ABDUL HAMEED BALOCH, J. Through this judgment we intend to dispose of Criminal Appeal No. 132 of 2019, filed by the appellants against the judgment dated 12th April, 2019 (impugned judgment) passed by learned Sessions Judge, Mastung (trial court), whereby the appellants were convicted under section 302(b), Pakistan Penal Code (P.P.C.) and sentenced to suffer imprisonment for life on two counts and each appellant has to pay compensation of Rs. 200,000/- (Rupees two hundred thousand) each to the legal heirs of deceased Saleemullah and Abdul Raziq and in default to further suffer simple imprisonment for six (06) months. The appellants were also convicted under section 324, P.P.C. on four counts for attempting to commit qatl-i-amd of Azizullah, Kaleemullah, Hussain Ahmed and Abdullah and sentenced to suffer rigorous imprisonment for seven years. The appellants were further convicted under section 337-A(ii), P.P.C. and sentenced to suffer five years as Tazir on three counts for causing injuries to Hussain Ahmed, Azizullah and Kaleemullah and each appellant has to pay Arsh equal to five percent of Diyat. The appellants were also convicted under section 337-A(i), P.P.C. for causing injuries to Abdullah and sentenced to Daman. of Rs. 50,000/- each payable to victim Abdullah. In case of non-payment of Arsh and Daman the appellants shall be kept in jail until its recovery and be dealt with in same manner as if sentence to simple imprisonment. The appellants were further convicted under section 147, P.P.C. and sentenced to suffer rigorous imprisonment for one year. All the sentences were ordered to be run concurrently with benefit of section 382-B, Cr.P.C.
2. The prosecution case as gleaned from the Fard-e-Biyan dated 25th May, 2018 (Ex: P/1-4) submitted by PW-1 Hussain Ahmed that the complainant is permanent resident of Khad Koocha and does Zamindari. On 24th May, 2018, the complainant and his brothers Azizullah, Kaleemullah, Saleemullah were coming to their house from their fields. There was fight going on between Babu Inayatullah, Ali Ahmed sons of Nazir Ahmed and Abdullah. They patched up their dispute.
Meanwhile Inayatullah informed his companions, on which Nazir Ahmed son of Syed Khan, Sher Ahmed, Babu Inayatullah, Ali Ahmed, Bashir Ahmed sons of Nazir Ahmed, Zubair Ahmed, Nisar Ahmed, Riaz Ahmed sons of Naseer Ahmed caste Shahwani came there duly equipped with dandas and attacked on them. It was alleged that Sher Ahmed and Babu Inayatullah were assaulting his brother Saleemullah with dandas, due to which the complainant, his brother Saleemullah, Kaleemullah, Azizullah, Abdul Razzaq and Abdullah became seriously injured and they were taken to Ghous Baldish Hospital Mastung, for treatment, from where Kaleemullah, Saleemullah, Abdullah and Abdul Razzaq were referred to Civil Hospital Quetta for further treatment. It was further alleged that today his brother Saleemullah has succumbed to his injuries.
With these averments FIR No. 3 of 2018, under sections 302, 337-ADF, 147, 149, P.P.C. was registered with Levies Thana Khad Koocha District Mastung.
3. After registration of FIR, the investigation was entrusted to Sabzal Khan Naib Tehsildar, who visited the place of occurrence, prepared site sketch Ex: P/8-B. Thereafter, he went to Ghous Bakhsh Hospital Mastung and then to Civil Hospital Quetta where Saleemullah was succumbed to his injuries. The I0 prepared recovery memo and handed over dead body to the legal heirs and statements of witnesses under section 161, Cr.P.C. He took into possession blood stained cloths of deceased Saleemullah and injured Kaleemullah, Hussain Ahmed and Azizullah and a stick through recovery memos. He also conducted proceedings under section 174, Cr.P.C. in respect of deceased Abdul Raziq and took into possession the blood stained clothes of the deceased Abdul Raziq and injured. The Investigating Officer obtained medical certificates and thereafter submitted incomplete challan. On 29th October, 2018 the accused Ali Ahmed was arrested in another case at City Thana Mach and PW-10 Owais Khan the second Investigating Officer took custody of the, accused Ali Ahmed. The IO interrogated the accused and thereafter submitted supplementary challan. On 26th November, 2018 accused Riaz Ahmed, Zubair Ahmed and Nisar Ahmed were arrested and PW-11 Mujeeb-ur-Rehman interrogated them, recorded statements under section 161, Cr.P.C. and on completion of investigation submitted challan.
4. After submission of challan after codal formalities charge was framed on 31st December, 2018 and read over to the appellants to which they denied, whereafter, the prosecution in order to substantiate its charge produced following eight (11) witnesses: PW-1 Hussain Ahmed is complainant of the case, he produced Fard-e-Biyan as Ex: P/1-A; PW-2 Abdullah is victim; PW-3 Dr. Saifullah Medico Legal Officer produced medical certificates of Hussain Ahmed, Kaleemullah, Abdullah and Azizullah as Ex: P/3-A to Ex: P/3-D; PW-4 Hafiz Abdul Ghani produced recovery memos as Ex: P/4-A to Ex: P/4-H; PW-5 Kaleemullah is the victim; PW-6 Dr. All Mardan Mengal Police Surgeon produced death certificate of deceased Saleemullah as Ex: P/6-A, medical certificate of Abdullah as Ex: P/6-B, medical certificate of Kaleemullah as Ex; P/6-C, medical certificate of Abdul Raziq as Ex: P/6-D; PW-7 Azizullah is also victim of the case; PW-8 Muhammad Qasim produced recovery memos as Ex: P/5-A to Ex: P/5-D.
PW-9 Sabzal Khan Naib Tehsildar is the first investigating officer, who produced FIR as Ex: P/9-A, site plan Ex: P/9-B, incomplete challan as Ex: P/9-C, inquest report of deceased Saleemullah as Ex: P/9- D, inquest report of deceased Abdul Raziq as Ex: P/9-E and in complete challan as Ex: P/9-F.
PW-10 Owais Khan is the second investigating officer, who produced memo of personal search of accused Ali Ahmed as Ex: P/10-A and supplementary challan as Ex: P/10-B.
PW-11 Mujeeb-ur-Rehman is the third IO of the case, who produced memo of personal search of accused Riaz Ahmed, Zubair Ahmed and Nisar Ahmed as Ex: P/11-A and supplementary challan as Ex: P/11-B.
5. On completion of prosecution evidence the appellants were examined under section 342, Cr.P.C., in which they denied the allegation of prosecution. The accused persons neither recorded their statements on oath as envisaged under section 340(2), Cr.P.C, nor produced any witness in their defence.
6. On conclusion the trial court convicted the appellants in the manner as mentioned in para-1 above vide impugned judgment, hence the appellants are before this court.
7. Learned counsel for the appellants contended that the impugned judgment passed by the trial court is contrary to law, facts and principle of natural justice. The learned trial court has failed to appreciate the evidence in its true perspective. Further added that the case of prosecution is full of doubts. There were material contradictions in the statements of eye-witnesses. The medical evidence is contradictory with ocular account. The FIR was lodged with the delay of one day without affording any plausible explanation. The premeditation and consultation/ deliberation could not be ruled out. The impugned judgment of the trial court is based on surmises and conjectures. The prosecution has failed to prove its case beyond reasonable doubt. It is well settled principle of law that benefit of slightest doubt goes to the accused as a matter of right not as a grace, as such the appellants are entitled to be acquitted. The learned counsel relied on State through Advocate General v. Haji Rehman 2018 YLR Note 80, Muhammad Shafi arias Kuddoo v.
The State 2019 SCMR 1045, Imran Ashraf v. The State 2001 SCMR 424, Muhammad Yousaf v. Tariq Mahmood PLD 2008 SC (AJ&K) 6, Kazim Hussain alias Qazi v. The State 2008 PCr.LJ 971, Abdul Sattar v. The State 2008 PCr.LJ 869 (Lahore), Haroon Shafique v. The State 2018 SCMR (sic.) and Ansar Mahmood v. The State 2011 SCMR 1524.
8. The learned counsel for the complainant and learned Deputy Prosecutor General strongly opposed the appeal by submitting that the appellants are involved in heinous offence, committed murder of two innocent persons while injured four others in broad day light. The medical evidence is fully supported the ocular evidence. The statements of the prosecution witnesses were consistent on material point. The prosecution has proved its case against the appellants beyond shadow of doubt. The appellants have rightly been convicted by the trial court. The learned counsel for the appellants have failed to point out arty illegality, irregularity or misreading or non- reading of the evidence, as such the appeal filed by the appellants is liable to be dismissed.
9. We have heard the learned counsel for the parties and gone through the record with their able assistance. The prosecution in order to prove accusation produced eleven witnesses. Among them PW-1 Hussain Ahmed, PW-2 Abdullah, PW-5 Kaleemullah and PW-7 Azizullah are ocular witnesses, while PW-3 Dr. Saifullah Medico Legal Officer Shaheed Nawab Ghous Bakhsh Raisani Memorial Hospital Mastung produced MLC of Hussain Ahmed (Complainant) as Ex: P/2-A, MLC of Kaleemullah .as Ex: P/2-B, MLC of Abdullah as Ex: P/2-C and MLC of Azizullah as Ex: P/2-D. While PW- 6 Dr. Ali Mardan Police Surgeon Sandeman Provincial Hospital Quetta produced MLC of Saleemullah (deceased) as Ex: P/6-A, MLC of injured Abdullah as Ex: P/6-B, MLC of Kaleemullah as Ex: P/6-C and MLC of Abdul Raziq (deceased) as Ex: P/6-D. The prosecution case revolved around the statement of injured witnesses and medical certificates. On complaint/Fard-e-Biyan Ex: P/1-A of Hussain Ahmed (PW-1) FIR Ex: P/9-A was registered on 25th May, 2018 next day of the occurrence.
On the basis of Ex: P/1-A the Investigating Officer (PW-9) conducted investigation and submitted challan. The learned Judicial Magistrate recorded the statements of witnesses under section 512, Cr.P.C. While on 29th October, 2018 one of the accused namely Nazir Ahmed was arrested. PW-10 submitted challan. On 26th November, 2018 accused namely Riaz Ahmed, Zubair Ahmed and Nisar Ahmed were arrested and challan to their extent was submitted. The presence of injured witnesses at the scene of occurrence was not denied. The defence has not disputed the venue of occurrence.
According to oral evidence the occurrence took place on 24th May, 2018 at 6:30 pm. While the evidence of PW-2 Dr. Saifullah and PW-6 Dr. All Mardan Police Surgeon showed the probable time of injuries from four to five hours, meaning thereby that the injured firstly immediately brought to Ghous Bakhsh Raisani Hospital, Mastung and thereafter, shifted to Quetta approximately 40 kilometer away from place of occurrence. It appears from the record that Saleemullah died on 25th May, 2018, next day of the occurrence, while Abdul Raziq succumbed to his injuries on 26th May, 2018. The learned counsel for the appellants contended that the medical evidence is contradictory to ocular account. Admittedly the medical evidence does not identify the accused.
The medical evidence confirmed the injuries on the person of deceased/ injured and locale/seat of injuries weapon were used. The medical evidence is not substantive piece of evidence rather supportive and corroborative evidence. It would not connect the accused with the commission of crime. Reliance is placed on Sarfraz alias Sappi v. The State 2000 SCMR 1785. It was held therein: "............ . Therefore, if there is any variation both in ocular and medical evidence the latter will pot overweigh the former type of G evidence if otherwise it is coherent and trustworthy. Reliance in support of this principle is placed on the case of Muhammad Hanif v. The State (PLD 1993 SC 895)."
10. Before dilating on unlawful assembly and responsibility of member of unlawful assembly' it would be appropriate to reproduce the relevant Section: "149, P.P.C.: Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
11. The record transpires that the appellants along with absconding accused assaulted the complainant party with hard object due to which four persons sustained injuries, while two succumbed to their injuries. The eye-witnesses straight forwardly stated that all the accused persons B being member of unlawful assembly assaulted the complainant party. The doctrine of vicarious liability envisaged in section 149, P.P.C. require the co-existence, proof of specific overt act is not necessary while determining the guilt of accused being member of unlawful assembly and it will be sufficient for the prosecution to establish that the accused being member of unlawful assembly shared common object of assemble. Reliance is placed on 2012 SCMR 1156 (Supreme Court of India) Ramachandran v. State of Kerala, in which it was held: "10. Section 149, I.P.C. has essentially, two ingredients viz. (i) offence committed by any member of an unlawful assembly consisting five or more members and (ii) such offence must be committed in prosecution of the common object (under section 141, I.P.C.) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object.
11. For "common object", it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on spur of the moment; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. [Vide: Bhanwar Singh and others v. State of M.P., (2008) 16 SCC 657]; (AIR 2009 SC 768),
12. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under second part of section 149, I.P.C. if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that if a body of persons go armed to take forcible possession of the land, it would be right to say that someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of section 149, I.P.C.
13. There may be cases which would come within the second part, but not within the first. The distinction between the two parts of section 149, I.P.C. cannot be ignored or obliterated. [See: Mizaji and another v. State of U.P., AIR 1959 SC 572; and Gangadhar Behera and others v. State of Orissa, AIR 2002 SC 3633].
14. However, once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. [See : Daya Kishan v. State of Haryana, (2010) 5 SCC 81; (AIR 2010 SC 2147); Sikandar Singh v. State of Bihar, (2010) 7 SCC 477; (AIR 2010 SC 3580), and Debashis Daw v. State of W.B., (2010) 9 SCC 111]; (AIR 2010 SC 3633)."
12. The learned counsel contended that the FIR was lodged with the delay of one day without affording any plausible explanation. The FIR was got registered with deliberation and consultation which casts serious doubt on the prosecution case. The contention has no force. Mere delay in reporting of crime to police by itself does not fatal to the prosecution case. The FIR is not substantive piece of evidence. Any person could report the matter if he got knowledge of commission of offence. It is not necessary that only injured or their relative could register the FIR.
PW-9 the Investigating Officer admitted that he got knowledge of the occurrence on next morning, but could not register the FIR. It is fortunate that intentionally or otherwise any leverage or concession extended to the accused being lapse on part of investigating agency shall not term fatal the case of prosecution. Reliance is placed on Muhammad Anwar v. The State 2018 YLR 259.
13. The appraisal of direct evidence coupled with medical evidence after considering all circumstances reveals that the appellants are responsible for injuring the witnesses and murdering two persons with common object being associates of unlawful assembly. So far recovery of incriminating material is concerned. The Superior Courts time and again held that the recovery of incriminating material is not necessary to record conviction, if ocular account is convincing and worthy of credit and same also found support from medical evidence is sufficient to record/maintain conviction.
14. Admittedly before the trial court the statements of witnesses were recorded after lapse of 7/8 months. The primary consideration is appreciation of evidence to determine whether he seen the occurrence? There may be found some minor contradictions, discrepancies in the statements of ocular account. The variation may be due to lapse of memory or confusion caused by lengthy cross-examination. It is common experience that without any intent even educated people exaggerated when describing the evidence. In case in hand the presence of witnesses are proved.
They deposed all the relevant facts. It could not appeal to .prudent mind that the related witnesses could absolve the real culprit and involved innocent. Needless to observe that substitution of culprit is rear phenomenon in the system of criminal justice. Reliance is placed on Allah Ditta v. The State PLD 2002 SC 52.
15. The learned counsel for the appellant argued that all the witnesses are related to each other and with deceased. Despite availability of independent person from the locality the prosecution has not recorded their statements. Mere relationship is no ground to discard the statements of natural and truthful witnesses. There is no bar in the law that the statement of related witnesses would not be considered. The defence has failed to point out any enmity of the witness with the appellants. Even no such suggestion was put to the witnesses. The Presence of ocular witnesses at the place of occurrence was probable. Even some time the related witnesses may be found more reliable. Mere relationship would not let the real culprit to go or substitute an innocent person. The presence of appellants was not disputed. There is no suggestion that the injuries were self inflicted and the occurrence had not taken place as suggested by the prosecution. Reliance is placed on the case of Sarfraz alias Sappi v. The State, 2000 SCMR 1758: "13. Learned counsel also contended that Intisar Hussain was an independent witness but he was not produced by the prosecution at the trial; therefore, inference may be drawn that if he would have appeared in the Court he might have disclosed true picture of the incident. The argument so advanced by the learned counsel carry no, weight firstly for the reason that law governing administration of criminal justice has not cast a duty upon the prosecution to produce all the witnesses who have seen the incident because it is the quality of the evidence but not quantity which matters. Of course this object can be achieved by recording evidence of even one witness if he is trustworthy. Reference in this behalf may be made to the case of Allah Bakhsh v. Shammi and others (PLD 1980 SC 225). Secondly the defence is always at liberty to summon a prosecution witness who has been given up with an object to unearth true facts before the. Court. Thus, on account of non-producing P.W. Intisar Hussain no adverse inference can be drawn against the prosecution for above reasons."
16. The learned counsel contended that the case of prosecution is full of contradictions, has no force. It is by now settled proposition of law that only those contradictions will be considered as fatal to the prosecution case; which materially affect the ocular account. Reliance is placed on the case of Manzoor Hussain alias Mama v. The State, 2014 PCr.LJ 744. It was held: "9. The learned counsel for the appellant has also contended that the contradictions in the testimonies of prosecution witnesses shall necessarily be resolved in favour of the defence. I am in agreement with the learned counsel for the appellant/ convict to the extent of the proposition that contradictions in the statements of prosecution witnesses are always fatal to the prosecution case. But irrespective of veracity of the defence version, a distinction is always to be made between minor inconsistencies or variance in the testimony of witness from the contradiction in the evidence. Only such statement shall be termed as contradictory, which are either destructive of each other or they are totally different to the extent that two versions cannot be reconciled.
Such contradiction shall always lead to the benefit of defence, however, the variance of testimony of witnesses or inconsistencies on the point shall not lead to such conclusion, which are not material in nature and do not introduce or suggest a totally different version to the prosecution case. The minor discrepancies in the instant case are not of such nature which could bring the case within the exception supra. In rendering this view I am supported by the reported judgment of Hon'ble apex Court Sarfaraz alias Sappi v. The State 2000 SCMR 1758. Relevant passage whereof is reproduced hereunder:- "In the cross-examination of both the P.Ws. i.e. Ahmed Khan and Sakhawat Hussain their above version was not shaken at all inasmuch as concerning the Incriminating portion of their testimonies there was no sufficient impeachment. Resultantly, we have to form a positive opinion that incriminating portion of the evidence is consistent, coherent, trust worthy as well as natural i.e. free from any exaggeration. However, we may mention here that if in cross-examination intrinsic value of incriminating evidence of a witness has not been, shaken his statement cannot be discarded for minor contradictions reference may be made to the case of Mushtaq alias Shaman v. The State PLD 1995 SC 46".
The Honorable Supreme Court in case Dilbar Masih v. The State, 2006 SCMR 1801 held: "..........We find that the ocular account would also be supported by the medical evidence to the extent of sustaining the fire-arm injury by the deceased at the hand of petitioner and in these circumstances; the minor discrepancies and contradictions pointed out by the learned counsel for the petitioner would not be material either to effect the credibility of the evidence of eye- witness or create any doubt or dent in the prosecution case............."
The judgments cited by the defence are distinguished. Each case has its own particular facts and circumstances.
The cumulative effect of the above discussion and in the light of precedents laid down by Honorable Supreme Court it can safely be concluded that the prosecution has successfully proved the charge of murder of Saleemullah and Abdul Raziq and injuries to Azizullah, Kaleemullah, Hussain Ahmed and Abdullah against the appellants beyond shadow of doubt, hence the impugned judgment needed not to be interfered and same is upheld.
In view of the above discussion the appeal is dismissed being without merit.