Abdul Sand Khan, J.--Through this single judgment, we intend to decide Criminal Appeal No, 314 of 2013 filed by Noor Muhammad and Riaz and Reference sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Noor , Muhammad appellant, numbered as Murder Reference No, 53 of 2013. All these matters have arisen out of one and the same judgment dated 10.07.2013, passed by learned Additional Sessions Judge, Jampur ill case FIR No, 641/2010 dated 15.09.2010 under Sections 302, 324, 34, PPC, Police Station Saddar Jampur, whereby Noor Muhammad and Riaz appellants were convicted and sentenced as under:-- Noor Muhammad appellant:-- Under Section 302(b), PPC read with Section 34, PPC to death with direction to pay compensation of Rs, 1,00;000I-(Rupees one hundred thousand only) as envisaged under Section 544-A, Cr.P.C. to the legal heirs of deceased Mazhar alias Dadoo and in default to further undergo for a period of six months S.I.
Under Section 324, PPC read with Section 34, PPC to seven years R.I. and also to pay compensation of Rs,50000/- to the injured PW Javed.
Riaz appellant-- Under Section 302(b), PPC read with Section 34, PPC to life imprisonment with direction to pay compensation of Rs,50,000/- (Rupees fifty thousand only) as envisaged under Section 544-A, Cr.P.C. to the legal, heirs of deceased and in default to further undergo for a period of six months S.I.
Under Section 324, PPC read with Section 34, PPC to five years RI and also to pay compensation of Rs,25,000/- to the injured PW-Javed and in default to further undergo for a period of three months S.I. Both the sentences awarded to appellant Riaz will run concurrently. Benefit of Section 382-B,Cr.P.C. was also given to him.
2. The prosecution's case unfolded in the complaint Ex.PB and FIR (Ex.PB/1) got lodged by Zaffar (PW-11) that he is resident of Tibba Chandia and due to flood, he is residing in camp at Shairoo "Bund" in the area of Tibba Chandia whereas Noor Muhammad appellant is also residing at the same place. That on 15.09.2010 at about 10.00 a.m. when his brother Mazhar was coming to his house from Shairoo, Noor Muhammad, Irshad, Riaz and Muhammad Tahir (since dead) all armed with .12 bore guns, present at "Bund" raised lalkara that they would not spare Mazhar alive as he has insulted them yesterday. On which, the complainant alongwith Javed and Hanif ran towards the place of occurrence and when they reached near the place of occurrence, the accused persons threatened them not to come neat otherwise they would not spare them. In their view; appellant Noor Muhammad made a straight fire with his .12 bore gun at Mazhar alias Dadoo and the pellets hit him on left side above the hips, right upper arm, left side of back of left shoulder and mouth. The brother of complainant, Mazhar fell on the ground after smearing in blood. His brother Javed stepped forwarded upon Which Tahir accused (since dead) made straight fire with his gun .12 bore which hit him on front side of neck, right shoulder, right arm, belly, left side of ribs and left leg. They being empty handed did not step forward. The accused persons fled away towards West while making aerial firing. They attended Mazhar who succumbed to the injuries 4 the spot.
Motive behind the occurrence was that their houses and that of accused party are situated at Band and complainant party had previous enmity with Noor Muhammad and on previous evening, his brother Mazhar alias Dadoo deceased had forbidden the accused party not to pass near his house and due to said grudge, the accused persons in furtherance of their common intention had committed murder of Mazhar and made attempt to commit murder of Javed.
3. After registration of FIR, investigation of the case was conducted by Allah Dewaya S.I. (PW-2) to the extent of present appellants 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 under the Code of Criminal Procedure, 1898, learned trial Court framed charge against the accused under Sections 302, 324, 34, PPC on 09.02.2013 to which they pleaded not guilty and claimed a trial.
4. To substantiate its version at the trial, the prosecution produced as many as twelve witnesses during trial before the learned trial Court. One Court-witness was also recorded during the trial. Ocular account was furnished by Zaffar (complainant) PW-13 and Javed injured PW-12. Allah Dewaya S.I. (PW-2), Abdul Aziz SI (PW-9) and Muhammad Afzal (CW-1) are the Investigating Officers. They testified about the investigation conducted by them. The medical evidence was furnished by Dr. Fayyaz Ahmad (PW-5) who on 15.9.2010 conducted the post-mortem examination on the body of Mazhar alias Dadoo deceased. On the same day, he also conducted medical examination of injured Javed. Rest of the prosecution witnesses are more or less formal in nature. After tendering in evidence the report of Serologist Ex.Ps, Report of Chemical Examiner Lahore Ex.PT and that of Forensic Science Laboratory Lahore Ex. PU, learned ADPP closed the prosecution evidence.
5, The appellant 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 Noor Muhammad and Riaz as mentioned in Paragraph No, 1 of this judgment, whereas Irshad Co- accused was acquitted of the charge by the learned trial Court.
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 mala fide intention and ulterior motives; the complainant and the alleged eye-witnesses were not present at the spot. Latter on they were summoned and made eye-, witnesses in order to create eye-witness account against the appellants in the murder of Mazhar 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. 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.
8. On the other hand, learned Deputy Prosecutor General opposes the submissions made by learned counsel for the appellants and submits that appellants while armed with deadly weapons formed an unlawful assembly in furtherance of their common intention launched murderous assault upon the Mazhar deceased and injured Javed, 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 medical evidence; the eyewitness account is consistent against the appellants, that is duly corroborated by the medical evidence; the appellants have not brought on record any material showing mala fide, or previous grudge 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; 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. The prosecution has successfully proved its case against the appellants, so while maintaining the conviction of Noor Muhammad and that of Riaz, murder reference be answered in, affirmative.
9. We have considered the arguments advanced by learned counsel for the appellants and learned Deputy Prosecutor General and have also scrutinized the entire record with their valuable assistance.
10. According to the narrations of FIR (Ex.PB/1), the occurrence took place at about 10.00 a.m. After the occurrence, the complainant left his nephew to guard the dead body of deceased Mazhar and he alongwith injured Javed proceeded to report the matter. The police met him at Kot Tahir Road where the Investigating Officer recorded his statement Ex.PB at 11.30 a.m. and sent the same 'to police station for registration of FIR, situated at a distance of 16 kilometers from the place of occurrence. Resultantly, FIR (Ex.PB/1) was chalked out .at the police station at 12.00 p.m., so such a small delay of one and half hour in reporting the matter to the police and two hours for registration of FIR was of no significance and that too when the witnesses were not cross-examined on the point of such delay nor any suggestion was put to them regarding deliberation and consultation, therefore, it can safely be held that this is a case of promptly lodged FIR. Moreso, keeping in view the distance between the place of occurrence, the Police Station, such delay is not so fatal to the case of the prosecution. Admittedly, the appellants were known to Zaffar complainant (PW-11) and Javed injured eye- witness (PW-12) prior to the occurrence, so there is no question of mistaken identity of the appellants.
11. Before starting discussion over the ocular account, we feel it appropriate to mention here that we have observed certain distinctive features in the case of prosecution against Noor Muhammad and Riaz appellants.
As regards the case of Noor Muhammad appellant is concerned, as per FIR Ex.PB/1, he was armed with .12 bore gun and made one straight fire shot at Mazhar deceased hitting him on left side above the hips, right upper arm, left, side of back of shoulder and mouth; whereas the appellant Riaz did not caused any injury to any person. The injuries inflicted on the persons of injured Javed have been caused by co-accused Tahir (since dead). It has been observed by us that Zaffar complainant while appearing before the learned trial Court as PW- 11 levelled same allegations and elaborated the role of Noor Muhammad appellant. His statement got full support from the deposition of Javed injured (PW-12) who remained unison with the complainant (PW-11) on all material aspects of the case to the extent of Noor Muhammad appellant. 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.
During arguments, learned counsel for the appellants emphatically argued that Zaffar complainant (PW-11) and Javed injured eye-witness (PW-12) are brothers of the deceased and as such they are interested witnesses. We have observed that it is well settled 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 necessarily is not 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 a 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 that they had any motive to falsely implicate Noor Muhammad appellant nor the defame has been able to bring on record any material for his false implication in this case. Even otherwise, the presence of Javed (PW-12) is established at the spot being injured during the occurrence and through questions put by the learned defence counsel during cross-examination to him. It is the case of prosecution, that assailants fired at deceased Mashar alias Dadoo upon which injured PW Javed rushed towards His brother which shows that he was far away from deceased and for that reason he too was fired and he received injuries fram a considerable distance that is why he did not receive grievous injuries on his person, so the presence of injured PW Javed at the spot cannot be discarded.
As already discussed above, Noor Muhammad appellant is named in FIR (Ex.PB//) and specific role has been attributed to him therein. Admittedly it is a daytime occurrence which took place' at 10.00 a.m and the parties are known to each other, so there is no chance of mistaken identity of the appellant Noor Muhammad at the time of occurrence. Zaffar complainant (PW-11) and Javed (PW-12) injured eye-witness also remained consistent before the learned trial Court qua his involvement in the instant case. Admittedly, after thorough investigation conducted by Allah Dewaya S.I./I.O. (PW-2), he was found fully involved in the instant case Thus, we do not find any reason to discard their statements against Noor Muhammad appellant, because, the same inspired confidence to his extent.
12. The medical evidence in this case has been furnished by Dr. Fayyaz Ahmad (PW-5) who medically examined Javed (PW. 12) on 15.09.2010 at about 6.00 p.m. who found 10 injuries on his person. On the same day, at 5.00 p.m., he also conducted the post-mortem examination on the dead body of Mazhar alias Dadoo and found 6 injuries on the body of deceased and seats of injuries corroborated the ocular account against Noor Muhammad appellant. We have observed that the post-mortem report (Ex.PM) of Mazhar 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 Dr. Fayyaz Ahmad (PW-2) was subjected to cross- examination by the defence but nothing helpful to the appellant could be extracted from his mouths. It is also noticed that Noor Muhammad appellant was armed with .12 bore gun and such like injuries can be caused with the fire shots of .12 bore. It is also noticed that two pellets were removed one from left side of forehead and other from right scapula area, on right side of chest.
13. As far as the recovery of weapon of offence from Noor Muhammad appellant is concerned, during spot inspection on 15.09.2010, Allah Dewaya SI (PW-2) collected 38 empties cartridges of .12 bore vide memo.
Ex.PG, the same were received in the office. of Forensic Science Laboratory on 05.10.2010. The appellant Noor Muhammad was arrested on 22.09.2010 and .12 bore gun (P-5) alongwith License No, 1743/Jampur was allegedly recovered on the pointing out of Noor Muhammad appellant on 06.10.2010 on the last day of his remand which shows mala fide on the part of police. The alleged recovery of .12 bore gun shown to have been effected just after one day from the receipt of empties in the office of Forensic Science Laboratory, hence, possibility cannot be ruled out of consideration that Investigating Officer had sent the empties to the office of Forensic Science Laboratory after making fire with the licensed gun already recovered from the appellant Noor Muhammad. Furthermore, the empties were sent to Forensic Science laboratory after the arrest of the appellant Noor Muhammad. So the positive report of Forensic Science Laboratory is not helpful to the prosecution.
Therefore, the recovery effected in this case is inconsequential and the same remained unable to provide corroboration to the ocular account.
14. The motive set up by the prosecution in the FIR is statedly previous enmity between the complainant party and accused persons. As per evidence of Zafar complainant (PW.11) the co-accused Tahir and one Ejaz fired upon him and his sister Kaneez Mai, so due to said reason, the accused persons committed the occurrence whereas as per statement of Javed injured PW-12, compromise was effected in that case. We may observe here that when compromise was effected between the parties as admitted by Javed PW then what prompted the accused to commit murder of deceased remain shrouded in mystery. Even otherwise motive is a double edged weapon which can cut both ways. Even otherwise, the mode and manner in which the occurrence took place clearly suggest that it was not a pre-planned occurrence, because as per FIR Ex.PB/1), both the parties were keeping their residence in a camp on Shairoo Flogd "Bund" and on the way of flood "Bund" the accused persons were also, present there when the deceased Mazhar was coming towards his residence from Shairoo.
Since it was not a pre-planned or premeditated incident rather occurrence took place at the spur of moment, which clearly reflects that it is sudden affair when accused and deceased suddenly came across face to face and what happened before the occurrence remain shrouded in mystery. Hence, the 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. Muhammad 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 prearranged 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) CrL.J. F 572)".
The above-referred view was reiterated in a 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 pre-arranged 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 o'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 Honble Supreme Court of Pakistan, we can safely hold that Noor Muhammad appellant can only be made liable for the murder of deceased Mahar:
15. After a deep evaluation of the prosecution case, we have come teen inescapable conclusion that the prosecution has brought on record sufficient material in the shape of confidence inspiring eye-witness account furnished by complainant as well as injured PW, C.. which is supported by medical evidence to bring home the guilt of Noor Muhammad appellant. However, we differ with the quantum of sentences awarded to him by the learned trial Court due to the following reasons:
1. The motive specifically alleged by the prosecution in FIR (Ex.PB/1) 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 all of a sudden when both deceased and accused came face to face and what happened betwedn the appellant and the deceased immediately before the occurrence remained shrouded in mystery.
3. The recovery effected in this case is inconsequential and the same remained unable to provide corroboration to the ocular account.
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 1188) 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."
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 obligation 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 assessing 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 Noor Muhammad appellant is altered/modified as under:-- Noor Muhammad appellant:-- Under Section 302(b), PPC to undergo imprisonment for life instead of death for the murder of Mazhar 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. The benefit of Section 382-B Cr. P. C. is also extended to him.
Noor Muhammad appellant has not caused any injury to Javed injured PW-12 and the injury inflicted on the person of injured Javed is attributed to co-accused Tahir (since dead), therefore, his remaining conviction and sentences under Sections 324, PPC read with Section 34, PPC is set aside.
18. Now adverting to the ease of Riaz appellant, we have observed that according to FIR (Ex.PB/1) Riaz appellant was armed with .12 bore gun at the time of occurrence and had been burdened with the role of raising "lalkaras", alongwith other co-accused and after committing the occurrence all the accused made aerial firing.
Admittedly, Riaz appellant has not caused any injury to Mazhar deceased as well as injured Javed (PW-12). So far the remaining allegation of raising "lalkaras" is concerned, such allegation is very easy to level and hard to prove. Furthermore, when the prosecution case to the extent of role of Irshad co-accused is not establish, the allegation of raising "lalkaras" also becomes doubtful. Even otherwise, the allegation of "lalkaras" is joint and it is settled law that joint "lalkara" has got no evidentiary value. It emerges from the reading of evidence that Riaz appellant is real brother of Irshad Ahmad co-accused, so possibility cannot be ruled out of consideration that Riaz appellant has been falsely implicated by the complainant and other PWs in the instant case by spreading the net wide, 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 Riaz appellant beyond the shadow of doubts. Law is settled on the point that not many circumstances in the prosecution story creating doubt against 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 us. 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, 314 of 2013 to the extent of Riaz appellant is allowed, his conviction and sentences under Sections 302(b), PPC and 324, PPC read with Section 34, PPC are set aside and he is acquitted of the charge. He is on bail, his surety stands discharged from the liability of surety bonds.
Whereas the same (Criminal Appeal No, 314 of 2013) to the extent of ' Noor Muhammad appellant stands dismissed with modification in his sentence, death sentence of Noor Muhammad is not confirmed and Murder Reference No, 53 of 2013 is answered in negative.