MUSHTAQ MUHAMMAD, J. We intend to decide all the above cited two criminal appeals and the criminal revision petition through this single judgment, because all the above cited appeals and the revision petition are directed against the same judgment of conviction dated 31/10/2022 passed by the learned Additional Sessions Judge Gilgit (hereinafter called as trial court) in the Sessions Trial No.85/2018, whereby the learned trial court has convicted the appellant of Criminal Appeal No.57/2022 for committing Qatl-e-Amd (intentional murder) of deceased Mumtaz Hussain son of Muhammad Hussain resident of Muhallah Yarkot Khomer Tehsil Gilgit and sentenced him for life with fine Rs.500,000/- under Section 544-A Cr.P.C and in default of payment of compensation amount for further imprisonment of six months S.I. Learned trial court has extended the benefit of Section 382-B Cr.P.C. to the convict Shehzad Hussain.
Learned trial court, on the other hand acquitted the co-accused Wahid Hussain, Saqib Hussain and Abid Hussain of the charge. Para 54 and 56 of the impugned judgment dated 31/10/2022 read as follows:
54. Due to some contradiction in prosecution case against the accused Shehzad Hussain not made for punishment of death sentence while prosecution failed in establishing the case to the extent of rest of co-accused Wahid Hussain, Saqib Hussain and Abid Hussain.
56. Co-accused Wahid Hussain, Saqib Hussain and Abid Hussain are acquitted from charge under Section 302/34 P.P.C. in case in hand.
Accused Afraz Hussain son of Hoor Shah during his custody committed suicide within the premises of judicial lockup, hence case to his extent is abated.
2. FACTS OF THE CASE Complainant Imran Hussain son of Muhammad Hussain, appellant of Cr. Appeal No.61/2022, reported the occurrence dated 20/ 06/2018 happened at 1450 hours (ten minutes to 3 'O' clock afternoon), wherein the said occurrence his real brother deceased Mumtaz Hussain lost his life in the hands of accused Afraz Hussain (died later on), Shehzad Hussain, Wahid Hussain, Saqib Hussain and Abid Hussain.
Complainant Imran Hussain vide his written application dated 20/06/2018 (fard bayan), marked as Ex.PW-1/A on 16/09/2019 during his statement on oath recorded before the trial court, has disclosed the occurrence from its starting point to the end. He has mentioned that on the day of occurrence at about half past eight 'O' clock morning deceased Mumtaz Hussain collided or pushed Mst. Bina (PW-8) in a street and the matter after exchange of some bitter words ended with an apology tendered by the deceased Mumtaz Hussain. It is in the document Ex.PW-1/A that accused Shehzad Hussain and others named therein did not accept the said apology tendered by the deceased Mumtaz Hussain and jointly assaulted the deceased Mumtaz Hussain by taking him out from the shop of Jamati (PW-4), took the deceased Mumtaz Hussain to the place of occurrence and committed murder there. Complainant Imran Hussain has named the eye-witnesses in his said application.
On the said application of complainant Imran Hussain, police formally registered the case on the same day at 1520 hours and arrested all the nominated accused on 21-6-2018 and started investigation. Prosecution case rests mainly on the ocular account of witnesses Imran Hussain (complainant), Iqtidar Hussain (Ww-2), Touseef Haider (Pw-3), Jamati (PW-4) and Haji Mir Afzal (PW-5). Corroboratory evidence post mortem report Ex.P11/A, injury sheet prepared by I.O Ex.PW- 6/M, recovery of weapon of offence Ex.PW-7/A, Ex.PW-7/B, seizure memos regarding blood stained soil, blood stained clothes of deceased Mumtaz Hussain, crime empties, crime shell and site plan with site inspection report are part of prosecution evidence. After a full dress trial and recording the defense evidence, learned trial court convicted the principal accused Shehzad Hussain and sentenced him for life with fine Rs.500000/ - under Section 544-A Cr.P.C. Learned trial court has extended the benefit of section 382-B Cr.P.C. to the convict Shehzad Hussain. Learned trial court however, acquitted the co-accused Wahid Hussain, Abid Hussain and Saqib Hussain sons of Ajab Khan. Felt aggrieved with the judgment of conviction dated 31-102022, convict Shehzad Hussain has called in question the same vide Cr. Appeal No.57/2022. Complainant Imran Hussain has challenged the acquittal order of learned trial court passed in favour of co-accused Wahid Hussain and two others respondents in Cr. Appeal No. 61/2022. Complainant Imran Hussain has also prayed for enhancement of sentence awarded to principal accused Shehzad Hussain vide his Cr. Revision Petition No.24/2022.
3. Arguments have been heard on 25/10/2023. Mr. Shahbaz Ali advocate submitted that there is contradiction between the statement of complainant Imran Hussain and SHO PW-13. Learned counsel has submitted that regarding the exact time of occurrence prosecution evidence on record is full of doubts. He referred the statements of complainant, I.O PW-13 and Sher Jahan PW-9.
Learned counsel has submitted with specific reference to the statement of Dr. Mehboob ul Haq PW- 11 that occurrence took place on 1450 hours and post mortem was conducted on 1645 hours and there is no explanation given regarding the custody of dead body during the intervening period from 1450 to 1645 hours. Learned counsel raised objection that complainant Imran Hussain did not go to the police station after the occurrence whereas I.O PW-13 claims that he had received the complainant Imran Hussain at police station Jutial at 1450 hours. Learned counsel objected that dead body was removed from the place of occurrence to the hospital by the incumbents of Rescue 1122 but no person of Rescue 1122 is cited to verify the said fact. Learned counsel submitted that it is in the statement of complainant Imran Hussain that at the relevant time of occurrence various people were present on the spot and they conducted fire at the deceased Mumtaz Hussain whereas, in the FIR Ex.PW-1/A the statement regarding presence of various people nothing is mentioned. He pointed out the contradiction between the statement of PW-5 Mir Afzal and Tufail Abbas PW-6 on the particular point of their relationship with the complainant and accused party.
He submitted that according to the FIR it was a day light occurrence and various people were present on the spot but all the eye-witnesses are close relatives of the deceased hence, their evidence cannot be accepted. He submitted that PW-5 Mir Afzal in his statement before the Court has claimed that he had identified the accused Shahzad Hussain while conducting fire at the deceased Mumtaz Hussain from a distance of 150 feet. Learned counsel submitted that this kind of identification cannot be accepted. Learned counsel submitted that owner of the house Sohail Abbas who was allegedly present on the spot of occurrence was not cited as a witness which create serious doubts in the prosecution case. Learned counsel submitted that inquiry conducted prior to registration of FIR is a nullity in the eyes of law. Learned counsel submitted that convict appellant Shehzad Hussain on oath recorded his statement to rebut the case against him but the prosecution failed to shatter his statement. Learned counsel on the particular defense of Alibi taken by the principal accused, referred the statements of DWs Najmul Hassan, Riazat Hussain, Wahid Hussain, Muhammad Jabir and Mufeed Hussain. Learned counsel submitted that regarding the fatal shots to the deceased Mumtaz Hussain, the evidence rendered by the alleged eye-witnesses is contradictory to each other. He submitted that prosecution witnesses have improved their statements hence, same cannot be relied upon. Learned counsel submitted that learned trial court has accepted the improved contradictory evidence of the prosecution witnesses, hence the impugned judgment of conviction dated 31/10/2022 passed by the learned trial court is liable to be set aside. He relied upon the case laws cited, "Khadim Nabi v. Rasheed ur Rehman and another"
(2020 PCr.LJ 433), "Faisal Mehmood and others v. The State and another" (2010 SCMR 1025), "Meero v. The State" (2021 PCr.LJ 1237), "The State and others v. Zaidullah and 2 others" (Cr.
Appeal No.01/2014 dated 27/11/2017), Nasir v. The State" (2011 YLR 576), "Muhammad Saleem v.
The State and another" (2010 YLR 2115), "Najam-un-Nisa's case" (2002 YLR 3658), "Yasir v.
The State" (2010 YLR 2344), "Muhammad Riaz v. The State" (1996 PCr.LJ 150), "Nadir Husain v. The State" (2013 MLD 885) and "Zarif Khan v. The State" (2010 YLR 935). Learned counsel prayed that impugned judgment of conviction dated 31/10/2022 may be set aside and convict appellant may be acquitted of the charge as framed against him.
Mr. Manzoor Hussain advocate appearing on behalf of respondents in Cr. Appeal No.61/2022 (accused acquitted by the learned trial court) submitted that learned trial court has rightly acquitted the accused/respondents for the reasons that accused Saqib Hussain was subsequently involved in the case by the I.O. despite the fact that he was not nominated by the complainant Imran Hussain in the FIR Ex.PW-1/A. learned counsel submitted that PW-5 Mir Afzal and PW Tauseef Haider (PW-3) in their statements did not specifically charge the accused/respondents. Learned counsel referred the statements of PW-5 Mir Afzal and Tauseef Haider (PW-3). Learned counsel submitted that no recovery has been effected from the accused/ respondents, hence the Cr.
Appeal No.61/2022 is devoid of merits. He prayed that this appeal may be dismissed.
Messrs Imtiaz Hussain and Muddasir Hassan advocates presented the case of complainant Imran Hussain. They submitted that it was a day light occurrence, that occurrence was promptly reported by the real brother of deceased Mumtaz Hussain. They submitted that motive behind the occurrence is fully explained and that eye witnesses of the occurrence are named in the FIR Ex.PW- 13/A. They argued that ocular account of the occurrence is fully corroborated by the corroboratory confirmatory evidence, post mortem report Ex.PW11/A, injury sheet prepared by the I.O Ex.PW-6/M.
They have referred the statements of complainant Imran Hussain, Iqtidar Hussain Pw-2, Touseef Haider (PW-3), Jamati (PW-4), Haji Mir Afzal (PW-5) and Mst. Bina (Pw-8). They argued that learned trial court on the one hand accepted the statements of eye-witnesses and on the other hand acquitted the respondents of Cr. Appeal No.61/2022. They contested the findings of learned trial court vide para 54 and 56 of the impugned judgment dated 31/ 10/2022. They submitted that case in hand is one of capital punishment but the learned trial court awarded lesser punishment to the convict-appellant Shehzad Hussain and acquitted the co-accused Wahid Hussain, Saqib Hussain and Abid Hussain. They referred the judgments cited "Mehboob Ali v. The State" (1991 MLD 2455), "Muhammad Ashraf v. The State" (1991 PCr.LJ 2274) and "Gehna Khan's case" (2009 PCr.LJ 1137).
They prayed that by accepting the Cr. Appeal No.61/2022, the acquitted accused Wahid Hussain and 2 others may be convicted for the charge as framed against them on 08/05/2019 and sentenced them under Section 302 (b) P.P.C. read with Section 34 P.P.C. They prayed that Cr.
Revision No.24/2022 may be accepted and sentence of life imprisonment awarded to the convict Shehzad Hussain may be enhanced to normal penalty of death. They prayed for dismissal of Cr.
Appeal No.57/2022. Learned AAG submitted that case is one of ocular evidence duly supported with motive behind the occurrence. He submitted that it was a broad day light occurrence and both the parties were known to each other prior to the occurrence hence, question of false implication does not arise. Learned AAG submitted that all the prosecution witnesses were in depth cross-examined by the defense and surfaced with nothing material in their hands. He submitted that extreme explanations regarding each and every minute before and after the occurrence and every single movement and gesture of the PWs and investigating officer is not possible. He submitted that defense has failed to create reasonable doubt in the prosecution evidence. He submitted that it was a case of capital punishment against all the accused and learned trial court has differentiated the case of convict Shahzad Hussain with the acquitted accused Wahid Hussain and others on the basis of identical evidence. He prayed for acceptance of Cr. Appeal No. 61/2022 and Cr. Revision No.24/2022. He, however prayed for dismissal of Criminal Appeal No.57/2022.
4. We have carefully examined the case of prosecution, evidence recorded by the learned trial Court and the judgment of conviction dated 31.10.2022 recorded by the learned trial court. We have given our considerations.
Before recording our findings on the merits of evidence, we deem it appropriate to comment on the format of judgment dated 31.10.2022 handed down by the learned Additional Sessions Judge Gilgit. Judgment consists of 28 pages. From page No.3, paragraph No.9 to page No.18, paragraph No.30, learned trial court has reproduced the evidence of PWs and five (5) DWs. In the next three pages learned trial court has reproduced the arguments of both the sides. In the next six pages learned trial court has again discussed the testimony of each prosecution witness. Learned trial court has concluded the case in two paragraphs at page No. 27. By reproducing the recorded evidence in the judgment, learned trial court has un-necessarily prolonged the same. This format of the judgment is violative of the mandatory provision of section 367 Cr.P.C. The judgment in any criminal trial shall consist of three components. First, the points for determination, secondly the decision and conclusion and third the reasons for the decision. In the impugned judgment learned trial court did not frame points for determination, hence judgment dated 31.10.2022 on the particular point of its format is violative of section 367 Cr.P.C.
5. The most important point in this case is the charge as framed against the convict Shahzad Hussian and the acquitted accused Wahid Hussain, Saqib Hussain and Abid Hussain. From the perusal of the FIR Ex.PW13/A, Ex.PW 1/A and the statement of Imran Hussain complainant, it is obvious that prior to occurrence there was no enmity or grudge between the deceased Mumtaz Hussain and his family and the accused party.
From the statement of complainant Imran Hussain it is evident that the occurrence flared up when the deceased Mumtaz Hussain teased and harassed Mst. Bina in a public passage. It is on record admitted that said Mst. Bina PW-8 is wife of accused Wahid Hussain. The attempt to outrage the modesty of Mst. Bina PW 8, by the deceased Mumtaz Hussain is conceded by the complainant Imran Hussain in his application Ex.PW-1/A and in his statement dated 16/09/2019. On this material fact, statement of Mst. Bina PW-8 is very much important wherein she has sufficiently explained the alleged attempt on her person by the deceased Mumtaz Hussain. PW-2 Iqtidar Hussain in his statement dated 16/09/2019 also stated about this attempt and the subsequent apology tendered by the deceased Mumtaz Hussain. This is the motive behind the occurrence and same is sufficiently explained by Mst. Bina PW.8 and in view of the document Ex.PW-1/A read with statement of complainant Imran Hussain and Iqtidar Hussain PW-2 this fact is proved on record.
According to the complainant Imran Hussain, after failure of his mediation attempt between the family of Mst. Bina and deceased Mumtaz Hussain, the second part of the occurrence happened when the accused party consisting of twenty persons assaulted the deceased Mumtaz Hussain at the place of occurrence. Complainant Imran Hussain has claimed his presence at the place of occurrence at the relevant time. Complainant Imran Hussain in his statement before the Court has explained the fine details of the occurrence. In his statement he has alleged that all the accused were duly armed with weapons, the presence of mob consisting of hundreds of people, how the accused party intercepted the deceased Mumtaz Hussain, how the deceased Mumtaz Hussain escaped from the hands of accused, how the mob/crowd remained as silent spectator, how he was restrained by the mob/crowd from interfering in the violent episode, how the deceased Mumtaz Hussain tried to escape from the clutches of accused party, how he failed in his attempt and how the accused party finished their task at the outer entrance of the house of Mir Afzal PW-5.
Complainant Imran Hussain has verified his application (fard bayan Ex. PW-1/A and has verified the contents and his signature over the FIR Ex.Pw-13/A. In his statement complainant Imran Hussain has categorically charged the convict Shehzad Hussain and Afraz Hussain (deceased now) for conducting the fatal shots at the deceased Mumtaz Hussain at the place of occurrence the outer entrance of house of PW-5 Mir Afzal. He has verified the presence of convict Shehzad Hussain, Abid Hussain and Afraz Hussain (deceased) by specifically mentioning their names, however he did not name the accused Saqib Hussain and Wahid Hussain. During cross-examination he stood consistent and there is no material contradiction. Defense has failed to shatter the statement of complainant Imran Hussain on material points i.e, his presence on the spot of occurrence, his specific allegation against the accused Shehzad Hussain and Abid Hussain, motive behind the occurrence, names of eye-witnesses given by him, time and place of occurrence. Rather complainant Imran Hussain verified his presence at the spot of occurrence with the exact mark of distance. (page 3 cross-examination).
PW 2 lqtidar Hussain who is cousin of deceased Mumtaz Hussain is the resident of same locality and has verified the motive behind the occurrence. PW-2 Iqtidar Hussain has stated about his presence at the place of occurrence and has verified the presence of deceased Mumtaz Hussain in the shop of tailor Jamati PW-4, when the accused party assaulted deceased Mumtaz Hussain. PW- 2 lqtidar Hussain has verified the place of occurrence and has named the incumbents of accused party. During cross-examination PW-2 Iqtidar Hussain has verified the presence of complainant Imran Hussain and PW Touseef Haider PW-3 at the place of occurrence. PW-2 Iqtidar Hussain is not specific on the particular fact that out of the five accused who conducted the fatal shot at the deceased Mumtaz Hussain despite the fact that he was present on the spot.
PW-3 Touseef Haider who is the resident of same locality identified all the five accused during his court statement on 16/ 09/ 2019. This Pw has categorically stated that when the mob/ crowd tried to save the deceased Mumtaz Husain convict Shehzad Hussain pointed his weapon towards the crowd. PW-3 Touseef Haider has categorically charged the convict Shehzad Hussain and Afraz Hussain (deceased) for actually committing the murder of deceased Mumtaz Hussain. This PW has categorically charged all the accused Wahid Hussain, Shehzad Hussain, Abid Hussain, Saqib Hussain and Afraz Hussain regarding their presence and their active participation during the occurrence. PW-3 Touseef Haider during cross-examination has verified his presence and the presence of complainant Imran Hussain and PW-2 Iqtidar Hussain at the place of occurrence.
Except some minor and un-important discrepancies PW-3 Touseef Haider has furnished the exact picture of the occurrence as narrated by the complainant and PW-2 Iqtidar Hussain.
PW-4 Jamati son of Lal as resident of Mastaj. Chitral is the tailor. It is in the evidence of eye- witnesses that from the shop of PW.4 the accused party intercepted deceased Mumtaz-Husain.
PW.4 in his statement has verified the occurrence. During cross-examination PW-4 Jamati has verified the arrival of convict Shehzad Hussain alais Boto at the place of occurrence, and his inquiry about the presence of deceased Mumtaz Hussain. PW-4 Jamati has verified the occurrence committed at the said place and the fire shots. However, PW-4 Jamat did not charge any person categorically for actual commission of murder of deceased Mumtaz Hussain: PW-5 Haji Mir Afzal a retired police officer of the same locality has with specific reference to the place of occurrence has verified the presence of deceased Mumtaz Hussain at the mercy of accused party, the presence of convict Shehzad Hussain at the place of occurrence and his direction to him to stay out of the matter, presence of an irresistible mob at the place of occurrence, half hearted attempt of complainant Imran Hussain to save his brother deceased Mumtaz Hussain, taking away the deceased Mumtaz Hussain from market area by the accused party towards the residential area and thereafter the murder of deceased Mumtaz Hussain at the place of occurrence. PW-5 Mir Afzal in his statement has stated regarding the actual participation of convict Shehzad Hussain during the occurrence. PW-5 Haji Mir Afzal has verified at presence of complainant Imran Hussain at the place of occurrence and his ineffective effort to save his brother deceased Mumtaz Hussain. PW-5 Haji Mir Afzal has verified the presence of PW-3 Touseef Haider and Tufail Abbas at the place of occurrence. This PW has also verified the presence of deceased Mumtaz Hussain prior to the occurrence in the room of PW-4 Jamati.
6. Post mortem report Ex.PW-11/A reveals five gunshot wounds over the dead body of deceased Mumtaz Hussain. Two gunshots are on the vital parts that is right posterior occipital area of head and the second wound at anterior side of left ear and exit from later side of mouth. Rest of three wounds are on non-vital parts. Cause of death according to the document Ex.PW-11/A is damage to vital organs including brain, lungs and major vessels of thorax due to firearm injury. Autopsy report Ex.PW-11/A and injury sheet Ex.PW-6/M prepared by I.O soon after the occurrence supports each other and there is no difference in the conclusion drawn. The other corroboratory evidence is recovery of weapons from convict Shehzad Husain vide the document seizure memo Ex.PW-7/A and the other from the deceased accused Afraz Hussain. According to the document Ex.PW-7/A a thirty bore pistol with number was recovered at the pointation of convict Shehzad Husain from his residential house. I.O Mr. Tehzeeb ul Hassan PW-13 has verified the document. The evidence worth consideration is the FSL report Ex.PW-10/C. The opinion of fire arm expert is reproduced here for ready reference: - OPINION
1. The two 30 bore crime empties marked C1 and C2 were fired from 30 bore pistol No. Nil marked A in question in view of the following major points, i.e, strike pin marks, breach face marks and ejector marks etc are similar.
A similar opinion is recorded against the weapon 30 bore pistol No.320, which was recovered from the deceased Afraz Hussain.
7. Motive behind the occurrence is sufficiently explained in the document Ex.PW-1/A coupled with the statement of complainant Imran Hussain and PW-2 Iqtidar Hussain. On this particular point statement of Mst. Bina PW-8 wife of accused Wahid Hussain is very much important. She has categorically mentioned the incident took place prior to the occurrence. She has categorically named the deceased Mumtaz Hussain for the said assault on her person. She has stated about the subsequent events took place after the said incident. Therefore, the motive behind the occurrence is proved.
8. Credibility of prosecution evidence.
It is on record that all the eye witnesses in this case are close relatives of the deceased Mumtaz Hussain. Complainant Imran Hussain is real brother of deceased Mumtaz Hussain. Iqtidar Hussain PW-2 is cousin of deceased Mumtaz Hussain. Touseef Haider PW-3 in his statement has accepted his close relationship with the deceased Mumtaz Hussain. PW-5 Haji Mir Afzal also accepted his relationship with both the parties. After a careful examination of evidence rendered by the above said eye-witnesses it is evident that although the above said witnesses are close relatives of the deceased Mumtaz Hussain but from their statement, it does not appear that eye witnesses have falsely testified against the accused. There is no previous enmity between the two parties and the occurrence of 20/06/2018 was an immediate reaction of incident took place between the deceased Mumtaz Hussian and Mst. Bina PW No.8.
Interestedness of a witness had to be judged on the touchstone of a motive connected to a previous enmity or grudge. In this case there is nothing on record that prior to the occurrence parties were involved in any kind of enmity or grudge. The evidence rendered by the complainant Imran Hussain, PW Iqtidar Hussain and Tauseef Haider PW3 are corroborated by the independent witness Haji Mir Afzal PW5 and Jamati PW4. Mere relationship of complaiant Imran Hussain, Iqtidar Hussain PW2 and Tauseef Haider PW3 with the deceased Mumtaz Hussain is not sufficient to reject their evidence. It is settled principle of law that mere relationship of witness with the complainant party is no ground to reject the evidence of witness who otherwise furnishes a credible and trustworthy account of the occurrence. In the case cited, "Khadim Hussain v. The State" (2010 SCMR 1092) a full bench of Hon'ble Supreme Court of Pakistan has held that "if the eye-witnesses are trustworthy and reliable and have highlighted each and every aspect of the occurrence without making any glaring contradiction, dishonest exaggeration, omission or concealment in their statements mere relationship of eye witnesses is no ground to discard their evidence."
In another case cited, "Hasil Khan v. the State and others" (2012 SCMR 1936) a full bench of hon'ble Supreme Court of Pakistan on the particular point of evidentiary value of witnesses related to complainant has held as under: "Mere relationship would not make a witness unworthy of reliance if his testimony was corroborated by any independent evidence or circumstantial evidence appearing on record."
Citation B. 1940 The presence of complainant Imran Hussain at the place of occurrence is fully established through the evidence of PW5 Haji Mir Afzal and Iqtidar Hussain PW2. The statements of all the eye witnesses are consistent with each other and there no material contradiction, hence accepted.
9. Learned counsel appearing on behalf of convict Shahazad Hussian, mainly pointed out the minor differences regarding the time of report of the occurrence, arrival of police party at the place of occurrence removal of dead body from the place of occurrence to the hospital and distance between the place of occurrence and eye witnesses and identification by the eye-witnesses from a distance of 150 feet and delay in between the occurrence and post mortem examination and non citing the officials of Rescue 1122 as witnesses. He has also emphasized that there is difference between the statement of I.O and complainant Imran Hussain on the particular point of time of report. He also pointed out that at the place of occurrence number of people were present but no independent witnesses came forward to testify and on the particular point of guilt the prosecution evidence is not specific.
We are not inclined to subscribe the points agitated by Mr. Shahbaz Ali advocate. Prosecution's evidence on the particular point of motive behind the occurrence, the intention of accused party in view of their threats to the deceased Mumtaz Hussain at the place of occurrence, dragging the deceased from the Akbar Market to the place of occurrence, the interference by the complainant Imran Hussain and PW5 Haji Mir Afzal to rescue the deceased Mumtaz Hussain from the clutches of accused party, identification of accused party by the complainant Imran Hussain, Iqtidar Husain, Touseef Hussain, Haji Mir Afzal and Jamati at the place of occurrence and fatal shots fired by the convict Shahzad Hussain and Afraz Hussain. The story narrated by the above cited witnesses is fully corroborated through the other evidence i.e, autopsy report Ex.PW 11/A, injury report prepared by I.O Ex.PW 6/M.
Minor differences as pointed out by the learned counsel are not worth consideration. A discrepancy/contradiction in a testimony will be given importance when the said discrepancy or contradiction leads to the existence or non-existence of a material fact. Minor contradictions or differences and even improvements made by witnesses can safely be ignored if the substantial evidence leads to a definite conclusion.
In the case cited, "Anwar Shamim and others v. The State" (2010 SCMR 179) Hon'ble Apex Court has held as under: "Minor contradictions or improvement in statement of witnesses to be overlooked, however only material contradictions are to be considered." Citation B 1795.
Therefore the argument of learned counsel Mr. Shahbaz Ali advocate is hereby rejected wherein the learned counsel has pointed out insignificant and un-important rather immaterial discrepancies in the testimony of eye-witnesses and the I.O PW-13.
10. Order of acquittal. Coming to the case of acquitted accused/respondents Wahild Husain, Abid Hussain and Saqib Hussain. It is admitted on record that accused Wahid Hussain is the husband of victim lady Mst. Bina PW-8 as such he is the immediate affectee of the earlier incident happened to his wife. PW2 Iqtidar Hussain in his statement has categorically charged the accused Wahid Hussain, Abid Hussain and Saqib Hussain for their actual participation in the occurrence. PW-2 Iqtidar Hussain in his statement before the Court has stated a relevant statement which is reproduced here for ready reference: "Prior to the occurrence accused Shehzad Hussain had intimidated and threatened my deceased brother Mumtaz Hussain on phone and accused Wahid Hussain has also accorded that if I would even pardon the deceased Mumtaz Hussain my nephew Shehzad Hussain would never spare him and will probably kill him"
PW-2 Touseef Haider during his Court statement has directly charged all the accused by identifying them before the Court. This PW has categorically charged the acquitted accused for their active participation in the tragic incident. All the acquitted accused are closely related to the each other and they all were aggrieved with the incident happened to PW-8 Mst. Bina. Learned trial court has failed to appreciate the evidence available on record against the accused Wahid Hussain, Abid Hussain and Saqib Hussain.
11. Conclusion. From the perusal of record, it is evident that it was a day light occurrence directly connected with the motive behind the occurrence as unfolded by the complainant Imran Hussain and corroborated by Mst. Bina PW 8. Occurrence was promptly reported within half an hour and eye-witnesses of the occurrence are named in the document Ex.PW 1/A. Motive behind the occurrence is very well explained in the document Ex.PW 1/A by the complainant Imran Hussain and defense has not contested the same. Complainant Imran Hussain, all the eye witnesses and the accused party are residents of same locality therefore, question of false identification does not arise. Ocular account furnished by the complainant Miran Hussain is fully corroborated by the other witnesses on record and there are no material contradictions in their statements. It is on record proved that fatal shots were fired by the convict Shehzad Hussain and Afraz Hussain (deceased).
The presence of acquitted accused at the place of occurrence and their actual participation during the occurrence is fully established on record. All the acquitted accused are the direct affectees of the motive and their presence coupled with actual participation during the occurrence leads to the 'inference that they all shared the common intention to commit murder of deceased Mumtaz Hussain. The plea of Alibi raised by the convict Shehzad Hussain is an afterthought and all the defense witnesses examined are his friends and their evidence is not specific and confidence inspiring. Convict Shehzad Hussain has failed to furnish any reliable evidence in support of his defense. On the other hand his presence on the spot of occurrence at the relevant time with his specific role is fully established through impartial evidence.
12. All the case laws referred on behalf of convict Shehzad Hussain are squarely not applicable to the facts of this case hence, cannot be relied upon.
13. Order. In view of the above, Criminal Appeal No. 57/2022 being meritless is hereby dismissed.
The conviction and sentence by the learned trial court vide the impugned judgment dated 31-10- 2022 passed in Sessions Trial No. 51/2022 vide para No. 55 is hereby maintained.
14. Criminal Appeal No. 61/2022 is accepted. Accused! respondents Wahid Hussain, Abid Hussain and Saqib. Hussain sons of Ajal Khan residents of Yarkot Khomer Tehsil Gilgit are hereby convicted under section 34, P.P.C. for sharing common intention and actual participation in the occurrence.
They are sentenced to the period already undergone by them. They shall pay fine Rs. 3 million (three million) to the LRs of deceased Mumtaz Hussain. Fine amount shall be recovered from the convicts named above as arrears of land revenue.
Criminal Revision Petition No.24/2022 is however dismissed for the reason that case of convict Shehzad Hussain is one of mitigating circumstances in view of the unpleasant incident took place with Mst. Bina PW-8.
Announced today in presence of complainant, his counsels M. Imtiaz Hussain and Mudassir Hassan advocates, convict Wahid Hussain, Abid Hussain, Saqib Hussain and junior counsel to Mr. Shabaz Ali and Manzoor Hussain advocates. Additional Advocate General Malik Sherbaz Khan was also present. All exhibits shall remain intact and same shall be destroyed after the period of appeal or revision. Record of trial court be also returned along with certified copy of this judgment.
14. Before parting with this judgment it is noted in this case that learned trial court has referred the connected case of recovery of weapon of offence registered under section 13 Arms Ordinance to the learned judicial magistrate during pendency of Sessions trial No.51/ 2022. This is a wrong exercise of jurisdiction on the part of learned trial court. The case of recovery of weapon of the offence was part of prosecution's evidence in the main case and it was to be decided by the learned trial court along with the main case. The connected case can only be assigned to the court of judicial magistrate, when the parties in the main case entered in a compromise. In future no connected case in a Sessions trial shall be so bifurcated during pendency of main case. All the learned Sessions judges and Additional Sessions judges of Gilgit Baltistan be informed in this regard. All the judges of subordinate judiciary be also informed on the particular point "format of judgment" in criminal cases as recorded in para No.04 of this judgment with specific reference of section 367 Cr.P.C. Reproduction of prosecution evidence in the judgment would be resulted in re- writing of the same. Copy of this judgment be sent to all the judges of subordinate judiciary for intimation and compliance. File.