ROZI KHAN BARRECH, J.---The appellants namely Naseebullah and Muhammad Yousuf both sons of Akram Khan alias Khan were involved in case FIR No.203 of 2018 registered under sections 302, 324, 34, P.P.C. at Police Station Saddar Loralai and were tried by the learned Additional Sessions Judge, Loralai, (hereinafter "the trial Court "). The trial Court seized with the matter in terms of judgment dated 31.07.2019 (hereinafter "the impugned Judgment "), convicted and sentenced the appellants in the following terms:- "The accused/appellants namely Naseebullah and Muhammad Yousuf sons of Akram Khan alias Khan are convicted and sentenced under section 302(b), P. P.C. to suffer imprisonmen t for lift as Tazir with fine of Rs.1,00,000/- (Rupees One Lac Only) each as compensation to legal heirs of deceased within the purview of section 544-A Cr.P.C., or in default to suffer SI for three (03) months.
The accused / appellants are further convicted and sentenced under section 324, P.P.C. to suffer imprisonment for seven (07) years RI and to pay fine of Rs.I5,000/- (Rupees Fifteen Thousand Only) each to injured person. Benefit of section 382(B), Cr . P . C., is extended in favour of accused/ appellants."
2. Aggrieved from the impugned judgment, the appellants Naseebullah and Muhammad Yousuf sons of Akram Khan alias Khan have assailed their conviction and sentence through Criminal Appeal No.281 of 2019, while the complainant Haider Khan son of Paind Khan filed Criminal Revision Petition No.30 of 2019 for enhancement of conviction awarded to the appellants by the trial Court, as the appeal and criminal revision petition are arising out 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 complainant/PW -1 Haider Khan son of Paind Khan is that on 22.11.2018 the complainant along with Lal Jan on one motorcycle, while his father and his brother Gul Muhammad ridded on other motorcycle after closing his shop at Saddar Bazar at Loralai, started towards his house situated at Katwi Camp, at about 5:15 p.m., when reached at Katwi Nadi near BC complex, accused persons Naseebullah and Muhammad Yousuf were found standing, who started firing upon his father and brother with their pistols, due to which his father received injury upon his mouth and his brother sustained a bullet injuries upon his head, who succumbed to his injuries at the spot, while the accused made their escape good on their motorcycle. Hence the criminal report.
4. After completion of investigation, the challan was submitted before the trial Court. Charge was framed against the accused/appellants to which the accused/ appellants pleaded not guilty and claimed trial.
5. At the trial, the prosecution produced eight (08) witnesses. The accused/appellants were examined under section 342, Cr.P.C. However, the accused/ appellants neither recorded their statements on oath under section 340(2), Cr.P.C., nor produced any witness in their defence.
6. On conclusion of the trial and after hearing arguments, the learned trial Court convicted and sentenced the accused/appellants as mentioned above in para-1 whereof the instant Criminal Appeal and Criminal Revision Petition have been filed.
7. We have heard the learned counsel and perused the available record with their able assistance. In order to establish the charge, the prosecution has produced seven (08) witnesses, out of whom PW-1/complainant Haider Khan, PW-2, Lal Jan and PW-4, Paind Khan are claiming to be the eye-witnesses of the alleged occurrence, while PW-3, Dr. Nadir Khan, Medical Officer has examined the deceased and injured Paind Khan. PW-5, Muhammad Sharif. PW-6, Abdul Wahid, ASI and PW-7, Qamar Zaman, constable are the recovery witnesses. However , PW-8, Muhammad Anwar , SI, is the Investigation Officer of the case. Before dilating upon the ocular testimony , it would be appropriate to first discuss the medical evidence to establish the unnatural death of deceased.
8. According to PW-3 Dr. Nadir Khan, Medical Officer at District Headquarter Hospital Loralai on the day of occurrence the deceased Gul Muhammad son of Haji Paind Khan was brought to hospital at 5:15 p.m. He examined the deceased and issued Medico Legal Certificate (MLC) (Ex.P/3-B). The bare perusal of MLC of the deceased Gul Muhammad reflects that the deceased had received bullet injuries on his lower portion of occipital region and left ear and exits from left frontal bone and other two from occipital region . PW-4 has opined that the deceased received injuries by means of firearm. The bare perusal of MLC of the deceased would establish the fact that death of the deceased was unnatural as the deceased received firearm injuries on his persons. Even otherwise, the defence has also not disputed unnatural death of the deceased but pleaded false implication.
9. Now diverting to the ocular evidence produced by the prosecution in the shape of circumstantial and direct evidence. The case was registered on the complaint of PW-1/complainant Haider Khan on the basis of Fard-e- Bayan (Ex.P/1-A), wherein he specifically nominated the accused/appellants for making firing upon his brother and father which resulted into bullet injuries upon the persons of deceased Gul Muhammad while the bullet hit on the mouth of injured PW-4 Paind Khan. The alleged occurrence has taken place on 22.11.2018 5:15 p.m., and the FIR of the incident was lodged at 6:30 p.m. The PW/1 complainant and PW-2 Lai Jan shifted the dead body of deceased and injured to the hospital and thereafter the complainant lodged the report in the above circumstances the FIR was lodged promptly without any delay PW-4 Paind Khan who is eye-witness as well as injured witness narrated the whole story with regard to the occurrence, he and deceased were riding on a motorcycle at 5:15 p.m., when they reached at Katwi Nadi the accused persons made a firing upon them, he and his son Gul Muhammad received injuries and later on his son Gul Muhammad succumbed to the injuries. This witness has correctly stated the date, time, the place of occurrence and the manner in which the alleged occurrence has taken place. Likewise, PW-2 Lal Jan is also witness of the occurrence being relative of the deceased Gul Muhammad. This witness fully corroborated the contents of the FIR as well as statement of PW-4 Paind Khan . All the above witnesses gave consistent, natural and straightforward ocular account of the occurrence. The defence subjected them to a lengthy searching cross-examination but their testimony remained unshaken and un-shattered. There was absolutely nothing in their cross-examination to show that the accused/ appellants were falsely implicated in the case.
10. So far as the objection of the learned counsel that both the alleged eye-w itnesses could not justify their presence at the relevant time. It is worthw hile to mention here that the FIR was lodged promptly without any delay while the I.O. has recorded the statements bf both the witnesses soon after the occurrence. The presence of PW-4 Paind Khan is further established at the place of occurrence as he had also receiv ed injuries on his persons, thus, the presence of above witnesses established at the place of occurrence.
11. The plea of the learned counsel for the appellants/accused that only interested witnesses were produced by the prosecution and the case of prosecution is lacking independent corroboration, suffice to state here that mere relation of witnesses with the deceased is no ground to discard their testimonies, if their evidence is found entirely independent and truthful, therefore, their testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge. The evidence of related witnesses who are not found inimical and are confidence inspiring would hardly need any corroboration. Reliance in this regard is placed on the case of Muhammad Akram v . The State reported in 2015 YLR 1 16.
12. It is also necessary to mention here that PW-1 Haider Khan is brother of the deceased while PW-4 Paind Khan is father of the deceased and PW-2 is relative of the deceased. It is hard to believe that all the above witnesses would substitute the real culprits with the appellant Naseebullah who had comm itted murder of the deceased.
Needless to observe that substitution is a rarer phenomenon.
13. The case of the prosecution has further strengthened by the recovery of crime weapons i.e. 9 mm pistol from possession of the accused/appellant Naseebullah. Since the I.O. had taken into possession the empties of 9 mm pistol from the place of occurrence, thus, the recovered 9 mm pistol along with empties were sent to the Forensic Science Laboratory (FSL) for analysis and after examination the FSL through examination report (Ex.P/8-J) confirmed that the empties were fired from the recovered pistol.
14. The testimony of the eye-witnesses has duly been corroborated by the recovery of blood of the deceased from the place of occurrence, his bloodstain ed garments and recovery of crime empties of 9 mm pistol from the appellant and positive report of FSL and firearm expert. The said recoveries have been duly proved during trial through recovery witnesses and nothing adverse could be achieved despite cross-examination. The medical evidence produced by the prosecution also supported and corroborated the testimony H of eye-witnesses and no contradiction at all could be pointed out by the defence. Reliance is placed on case titled Haroon Rasheed v. The State 2005 SCMR 1568 , Sh. Muhammad Abid v. The State 2011 SCMR 1148 and Nasir lqbal v. The State 2016 SCMR 2152 .
15. The appraisal of direct and circumstantial coupled with medical evidence after minute consideration of all the circumstances in the light of dictum laid down by the august Superior Court as well as the recoveries of crime empties, matching of the same with the crime weapon as well as the medical evidence, we are of the considered view that the appellant Naseebullah is responsible for the murder of deceased Gul Muhammad and causing injuries to the PW-4 Paind Khan and has rightly been convicted by the learned trial. Court, but we are unable to find ourselves in agreement with the impugne d judgment of the trial Court to the extent of accused Muhammad Yousuf.
The complainant of the case coupled with the statements of PW-2 and 'PW-4 that the accused/appellants made firing upon them. On the other hand, the I0 taken bullet empties of 9 mm pistol from the place of occurrence in presence of PW-5 Muhammad Sharif, SI who is marginal witness of recovery of three bullet empties of 9 mm pistol and the same was taken into possession through recovery memo (Ex.P/5-B) in his presence. The crime weapon i.e. 9 mm pistol was also recovered on the pointation of the accused/appellant Naseebullah while he made disclosure before police when he was in custody on 04.12.2018 in presence of PW-6 Abdul Wahid, ASI, who produced disclosure memo (Ex.P/6-B) and during trial the accused/appellant disclosed that he made firing upon deceased and injured persons. After disclosure the pistol was recovered on the pointation of accused / accused Naseebullah.
16. Now the question arises here that as whether the accused/appellant Muhammad Yousuf can also be held responsible for the firing made by the convict/appellant Naseebullah upon deceased and injured. 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 alias 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 herein above. Conversely common intention may undergo change during the commission of of fence.
17. In the context of the present case, that no motive, consultation and conspiracies of the accused has been attributed by the complainant as well as other prosecution witnesses. It is established on the record that recovery of crime empties, matching of the same with the crime weapon which was recovered on the pointation of the accused/appellant Naseebullah, we are of the considered opinion view that the accused/appellant Naseebullah is responsible for the murder of Gul Muhammad and causing injuries to the PW-4 and has rightly been convicted by the learned trial Court, but we are unab le to find ourselves in the agreement of the impugned judgment of the learned trial Court to the extent of accuse d appellant Muhammad Yousuf, neither he was made firing nor recovery was effected from him. The prosecution has failed to establish through incriminatory evidence with regard to common intention or common object of the accused/ appellant Muhammad Yousuf to commit the murder of deceased Gul Muhammad and causing injuries to PW-4 Paind Khan. Reliance is placed on the case of Muhammad Ameer v . Muhammad Imran 2017 MLD 1263 (Lahore), wherein it has been held that:-- "4. After hearing the learned counsel for the appellant and going through the impugned judgment, it is observed that the acquitted respondent was admitte dly, empty handed at the time of the occurrence that wok place at 10.30 a.m. on 14.12.2009 near the shop of Tariq Mistri. According to the allegation, both the acquitted respondent and the death convict Waheed Khan walked to the place of occurrence, hence, it could hardly be believed that they facilitated or helped each other to reach the spot, Being empty handed, respondent Imran could lend no help to being harmed by the other side, had there been any retaliation or counter attack by them".
Similar view has taken in the case of Manthar and 3 others v. The State reported in 2012 PCr.LJ 1263 , wherein it has been held:-- "Throughout evidence there is no statement whatsoever that Manthar in any case participated in murder of deceased Abdul Kareem. No evidence has been brought about that the accused had prior to the incident decided to murder Abdul Kareem and Manthar was part of this conspiracy . Mere fact that Manthar was with those who went to murder Abdul Kareem is not sufficient to come to the conclusion that Manthar had intention to commit and knew that murder was to be committed".
Likewise, in the case of Hakmin Zafar and another v. The State reported in 2017 YLR 232, it has been held, as under: "19. We are of the view that to attract the provisions of 34, P.P.C. there must be some proof of overt act on the part of each accused done in furtherance of the common intention. Mere presence of an accused without any overt act at the place of occurrence at the time of occurrence with co-accused, who commits the offence may not be sufficient to connect former with vicarious liability . Principle of vicarious liability cannot be invoked unless and until common intention and object is proved. For this purpose, strong circumstances must exist manufacturitig a common intention which is missing in the present case. The ward intention is a state of mind which is not ordinarily ascertainable but is to be gathered or inferred only from external act and for this purpose it is very necessary to examine the act itself of the accused. There must be material to show some overt act done in furthermore of common intention which is missing in the present case. Reliance is placed on case titled Hassan v. The State 1969 SCMR 454 , in which Hon'ble Supreme Court of Pakistan has observed at page 456 as under":- "This explanation was not considered by the High Court. It appears from the observations of the High Court that the High Court was still thinking of the charg e of rioting and that mere presence of being a member of the unlawful assembly was sufficient to warrant a conviction. The Sessions Judge had applied section 34 to the case and in order to support a conviction under that section mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furthermore of the common intention. Here the evidence is clear that the appellant was empty handed and he did not assault Saleman, as was stated by PW-3.. Neither of the Courts has considered the case of this appellant separately or the evidence against him. He went to the place empty handed and there is no evidence that the standard applied by both the High Court and the Sessions Judge to the case of the three acquitted persons, the case of the appellant stands on a much more favourable ground and we see no justification for upholding his conviction. The appeal is, therefore, allowed and the conviction and sentence on the appellant are set aside and he is acquitted".
18. The reappraisal of entire prosecution evidence would establish the fact that the prosecution has successfully established the charge to the extent of main accused Naseebullah son of Akram Khan through consistent, confidence inspiring and cogent evidence. All the witnesses remained firm in their deposition to the extent of the said accused Naseebullah but the prosecution has miserably been failed to establish the common intention and common object of the appellant/accused Muhammad Yousuf for commission of crime rather the prosecution has only established his presence along with the main accused at the relevant time, which in our view is not sufficient to hold him responsible for the charge.
For the above reasons, the appeal is partly allowed to the extent of accused/ appe llant Muhammad Yousuf son of Akram Khan alias Khan, who is acquitted of the charge in FIR No.203 of 2018 registered under sections 302, 324, 34, P.P.C. at Police Station. Saddar Loralai, while the conviction and sentence awarded to the appellant/accused Naseebullah son of Akram Khan alias Khan by the trial Court is maintained.
Since the motive for the offence has not been established, therefore, the award of capital punishment of death is not warranted in the circumstances of the case, hence, the criminal revision for enhancement preferred by the complainant/ petitioner is also dismissed being devoid of any merit.
The appeal is dismissed to the extent of appellant Naseebullah.