The learned Counsel submitted that statement of Jahangir Akbar, accused, under Section 164, Cr.P.C. was not recorded by Magistrate; therefore, the same was not reliable, but the Court below failed to consider this aspect too, rather prosecution witnesses tried to conceal their relationship with deceased. He argued that P.Ws. Allah Dad and Shakeel, were not nominated in F.I.R. and no independent witness from neighboring was associated in the case. He further contended that P.Ws. made improvements in their Court statements, for instance they did not depose in earlier statements that they concealed themselves under the cot. He pointed out that neither a cot was recovered nor there was any mentioning about it in site-plan. The learned Counsel agitated that statements of Allah Dad and Shakeel P.Ws., recorded under Section 161, Cr.P.C. at belated stage, could not be taken into consideration. He submitted that except Allah Dad P.W., the other P.Ws., did not depose that Arshad, accued, was diriving alleged Land Cruiser. He emphasized that Shakeel P.W., deposed contrary to site-plan, that Jahangir Akbar and Muhammad Kabeer, accused, were firing in front of Hotel. He pointed out that places of witnesses, as per site- plan, were wrongly inserted in it. The learned Counsel further agitated that empties of 8MM were recovered but no recovery of 8mm was made and accused were alleged to make firing with Kalashnikovs and .12-bore guns, so it was not clear that from what kind of weapon deceased received injuries; therefore, prosecution miserably failed to prove manner of occurrence. The learned Counsel, in rebuttal, submitted that a J.I.T. was constituted in the instant case, however, its report was not exhibited in evidence; therefore, the same could not be read against accused- persons. The learned Counsel also pointed out that accused-persons were sentenced by trial Court on the ground of some suggestions and not on the basis of evidence. He argued that in light of evidence and circumstances of the case, accused-persons, were liable to be acquitted of charges, but the Court below committed grave error while awarding them sentences; therefore, by accepting their appeal they may be acquitted of the charges and appeal filed by complainant may be disthissed. He, in support of his arguments, cited the following case law:-- I. PLD 1963 SC 17.
II. 197 2 SCMR 286.
III. PLD 1981 SC (AJ&K)86.
IV. PLD 1984 SC 44.
V. 1990 P.Cr.L.J 883.
VI. 1993 SCM R 550.
VII.1994 P.Cr.L.J (Lahore) 2060 VIII. 1994 SCR 275.
IX. 1996 P.Cr.L.J Sh.C. AJ&K 109.
X. 1998 SCM R 1847.
XI. 1999 P.Cr.L.J 1049.
XII.2001 SCMR 554.
XIII. 2007 SCR 01, 100 & 332.
XIV.PLJ 2012 SC (AJ&K) 74.
XV.NLR 2013 Cr.C. SC AJ&K 53.
XVI. 2014 SCR 351.
XVII. 2015 SCR 100.
7. Conversely, Raja Khalid Mahmood, the learned Counsel for complainant submitted that prosecution cited 36 witnesses in calendar of challan, out of whom P.W.3, was given up because he was abroad, however, eye-witnesses, Shahzad, Afraz, Shakeel and Allah Dad, deposed that accused-persons had been receiving hooligan-tax. Likewise Investigating Officer, Nasrullah, also stated about `GoondaTax', and even otherwise, in presence of eye-witnesses, there was no need to prove motive. The learned Counsel pointed out that statements of some of P. Ws. under Section 161, Cr.P.C., were recorded next day of occurrence, however, such delay was sufficiently explained by Nadeem Arif, I.O., that on the day of occurrence, a dead body was found from place of Ratta; hence, he went there and could not record statements of P.Ws. in the instant case. The learned Counsel submitted that presence of accused-persons at spot, the roles attributed to them and recoveries of the weapons of offence have fully proved through cogent, convincing and reliable evidence, however, the Court below committed illegality while awarding lesser punishment to accused-persons, instead of death sentence. The learned Counsel pointed out that accused got recorded their statements in defense, on account of which burden of proof shifted from prosecution to defense, however, the defense could not prove innocence of accused-persons. The learned Counsel also contended that contents of site-plan were wrongly interpreted by the learned Counsel for accused-persons. He agitated that if some minor contradictions appear in prosecution evidence, which was natural aspect of the case, and such contradictions would not give any benefit to accused-party. The learned Counsel contended that recovered empties and holes found on clothing of deceased were the same in numbers, which fact fully proved case against accused-persons. The learned Counsel submitted that there was no contradiction in evidence of recoveries witnesses, so under Article 54 of Qanun-e-Shahadat Order, the same was proved against accused-persons. The learned Counsel contended that a J.I.T. was formed and as per its report, though not exhibited, accused-persons were found habitual and professional offenders, against whom about 30 cases were found to be registered in different offences; however, they were so hardened that nobody dared to give evidence against them, hence, in some cases they were acquitted of the charges. The learned Counsel submitted that statement of Jahangir Akbar, accused, was recorded under Section 164, Cr.P.C., which. fully connected him with the commission of alleged offence. The learned Counsel further submitted that presence of accused, site-plan, recoveries, medical report and other evidence fully established case against accused-persons; therefore, while accepting complainant's appeal, they may be awarded death sentence, as they were vicariously liable for death of Sarfaraz, deceased. He finally submitted for dismissal of appeal filed by appellants-convicts and placed reliance upon the following authorities:- I. PLD 1985 SC 134.
II. 1995 SCR 344.
III. 198 9 SCR 47.
IV. PLJ 2 007 Sh.C. AJ&K 32 &. 108.
V. 2012 SCM R 1422.
VI. 2 014 SCR 372.
8. Hafiz Fazl-ur-Rahman Dar, the learned Assistant Advocate General, appearing on behalf of State, fully owned and supported arguments addressed by the learned Counsel for complainant and prayed for acceptance of appeal filed by complainant.
9. We have given our dispassionate thought to arguments at Bar by the learned Advocates for parties and gone through the record of the case with utmost care.
10. The prosecution case, as per written report of complainant, Raja Shahzad Khan, is that, on 21.11.2005, he alongwith Sarfaraz, Pervaiz and Afraz, was .sitting in Courtyard of P.C.O of Raja Ghazanfar, situated near Hospital at Siyakh, meanwhile, Jahangir Akbar, Naseer Akbar, Muhammad Asif, Muhammad Tariq, Ali Jan Shah, Muhammad Arshad and Muhammad Kabeer, riding in a blue coloured Jeep/Land Cruiser, owned by Jahangir Akbar, arrived there. Jahangir Akbar, Naseer Akbar, Muhammad Asif and Muhammad Tariq, were armed with Kalashnikovs, whereas others were armed with .12-bore guns. Accused, Jahangir Akbar, alighting from Jeep, at once raised lalkara' and fired a burst, out of which a bullet hit Sarfaraz, on his ribs and thereafter other accused- persons started straight firing, which hit on hip and legs of Sarfaraz. However, complainant and his other companions luckily narrow escaped, whereas Sarfaraz, died at spot. The occurrence, besides complainant and his companions, was also witnessed by other people. The motive beyond the occurrence was stated that Jahangir etc, used to demand hooligan-tax (Goonda-Tax) and in the morning of occurrence, Jahangir, accused, intercepting Sarfaraz and. Pervaiz, at Bathar curve, demanded money, however, on their refusal, an altercation took place between Jahangir and Sarfaraz, then Jahangir, extending dire consequences, went away, and later on committed the said offence.
11.It is worthwhile to observe here that as per contents of F.I.R., there are three eye-witnesses, namely, Raja Shahzad Khan, Pervaiz and Afraz; however, Allah Dad and Muhammad Shakeel, were also cited as eye-witnesses in calendar of challan. As per argument of the learned Counsel for appellants-convicts, Raja Shahzad Khan and Afraz, are close relatives of deceased and their evidence was not corroborated by independent witnesses, whereas Allah Dad and Muhammad Shakeel, P.Ws. are chance witnesses; hence, evidence of the aforesaid P.Ws. cannot be relied upon.
A minute perusal of record although shows that Raja Shahzad Khan and Afraz, eye-witnesses, are relatives of deceased, however, it is well settled principle of law that evidence of a close relative cannot be brushed aside on the ground of relationship, especially so when he has not been shown inimical to the accused. The aforesaid view is supported from a case titled Muhammad Khalil v.
The State (1992 SCR 249), wherein, it was held as under: "We have given due consideration to the arguments raised at the bar. The first question relates to the credibility of the eyewitnesses namely, Gulzar Ahmad, Muhammad Malik, Nazar Muhammad and Abdul Hamid. These witnesses have been relied upon not only by the members of the District Criminal Court but also by the Shariat Court. As has already been pointed out, the difference of opinion between the members of the Shariat Court was with regard to the nature and quantum of punishment to be awarded to the accused persons, namely Muhammad Khalil and Muhammad Tariq and not about their guilt. The mere fact that some of these witnesses are related to the deceased are not sufficient to discard their testimony, especially so when they have not been shown inimical to the accused-appellant."
The same view was reiterated by the Apex Court in case titled Muhammad Tahir Aziz v. The State & another (2009 SCR 71), wherein, it was laid down as under:-- "It is well settled principle of law that mere relationship is no ground for discarding the evidence of a prosecution witness, unless and until his enmity is established with the accused person."
12. The second part of argument of the learned Counsel for appellants-convicts is that evidence of interested and related witnesses was not corroborated, by independent witnesses. We may examine here that as to what corroboration exactly means. Broadly speaking the corroboration means a sort of confirmation of conclusions about existence of certain fact and corroboration of the statement of an interested witness does not mean that the statement of the witness is false or untrue, rather it is desirable to accept it as wholly true that it should have a confirmatory support by way of precaution to attain clarity. The view is supported from a case reported as Muhammad Sharif v. The State (PLD 1978 SC (AJ&K) 146), wherein, it was laid down by the Hon'ble Supreme Court as under: "Before discussing the available confirmatory evidence, it would be expedient to determine as to what corroboration means "Corroboration" of the statement of interested witnesses does not mean that the statement of the witnesses is false or untrue. What it really means is that to accept it as wholly true it is desirable that it should have a confirmatory support. In fact when it is said that the statement of witnesses need corroboration to support it, this finding proceeds on the basis that version of P.Ws. is prima-facie correct but by way of precaution it needs corroboration to attain clarity."
We are alive that in the case of an interested witness, the corroboration need not be of the same probationer force as in the case of an accomplice. For corroboration, it is not necessary that there should be an independent witness supporting the story put forward by an interested witness, rather corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. The aforesaid view is fortified from a case titled as Nazir and others v. The State (PLD 1962 SC 269), wherein, it was held as under: "This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstance relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing."
13. The third part of argument of the learned Counsel for appellants-convicts is that Allah Dad and Muhammad Shakeel, are chance witnesses. A perusal of record reveals that Allah Dad, P.W., was running a Hotel near the place of occurrence and at the time of occurrence he was present at Hotel, whereas, as per statement of Muhammad Shakeel P.W., he was also present at the Hotel when E occurrence took place and it is well settled that if a chance witness reasonably explains his presence at the concerned place and states about occurrence in such a way that inspires confidence and is also corroborated by any other evidence or circumstance, the same can be considered and relied upon. The view finds support from a case reported as Iqbal v. State [PLJ 1988 Cr.C. (Lahore) 522], wherein, it was held as under: "The presence of this witness at the spot and his witnessing the occurrence on the fateful night, therefore, was sheer chance and it can conveniently he said that he was a chance witness but his statement cannot be brushed aside simply on this point alone. If a chance witness reasonably explains his presence at the spot and renders narration of the occurrence in such a way that the same inspires confidence and it was further supported by the evidence which materially corroborates such version then the same can be considered alongwith other incriminating evidence."
14.However, if for the sake of argument, evidence of aforesaid two witnesses, Allah Dad and Muhammad Shakeel, is not considered, even then there are two eye-witnesses in the instant case and if Court reaches the conclusion that their evidence is trustworthy and confidence inspiring, then the same would be sufficient for awarding sentence. Therefore, argument of the learned Counsel for appellants-convicts, discussed supra, being devoid of force, is repelled.
15.The next argument of the learned Counsel for appellants-convicts is that, as per prosecution story, an altercation took place between Jahangir Akbar, accused, and Sarfaraz, deceased, and accused-persons used to receive `Goonda-tax', and in this regard Pervaiz (P.W.3) was the sole witness, who was given up by prosecution while declaring him unnecessary witness and other P.Ws. in this context, narrated hearsay story; therefore, prosecution failed to prove alleged motive for the commission of murder. A reading of record reveals that Pervaiz P.W., was abroad; therefore, his statement could not be recorded. Apart from the aforesaid fact, it is well settled principle of law that prosecution was not duty bound to produce each and every witness cited in the calendar, rather it depends upon the will of prosecution to produce such witnesses whom it deems necessary for proving the guilt of accused. The aforesaid view stands fortified from a case reported as Abdul Aziz v. Muhammad Lal and 2 others (2000 SCR 375), wherein, it was laid down as under: "After hearing the respective contentions of the learned Counsel for the parties and perusing the record, it may be stated at the very outset that it is not the duty of the prosecution to produce each and every witness cited in the calendar of challan. It depends on the will of the prosecution to produce such witnesses whom it deems necessary for proving the guilt of the accused. However, if the evidence of any of the witnesses is so material that in absence of it no just decision could be pronounced by the Court the Court is competent to summon such witness and record his statement."
16.It would not be out of place to observe here that motive plays an important role in the cases of circumstantial evidence, whereas, the instant case is primarily based on ocular evidence, which can be relied upon in light of detailed discussion made in paragraphs 11 and 12 supra. It is evident from facts of the case that occurrence took place at day time, which was witnessed by eye- witnesses, and it is well settled dogma of law that if a case is primarily based on ocular evidence, it is not necessary to prove motive. The aforesaid view is fortified from a case reported as Raj Muhammad v. State & 4 others [PLJ 2015 SC (AJ&K)1], wherein, it was observed as under: "We have also considered the argument of the learned Counsel that the motive for commission of offence was alleged by the prosecution which has not been proved. The complainant alleged in the F I.R. that in the last evening, an altercation had taken place between his nephew and grand - children of the accused. He has taken the same version in the Court's statement and the version is proved from the statement of the complainant. In the case titled Abdul Rashid and 3 others vs. Abdul Ghaffar and 5 others [2001 SCR 2401, has observed that it is settled principle of law that if a case is primarily based on ocular evidence, it is not necessary to prove the motive."
The same view was reiterated by the Apex Court in case titled Abdul Majeed & 4 others v.
Muhammad Latif & 3 others (2016 SCR 1306). Therefore, argument of the learned Counsel for appellants-convicts, being without any force, is turned down.
17.The next contention of the learned Counsel for appellants-convicts is that statements of so- called eye-witnesses, who are interested and inter-se related, were falsified to the extent of two accused-persons, hence, cannot be relied upon to the extent of other co-accused-persons, however, the Court below wrongly awarded them sentences. It would be worthwhile to observe here that it is not necessary that if a piece of evidence is disbelieved to the extent of one accused, the same cannot be believed to the extent of other accused against whom cogent, convincing and confidence inspiring evidence is available on record, because it is well settled principle of administration of criminal justice that the Courts have to sift grains from chaff. The aforesaid view is supported from a case reported as Muhammad Bashir and another v. Sain Khan and 2 others (2014 SCR 821), wherein, it was held as under: "Same like, the argument of he learned Counsel for the convict-appellant that the material on the basis of which the conviction order against Sain Khan, convict-appellant has been passed, is not believable because on the basis of same evidence, the other accused-persons have been acquitted. As for the appeal filed by the convict-appellant for his acquittal is concerned, has no substance in the light of the peculiar facts of the case. According to the centuryr's old settled principles of administration of criminal justice, the Courts have to sift the grains from the chaff. It is not necessary that if a piece of evidence is disbelieved to the extent of one according to his assigned conduct in the prosecution story, the same cannot be believed to the extent of other accused against whom cogent, confidence inspiring evidence is available on record. In this case, the convict-appellant has been assigned a specific role which has been successfully proved by the prosecution. Whereas the role of other accused-persons is quite different, therefore, the version of defence counsel being incorrect is not acceptable."
The argument of the learned Counsel for appellants-convictions, therefore, stands rejected.
18. The learned counsel for appellants-convicts further raised a point in his arguments that same role of firing was attributed to seven (07) accused-persons, out of whom, Ali Jan Shah and Muhammad Asif, were exonerated by police under Section 169,Cr.P.C. so case of prosecution becomes doubtful. It would be pertinent to observe here that it is duty of investigating agency to trace out real culprits and exonerate innocent persons by conducting fair and impartial investigation. It is worthwhile to observe here that it has developed a common tendency in our society to implicate entire family of an accused in the case and to throw net more widely in order to take revenge of victim, with a real culprit, which trend ought to be condemned by police as well as by Courts. So investigating agency, after conducting thorough investigation of the case, extended benefit of Section 169, Cr.P.C. to the aforesaid two accused-persons, which does not mean that their exoneration would give any benefit to remaining accused-persons. Moreover, their exoneration is also an answer to argument of the learned Counsel for appellants-convicts that investigation was conducted with partiality, because if I.Os. had any jaundiced-eye, then they might have challaned the aforesaid accused-persons too alongwith the other accused. Thus, argument of the learned Counsel is misconceived.
19. The contention of the learned Counsel for appellants-convicts is taken into consideration that empties of 8 MM were recovered but neither any recovery of 8 mm was made nor accused were saddled to fire with 8 MM, rather they were alleged to fire with Kalashnikovs and .12-bore guns, so it was not clear that from what kind of weapon deceased received injuries; hence, prosecution miserably failed to prove manner of occurrence. It would be significant to observe here that when an injury is proved to be caused by a firearm weapon, it becomes immaterial that what nature of weapon was used. The aforesaid view is fortified from a case reported as Ishtiaq Ahmad v. The State & 2 others [2012 YLR (SC AJ&K) 2587], wherein, it was held as under:-- "All the witnesses have categorically stated that the accused was holding single barrel gun. Even otherwise, there is consistent view of the apex Court that if the injury is proved to have been caused by a fire-arm weapon, it would be immaterial that what nature of weapon was used. In this case, the injury caused to Bashir Ahmad is a fire-arm injury, therefore, it would not be relevant that which type of fire-arm weapon was used. In this regard reliance is placed on Muhammad Ashraf and others v. The State 1994 M LD 692 in which it has been held as under: "19. The guns of Zulfiqar and Bashir Ahmad had tallied with the crime empties recovered from the spot although the rifle alleged to have been recovered at the instance of Muhammad Ashraf appellant did not match with the empties of rifle recovered from the spot but this fact alone will not be sufficient to belie his presence at the spot because he led to the recovery of rifle on 19.10.1986. He might have produced some other rifle before the police after concealing or disposing of the one used in the occurrence."
Similarly, in case reported as Ellahi Bakhash v. Rab Nawaz, and another (2002 SCM R 1842), it was observed by the Apex Court of Pakistan as under: .. It thus hardly matters as to whether .12-bore gun was used or a .7-MM rifle which culminated into the death of deceased. There is no denying the fact that death occurred due to fire-arm injury."
20.Whereas in the instant case, doctor has clearly incorporated in postmortem report, that "Homicidal death occurred due to firearm injury", thus, argument of the learned Counsel for appellants-convicts is not tenable.
21.So far as the alleged contradiction between contents of site-plan and the statements, of eye- witnesses regarding the points from where they had seen the occurrence is concerned, these are of minor nature and immaterial. Besides, evidence of a witness cannot be measured according to a mathematical formula. Even a literate witness can make a mistake while giving correct direction of the point in relation to an assailant and victim of crime. The probative force of testimony of an eye-witness in a criminal case depends upon overall effect it creates in the mind of the Court; therefore, minor discrepancies which may crop up in statement of a witness due to lack of knowledge or power of its perception do not demolish the prosecution case. Therefore, argument is turned down.
22.The next contention of the learned Counsel for appellants-convicts needs serious consideration, that Allah Dad, P.W., did not mention the name of Muhammad Tariq, accused, in his statements recorded under Section 161,Cr.P.C., on 22.11.2005 and 08.01.2006, which makes prosecution case doubtful, however, the Court below also awarded him 25 years life imprisonment.
A minute perusal of the aforesaid statements of P.W. reveals that in first statement he nominated four accused-persons, namely Jahangir Akbar, Naseer Akbar, Muhammad Kabeer and Muhammad Arshad, whereas in subsequent statement he added one more unknown person. The important aspect of his subsequent statement dated 08.01.2006, is that on query of Inspector/S.H.O Dudyal, he deposed that he did not see Ali Jan Shah, Muhammad Asif and Muhammad Tariq, in the Jeep. It is significant to note here that Ali Jan Shah and Muhammad Asif, accused-persons, after investigation, were exonerated by Police; however, their exoneration was not challenged at any forum by complainant-side. The P.W., Allah Dad; however, in his Court statement recorded on 07.07.2008, implicated Muhammad Tariq and during cross-examination deposed that his earlier statements were not recorded by Police as per his disclosure. It is important to observe here that two statements of said P.W. were recorded by Police under Section 161, Cr.P.C., and if a disclosure, as per his assertion, was not recorded by Police in first statement, he might have deposed the same in subsequent statement, but in subsequent statement, he, on query of S.H.O., clarified that Ali Jan Shah, Muhammad Asif and Muhammad Tariq, were not seen at spot. Therefore, in view of above, we may hold that the witness, contrary to his, earlier statements, made improvements in his Court statement with regard to involvement of Muhammad Tariq, accused. Although, the other P.Ws., Raja Shahzad, Muhammad Afraz and Muhammad Shakeel, nominated Muhammad Tariq, accused, in their statements; however, the aforesaid contradiction in the statement of Allah Dad, P.W., cannot be overlooked, which creates doubt in prosecution story to, the extent of involvement of Muhammad Tariq, accused, and it is well settled, principle of law that benefit of a single doubt appearing in prosecution story, always goes in favour of accused; hence, in our humble view, the same is extended in favour of Muhammad Tariq, accused.
23.The contention of the learned Counsel for complainant that a J.I.T. was constituted and as per its report, accused-persons were found habitual and professional offenders, against whom about 30 cases were found to be registered in different offences; however, they were so hardened and influential that nobody dared to give evidence against them and in some cases they were acquitted of the charges, though has weight; however, cannot be considered because the said report of J.I.T was not exhibited, which loses its evidentiary value; therefore, it would not be proper to give any definite opinion on the aforesaid report of J.I.T.
24.Another argument raised by the learned Counsel for complainant that statement of Jahangir Akbar, accused, was recorded under Section 164, Cr.P.C., which fully connected him with the commission of alleged offence, does not find force, because perusal of record reveals that the same was not recorded by Magistrate himself, rather he only signed it, thus, the same cannot be relied upon.
25.The trial Court discussed, in details, evidence of eye-witnesses, Raja Shahzad Khan, Afraz, Allah Dad and Muhammad Shakeel, in the impugned judgment, however, in order to arrive at a just and proper conclusion of the matter, we have also scrutinized the same. A minute study of evidence of the aforesaid eye-witnesses reveals that they have narrated the manner of occurrence, as stated by prosecution. They have clearly deposed that accused-persons, who were armed with lethal weapons, riding in a blue coloured Jeep/Land Cruiser, owned by Jahangir Akbar, came at the place of occurrence in their presence, and accused, Jahangir Akbar, alighting from Jeep, at once raised lalkara' and fired a burst, due to which, a bullet hit Sarfaraz, on his lumber region and thereafter other accused-persons started firing, which hit on hip and legs of Sarfaraz, deceased. In this manner, they are unanimous on the point that Jahangir Akbar, convict-appellant, raising lalkara', fired first straight shot with Kalashnikov at Sarfaraz and thereafter other, accused-persons, fired shots with respective lethal weapons. So presence of eye-witnesses at the spot was natural and there was no material contradiction in their statements, rather during cross-examination, the defense could not succeed to bring un record any glaring contradictions, discrepancies or doubt in their evidence. Therefore, conviction under law can be recorded on such evidence without any corroboration. However, ocular evidence gets further support from the other corroboratory evidence. The fact of recoveries of lethal weapons from accused on their pointation, crime empties from the place of occurrence and vehicle used in the occurrence, are also corroborated by the evidence of recovery witnesses. The recoveries of.bloodstained clay and clothes of deceased are in the nature of corroborative evidence. Similarly, the reports of Forensic Science laboratory Punjab, Lahore, and Chemical Examiner are corroboratory pieces of evidence. The postmortem report also corroborates the prosecution story. Thus, we are of the opinion that the testimony of eye-witnesses in the instant case is corroborated in material particulars.
26. Now the question emerges whether the punishment of life imprisonment was justified in the instant case or what punishment will be sufficient to meet the ends of justice? The sentence must be weighed in golden scale and should be properly balanced to deter the rest of society from the commission of crimes without being unnecessary harsh. To award punishment is primary function of all the social States. The crucial problem is whether a criminal is considered by the society as a nuisance to be abated or an enemy to be crushed or a patient to be treated or a refectory child to be disciplined or should be regarded as nothing of these things, but simply be punished to show others that anti-social conduct attracts heavy punishment. The problem of crime, criminals and awarding punishment requires attention of Criminologists and Penologists all around the social word, but unfortunately there is dearth of such individuals or institutions, who may give opinions in Criminology and Penology based on our social conditions and provide guidance in respect of punishment. The Court, therefore, cannot resolve the issue of awarding sentence blindly or without taking note of theories of punishment and background of offenders. This duty falls on the superior Courts to fill in vacuum and the Courts should do justice keeping in view all the circumstances and background of the offenders. Therefore, punishment awarded should neither exceed a ceiling equal to a level just deserved by the offender for the offence nor for below a floor level necessary to protect public from further serious crimes and to show that the gravity of offence is depreciated.
Where the case of prosecution is proved beyond any doubt, then it is the legal duty of the Courts to award punishment to an offender to make the evil-doer an example and warning for the like- minded persons. Despite the fact that crime is increasing in society, yet the Courts normally avoid awarding capital punishment in the offences punishable with death, which amounts to gross miscarriage of justice, whereas Court are bound to do complete justice with both parties. Where people fail to secure justice from the Courts of law, then they resort to take law in their own hands to settle their matters themselves and such a situation is very alarming. The Courts, while awarding sentence, should keep in consideration all the circumstances and evidence of the case. In the instant case, the learned Additional District Court of Criminal Jurisdiction, Mirpur, awarded life imprisonment as `Tazie under Section 302(b), A.P.C, to Jahangir Akbar, Naseer Akbar, Muhammad Tariq and Muhammad Kabeer, appellants-convicts, whereas they were also imposed compensation under Section 544- A,Cr.P.C. as Rs. 3,00,000/-each, which would be paid to legal heirs of Sarfaraz, deceased, and in case of default of payment, they shall have to undergo further 06 months simple imprisonment. Muhammad Arshad, accused, was awarded five years simple imprisonment with fine of Rs. 20,000/-, under Section 201, A.P.C. and in default of payment of fine, he shall have to undergo further 06 months simple imprisonment. However, after scrutinizing record and keeping in view overall facts and circumstances of the case, in light of ocular and corroboratory evidence on record, we have arrived at the conclusion that Jahangir Akbar, accused, fired first straight shot with lethal weapon upon Sarfaraz, deceased, which hit him on lumber region and thereafter other accused, Naseer Akbar and Muhammad Kabeer, starting firing upon Sarfaraz, which hit on his hip and legs. The postmortem reveals bullet wounds and 20 pellets wounds on the person of deceased; therefore, the aforesaid appellants-convicts can be burdened for vicarious liability. However, as all eye-witnesses have unanimously deposed role of Jahangir Akbar, that he raised lalkara' and fired first straight shot upon Sarfaraz, which, according to postmortem report, badly damaged the body of deceased and resulted into his death; therefore, we are of the considered view that life imprisonment awarded to Jahangir Akbar, accused, shall not meet the ends of justice; hence, he is awarded death sentence as Visas' under Section 302 (a), A.P.C. for the commission of murder of Sarfaraz, deceased, and while keeping in view the overall facts and circumstances of the case, life imprisonment awarded to Naseer Akbar and Muhammad Kabeer, alongwith other sentences, is maintained. The sentence awarded to Muhammad Arshad, appellant-convict, is also maintained. However, life imprisonment awarded to Muhammad Tariq, accused, is not justified because his presence at spot is not proved, as discussed in Paragraph No. 22, supra. In such state of affairs, sentence of life imprisonment, awarded to Muhammad Tariq, accused, is not maintainable, thus, while extending benefit of doubt, he is acquitted of the charges leveled against him under case F.I.R. No. 174/2005.
27. The upshot of above discussion is that Appeal No. 41/2016, filed by complainant, is partly accepted, Jahangir Akbar, accused, is awarded death sentence as Visas' under Section 302(a), A.P.C. for the murder of Sarfaraz, deceased, and the impugned judgment dated 28.07.2016, to the extent of other appellants-convicts, namely, Naseer Akbar, Muhammad Kabeer and Muhammad Arshad, is maintained. The other Appeal No. 39/2016, filed by appellants-convicts, is also partly accepted to the extent of Muhammad Tariq, accused, and he is acquitted of the charge, whereas the same to the extent of other appellants-convicts, stands dismissed. A copy of the instant judgment shall be annexed with other relevant file. The record of the Court below shall be sent back forthwith.