ABDUL HAMEED BALOCH, J.---Through this judgment we intend to dispose of Criminal Jail Appeal No. 45 of 2017, Criminal Revision Petition No. 33 of 2017, Criminal Appeal No. 318 of 2018, and Criminal Revision Petition No. 34 of 2018, as the same are out come of one and same incident and same have been directed against the judgments dated 27th September . 2017 and 27th September , 2018, (impugned judgments), passed by learned Additional Sessions Judge, Pishin (trial court), whereby the appellants were convicted under sections 302(b), 34, P.P.C. and sentenced to suffer imprisonment for life and to pay Rs. 200,000/- (Rup ees two hundred thousand only) as compensation within the meaning of section 544-A, Cr.P.C. to the legal heirs of deceased and in default thereof to further supper six months' simple imprisonment. The appellants were also convicted under section 324, P.P.C. and sentenced to suffer seven years' rigorous imprisonment with fine of Rs. 30,000/- and in default to further suffer three months' simple imprisonment. The appellants were further conviction under sections 337-A (i) and 337-F(i), P.P.C. and sentenced to suffer one year rigorous imprisonment in each section and to pay Daman of Rs. 15000/- each section to injured and in default the appellants be kept in simple imprisonment until Daman amount is paid. All the sentences awarded to the appellants were ordered to be run concurrently with benefit of section 382-B, Cr.P.C. was also extended in favour of the appellants.
2. The prosecution case as gleaned from the Fard-e-Biyan dated 7th July, 2016 (Ex: P/1-A) submitted by PW-1 Amanullah son of Muhammad Zarif, that on fateful date at about:1 1:00 p.m. (night) accused Nasrullah, Mirza Khan, Allah Muhammad and Sarwar came to his house and called the complainant to come out. It was alleged that as soon as the complainant came out accused Allah Muhammad and Sarwar attacke d him with Dandas due to which he received injuries on his head. The accused Mirza was holding pistol. It was further alleged that his wife Shah Pari also came after him to rescue, but accused Mirza made fire which hit his wife and she fell on the ground. With these averments FIR No. 24 of 2016, under sections 324, 337-AD, 34, P.P.C. was registered with Levies Huramzai District Pishin. The injured Bibi Shah Pari later on expired as such section 302, P .P.C. was also inserted.
3. After registration of FIR. the investigation was entrusted to PW.5 Ahmed Shah Dafedar , who proceeded to place of occurrence, prepared site plan Ex: P/5-B, secured three empties of TT through recovery memo Ex: P/3-A, blood stained clothes of deceased Shah Pari through memo Ex: P/2-A, arrested appellant Allah Muhammad, recorded statements of witnesses under section 161 Cr.P.C, obtained death certificate of deceased vide Ex: P/4-B and MLCs of injured Shah Pari (deceased) and Amanullah. The Investigating Officer send the empties and blood stained clothes to FSL. The report whereof was produced as Ex: P/5-E and after completion of investigation the Investigating Officer produced the accused before Judicial Magistrate, who remanded the appellant Allah Muhammad to Judicial custody and submitted incomplete challans vide Ex:P/5-C, Ex:P/5-D and Ex:P/5-F , Ex:P/5- C, Ex P/5-D and Ex:P/5-F .
4. After submission of challan charge was framed against the appellant Allah Muhammad to which he denied whereafter , the prosecution in order to substantiate the charge produced the following witnesses: PW-1 Amanullah complainant Produced his Fard-e-Biyan as Ex . P/1-A.
PW-2 Abdul Manan produced recovery memo of blood stained clothes of injured Shah Pari as Ex; P/2-A and blood stained clothes as Art: P/3.
PW-3 Shamsullah produced recovery memo of three empties as Ex: P/3-A and empties as Art: P/6 to Art: P/8.
PW-4 Dr. Noor Baloch Police Surgeon, examined injured (deceased) Shah Pari and injured Amanullah and produced MLC as Ex: P/4-A and Ex: P/4-C and death certificate of Shah Pari as Ex: P/4-B.
PW-5 Ahmed Shah Dafedar is the Investigating Officer, who produced FIR as Ex: P/5-A, site map as Ex: P/5-B, incomplete challans Ex: P/5-C, Ex: P/5-D and Ex: P/5-F and FSL report as Ex: P/5-E.
5. On completion of prosecution evidence the appellant was examined under section 342, Cr.P.C. in which he denied the allegation.
He did not opt to record his statement on oath as envisaged under section 340(2) , Cr.P.C. However produced two witnesses Mehmood Khan and Muhammad Bashir in his defence.
6. On conclusion of the trial the trial court convicted the appellant Allah Muhammad in the terms as mentioned in para-1 above. Being aggrieved of the same the appellant filed Criminal Jail Appeal No. 45 of 2017, whereas the complainant Amanullah filed Criminal Revision Petition No. 33 of 2017 for enhancement of the sentence.
7. The appellant Nasrullah was arrested in another case, as such on 15th March, 2018 his custody was taken in the instant case and after completion of investigation incomplete challan was submitted against him before the trial court.
8. On 4th July, 2018 the trial court framed charge to which he denied, whereafter , the prosecution produced following witnesses against the appellant Nasrullah: PW-1 Amanullah, complainant/injured, who produced his Fard-e-Biyan as Ex: P/1-A.
PW-2 Sanaullah is the witness of recovery memo of blood stained cloths of injured Bibi Shah Pari vide Ex: P/2-A and blood stained clothes Art: P/3.
PW-3 Shamsullah is eye witness as well as recovery witness of three empties. vide Ex: P/3-A and empties Art: P/6 to Art: P/8.
PW-4 Dr. Noor Baloch, Police Surgeon, examined injured (deceased) Shah Pari and injured Amanullah and produced MLC as Ex: P/4-A and Ex: P/4-C and death certificate of Shah Pari as Ex: P/4-B.
PW-5 Hamayun Khan is the recovery witness of five pages vide Ex: P/5-A, FIR 49/2005 Police Station Civil Lines Quetta, statements under section 161, Cr.P.C., extra judicial confession and two challans of FIR No. 49/2005 as Mark/1 to Mark/5.
PW-6 Ahmed Shah. Dafedar is the Investigating Officer. who produced FIR as Ex: P/6-A, site map as Ex: P/6-B. incomplete challans Ex: P/6-C, supplementary challan Ex: P/6-D, FSL report as Ex: P/6-E and supplementary challan Ex: P/6-F .
PW-7 Haji Muhammad Akram Naib Tehsildar , is the second Investigating Officer, who arrested the appellant Nasrullah, recorded statements of witnesses under section 161, Cr .P.C. and produced challan as Ex: P/7-A.
9. On closure of prosecution side the appellant Nasrullah was examined under section 342, Cr.P.C., in which he denied the allegation of prosecution. He did not opt to record his statement on oath, however produced two witnesses Kaleemullah and Bakht Muhammad in his defence.
10. On conclusion the trial court heard arguments and thereafter , convicted the appellant in the terms as awarded to the appellant Allah Muhammad, hence the appellant Nasrullah filed Criminal Appeal No. 318 of 2018, whereas complainant Amanullah filed Criminal Revision Petition No.34 of 2018 for enhancement of the sentence.
11. Learned counsel for the appellants contended that the evidence of prosecution is self contradictory . No specific role was ascribed to the appellants. Nothing incriminating has been recovered from the appellants. The prosecution has failed to prove motive for commission of the offence. The appellants have malafidely been implicated in the instant case. It was the duty of prosecutio n to prove its case on the basis of its own strength. In the end the learned counsel for the appellants prayed for their acquittal.
12. The learned counsel for the complainant/ petitioner stated that the prosecution has proved its case against the appellants beyond reasonable doubt. The presence of the appellants at the time of occurrence was not denied. The complainant/ petitioner is ocular witness of the incident. He mentioned all the minor details of the occurrence. The appellants had common intention with the absconding accused. The appellants do not deserve for any leniency .
The learned counsel prayed for enhancement of the sentence.
13. The learned Additional Prosecutor General strongly supported the judgments of the trial court.
14. Heard learned counsel for the parties, Additional Prosecutor General and also perused the material available on the record. It depicts that initially the appellant Allah Muhammad was arrested and challan to his extent was submitted. The trial court after full dress trial vide judgment dated 27th September , 2017 convicted and sentenced the appellant. Whereas the appellant Nasrullah was arrested in another case, as such on 15th March, 2018 his custody was taken in the instant case and after completion of trial the trial court vide judgment dated 27th September , 2018 also convicted and sentenced him in the same manner as that of appellant Allah Muhammad. In order to substantiate the accusation the prosecution produced witnesses in two different trials. The case of prosecution rests on ocular account of PW-1 complainant Amanullah and Shamsull ah, Medical evidence, statement of Shah Pari (deceased) under section 161, Cr.P.C., which was considered as dying declaration by the trial court, recovery of blood stained clothes of the deceased and injured and positive report of FSL.
15. Now firstly we analyzed the dying declaration of the deceased. It is well settled that maker of dying declaration was not subjected to cross-examination. For considering dying declaration first see that the dying declaration was inspired confidence and secondly that there was no possibility of tufting. Dying declaration is accepted on the theory that the person on death bed will not tell lie. However caution must be exercised in consideration of this kind of evidence. It was held by Honorable Supreme Court in case. Farman Ahmed v. Muhammad Inayat 2007 SCMR 1825 .
".......It is a settled law that dying declaration like statement of interested witnesses requires close scrutiny and dying declaration when undoubtedly a statement of interested person had required corroboration. See Tawaib Khan's case PLD 1970 SC 13, Sher Bahadar's case 1972 SCMR 651 and Muhammad Yasin's case 1978 SCMR 303 .----"
16. To accord the statement of deceased the status as dying declaration, it is essential pre-requisite to prove that at the time of making statement the deceased was fully in senses and capable to record statement. The record depicts that while recording the statement of the deceased under section 161, Cr.P.C. neither Doctor nor the prosecution submitted any certificate in regard of capability of the deceased for making statement. It is preferable that dying declaration be recorded by magistrate. If there was no magistrate available or no time to call the magistrate due to deteriorating condition of the victim his statement can be recorded in presence of doctor or two witnesses. The record reveals that no such condition was fulfilled by the Investigating Officer. The learned trial court has wrongly relied on dying declaration of the victim.
17. Now the most question is that whether the appellants had common intention with absconding accused.
Admittedly the appellants were present at the time of occurrence along with absconding accused. The injured witness PW-1 Amanullah and ocular witness Shamsullah categorically stated in their statements that fire was made by absconding co-accused Mirza. Admittedly the appellants had not caused any injury to deceased. The role ascribed to the appellants is that they assaulted PW-1. Amanullah with sticks due to which he sustained lacerated wounds. It is not necessary joint action by number of person with common object. Mere presence of an accused at the venue of occurrence with co-accused may not be sufficient to form vicarious liability . The common intention is to be inferred from the entire conduct of the accused. The evidence on the record is not sufficient to come to a conclusion that the appellants had at any stage common intention with the principal accused to commit murder . In absence of evidence of common intention the appellants would be liable for their individual act which they committed in the episode. The prosecution has not able to prove beyond shadow of doubt the common intention of appellants along with absconding co-accused Mirza to commit murder of Shah Pari in furtherance of pre-planned design. Reliance is placed on the case of Maqsood Pervez alias Billa v The State 2000 SCMR 1859 , in which it was held: "........... We, therefore, have no doubt about the presence of the appellants on the spot. But the crucial point that arises for determination is; what offence the appellants had committed in view of the evidence on record. In other words whether they could be held vicariously liable under section 302/34, P.P.C. along with the principal accused Muhammad Ali for sharing common intention to commit the murder of the deceased. In order to determine this point the evidence on record and the atten ding circumstances are to be kept in mind. It is admitted position that the appellants were not armed. It is also not denied that the appellants had no enmity with the deceased or any of the P. Ws. It is also established on record that the appellants, the deceased and the P. Ws. met all of a sudden. It is also admitted that initially the trouble between the P. Ws. and Muhammad Ali, principal accused, started because the said accused had a pistol in his possession and when called by the P. Ws. he started running and when he was chased he fired two shots in the air. It is not believable that the principal accused could have fired at the deceased when the appellants had either caught hold of the deceased or had encircled him because that act was not only dangerous to their lives but there appears no reason to resort to it when they in the beginning started running after noticing the P. Ws. There is also no denying the fact that all that occurred between the deceased and the P. Ws. on one hand and the principal accused on the other was abrupt and all of a sudden as admittedly fixing by the principal accused was not the result of any pre-managed plan. Moreover , common intention is to be inferred from the entire conduct of the accused and not from an individual act which he comm itted on the spot. It is clear that evidence on record is not sufficient to come to a conclusion that the appellants had at any stage common intention with the principal accused to commit the murder . In the absence of the common intention the appellants would be liable for their individual act which they committed in the episode. We thus hold that the prosecution has not been able to prove beyond any reasonable doubt the common intention of the appellants along with the main accused to commit the murder of Hakim Ali in furtherance of pre planned design. Thus we extend the benefit of doubt to the appellants and acquit them of the charge of murder and while accepting their appeal to that extent modify the impugned judgment. However , prosecutio n evidence is sufficient to prove the offence under sections 323/34 and 353/34, P.P.C. against the appellants as the act committed by them on the spot constituted the commission of the said offence. Therefore, we uphold the conviction of the appellants under the said two sections and to that extent the impugned judgments are maintained ."
18. The injured witness PW-1 Amanullah and ocular witness PW-2 Shamsullah stated that the appellants caused stick blows to complainant due to which he sustained injuries. Dr. Muhammad Noor Baloch issued Medico Legal Certificate. Mere non-recovery of sticks could not absolve the appellants from the act committed by them. The prosecution has proved its case to the extent of injuries caused by appellants to complainant Amanullah (PW-1).
The record depicts that the appellants neither fired any bullet nor shown any arm. Thus benefit of doubt is extended to the appellants.
In view of above discussion we are of the view that the offence under sections 302, 324, P.P.C. to the 'extent of appellants are not made out, therefore, the conviction awarded to the appellants to the extent of sections 302, 324, P.P.C. by the trial court vide impugned judgments dated 27th September , 2017 and dated 27th September , 2018 are set aside and they are acquitted of the charge. However , there is sufficient evidence on the record to prove charge under sections 337-A(i) and 337 F(i), P.P.C. against appellants as the act was committed by them on the spot, therefore, we upheld the conviction and sentence awarded to the appellants under sections 337-A(i) and 337 F(i), P.P.C. by the trial court vide impugned judgments. With above modification in the impugned judgments, the Criminal Appeal No. 45 of 2017 and No. 318 of 2018 are disposed of, while Criminal Revision Petition No. 33 of 2017 and No. 34 of 2018 are dismissed being bereft of any merit.