ROZI KHAN BARRECH, J. Appellant Badar-ud-Din, son of Dad Muhammad allegedly. murdered Barkat Ali and caused injuries to Abdul Ghaffar by means of firearms at Sohbat Pur Road near A- one City Gola Petrol Pump District Jaffarabad within the precincts of Police Station Dera Allah Yar at about 3:00 pm on 28th May 2019 in the backdrop of motive that the son of the complainant namely Ghulam Muhammad contracted court marriage with the sister of absconding accused Abdul Rehman. For the commission of the said offence, the appellant was booked in case of FIR No. 79 of 2019, registered at the said police station on the day of the incident at 3:25 p.m. After a regular trial, the appellant was convicted vide judgment dated 30th December 2020 (`the impugned judgment') passed by learned Additional Sessions Judge, Dera Allay Yar ('the trial Court') under section 302(b), P.P.C., and sentenced to suffer life imprisonment as Ta'zir to pay compensation of Rs.2,00,000/- to the legal heirs of deceased in terms of section 544-A Cr.P.C and in default thereof to further suffer simple imprisonment for six months. The appellant was also convicted under section 324 Q&D and sentenced to suffer five years' R.I and to pay a fine of Rs. 20,000/- and in default thereof to further suffer S.I for three months with the benefit of section 382-B, Cr.P.C.
Being aggrieved from the impugned judgment, the appellant has filed the instant appeal.
2. We have heard the learned counsel for the appellant as well as learned APG and have gone through the record with their able assistance. In the case, in hand, the FIR was lodged within twenty-five minutes of the occurrence, and the accused/appellant, along with the absconding accused were specifically nominated therein. PW-1 Muhammad Umer is the complainant of the case. FW-2 Abdul Ghaffar is injured/eyewitness of the occurrence. PW-4 Abdul Baqi has claimed to be another eyewitness of the occurrence. They stated in their statement that on 28.05.2019, they and the deceased Barkat Ali came to Dera Allah Yar city for some domestic work. While returning home at about 3:00 pm when they reached near A-one City Gola Petrol Pump where the complainant and Muhammad Aslam, went to the office of the petrol pump while the deceased Barkat Ali, who is a brother of the complainant, and injured Abdul Ghaffar (PW-2) were filling petrol.
In the meanwhile, two motorcycles ridden by Abdul Ghaffar, Abdul Rehman, sons of Abdul Hayi (absconding accused), Badar-ud-Din (appellant) and two unknown culprits armed with T.T pistols raised lalkara and started firing upon the brother of the complainant Barkat Ali, and Abdul Ghaffar (injured) who received injuries and later on Barkat Ali succumbed to the injuries. The above witnesses attributed the role of firing to the appellant and absconding accused. They gave a consistent and straightforward ocular account of the occurrence. Despite extensive and lengthy cross-examination, nothing was brought on record, which may significantly demonstrate that the above eye-witness's account is false or their presence at the scene of the crime was doubtful or distrustful.
3. The presence of the said witnesses on the spot was also proved, and the name of the witnesses are also mentioned in the promptly lodged FIR without any delay. At the same time, the investigation officer has recorded the statement of PW-4, namely Abdul Baqi under section 161 Cr.P.C., after the occurrence. However, they gave a plausible explanation for their presence at the spot at the relevant time. PW-2 Abdul Ghaffar, the injured witness, also supported the prosecution witnesses since he sustained injuries on his person and was immediately taken to the hospital where PW-3 Dr. Shaukat Ali Xhosa prepared his injury sheet and he was shifted to Chandka Medical Hospital Larkana for further treatment.
4. It has also come on record that his statement was recorded by the investigation officer on 02.06.2019 within four days at Chandka Medical Hospital Larkana. PW-6 Abdul Ghani, SI, who conducted an investigation of the case also stated during cross-examination that injured Abdul Ghaffar was in an unconscious state that is why he did not record his statement under section 161, Cr.P.C., on 28.05.2019.
The other witnesses also stated during cross-examination that PW-2 Abdul Ghaffar was in an unconscious state when he received injuries. In the above circumstances, explanation has come on record with regard to recording the statement of the injured witness with such delay. Thus the presence of this prosecution witness is also established. Under such circumstances, it cannot be further disbelieved that the present appellant was substituted by the real culprits. In this regard, reliance is placed on the judgment of august Supreme Court of Pakistan titled Abdul Rauf and others v. Mehhi Hassan and others 2006 SCMR 1106, 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".
So far as the plea of the learned counsel for the appellant that only interested witnesses were produced by the prosecution and the case of the prosecution lacks 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 or 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. PW-1/complainant is the brother of the deceased Barkat Ali, and injured Abdul Ghaffar (PW-2), and Abdul Baqi (PW-4) are relatives of the complainant.
Being a close relative of the deceased, the above witnesses were subjected to lengthy cross- examination, but nothing advantageous was brought, rendering inconsistent to the case of the appellant, who was implicated by the above PWs. No serious enmity whatsoever was alleged against them, and besides that being the real brother and cousins, the question of substitution of the real culprits with that of the appellant does not arise, which otherwise is a rare phenomena.
5. It may be observed that the medical evidence is in complete harmony with the ocular testimony of PW-1, PW-2 and PW-4, and no conflict could be pointed out to create a dent in the prosecution case. PW-3 Dr. Shaukat Ali Khosa produced the medical certificate of the deceased as well as of the injured/PW-2 as Ex.P/3-A and Ex.P/3-B, according to which the deceased received two injuries by means of firearms and the injured also received two injuries by means of firearms.
6. The other corroborating piece of evidence with the ocular evidence; i.e. recovery of six bullet empties of T.T pistol which was taken into possession by the investigation officer PW-6 on 28.05 2019 from the place of occurrence who prepared parcel No.3. He also took the blood-stained earth and clothes of the deceased and the injured through recovery memo in the presence of witnesses.
He arrested the accused/appellant, and during the course of the investigation the accused/appellant disclosed about the occurrence and on his pointation the crime weapon, i.e. T.T pistol was recovered from his house on 07.08.2019, and the same was taken into possession through recovery memo in the presence of the witnesses and prepared parcel No.6. The investigation officer sent parcel No.3 of the bullet empties and parcel No.6 of the crime weapon to the firearm expert and obtained a positive report Ex.P/6-H. The investigation officer also obtained a positive report regarding blood-stained clothes and blood stained earth of the injured and the deceased Ex.P/6-F. The testimony of the above eyewitnesses has been corroborated with the recovery of bullet empties, crime weapon, blood-stained earth and blood-stained garments of the deceased and injured and positive report from the FSL and Firearm expert. The said recoveries have been duly proved though recovery witnesses, and nothing adverse could be achieved despite cross-examination.
7. So far, the contention of learned counsel for the appellant to the effect that six bullet empties were recovered on 28.05.2019 from the place of occurrence and recovery of crime weapon was alleged effected on the pointation of the appellant on 07.08.2019, and both the crime weapon and the bullet empties were sent together to the FSL on 19.09.2019 is concerned, it may be observed that the investigation officer PW-6 and recovery witness PW-5 Muhamma Hanif have no enmity with the accused/appellant neither they are relatives of the deceased nor inimical towards the accused, therefore, it is impossible to say that they foisted a crime weapon upon the appellant falsely and there is nothing on record to establish that either the investigation officer tempered with the alleged parcels of crime weapon. Even if the recovery of crime weapon is excluded from consideration, it has been observed that direct evidence in the form of ocular account furnished by the complainant/PW-1, PW-2 and eyewitness PW-4 are confidence-inspiring, which is supported by the medical evidence.
8. We have no hesitation to hold that the prosecution has been successful to prove its case against the appellant beyond reasonable doubt and concluding so, it has been observed by us that no specific role to the accused/appellant Badruddin and absconding accused was attributed. The complainant and the eyewitness attributed general role to the accused/appellant, the nominated absconding accused and two unknown accused in the commission of the offence, and according to the above witnesses, all the accused made firing upon the deceased Barkat Ali and injured Abdul Ghaffar and both of them received injuries. On the other hand, according to the medical certificates, the deceased and the injured received two injuries each, and the investigation officer took six bullet empties of T.T pistol from the place of occurrence.
9. So far as the principle of constructive liability is concerned vis-a-vis Section 34, P.P.C., if several persons would unite with a common purpose to do any criminal offence, all those who assist in the completion of their object, would be equally guilty. Foundation for constructive liability was the common intention in meeting the 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 section 34, P.P.C., it is 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 criminal act and if, in furtherance of their 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 helps by his presence or by other act in the commission of an act, he would be held to have himself done that act within the meaning of section 34, P.P.C. Paramount consideration is whether the offence has been committed in furtherance of the common object. In the case in hand, both the appellant and absconding accused armed with deadly weapons waited for the deceased and injured, their presence at the scene of the crime was also corroborated by the eye- witnesses' with their roles as a result of which one person lost his life, and the other received severe injuries.
10. Pursuant to the above, we have come to the conclusion that the prosecution has established its case beyond the shadow of doubt and conviction and sentence recorded by the trial Court is based on correct appreciation of evidence, which does not call for interference; therefore the judgment of conviction and sentence is maintained, in result whereof Criminal Appeal No.06 of 2021 is dismissed accordingly.