ROZI KHAN BARRECH, J.---The appellant namely Mohibullah son of Muhammad Umar was involved in case FIR No. 100 of 2016 registered under sections 302, 337-ADF/34, P.P.C. at Police Station, Pishin and was tried by the learned Sessions Judge, Pishin (hereinafter "the trial Court" ). The trial Court seized with the matter in terms of judgment dated 08.10.2018 (hereinafter "the impugned Judgment" ), convicted and sentenced the appellant in the following terms:- The accused Mohibullah son of Muhammad Umar is convicted under section 302(b), P. P.C. as Ta'zir and sentenced to suffer life imprisonment with pre of Rs.6,00,000/- (Rupees Six Lacs Only) as compensation envisaged by provision of section 544-A, Cr P.C., which amount on its recovery be paid to legal heirs of deceased or in default to suffer RI for six (06) months.
The accused Mohibullah son of Muhammad Umar is convicted under section 337-A(iii), P.P.C. and sentenced to suffer RI for four (04) years and to pay fine of Rs.1,93,559.4/- (Ten Percent of Diyata) to injured Muhammad Ashraf as Arsh.
The Mohibullah son of Muhammad Umar is further convicted under section 337-F(ii), P.P.C. and sentenced to suffer RI for two (02) years and to pay Rs.30,000/- (Rupees Thirty Thousand Only) as Daman to injured Muhammad Ashraf. Benefit of section 382(B), Cr .P.C., is extended in favour of accused".
2. Aggrieved from the impugned judgment, the appellant Mohibullah son of Muhammad Omar has assailed his conviction and sentence through Criminal Appeal No.302 of 2018, while the complainant Mohibullah son of Muhammad Afzal filed Criminal Revision Petition No.05 of 2018 for enhanceme nt of conviction awarded to the appellant by the trial Court. As the appeal and criminal revision petition are arising out of one and the same judgment of the trial Court, therefore, the same are being disposed of through this common judgment.
3. The prosecution story as disclosed in the FIR (Ex.P/8- A) recorded on the statement of Habibullah son of Muhammad Afzal (complainant)/PW -1 is that on 13.06.2016 he was present in his house and he received telephonic information to the effect that his Brother namely Zainullah and cousin Muhammad Ashraf were playing Lido at Aziz Petrol Pump where the accused persons namely Mohibullah, Moizullah and Muzamil Khan residents of Killi Haji Abdullah Jan duly armed with daggers and sticks launched an attack and caused severe injuries to them.
On the said information he reached to Civil Hospital, Pishin, where he found that his brother Zainullah and cousin Muhammad Ashraf were lying in pool of blood in casualty . Later on, Zainullah succumbed to the injuries. Hence crime report.
4. After completion of usual investigation, the challan was submitted before the trial Court. Charge was framed to which the accused/appellant pleaded not guilty and claimed trial.
5. At the trial, the prosecution has produced nine (09) witnesses. Thereafter , the accused/appellant was examined under section 342, Cr.P.C., however , the accused/appellant neither recorded his statement on oath as envisaged under section 340(2), Cr .P.C. nor produced any witness in his defence.
6. On conclusion of the trial and after hearing arguments, the learned trial Court convicted and sentenced the accused/appellant as mentioned above in para-1, whereafter the instant appeal and criminal revision petition have been filed.
7. We have heard arguments of the learned counsel for the accused/appellant, learned counsel for the complainant and learned DPG appearing on behalf of the State and have gone though the record of the case with their able assistance.
8. According to the prosecution story , the offence was committed on 13.01.2016 at 11:30 p.m., near Aziz Petrol Pump, Quetta-Pishin Road Pishin. True, that the complainant Mohibullah son of Muhammad Afzal/PW -1 is not the eye-witness to the occurrence and at the relevant time he was not available at the place of occurrence, however , he had lodged the FIR at Police Station Pishin on 13.01.2016 at 11:55 p.m. Acco rding to his report, he received information through telephone, wherein he did not mention the name of the persons who telephoned him. He also did not mention the name- of PW-3 Muhammad Hanif in his First Information Repo rt, however , in our humble view, this omission would not render the entire prosecution case doubtful for the reason that the complainant has frankly conceded that he was not an eye-witness to the occurrence, therefore, he has only set the prosecution case in motion being brother of the deceased and cousin of the injured/witness Muhammad Ashraf who at the relevant time received severe injuries on his persons and at the first shifted to Civil Hospital, Pishin, and thereafter on the same night he was referred to Civil Hospital, Quetta.
9. According to statements of PW-3 Muhammad Hanif and injured/eye-witness Muhammad Ashraf, PW-4 at the relevant time the deceased Zainullah and injured Muhammad Ashraf were playing Lido in the petrol pump and at about 11:30 p.m, where the accused Moizullah, Mohibullah and Muzamil Khan armed with daggers, knifes and sticks came and attacked them. The accused Moizullah gave dagger blows to Zainullah who received injuries, while the accused Mohibullah attacked upon injured Muhammad Ashraf with knifes who received injuries. Later on, Zainullah succumbed to the injuries.
10. In support of the prosecution case, Muhammad Ashraf appeared as PW-4 who narrated the aforesaid story in his Court statement. Although, he has mentioned about the presence of the eye-witness PW-3 Muhammad Hanif and another eye-witness Muhammad Naseem (late) in his examination-in-chief and also stated that Muhammad Hanif and Muhammad Naseem separated them from the clutches of accused. Furthermore the presence of PW-3 Muhammad Hanif at the spot is also established from the statements of PW -4 Muhammad Ashraf.
11. The said witness Muhammad Hanif appeared as PW-3 who has fully supported the case of the prosecution.
The said Muhammad Hanif is not related to the complainant but residing in the same vicinity , therefore, Muhammad Hanif is indeed a natural and independent eye: witness. The defence has not given even a remote suggestion to him regarding his interest in the prosecution of the appellant. Thus, in the circumstances for the only reason that the complainant did not mention his name in the FIR will not lead to an inference that he was not available at the spot. In this regard, reliance is placed on the judgment of august Supreme Court of Pakistan titled Muhammad Mushtaa v . The State PLD 2001 SC 107 , wherein it was held by that,- "Eye-witness although was not named in the FIR, yet he was a natural witness to whom no enmity or ulterior motive was attributed for false involvement of accused in the commission of the offence and his deposition was found to be true".
12. This view further reflects in the judgment of the august Supreme Court of Pakistan titled Muhammad Basharat v. The State reported as 2003 SCMR 554 , wherein it was observed that:- "Eye-witnesses were the natural witnesses of the occurrence and their testimony inspired confidence. Fact that the eye-witness had not been named in the FIR was not by itself .sufficient to discard his testimony . Ocular evidence was corroborated by medical evidence. Leave to appear was refused to accused accordingly" .
13. Thus, there exist no occasion to disbelieve the evidence of PW-3 Muhammad Hanif, more particularly in circumstances that despite, the lengthy cross-examination by the defence he remained consistent and firm in his testimony . Even he has exactly mentioned the place where at the relevant time the deceased and injured witnesses as well as accused party , were present.
14. Muhammad Ashraf, PW-4 the injured eye-witness has also supported the prosecution case. Since he has sustained injuries on his persons and was immediately shifted to the hospital where his injury-sheet was prepared and was further shifted to Civil Hospital, Quetta, for further treatment. Thus, the presence of this injured/PW at the spot is also established. In the circumstances, it cannot be further believed that the present appellant was substituted for the real culprits. In this regard, reliance is placed on the judgment of august Supreme Court of Pakistan titled Abdul Raul and others v . Mehdi Hassan and others 2006 SCMR 1 106, wherein it was held that"- "Presence of eye-witnesses who had received firearm injuries at the place of occurrence at the relevant time was not open to any doubt. None of the eye-witnesses was shown to have any motive or to maliciously implicate the accused in the case".
15. This ratio has further been affirmed by the august Supreme Court in the case titled Muhammad Waris v. The State 2008 SCMR 784 , wherein it was held that:- Eye-witness had explained their presence at the place of occurrence at the relevant time and thus, they were natural and independent witnesses of the incident. Medical evidence was not destructive of the ocular testimony".
16. The medical evidence furnished by PW-2 Dr. Noor Baloch, Police Surgeon, Provincial (Sandeman) Civil Hospital, Quetta, is also in line with the prosecution case. According to the medic al report, the dead body of the deceased Zainullah son of Muhammad Afzal was brought to hospital at 1:05 p.m., (later on it was explained by PW- 2 that it was 1:05 a.m.). On 14.06.2016 according to medical report he (deceased) has sustained the following injuries. i. Wearing Kameez and Shalwar Half white in colour wet with blood. Having moustache and beard. Hairs were black in colour , eyes and mouth semi-opened. ii. Stab wound on the right, side thigh medial aspect near groins region 6x2x muscle deep fresh with profuse bleeding. Shalwar and Kameez are wet with blood".
17. The cause of death is injury to the vessels of right thigh, excessive bleeding, shock and death caused by sharp weapon Homicidal in nature. The cause of death of deceased Zainullah was also confirmed by PW-2 Dr. Noor Baloch.
18. The said PW-2 produced medical certificate of injured Muhammad Ashraf. On the said date he also examined the injured Muhammad Ashraf and issued medical certificate (Ex.P/2-C) and found following injuries. i. Lacerated wound on left side to of vault of skull 3 x 1 cm fresh with bleeding mark deep underlying bone is exposed. ii. Lacerated wound on left temporal region 2 x 1 cm. iii. Incised wound on left foot 3 x 1/2 cm fresh with bleeding. iv. Incised wound on left buttock 3 x 1 cm fresh, stitches also applied and referred to male neuro surgery ward for further treatment".
19. Moving on further to the objection of the learned counsel for the appellant regarding timing i.e. 1:05 p.m., was mentioned on examination by PW-2 in his statement as well as in his medical certificate (Ex.P/2-A). According to the prosecution case, the offence was committed on 13.01.2016 at 11:30 p.m., whereas it was reported at 11:55 p.m., on the same date i.e. 13.01.2016. Although, the timing mentioned in the medical certificate (Ex.P/2-A) i.e. 1:05 p.m., further clarified by PW-2 Dr. Noor Baloch that on 17.05.2018 on the request of I0 he had issued correction of time through letter No.PS-81 dated 17.05.2018 (Ex.P/2-D) wherein the time is corrected in both MLC from 1:05 p.m., to 1:05 a.m., from 2:00 p.m., to 2:00 a.m.
20. Since the FIR was lodged promptly and it was mentioned in the report that the deceased Zainullah and injured Muhammad Ashraf received injuries by means of daggers, knifes and sticks. therefore, the above mistake in the time in the medical certificate is inconsequential and does not appear to be the result of manipulation. PW-2 Dr. Noor Baloch have fully explained the same in his statement. Hence, this objection is also overruled.
21. Lastly , moving on to the question as whether the present accused/appellant Mohibullah son of Muhammad Umar can also be held responsible for the dagger blows of the absconding accused to deceased Zainullah. The concept to award similar sentence in addition to the principal accused who had the common intention of killing the accused has been embodied in sections 34 and 149 of the Pakistan Penal Code ("Code" ). The role of co-accused who were either present at the spot or had taken some steps in commission of offence along with the principal accused remained subject matter before the superior Courts for awarding conviction to the said co-accused.
22. In Muhammad Riaz alias Riasti and another v. The State 1987 SCMR 177, in respect of the common intention the august Supreme Court of Pakistan had held:- "In the above case, one appellant inflicted dagger blow while the other appellant threw brickbat on the face of the fallen victim. It was urged before this court that the accused who threw brickbat, did not know that the other co- accused was carrying knife or that he would stab deceased in abdomen and thus did not share common intention to murder . The above contention was repelled and it was held that from his throwing brickbat on the face of the deceased after he had been stabbed in the abdomen, it was evident that he share d intention with the co-accused on spot to murder the deceased. The appeal was dismissed and the judgments of the two Courts below were maintained".
23. In Gheba and others v. The Crown PLD 1949 Lahore 453, the august Division Bench of the Lahore High Court has observed:- "Common intention within the meaning of section 34 implies a prearranged plan. To convict the accused of an offence applying section 34 it should be proved that the criminal act was done in concert pursuant to the pre- arranged plan. It is no doubt difficult if not impossible to procure direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant circumsta nces of the case. Care must be taken not to confuse same or similar intention with common intention; the partition which divides "their bounds" is often very thin; nevertheless, the distinct ion is real and substantial, and if overlooked will result in miscarriage of justice. The inference of common intention within the meaning of the term in section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case".
24. Lastly , the august Supreme Court of Pakistan in its celebrated judgment Muhammad Akbar and 2 others v. The State PLD 1991 SC 923, his lordship Mr. Ajmal Mian while referrin g to various pronouncements as cited above on the subject while speaking for the Court regarding the common intention in para 12 of the judgment has held:- "From the above referred cases, it is evident that a joint action by a number of persons is not necessarily an action performed with a common object, but it may be performed on the spur of the moment as a reaction to some incident and such a case would fall within the ambit of section 34, P.P.C. However , it may be pointed out that section 34, P.P.C. contemplates an act in furtherance of common intention and not the common intention simpliciter and that there is a marked distinction between similar intention and common intention and between knowledge and common intention. It may also be observed that mere presence of an accused at the place of incident with a co- accused who commits offence may not be sufficient to visit the former with the vicarious liability , but there should be some strong circumstance manifesting a common intention. Generally , common intention inter alia precedes by some or all of the following elements, namely , common motive, pre planned preparation and concert pursuant to such plan. However , common intention may develop even at the spur of moment or during the commission of offence as pointed out hereinabove. Conversely common intention may undergo change during the commission of offence"
25. In context of the present case, the mode and manner of the occurrence narrated by the prosecution witnesses, whereby the absconding accused Moizullah inflicted dagger blows on the deceased Zainullah, the accused/appellant Mohibullah attacked the injured Muhammad Ashraf with knives causing injuries to him and absconding accused Muzamil Khan beating the deceased Zainullah and injured Muhammad Ashraf with sticks, established that while deceased and PW-4 Muhammad Ashraf were playing Lido at petrol pump, the accused/appellant along with, absconding accused armed with daggers, knives and sticks attacked them due to which the deceased lost his life and PW-4 received injuries and the accused/appellant and absconding accused armed with deadly weapons came to the spot pre-planned, which clearly shows that the present appellant Mohibullah was sharing common intention with absconding accused Moizullah.
26. Pursuant to the above, we have come to the conclusion that the prosecution has established its case beyond any shadow of doubt against the appellant and the conviction and sentence recorded by the trial Court through the impugned judgment is based on correct appreciation of evidence, which does not call for any interference.
Therefore, the judgment of conviction and sentence recorded by the learned trial Court is maintained and this appeal is dismissed accordingly .
So far as the enhancement of the sentence awarded to the appellant/accused by the learned Sessions Judge, Pishin, is concerned, this Court observes that the record in the light of the evidence and submission of the counsel for the parties, the reason rendered by the learned trial Court for not awarding capital punishment of death was very much convincing, plausible and finding of the learned trial Court in this regard being unexceptional is maintained. Hence, Criminal Revision Petition No.05 of 2018 filed by the petitioner is dismissed.