MALIK HAQ NAWAZ, J.--Since all the Cr. Appeals bearing Nos, 43/2016, 44/2016, 45/2016 and 51/20 16 are arising out of one and the same matter , therefore, these are being disposed of through this single judgment.
2. Facts of the case are narrated in the impugned judgment of the learned trial Court dated 25-10-2016, which are reproduced as under: "Shortly narrated the facts of the case are that on 17-06-2015 at 6:50 a.m. the local police registered a criminal case vide FIR No, 60/2015 at City Police Station Gilgit against the accused under sections 302, 324 and 34 P. P.C. on written application of complainant alleging therein that on 15/16-06-2015 Mst. Naveerah eloped with Naveed Hussain at night who were arrested by police of Police Station Airport Gilgit. Later on Syed Akhtar Hussain Rizvi, Syed Qaim Ali Shah and Syed Afzal took the couple from the Police Station and produced them before Aga Syed Rahat Hussain Al Hussaini to settle the matter , whereupon family members of Mst. Naveera were also present. Aga Syed Rahat Hussain Al Hussaini asked Sheikh Shujat to take Naveed Hussain from there. Thereafter Naveed Hussain proceeded along with Sheikh Shujat towards the road from Dakpoorah, whereupon accused Meer Shah opened fire on Naveed Hussain due to which Naveed Hussain died on the spot. We rushed to the place of occurrence whereupon accused Mir Shah and Syed Sher Abbas opened fires on us with intention to kill us."
3. After registration of the case the investigation of the case was carried out by PW-13 (Muhammad Hussain) and PW-14 (Muhammad Afzal), who completed the investigation and challan of the case was submitted. Accused Syed Mir Shah, Syed Sher Abbas and Syed Iftikhar Hussain were challaned to face trial while Syed Altaf Hussain was released under section 169, Cr.P.C. and he was placed in column-2 of the final police report submitted in the trial Court under section 173, Cr .P.C.
4. Charge was framed on 10-11-2015 to which the accused/appellants pleaded "not guilty" and claimed trial. In order to prove the case prosecution examined 14 witnesses and the learned District Public Prosecutor got recorded his closing statement on 01-06-2016. The statements of accused under section 342, Cr.P.C. were recorded on 06- 06-2016, however both the appellants did not opt to make statements on oath under section 340(2), Cr.P.C. and also refused to produce any defence witness on conclusion of trial. After hearing the arguments the learned trial Court convicted the appellants as under .
(i)Syed Mir ShahConvicted under section 302(b) and awarded death sentence (ii)Syed Sher AbbasConvicted under section 302(b) and awarded life imprisonment with benefit of Section 382-B, Cr.P.C.
5. Accused Syed Iftikhar Hussain was acquitted during trial of the case on the basis of compromise. However while convicting the appellants the learned trial Court has not awarded any compensatio n under section 544-A, Cr.P.C., which was an omission on the part of learned trial Court.
6. The learned counsel for the appellants stated that the impugned judgment of the learned trial Court was result of complete misreading and non-reading of evidence, which resulted in grave miscar riage of justice. The presence of eye-witnesses, who all are closely related to the deceased, is not possible as claimed and there is not an iota of evidence available on record against the, appellants. The prosecution miserably failed to connect the appellants with the commission of offence. The witnesses deliberately improved their statements in the trial Court but the learned trial court failed to take notice of these improvements. The crime empties/ weapons of offence were sent to Forensic Experts after a considerable delay of 02 months 26 days without any plausible explanation. The recovery proceedings are also fake as no reliable and independent witnesses have been associated with these proceedings.
No good reasons have been shown for violation of mandatory provision of Section 103, Cr.P.C. The case of the prosecution is full of inherited doubts, which have not be resolved in favour of accused. The learned counsel submitted that postmortem report is in contrast with the prosecution story . PW-13 carried out, the initial investigation but strangely all the papers of initial investigation and documents, allegedly prepared on the date of occurrence were signed by PW-14 to whom the investigation was entrusted after 2/3 days, hence all these proceedings have become inadmissible in evidence. The so called eye-witness Shujat Ali has not named the accused/ appellants in his statement and later made dishonest and deliberate improvements in his statement to favour the complainant party being from the same Mohallah. All the PWs examined by the trial Court are closely related to the complainant and no independent corroboration is available on the file of prosecution to connect the appellants with the alleged crime. Lastly that in view of above highlighted discrepancies the accused be acquitted from the charges. The learned counsel relied on 1968 SCMR 161, 2000 YLR 1542 , 2003 MLD 1196, 2009 MLD 49, 2005 MLD 830, 201 1 PCr .LJ 470, 2013 YLR 241 and 2017 MLD 539 .
7. Learned Dy. Advocate General and learned counsel for the complainant strongly opposed the criminal appeals filed by the appellants and submitted that sufficient incriminating material is available on record to connect the appellants with the alleged crime beyond any reasonable doubt. The impugned judgment of the learned trial Court is based on correct and proper appraisal of evidence. The learned Dy. Advocate General and learned counsel for the complainant further submitted that it was a day light occurrence and the eyewitnesses convincingly explained their presence at the place of occurrence and their statements in the trial Court were natural and straight forward, which could not be shattered despite lengthy cross-examination. Weapon of offence i,e, one 9 MM Pistol and one 30 bore Pistol have been recovered from both the appellants and a positive report from forensic Expert has been received, which is a strong piece of corro boratory evidence. The defence has not put a single suggestion for false involvement of the appellant in the case. Lastly that the criminal appeal filed by the complainant (bearing No, 51/2016) regarding acquittal of respondent Sher Abbas from the charges under section 324, P.P.C. be accepted and the judgment of the learned trial Court up to that extent be modified and respondent Sher Abbas be convicted in accordance with law. The learned counsel relied on 2003 PCr.LJ 106, 2005 PCr.LJ 1606, PLD 2006 Peshawar 45, PLD 2006 SC 109, 2006 PCr.LJ 174, 2008 PCr.LJ 41, 2008 PCr.LJ 881, 2009 SCMR 99, 2009 YLR 234 and 2014 PCr .LJ 885.
8. Heard the learned counsel of the parties and perused the record of the case. In order to establish the charge prosecution examined 14 PWs. PW-2 Irshad Hussain lodged FIR Exh. PW-8/A, wherein he in categorical terms narrated that the accused Mir Shah opened fire and murdered Naveed Hussain. PWs-2, 3 and 4 though related to the deceased but their statements are quite in line to each other/ and relevant portion of their statements have been reproduced in the impugned judgment by the learned trial Court, therefore, their statements are not being re- produced to avoid lengthy judgment. PW-1 Shujat Ali, who is an independent person and no malice has been attributed to him for deposing against the appellants. Almost all the PWs are unanimous that both the appellants were united in common intention and committed the murder of deceased after a pre-concert. Almost all the PWs stated that both the appellants were present at the place of occurrence and came at the place of occurrence in a car, which was later on taken into custody during investigation on the pointation of accused Sher Abbas. We examined site plan which is available at page 83 of the paper book and found that there are some discrepancies in the site plan but these are because of lack of professional skill of the Investi gating Officer of the case and complainant cannot and should not be penalized for any act of investigating officers. Even otherwise the site plan is not a substantive piece of evidence and cannot be given preference over straight forward, natural and convincing evidence. Postmortem on the dead body of deceased was conducted by PW-11 Dr. Zahid Hussain a Senior Medical Officer of DHQ Hospital Gilgit, which is available at,page 86 of the paper book and quite in line with the occular evidence. The injuries mentioned in inquest report (25.35) coincide with the injuries mentioned in postmortem. One 9 MM pistol was recovered from the appellant Syed Mir Shah vide recovery memo Exh. PW-9/B and likewise one 30 bore pistol was recovered from the accused Sher Abbas vide recovery memo Exh. PW-9/A. 5 crime empties of 9MM and 5 crime emptie s of 30 bore pistols were taken into possession vide recovery memo Exh.
PW-5/B, which were later on sent to the Forensic Expert for comparison and a positive report has been received therefrom, which has been exhibited in the trial Court as PW-12/A. Chemical Examination report regarding the blood stained earth and blood stained shirt of the deceased is also positive, as all the above articles have been found stained with human blood. The car used in commission of offence was taken into possession by the I.O. of the case on the pointation of appellant Sher Abbas.
9. No doubt is left in our mind that the murder was committed by both the appellants in furtherance of common intention. When an offence is committed in furtherance of common intention, it becomes wholly immaterial, as to who caused the injuries and who did not. All the participants of the occurrence are equally considered liable for the same punishment as could be awarded to an accused, who caused the fatal injuries. Wisdom could be drawn from the following law cases.
2008 YLR 580 "(b) Penal Code (XL V of 1860) --S.34---Constructive liability--- Section 34, P.P.C. had laid down the principle of constructive liability----If several persons would unite with a common purpose to do any criminal offence, all those who assisted in the accomplishments of their subject, would be equally guilty-- Foundation for constructive liability was the common intention animating accused to do the criminal act and the, doing of such act in furtherance of common intention to commit the offence--- In order to constitute an offence under S. 34, P.P.C., it was not required that a person should necessarily , perform any act with his own hand---If several persons had the common intention of doing a particular act and if in furtherance of that common intention all of them joined together and aided or abetted each other in the commission of an act, then one out of them could not actually , with his own hand, do the act, but if he helped by his presence or by other act in the commiss ion of an act, he would be held to have himself done that act within the meaning of section 34, P .P.C."
2011 MLD 1636 "(b) Penal Code (XLV of 1860) ----Ss. 34 & 302---Qatl-i-amd--- Common intention---Existence or formation of common intention within the meaning of S. 34, P.P.C., was not generally susceptible of direct proof and had to be inferred from the act of accused, his conduct or other relevant circumstances of the case---Common intention could be inferred from the entire conduct of accused and not from on individual act, which he committed on the spot. [p.
1640] C"
2005 PCr .LJ 1384 "(i) Penal Code (XLV of 1860 )---S. 34---Applicability of S. 34, P. P. C. --- Scope--- Fundamental condition for attracting S.34, P. P. C. is that the accused should have common intention and should have participated in the crime in furtherance of their common intention. [p. 1400] R"
"(j) Penal Code (XL V of 1860)
S. 34---Common intention---Inference of common intention may be drawn from the conduct of the assailants, their participation in commission of the crime and from circumstances such as the character of the attack, nature of the injuries inflicted and the nature of the weapon used. [p. 1401] S"
"(k) Penal Code (XL V of 1860) -S. 34---Common intention---Intention is a mental condition and is to be determined from the facts and surrounding circumstances of the case---Direct evidence in this respect cannot be expected in each case and in order to determine the common intention regard must be given to all the acts done by the accused. [p. 402] T"
10. First Information Report lodger PW-2 Irshad Hussain is not an eyewitness of the occurrence, therefore, any omission in the FIR will not damage the case of prosecution. PW-1 Sheikh Shujat Ali has deposed in the Court and he being an independent person and Pesh Imam can be relied upon without any corroboration. The presence of the said eye-witness has not been seriously challenged by the defence. The circumstances of the case suggest that the presence of PWs in the house of Sheikh Rahat Al Hussaini and their departure from the house is not disputed. As well as the release of one of the accused, his presence in the car with appellant Sher Abbas was mentioned by PW-03 Sajjad Hussain and PW-4 Abid Ali without any overt act. He was found innocent during investigation by the local police, which though has not been challenged by the complainant party , yet it will not damage the case of prosecution. We minutely examined the statements of PW-1 Sheikh Shujat Ali, PW-2 Irshad Hussain, PW-3 Sajjad Hussain, PW-4 Abid Ali, which are dent free and natural. Minor discrepancies owing to the lapse of time coupled with the retaining capabilities of one's mind and the wear and tear in one's faculties for one reason or the other may their way into the statement of witnesses, since every human has different sense and sensibilities to perceive and articulate a particular happening. The accused were arrested on 17-06-2015 i,e, on the day of occurrence and recoveries of crime weapons were effected from their possession and pointation on 25- 06-2015. The appellants were committed to Judicial Lockup on 26.06.2015. We minutely examined Exh. PW-14/A wherein the location of accused Sher Abbas have shown at point No, 2 of the site plan" from where he opened fire shots on the eye-witnesses. However , in site inspection report Exh. PW-14/B reveals the presence of both the appellants who opened fire and I.O. of the case recovered blood stained earth and crime empties therefrom which were later on found to have been fired from the weapons of offences recovered from the appellants. Motive is established and it has not been challenged by the defence in any manner .
11. Some irregularities have been committed during investigation of the case, which could be easily ignored, as these were due to lack of professional skill and not because of any malicious or dishonest intention. It has been held in 1995 PCr.LJ 313 and 1998 PCr.LJ 114 that any defect, irregularity or even illegality in the investigation would not vitiate the trial unless it is shown to have prejudiced the accused in any manner and more so any defect in investigation cannot be raised at appellate or revisional stage unless it has been proved to have resulted into mis-carriage of justice. Fault of prosecu tion or mistake of investigating officer cannot be counted against the complainant. Reliance is placed on 2014 PCr .LJ 885 citation (0, which is reproduced as under:
(f) Criminal trial----Fault of prosecution or mistake of Investigating Officer -- Effect-- -Complainant, should not suffer for the fault of prosecution or mistake of the Investigating Officer in properly noting down the facts, while, in discharge of his duties and functions-- If such discrepancy was allowed to supersede the direct ocular account, it would result in allowing the culprits safe passage by managing/arranging such discrepancies, which could well be claimed to be protected by prosecution to be bona fide mistake/errors. [p. 892] K
12. Eye-witnesses although related to the deceased but had no previous ill will, L motive or animosity to involve both the accused for commission of offence and their presence at the place of occurrence has gone unchallenged.
Promptitude in lodging FIR, could not be disputed. Expert reports were not open to any doubt. The statements of closely related witnesses were fully corroborated by the statements of a disintere sted witness namely Shujat Ali.
Postmortem was also in line with the prosecution story . Needless to say that, when occular evidence is inherent by truthful and credible, the same could satisfactorily form basis of conviction without asking or looking for any corroboration in the shape of recoveries, expert reports or medical evidence as all these are only supportive in nature.
12. For the reasons stated above we are satisfied to hold that the prosecution has successfully brought home the guilt of both the accused by producing cogent, convincing, straight forward and reliable evidence, coupled with the supportive evidence.
13. However , we thoroughly considered about the quantum of sentence' awarded to both the appellants. We are of the view that the sentence of imprisonment for life awarded to Syed Sher Abbas was justified, however the sentence of death awarded to Syed Mir Shah is on harsher side. A girl Mst. (R) who was closely related to both of the appellants eloped with deceased and the deceased and the girl were brought from Police Station to house of Sheikh Rahat Al Hussaini for settlement, which unfortunately could not be materialized and the deceased was done to death, while proceeding to his home with Sheikh Shujat Ali, soon after his departure from the house of Sheikh Rahat Al Hussaini, as evident from record.
14. The courts by very nature of jurisdictio n conformed upon them under the Criminal Procedure Code are to keep a balance between consideration severity and firmness and humanness on the other hand but always eschewing harshness. We have therefore, after due consideration decided to convert the death penalty of Syed Mir Shah into the lesser penalty of life imprisonment, which is a matter resting with the discretion of this Court on proper appreciation of all the alternate circumsta nces of a particular case. Benefits of Section 382-B, Cr.P.C. are also extended to him. Trial Court failed to impose fine under section 544-A, Cr.P.C. A fine of Rs, 500000/- (Five lac) each is imposed on both the appellants, which on realization shall be paid to the legal heirs of deceased Naveed Hussain. In case of default they will undergo 01 year simple imprisonment.
15. Criminal Appeals Nos, 43/2016, 44/2016 and 45/2016 filed by the appellants are dismissed, except a modification of sentence of appellant Syed Mir Shah. Criminal Appeal No, 51/2016 filed by the complainant Irshad Hussain is also dismissed being meritless. Murder Reference bearing No, 04/2016 sent by the learned trial Court up to the extent of Syed Mir Shah under section 374, Cr.P.C. is answered in "NEGA TIIVE " and his death sentence is not confirmed.
16. File be consigned to record after due completion.