2017 PLP 331 (YLRN)

ABDUL SAMI KHAN, J.

Mazhar and Zafar appellants along with Haji Sultan and Javed Iqbal (acquitted co-accused) were tried in case FIR No.115/2004, dated 11.05.2004, under sections 302, 324, 337-F (iii ), 337-F(vi), 337-D, 148, 149, P.P.C., Police Station Barana, Tehsil Chiniot, by the Additional Sessions Judge, Chiniot, who, vide judgment dated 23.06.2006, convicted and sentenced Mazhar and Zafar appellants as under:- Mazhar appellant:-  Under section 302(b), P.P.C to death as Ta'zir with direction to pay a sum of Rs.100,000/- to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. and in case of default thereof, he shall further undergo S.I. for six months.  Under section 324, P.P.C. to undergo 10-years R.I. along with fine of Rs.50,000/- and in case of default thereof, to further undergo S.I. for three months.  Under section 337-F(vi), P.P.C. to undergo 07-years R.I. with direction to pay Daman of Rs.30,000/- to the injured.  Under section 337-F(iii), P.P.C. to undergo 03-years R.I. with direction to pay Daman of Rs.20,000/- to the injured.  The sentences of imprisonment awarded to Mazhar appellant were ordered to run concurrently and the benefit of Section 382-B Cr.P.C. was also extended in his favour. Zafar appellant:--  Under section 324, P.P.C. to undergo 10-years R.I. along with fine of Rs.50,000/- and in case of default thereof, to further undergo S.I. for three months.  Under section 337-D, P.P.C. to pay Arsh of Rs.100,000/- to the injured.  The benefit of Section 382-B Cr.P.C. was extended to Zafar appellant and his sentences were ordered to run concurrently. However, Haji Sultan and Javed Iqbal accused were acquitted of the charge by the learned trial court through the same judgment while extending benefit of doubt to them.

2. Mazhar and Zafar appellants have filed Criminal Appeal No. 1097 of 2006 against their conviction and sentences, whereas learned trial Court has submitted Reference under Section 374 Cr.P.C. for confirmation or otherwise of the death penalty awarded to Mazhar appellant, which has been numbered as Murder Reference No. 547 of 2006. The complainant has also filed Criminal Appeal No.1194 of 2006 against the acquittal of Haji Sultan and Javed Iqbal respondents and Criminal Revision No.713 of 2006 for enhancement of the sentences awarded to Zafar respondent. As all these matters have arisen out of one and the same judgment dated 23.06.2006, passed by learned Additional Sessions Judge, Chiniot; therefore, we propose to decide the same together through this single judgment.

3. According to the narration of complainant unfolded in FIR No.115/ 2004, dated 11.05.2004, registered for the offences under sections 302, 324, 337-F(iii), 337-F(vi), 337-D, 148, 149, P.P.C., at Police Station Barana, on the day of occurrence at about 08 a.m. he along with his father Shahadat and uncle Falaksher were irrigating their land through electric motor in the area of colony Sabu Wala and were present near electric motor. In the meantime, Azhar accused armed with pistol, Zafar armed with pistol, Mazhar armed with rifle, Haji Sultan empty handed along with one unknown accused armed with 12 bore gun came there. Haji Sultan raised lalkara to teach a lesson to Shahadat and Falaksher, father and uncle of the complainant, for not giving them their turn of water, upon which Azhar accused made two fire shots with his pistol .30 bore on Falaksher, hitting him on right and left side of his chest and he fell down. Then accused Mazhar fired with his rifle on Shahadat Khan, hitting him on left side of his chest, who also fell down. On hearing the noise of firing, Mallah Khan and Tahir Abbas, uncle and brother of the complainant, who were present in the adjoining cattle-shed reached there and on seeing them, Zafar accused fired two shots with his pistol, which hit around umbilicus of Tahir Abbas and he fell down. Then Mazhar accused made two fire shots with his rifle, which hit left arm and right thigh of Mallah Khan and he also fell down. On hearing hue and cry of the complainant and noise of firing, Amjad and Barkhurdar PWs reached there, witnessed the occurrence and on seeing them the accused ran away from the place of occurrence after making aerial firing. Shahadat and Falaksher succumbed to the injuries at the spot, while Tahir Abbas and Mallah Khan were shifted to hospital in injured condition for their medical treatment. The motive behind the occurrence was that the accused as well as the complainant party were irrigating their land through joint electric motor. The turn of the accused was over, but they wanted to irrigate their land on the turn of complainant side. Shahadat and Falaksher forbade them from doing so, for which the accused nourished grudge in their mind, murdered Shahadat and Falaksher and injured Mallah and Tahir Abbas in furtherance of their common object.

4. After registration of FIR, investigation of the case was conducted by Noor Muhammad ASI and Allah Ditta Khan SI and after completion of investigation, report under section 173, Cr.P.C. was submitted against the appellants and their co-accused. It is pertinent to mention here that Azhar accused could not be arrested by the investigating officer during investigation and was declared proclaimed offender. At the commencement of trial, the learned trial Court after observing legal formalities as required by the Code of Criminal Procedure, 1898, framed charge against the accused to which they pleaded not guilty and claimed trial.

5. During trial, the prosecution produced fifteen witnesses before the learned trial Court to prove its case. Ocular account was furnished by Umar Farooq complainant (PW-2), Tahir Abbas injured (PW-3) and Mallah Khan injured (PW-4). Allah Ditta Khan SI (PW-12) and Noor Muhammad A SI (PW-13) are the investigating officers of this case. They testified about the investigation conducted by them. Medical evidence was furnished by Dr. Muhammad Shafi (PW-5), Dr. Munir Ahmad (PW-6), Dr. Majeed Kamal (PW-14) and Dr. Muhammad Suhail Amer (PW-15). Dr.Muhammad Shafi (PW-5) medically examined Tahir Abbas injured (PW-3) and Mallah Khan injured (PW-4), Dr. Munir Ahmad (PW-6) conducted postmortem examination on the dead bodies of Shahadat and Falaksher deceased, Dr. Majeed Kamal (PW-14) conducted operation of Mallah Khan injured (PW-4), while Dr. Muhammad Suhail Amer (PW-15) conducted operation of Tahir Abbas injured (PW-3). Dost Muhammad Patwari (PW-1) prepared site plan of the occurrence (Ex.PA), Ijaz Ahmad (PW-9) is scribe of FIR (Ex.PB/1), Ghulam Abbas (PW-10) is the recovery witness, while the remaining witnesses are more or less formal in nature. After placing on record the reports of Chemical Examiner (Ex.PQ and Ex.PR), the reports of Serologist (Ex.PS and Ex.PT) and the report of Forensic Science Laboratory (Ex.PU), the prosecution closed its evidence.

6. In their statements recorded under section 342, Cr.P.C. the accused denied and controverted all the allegations leveled against them by the prosecution and professed their innocence. However, neither the appellants nor the acquitted accused opted to make statements on oath under section 340(2), Cr.P.C. and they also did not produce any witness in their defence.

7. Upon conclusion of the trial, the learned trial court after finding the prosecution's case against Mazhar and Zafar appellants to have been proved beyond reasonable doubt, convicted and sentenced them as mentioned and detailed in paragraph No.1 of this judgment, whereas co-accused Haji Sultan and Javed Iqbal were acquitted by giving them the benefit of doubt. Hence, these appeals, revision and murder reference before this Court.

8. Learned counsel for the appellants contends that the impugned judgment is against law, facts and circumstances of the case; the appellants are innocent and they have been falsely involved in this case by the complainant on the basis of ulterior motives and mala fide intention; it was an antie time FIR, not recorded at the time mentioned therein, the same was lodged after preliminary inquiry, consultation and due deliberation; Umar Farooq complainant was not present at the spot at the time of occurrence, whereas the injured PWs attracted to the place of occurrence on hearing the noise of firing, so they had also not witnessed as to whose fire hit the deceased persons. Learned counsel adds that as a matter of fact, it was a case of sudden fight, the place of occurrence was admittedly under the exclusive possession of the accused, it was the complainant party who attacked on the accused and during cross firing, the deceased as well as the injured persons sustained injuries at the hands of their own companions. Even otherwise, the alleged eye-witnesses are related inter se as well as to the deceased persons and they are also inimical towards the appellants, so their testimony is not above-board; they have made dishonest improvements to naturalize their presence at the spot which speaks volume of falsity on their part; there are glaring contradictions between the statements of complainant and injured PWs, which also make them false witnesses; the recoveries were planted on the appellants only to strengthen the prosecution case and even otherwise, the same have been effected in violation of section 103, Cr.P.C.; the motive as set up by the complainant in the FIR also remained unproved during trial; the prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. Learned counsel prays for clean acquittal of the appellants.

9. On the contrary, learned Deputy Prosecutor General assisted by learned counsel for the complainant contends that the matter was reported to the police with sufficient promptitude and there was no element of consultations and deliberations; the occurrence was reported to the police in a manner as it happened; the postmortem examination on the dead bodies of the deceased persons as well as the medical examination of injured PWs was conducted by the doctors within shortest possible time, which also rules out any possibility of concocting false story of the occurrence; the appellants are duly named in promptly lodged FIR and specific roles have been attributed to them therein; the roles attributed to the appellants by the complainant and the injured PWs are also borne out from the postmortem reports of the deceased persons as well as the medico legal certificates of injured PWs; relation with the deceased or inter se is no ground to disbelieve confidence inspiring evidence of the prosecution witnesses; the presence of the appellants and the injured PWs at the spot is admitted, while the defence could not shatter the presence of complainant despite conducting lengthy cross-examination on him; the prosecution witnesses are consistent on each and every material point, case of the prosecution is duly corroborated by the recovery of weapons of offence from the appellants, while the medical evidence is also in line with the ocular account. During trial, the complainant and the injured PWs remained unison regarding motive part of prosecution's case, so the motive also stood proved against the appellants. Learned counsel for the complainant adds that the prosecution has successfully proved its case, but while awarding lesser sentence to Zafar appellant, the learned trial Court has committed material irregularities and illegalities and it failed to dispense with criminal justice in accordance with law; similarly, Haji Sultan and Javed Iqbal accused were vicariously liable for the acts of their co-accused, but learned trial Court has committed serious mistake while acquitting them, so to this extent, the judgment of the learned trial Court requires reappraisal of evidence, hence, while praying to maintain conviction and sentences of Mazhar appellant, learned counsel for the complainant prays for enhancement of the sentences of Zafar appellant and also for conviction and sentences of Haji Sultan and Javed Iqbal, respondents in appeal against acquittal, to meet the ends of justice.

10. We have heard the learned counsel for the parties at length, have given our anxious consideration to their arguments and have also scanned the record with their able assistance.

11. The incident in this case took place on 11.05.2004 at 08:00 a.m. Umar Farooq complainant (PW-2) reported the matter to the police by recording his statement before Noor Muhammad ASI (PW-13) on the same day at 09:00 a.m. Consequently, FIR No.115/2004 (Ex.PB/1) was lodged at Police Station Barana, Tehsil Chiniot at 09:40 a.m. which is situated at a distance of 11 kilometers from the place of occurrence. During arguments, learned counsel for the appellants contended that the FIR (Ex.PB/1) was not recorded at the time mentioned therein, but the contention of learned counsel for the appellants is not supported by any substance as during trial, not even a single question was asked from Ijaz Ahmad, Moharrar (PW-9) to establish the above contention on record. As such, the appellants cannot claim at this stage that the FIR (Ex.PB/1) was lodged at belated stage, after conducting preliminary inquiry. The short span of an hour absolutely rules out any chance of deliberation or consultation about the matter by Umar Farooq complainant (PW-2) before reporting the same to Noor Muhammad ASI (PW-13), thus, we are of the considered view that delay of one hour in reporting the matter to the police is natural and is not fatal to the case of prosecution especially under the circumstances when the witnesses were not cross-examined by the defence on the point of deliberation and consultation and as such we are of the view that no conscionable time was consumed by the complainant to consult or deliberate over the matter rather the matter had been reported with sufficient promptitude, which fact has convinced us that no extraneous delay occurred in lodging the FIR. Some other imperative features observed by us in this case are that the appellants are duly named in FIR (Ex.PB/1) and specific role of inflicting firearm injuries to the deceased as well as the injured have been attributed to them therein, which facts find support from the postmortem reports and medico legal certificates of the deceased and the injured victims.

12. There is no cavil to the proposition that ocular account bears the most essential position in a criminal case as its whole fate depends on the authenticity and validity of ocular account. In this case, ocular account has been furnished by eye-witnesses namely Umar Farooq complainant (PW-2), Tahir Abbas injured (PW-3) and Mallah Khan injured (PW-4). We have observed that Umar Farooq complainant while appearing before the learned trial Court as PW-2 has narrated the same facts and allegations as described in FIR (Ex.PB/1). His version was duly supported by Tahir Abbas injured (PW-3) and Mallah Khan injured (PW-4) and their statements are in line with the statement of PW-2. Upon careful examination of the contents of FIR (Ex.PB/1) as well as the statement of Umar Farooq complainant (PW-2), it has been observed by us that this witness stood firm to the test of lengthy cross-examination and the defence remained unable to dislodge his presence from the spot. So far as the presence of Tahir Abbas (PW-3) and Mallah Khan (PW-4) is concerned, the injuries on the persons of these PWs confirm their presence at the spot at the time of occurrence. It was a daylight occurrence and the parties were also well known to each other prior to the occurrence, which of course rules out any chance of mistaken identity of the culprits at the time of occurrence. It is also an admitted fact that no blood feud or enmity existed between the complainant as well as the injured PWs and appellants, which could lead to their false implication in the instant case. We have also observed that all the eye-witnesses remained consistent qua the role attributed to Zafar appellant in the commission of occurrence. Similarly, they are also unison on the mode and manner in which Mazhar appellant murdered Shahadat deceased and injured Mallah Khan (PW-3) and in this regard, there is not even a single iota of contradiction between their statements. In view of the statements of Umar Farooq complainant (PW-2), Tahir Abbas injured (PW-3) and Mallah Khan injured (PW-4) and keeping in mind the factual position of the case, we fully agree with the contention of learned counsel for the appellants that it was not a preplanned occurrence, however, we are not inclined to agree with the contention that injuries on the persons of Shahadat and Falaksher deceased as well as Tahir Abbas injured (PW-3) and Mallah Khan injured (PW-4) were caused by their own companions during the course of cross-firing. The defence candidly admits the presence of Zafar appellant and Azhar accused (P.O.) at the spot at the time of occurrence. It is very astonishing to note here that as many as four persons from complainant side sustained injuries during the occurrence, but the accused did not suffer even a scratch on their bodies. This fact is enough to hold that no cross-firing took place at the spot and that only the appellants' side was armed with weapons at the time and place of occurrence.

13. So far as the contention that the eye witnesses are related inter se as well as with the deceased persons and as such they are interested witnesses is concerned, law is settled on the point that an interested witness is one who is interested in the conviction of an accused for some ulterior motives, but in this case the defence could not bring on record any ulterior motive of the complainant or the injured witnesses to falsely implicate the appellants in this case. In this regard, guidance can be sought from the case of "Muhammad Aslam v. The State" (2012 SCMR 593), wherein it has been observed as under:-- "In the present case ocular version has been furnished through the statement of P.W.6 Haq Nawaz who is real son of the deceased Muhammad Nawaz and P.W.7 Ahmad Nawaz, the other eye-witness who is cousin of the complainant. So, both the eye-witnesses are closely related with each other and with the deceased inter se but mere relationship is not sufficient to term them as interested witnesses as there was no previous enmity between the parties. Both the eye-witnesses are residents of the same village where the incident took place and their presence at the spot has been established beyond any shadow of doubt. Both the eye-witnesses had made consistent statements against the appellant that he came at the spot duly armed with mouser and fired at the deceased."

14. Keeping in view the above discussion, we find no reason to discard the statements of the eye-witnesses, who had no enmity or ill-will against the appellants to falsely depose against them in this case where two persons lost their lives and the other two made good narrow escape from the clutches of death, as such their testimonies being trustworthy and confidence inspiring are found sufficient to connect the appellants with the commission of crime even without corroboration through any independent piece of evidence.

15. Adverting to the medical evidence, we observed that the postmortem examination on the dead bodies of Falaksher and Shahadat deceased was conducted by Dr. Munir Ahmad (PW-6). During postmortem examination, he (PW-6) not only observed two firearm injuries on the right and left side of chest of Falaksher deceased, but also recovered two metallic pieces from the chest cavity. He (PW-6) also observed a firearm entry wound on the left side of chest of Shahadat deceased, which made its exit just below the scapula. Dr. Munir Ahmad (PW-6) opined that the injuries sustained by Falaksher and Shahadat deceased became the cause of their death. Similarly, the medical examination of injured PWs i.e. Tahir Abbas (PW-3) and Mallah Khan (PW-4) was conducted by Dr. Muhammad Shafi (PW-5), who observed two firearm entry and two exit wounds on the left forearm and right thigh of Mallah Khan injured (PW-4), while two entry wounds on front of abdomen (upper part and midline) of Tahir Abbas injured (PW-3) were observed by him during his medical examination. Since, the left forearm of Mallah Khan injured (PW-4) was fractured as a result of firearm entry and exit wounds, so Dr. Majeed Kamal (PW-14) conducted his operation, while the operation of Tahir Abbas injured (PW-3) was conducted by Dr.Muhammad Suhail Amer (PW-15) on the day of occurrence. Having gone through the statements of Dr. Muhammad Shafi (PW-5), Dr. Munir Ahmad (PW-6), Dr. Majeed Kamal (PW-14) and Dr. Muhammad Suhail Amer (PW-15) and after perusing the medico legal certificates of the injured PWs (Ex.PC and Ex.PD) as well as postmortem reports of the deceased persons (Ex.PE and Ex.PF) with care and caution, we found the medical evidence absolutely in line with the ocular account of the prosecution's case.

16. We have observed that during investigation of the case, Zafar appellant led to the recovery of pistol .30 bore (P7), which was taken into possession by the investigating officer through memo Ex. PK. Similarly, a rifle 7mm (P8) was recovered by the investigating officer on the disclosure and pointing out of Mazhar appellant vide memo Ex.PL, but the investigating officer failed to collect any crime empty from the scene of occurrence and in the absence of any positive report of the Forensic Science Laboratory, the recovery of weapons of offence is inconsequential and the same cannot be used in support of prosecution evidence. However, we may observe here that recovery of weapon of offence is merely a corroborative piece of evidence and it alone does not confer upon an accused the certificate of innocence and while deciding the matter regarding guilt or innocence of accused, Court has to keep in mind all the facts and circumstances of the case. So, non-proving of recovery in this case does not have any adverse effect upon the case of prosecution. Reliance in this regard, can be placed on the case of Muhammad Nisar v. The State (2006 SCMR 161), wherein Hon'ble Supreme Court of Pakistan has been pleased to hold that even non-recovery of weapon of offence in presence of trustworthy ocular account was not fatal to the case of prosecution.

17. As far as motive is concerned, Umar Farooq complainant (PW-2) has mentioned a specific motive in the FIR (Ex.PB/1). During trial, he as well as the injured PWs also remained unison that the occurrence took place due to the dispute about irrigating land through jointly installed electric motor; it was the turn of complainant party to irrigate their land, but the accused insisted to irrigate their land despite having availed their turn and upon failure, they committed this occurrence. We have observed that the complainant as well as the injured PWs admitted during the course of cross-examination that the electric motor in question was installed at the land, which was under the exclusive possession of the appellants. Similarly, they also admitted that they had no proof to establish joint ownership of the electric motor. In this view of the eventuality, we are of the view that the prosecution could not prove the motive part of its case. The cattle-shed of the complainant party is adjacent to the electric motor of the appellants and the place of occurrence is admittedly under the exclusive possession of appellants' side. It has also established on record that it was the deceased and the injured PWs who attracted to the place of occurrence from their cattle-shed, where some hot words exchanged between the parties which led to this untoward incident. Thus being so, it is crystal clear that it was not a premeditated incident and the occurrence took place at the spur of moment.

18. After reappraisal of the case from all angles, we found that the prosecution could not prove the motive part of its case and also could not get corroboration from the recovery of weapons of offence from the appellants, however, we are of the considered view that the prosecution has successfully brought on record sufficient incriminating material in the shape of statements of PW-2 Umar Farooq complainant, PW-3 Tahir Abbas injured and PW-4 Mallah Khan injured, supported by the statements of Dr. Muhammad Shafi (PW-5), Dr. Munir Ahmad (PW-6), Dr. Majeed Kamal (PW-14) and Dr. Muhammad Suhail Amer (PW-15) to maintain their conviction on the charges as mentioned in paragraph No.1 of this judgment. So, the conviction and sentences awarded by the learned trial Court to Zafar appellant i.e. under section 324, P.P.C. to undergo 10-years R.I. along with fine of Rs.50,000/- and in case of default thereof, to further undergo S.I. for three months and under section 337-D, P.P.C. to pay Arsh of Rs.100,000/- to Tahir Abbas injured (PW-3) are maintained and upheld. So far as the sentences of Mazhar appellant are concerned, although the prosecution has brought his guilt to the hilt, yet after thrashing out the whole prosecution case, we are not inclined to maintain his death sentence, because, we have found certain extenuating circumstances which suggest that it is not a case of capital sentence for the following reasons:-

1. The motive specifically alleged by the prosecution in FIR (Ex.PB/1) has not been proved. It is well settled by now that when the prosecution sets up a specific motive in the FIR, then it is the duty of prosecution to prove the same through reliable and confidence inspiring evidence and non-proving of motive can be taken as a mitigating circumstance in favour of the appellant. Reliance in this regard can be placed upon the case of "Hasil Khan v. The State" (2012 SCMR 1936).

2. Mazhar appellant had inflicted single firearm injury on the deceased and despite of having ample opportunity to do so, he had not repeated the same. In such like circumstances the Hon'ble Supreme Court of Pakistan has held that non-repetition of injury by the assailant on the person of deceased demonstrate an implied impression that he has not taken unfair advantage of his position as an armed person at the spot rather despite of having ample opportunity he has refrained himself from doing so and this circumstance can be taken as an extenuating/ mitigating circumstance and the same is sufficient to avoid extreme penalty of death to the assailant, therefore, lesser sentence of imprisonment for life would serve the interests of justice well in such circumstance. Reliance is placed on the cases of "Qurban Ali v. Sheroo Machi and another" (1991 SCMR 2339) and "Muhammad Arshad and 2 others v. State" (PLD 1996 SC 122).

19. Law is well settled that while deciding the question of sentence, the accused is entitled for the benefit of each extenuating circumstance. In this respect, reliance can be placed on "Mir Muhammad alias Miro v. The State" (2009 SCMR 1188). In another judgment reported as "Ansar Ahmad Khan Barki v. The State and another" (1993 SCMR 1660), the Hon'ble Supreme Court of Pakistan has held that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to an accused for awarding normal penalty of death. We have also fortified our view qua the quantum of sentence from the case reported as Sharafat Ali Khan v. The State (2010 SCMR 1205), wherein the Hon'ble Supreme Court has observed as under:- "In Muhammad Riaz and another v. The State (2007 SCMR 1413), while considering the penalty for an act of commission of qatl-e-amd it was observed "No doubt, normal penalty for an act of commission of qatl-e-amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case. Reference in the context may also be made to Iftikhar Ahmad Khan v. Asghar Khan and another (2009 SCMR 502). " The Hon'ble Supreme Court of Pakistan in a recent judgment reported as "Haji Muhammad Sadiq v. Liaquat Ali and others" (2014 SCMR 1034) has held as under:- "A single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment. No clear guideline, in this regard can be laid down because facts and circumstances of one case differ from the other, however, it becomes the essential obligation of the Judge in awarding one or the other sentence to apply his judicial mind with a deep thought to the facts of a particular case. If the Judge/Judges entertain some doubt, albeit not sufficient for acquittal, judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows. So it is better to respect the human life, as far as possible, rather to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed. .......... In any case, if a single doubt or ground is available, creating reasonable doubt in the mind of Court/Judge to award death penalty or life imprisonment, it would be sufficient circumstances to adopt alternative course by awarding life imprisonment instead of death sentence."

20. For what has been discussed above, while maintaining the conviction of Mazhar appellant and taking guidance from the afore-quoted pronouncements of Hon'ble Supreme Court of Pakistan, his sentence of death for the murder of Shahadat deceased is converted to imprisonment for life under section 302(b), P.P.C. The amount of compensation of Rs.1,00,000/- under section 544-A, Cr.P.C. as ordered by the learned trial Court and imprisonment of six months S.I. in default thereof shall remain intact. The remaining sentences of Mazhar appellant i.e. under section 324, P.P.C. to undergo 10-years R.I. along with fine of Rs.50,000/-, in case of default thereof to further undergo S.I. for three months, under section 337-F(vi), P.P.C. to undergo 07-years R.I. with direction to pay Daman of Rs.30,000/- to the injured and under section 337-F(iii), P.P.C. to undergo 03-years R.I. with direction to pay Daman of Rs.20,000/- to Mallah Khan injured are maintained and upheld. All the sentences of imprisonment awarded to Mazhar and Zafar appellants shall run concurrently and the benefit of Section 382-B Cr.P.C. is also extended in their favour.

21. With the above modification in the quantum of sentences of Mazhar appellant, Criminal Appeal No. 1097 of 2006 stands dismissed. Murder Reference No.547 of 2006 is answered in negative and the sentence of death is not confirmed.

22. As regards Criminal Appeal No.1194 of 2006 against the acquittal of Haji Sultan and Javed Iqbal respondents, we do not find any reason to differ with the finding arrived at by the learned trial court for their acquittal. Haji Sultan respondent was admittedly empty handed at the spot at the time of occurrence, while Javed Iqbal respondent was even not named in the FIR in spite of the fact that the complainant was well acquainted with him prior to the incident. No injury on the person of any deceased or injured has been attributed to these respondents. As already discussed in the preceding paragraphs that it was not a premeditated occurrence and the same took place at the spur of moment, which excludes the possibility of common intention of the respondents with the main convicts, so the respondents cannot be made vicariously liable for the acts of their co-accused/convicts. Even otherwise, an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from appeal against acquittal because presumption of double innocence is attached in the latter case. An order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse or arbitrary in nature, which are lacking in this case. Reliance is placed on Inayat Ullah Butt v. Muhammad Javed and others (PLD 2003 SC 562). There is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial court, which being based on sound and cogent reasons does not warrant any interference by this court and is accordingly maintained. Hence this criminal appeal having no merit is dismissed.

23. So far as Criminal Revision No.713 of 2006 filed by the complainant seeking enhancement of sentences awarded to Zafar convict/respondent is concerned, in view of our above findings, no case for enhancement of sentence of Zafar respondent is made out, hence, this Revision Petition is dismissed accordingly. ZC/M-162/L Appeal dismissed.