2018 PLP 1 (YLRN)

ABDUL SAMI KHAN, J.

Through the captioned appeal filed under section 410, Cr.P.C. Muhammad Abbas and Muhammad Ashfaq alias Shaqi appellants have called in question the judgment dated 21.12.2011 handed down by the learned Additional Sessions Judge, Gujranwala through which Muhammad Ashfaq alias Shaqi appellant No. 2 was convicted under section 302(b), P.P.C. as Ta'zir and was sentenced to death for committing the murder of Muhammad Anwar deceased. He was also ordered to pay an amount of Rs. 200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased or in default of payment of compensation to further undergo simple imprisonment for six months. Through the same judgment Muhammad Abbas appellant No. 1 was also convicted under section 324, P.P.C. and was sentenced to undergo rigorous imprisonment for seven years along with fine of Rs. 50,000/- or in default of payment of fine to further undergo simple imprisonment for six months. He was further convicted under section 337-F(ii), P.P.C. for causing injury to Muhammad Ali minor and he was sentenced for simple imprisonment for one year. He was also liable to pay Daman Rs. 50,000/- to Muhammad Ali injured victim. Both the sentences inflicted upon Muhammad Abbas were ordered by the learned trial court to run concurrently. The appellants have filed instant appeal against their convictions and sentences whereas the learned trial court has sent a Reference under section 374, Cr.P.C. which has been numbered as Murder Reference No. 28 of 2012 for confirmation or otherwise of the death sentence passed against Muhammad Ashfaq alias Shaqi appellant. The complainant Mst. Fayyaz Batool has also filed Criminal Appeal No. 2187 of 2015 against acquittal of Muhammad Abbas and Sana Ullah from the charge under section 302, P.P.C. and she has also filed Criminal Revision No. 187 of 2012 for enhancement of compensation awarded to Muhammad Ashfaq appellant by the learned trial court. We are inclined to decide all these matters together through this single judgment.

2. The prosecution story set forth in the complaint (Ex.PE/2) moved by Mst. Fayyaz Batool complainant is that she is resident of Qila Mool Singh including Jagowala and she is housewife. On 06.03.2009 she along with her husband Muhammad Anwar and her son Muhammad Ali, aged about 6 years along with Ashfaq Ahmad and Ghulam Haider on two motorcycles were travelling for Mauza Naiwal, situated within the jurisdiction of Police Station Alipur Chatta to attend the marriage ceremony of their relative. They were proceeding on motorcycle followed by Ashfaq Ahmad and Ghulam Haider at some distance behind. At about 10.30 am when reached at the grocery (Karyana) shop of Malik Muhammad Akram, her husband stopped the motorcycle and went in the shop to purchase cigarettes. Muhammad Ashfaq while armed with pistol 30 bore was already present in the shop whereas Abbas armed with pistol 30 bore and Sana Ullah empty handed were present in the street. Sana Ullah raised a lalkara that Anwar be taught a lesson for stopping water and kill him, as Anwar was coming out of the shop after purchasing cigarettes. On the instigation of Sana Ullah, his son Muhammad Ashfaq alias Shaqi fired at Anwar husband of complainant, which hit on the back side of the head of Anwar. Second fire made by Muhammad Ashfaq alias Shaqi hit on the right shoulder of her husband. Muhammad Abbas made two fire-shots which hit on the right leg at thigh and calf of her son Muhammad Ali and went through and through. Her son fell down from motorcycle in an injured condition. Muhammad Ashfaq fired at Muhammad Anwar in a fallen condition which hit on the left upper-arm and wrist of right arm. Muhammad Abbas fired at Anwar which hit on the left thigh and left hand. At the same time Ashfaq Ahmad and Ghulam Haider reached there. Afzal whose house is near to the place of occurrence also attracted to the spot on hearing noise of firing and all of them witnessed the occurrence. The accused persons fled away from the scene of crime while raising lalkaras. The complainant along with other eye-witnesses took her husband and son in an injured condition to Civil Hospital Nowshera Virkan. Her husband died soon after reaching hospital, whereas her son was referred to Civil Hospital, Gujranwala. The complainant left the deadbody of her husband in the care of Ashfaq Ahmad and reported the matter to the police through an application along with Medico-legal Certificate No. 84/2009 of her son Muhammad Ali. The motive set up by the complainant in the private complaint is that one day prior to the occurrence Muhammad Anwar deceased forbade Muhammad Ashfaq, etc. not to release water in their fields as their crops get destroyed. On the basis of application formal FIR No. 115/09, dated 06.03.2009 was registered at Police Station Nowshera Virkan in respect of offences under sections 302/324/34, P.P.C. Being dissatisfied with the outcome of investigation the complainant opted to institute instant private complaint because the investigating officer has declared Sana Ullah and Abbas accused as innocent and placed their names in column No. 2 of report under section 173, Cr.P.C. It is stated in the private complaint that the complainant had direct evidence to prove the charge against the culprits but due to dishonest investigation she has suffered a lot.

3. To substantiate its version before the learned trial court, the complainant produced as many as twelve prosecution witnesses before the learned trial court. The ocular account was furnished by Mst. Fayyaz Batool, complainant (PW10), Muhammad Ali, minor injured (PW11) and Ashfaq Ahmad (PW12). Bilal Ahmad (PW4) is the witness of recovery of pistol recovered from Muhammad Ashfaq alias Shaqi. The medical evidence was furnished by Dr. Ghulam Mustafa (PW1) who had medically examined Muhammad Ali, minor victim whereas Dr. Muhammad Safdar Sheikh (PW8) conducted postmortem examination on the dead body of Muhammad Anwar deceased on 06.03.2009 at 8.30 pm. Naseer Ahmad, SI (CW1) is the investigating officers who appeared before the learned trial court and stated about various steps taken by them during investigation of this case. Remaining evidence produced by the complainant before the learned trial court is formal in nature.

4. The appellants in their statements recorded under section 342, Cr.P.C. professed their innocence and pleaded false implication in this case. The appellants did not opt to record their statements under section 340(2), Cr.P.C. in disproof of allegation leveled against them by the prosecution nor they produce any defence witness.

5. At the end of the trial, after thrashing the entire evidence and considering the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellants as mentioned in paragraph No.1 of this judgment.

6. Learned counsel for the appellants contends that the judgment is against law and facts of the case. The prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. On the other hand learned Deputy Prosecutor General assisted by the learned counsel for the complainant contends that the prosecution has successfully proved its case against the appellants beyond any shadow of doubt. Learned counsel for the complainant has gone on to maintain that Muhammad Abbas appellant and co-accused Sana Ullah should also be convicted under section 302, P.P.C. and the compensation awarded to Muhammad Ashfaq alias Shaqi should also be reasonably enhanced.

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

8. It has been observed by us that the occurrence in this case had taken place on 06.03.2009 at 10.30 am and the same has been reported to the police on same day at 12.30 noon through written application made by Mst. Fayyaz Batool, complainant (PW10) which shows that the FIR in this case has been lodged with sufficient promptitude and the same fact ousted any possibility of deliberation or consultation of the matter by the complainant with any legal expert to falsely involve the appellants in this case.

9. Before we start our discussion into the matter in detail we would like to mention here that the complainant has involved three accused in the FIR out of whom Muhammad Abbas and Sana Ullah co-accused have been acquitted of the charge under section 302(b), P.P.C. against whom the complainant has filed separate appeal against acquittal wherein notice has been issued against Muhammad Abbas on 27.10.2015. Muhammad Abbas and Muhammad Ashfaq alias Shaqi appellants have been convicted and sentenced by the learned trial court who have filed the instant appeal against the convictions and sentences. Therefore, we would like to discuss the case of Muhammad Abbas and Muhammad Ashfaq alias Shaqi appellants first.

10. An overwhelming analysis of the prosecution evidence shows that to prove the ocular account of this case the prosecution keeps three eye-witnesses in its fold namely Mst. Fayyaz Batool, complainant (PW10), Muhammad Ali, injured victim (PW11) and Ashfaq Ahmad (PW12). All the eye-witnesses had duly nominated the appellants in the FIR as well as in their statements before the police and they had assigned them specific roles to Muhammad Ashfaq alias Shaqi appellant of making firing at Muhammad Anwar deceased whereas Muhammad Abbas appellant No. 1 has been attributed two fire-shot on Muhammad Ali, injured victim (PW 11) with pistol 30 bore. While appearing before the learned trial court all the eye-witnesses including minor injured PW have categorically explained the seat of injuries specifying the weapon of offence used by the appellants during incident. All of them had explained each and every segment of occurrence in so many words during their statements adduced before the learned trial court inasmuch as they had also explained the mode and manner in which the occurrence had taken place. All of them had categorically given the reason of their presence at the place of occurrence, i.e. before the shop of Muhammad Akram for purchasing of cigarettes from where they intended to proceed to attend the marriage ceremony. Although they had to endure a lengthy cross-examination by the defence yet they had remained consistent with each other on each and every material point. During their evidence they had sufficiently proved their presence at the place of occurrence at relevant time and witnessing the occurrence vis-a-vis the culpabilities of the appellants in this case. In response to a question Muhammad Ali, minor victim (PW 11) has categorically answered that although the day of occurrence was a working day yet the fact remains that he had applied for leave of three days through application to attend marriage ceremony drafted by his sister.

11. A perusal of FIR shows that the occurrence in this case has taken place on a bright daylight and the appellants had specifically been nominated by the eye-witnesses and they have unanimously attributed firearm injuries to Muhammad Abbas appellant No. 2 on the person of deceased. We have also observed that as the parties were previously known to each other being residents of the same locality, therefore, there is zero chance of mistaken identity or substitution. The learned counsel for the appellants has laid great emphasis on the point that the prosecution has examined interested witnesses to prove the ocular account who are not truthful witnesses and the evidentiary value of eye-witness is not above-board to be believed upon them in a blatant manner. We, however, remained unable to appreciate this submission of the learned counsel for the appellants because the law has now well settled on the point that the fact of relationship of the witnesses with the complainant or with the deceased would not be sufficient to smash the evidence adduced by such witnesses or to disbelieve their testimony. Such PWs can be believed if intrinsic worth of their testimony inspires confidence of the court and the same leads to an inference that the witnesses were present at the scene of the crime at relevant time and they have seen the occurrence. Reliance is placed on the case of Muhammad Ahmad and another v. The State and others (1997 SCMR 89). Even otherwise the rule requiring independent corroboration of testimony of interested witnesses is a rule of prudence which is not to be applied rigidly in each case especially when the courts of law do not feel necessity. There can be cases like the present one where implicit reliance can be placed on the testimony of related witness if otherwise it inspire confidence. As stated above all the eye-witnesses were residents of the same locality where the occurrence had taken place so in absence of any solid or concrete reason the evidentiary value of their testimony cannot be disbelieved. There was no reason for the prosecution witnesses to falsely depose against the appellants in this case. Even there was no reason to hold that the eye-witnesses were not present at the scene of crime at relevant time. The eye-witnesses are natural witnesses whose presence at the spot cannot be discarded in absence of any solid reason.

12. It is also significant to mention here that during the occurrence Muhammad Abbas appellant No. 1 had made two successive fire-shots at Muhammad Ali, minor victim (PW.11) who was sitting on a motorcycle parked by the deceased near the shop and minor victim had received two firearm injuries on his right shin and right thigh, therefore, the token of seat of injuries on his right leg sufficiently explain his presence at the place of occurrence at relevant time. The evidentiary worth and value of such an injured witness cannot be disbelieved without any solid or concrete reason which is missing in this case, In the background of such a situation evidence of PW.11 qua implication of the appellants in the commission of offence cannot be disbelieved by this Court especially when he has categorically pointed accusing fingers towards the appellants as the culprits who have perpetrated the offence and had done to death his father besides causing fire-arms injuries to him. Mere bald argument of learned counsel for the appellants that the deceased has been done to death somewhere else by some unknown accused and not at the place of occurrence as mentioned by the prosecution does not carry any weight. Even otherwise the place of occurrence is in front of shop of Muhammad Akram from where blood-stained earth (Ex. PH) has been collected by Naseer Ahmad, SI/investigating officer (CW1) who had no previous ill-will or bitterness with the appellants to falsely depose against them. So the place of occurrence, presence of eye-witnesses at the spot and witnessing the appellants making firing at deceased and injured victim had been proved through confidence inspiring and reliable evidence of eye-witnesses. In this regard, reliance can easily be placed upon the case of Taj v. The State (2012 SCMR 43), wherein Hon'ble Supreme Court of Pakistan was pleased to observe as under:- "We have considered the evidence of Khadim Hussain (P.W.1), complainant, two injured witnesses namely Sarfraz (P.W.2) and Gulzar (P.W.3). They have supported the prosecution case and specifically stated that the petitioner Taj had participated in the occurrence and the fire made by the petitioner had hit the deceased on the chest near neck. The injured witnesses had also received numerous injuries during the occurrence and the doctor Muhammad Ashraf (P.W.16) supported the factum of injuries. Thus, their presence at the spot was established. The eye-witnesses were subject to cross-examination but nothing had come to doubt their credibility. Thus, their presence was natural as they sustained injuries along with deceased at the time of the incident. The trial Court has already extended life imprisonment to the petitioner and he is not entitled for any other relief. We are of the view that the impugned judgment of the learned High Court is based on proper appreciation of evidence. This court, normally, does not interfere with the findings of the courts below unless those are arbitrary, fanciful or perverse. No case for leave to appeal is made out." We have minutely undergone the cross-examination conducted by the defence upon the above said injured witnesses Muhammad Ali (PW.11) and we have observed that he has withstood cross-examination and has given rational answers to each and every question put by the defence. During course of arguments learned counsel for the appellants has laid great emphasis on the point that Muhammad Ali, minor injured victim (PW.11) was only 6 years of age at the time of occurrence, therefore, he was not capable enough to adduce evidence to be used against the appellants in this murder case. We, however, remained unable to appreciate this submission of learned counsel for the appellants because the learned trial court has particularly put certain questions before recording evidence of Muhammad Ali, injured victim (PW.11) to test his competency who had given rational answers to all the questions and after finding him capable learned trial court had recorded his statement. Even otherwise the manner and mode adopted by Muhammad Ali, injured victim (PW.11) in answering the questions put to him during cross-examination shows that he had explained the occurrence in prudent way. It is a natural behavior of a child of 6 years that he will always speak the truth and the manner in which he answered questions put to him by the defence during cross-examination also suggested that he has not been tutored to depose a manufactured story.

13. Admittedly Mst. Fayyaz Batool, complainant (PW10) is widow of the deceased namely Muhammad Anwar whereas Muhammad Ali, injured victim (PW.11) is real son of the deceased so it is not expected from such close kith and kin that they would spare the actual culprits to go scot-free by falsely involving the appellants in this case. Likewise, the intensity of close relationship of the complainant and the injured victim with the deceased itself demands and expects eradication of substitution of the real culprit in lieu of the appellants which otherwise is a rare phenomenon in murder cases. Thus, by any stretch of imagination it can be said with all degree of certainty that the defence could not shatter or smash the credibility of the evidence adduced by the eye-witnesses before the learned trial court. So the trustworthy evidence adduced by all the three eye-witnesses had motivated our evaluation to put a credible reliance upon the same and believed it as unequivocal. Law is quite settled on the point that substitution of real culprits especially in a case where the eye-witnesses had lost their close kith and kin is rare phenomenon. In this regard, reliance can easily be placed upon the case of Sheraz Khan v. The State (2010 SCMR 1772), wherein Hon'ble Supreme Court of Pakistan has held as under:- No serious enmity whatsoever was alleged against Zaman Shah (P.W.7/complainant) and besides that being real father, the question of substitution of the real culprit with that of Sheraz Khan (appellant) does not arise which otherwise is a rare phenomenon. The statement of Zaman Shah (P.W.7/complainant) has been corroborated by Muslim Shah (P.W.8) who is real brother of deceased.

14. To controvert the mode and manner of occurrence Muhammad Abbas appellant in his statements under section 342, Cr.P.C. before the learned trial court has introduced story with regard to enmity of the deceased with Yar Muhammad Aasi, etc. on the issue of tractor. We have visited defence evidence and made an analysis of the same in the light of ocular account furnished by the three prosecution witnesses and we have found that after their arrest and during investigation of this case neither the appellants have taken such stand nor they approached any higher police hierarchy to bring such stance on record of investigation no any petition has been filed by the appellants in this regard. The stance taken by Muhammad Abbas appellant came to light for the first time when he got recorded his statement under section 342, Cr.P.C. before the learned trial court, thus, we have no hesitation to hold that the stances advanced by the appellant at belated stage are result of an afterthought just to wriggle out from criminal liabilities. Law is quite settled on the point that when a particular stance has been taken by a particular party the burden of proof shifts on the shoulder of that particular party. Mere production of copies of FIRs before the learned trial court does not by itself reflect commission of murder of deceased at the hands of Yar Muhammad Aasi, etc. rather the same ought to have been proved through cogent evidence. The stance taken by the defence is based on supposition and the same remained unable to defeat the ocular account furnished by the prosecution in this case. So we are not inclined to consider or put a worthy reliance upon the defence taken by the appellants in their statements under section 342, Cr.P.C. while adducing evidence before the learned trial court.

15. Medical evidence in this case is furnished by Dr. Muhammad Safdar Sheikh (PW8) who has conducted Postmortem Examination on the deadbody of Muhammad Anwer deceased on 06.03.2009 at 8.30 pm and he has found as many as thirteen wounds on the deadbody of the deceased. He has opined that all the injuries were antemortem in nature which were sufficient to cause death in ordinary course of nature. He has specified injuries Nos. 8, 9 and 10 to be the cause of death. The doctor has also seen blackening present around the wound which fact is also reflected form site-plan (Ex. CW1/D) and all this shows that firing has been made by the appellants from close range and this is also the case of prosecution. The seats of injuries sustained by the deceased and the circumstances in which the eye-witnesses have narrated the occurrence In line with medical evidence because all the eye-witnesses have categorically stated that the deceased has received firearm injury at the hands of appellant No. 2 from a close range on which blackening has been noticed by the doctor. The doctor has categorically stated that the skull of the deceased fractured, occipital bone was ruptured, parietal bone was fractured, brain matter was injured, right radius and right ulna was also fractured. Dr. Ghulam Mustafa, Senior Medical Officer, Tehsil Headquarter Hospital, Nowshera Virkan has medically examined Muhammad Ali, injured victim (PW.11) and found four injuries on his body. He has declared injuries Nos. 1 and 3 to be entry wounds whereas injuries Nos. 2 and 4 are their exit wounds. All the four injuries on the person of injured victim are absolutely in line with the ocular account. The defence has cross-examined both the doctors at length but nothing adverse to the prosecution has been extracted from their mouths. Thus, the medical evidence in all respect provides support to the ocular account in this case.

16. As far as recoveries in this case are concerned, the investigating officer on his first visit to the place of occurrence has collected six crime-empties of pistol .30 bore (P7/1-6) which have been taken into custody vide recovery memo Ex. PG on 06.03.2009 and the same have been sent to the Office of Forensic Science Laboratory on 25.03.2009 whereas Muhammad Ashfaq alias Shaqi appellant No. 2 was arrested in this case on 24.03.2009 and why the prosecution has kept crime-empties in custody w.e.f. 06.03.2009 to 25.03.2009, no explanation has been brought on the record. After his arrest he has got recovered pistol 30 bore on the same day, i.e. 24.03.2009 but the same has been sent to the Office of Forensic Science Laboratory on 13.04.2009, i.e. after nineteen clays of the arrest. Thus, the crime-empties (P7/1-6) have been sent to the Office of Forensic Science Laboratory after the arrest of Muhammad Ashfaq alias Shaqi appellant No.

2. Muhammad Abbas appellant No. 1 was neither arrested by the police in this case nor any recovery has been effected from him during investigation as he had been declared by the investigating officer to be innocent. Apart from weapon of offence, the investigating officer at his first visit has taken into possession motorcycle Honda bearing registration No. GAR-5542 red-coloured (P6) of deceased from the place of occurrence on which the injured victim Muhammad Ali (PW11) was sitting and received firearm injuries at the hands of Muhammad Abbas appellant No.

1. Therefore, as discussed above, the recovery of weapon of offence is Consequential and the same provides no corroboration to the ocular account whereas rest of recoveries, i.e. Motorcycle, blood-stained earth, etc corroborated the ocular account. We may observe here that if the recovery of weapon of offence is inconsequential it does not by itself sufficient to disbelieve the prosecution story set forth in the private complaint when the same has amply been proved through confidence inspiring evidence adduced by the eye-witnesses and medical evidence.

17. The motive set up by the prosecution in this case is that Muhammad Anwar deceased has reprimanded the accused persons not to release their drain water in his field due to which his crop were destroyed. During the trial except the complainant and other eye-witness no independent or impartial witness has been examined by the complainant to prove the motive which remained shrouded in mystery. From the record it transpired that when the deceased arrived at the shop of Malik Muhammad Akram he parked his motorcycle outside the shop to purchase cigarette, the occurrence took place and it has not come on record that appellants had prior knowledge that deceased will purchase cigarette from the shop. It seems that something happened when both the parties came face to face and what prompted the appellants to fire remained shrouded in mystery. So the cause of death in this case is shrouded in mystery and motive is not proved.

18. For what has been discussed above we are of the considered view that the prosecution has successfully proved the case against Muhammad Ashfaq alias Shaqi and Muhammad Abbas appellants beyond any reasonable shadow of doubts. However, at the same time we have considered the sentence of death passed by the learned trial court against Muhammad Ashfaq alias Shaqi appellant as too harsh for the reasons mentioned below:- i) As stated above, what happened between the deceased and appellants immediately before the occurrence remained shrouded in mystery. ii) The motive in this case is not proved from the evidence adduced by the prosecution witnesses. iii) Recovery of weapon of offence is inconsequential in this case. These facts are considered by us as circumstances which favouring Muhammad Ashfaq alias Shaqi appellant and forbade us to sustain capital punishment of death against him under sections 302(b), P.P.C. Law is quite settled by now on the point that an accused is entitled for the benefit of an extenuating circumstance while deciding his question of sentence. Reliance is placed upon 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 160), 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 by 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)." We have also gathered strength on this point from a very recent judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Ghulam Mohy-ud-Din alias Haji Babu and others v. The State (2014 SCMR 1034) wherein it has been held as under:- "It is a fundamental principle of Islamic Jurisprudence on criminal law to do justice with mercy, being the attribute of Allah Almighty but on the earth the same has been delegated and bestowed upon the Judges, administering justice in criminal cases, therefore, extra degree of care and caution is required to be observed by the Judge while determining the quantum of sentence, depending upon the facts and circumstances of particular case/cases. 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 guidance, 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." Even in a very recent judgment same verdict has been supported by the Hon'ble Supreme Court of Pakistan in the case of Qaddan and others v. The State (2017 SCMR 148) wherein it has been held as under:- "Failure on the part of the prosecution to establish the motive may react upon a sentence of death." So taking the same into consideration above mentioned facts we feel that the capital punishment of death to Muhammad Ashfaq alias Shaqi appellant will not serve the interests of justice in this case. The above narrated peculiar features of this case convince us that life imprisonment under section 302(b), P.P.C. would be absolutely in apt with the facts and circumstances of, this case. Thus, we reduce the capital sentence of death to Muhammad Ashfaq alias Shaqi appellant into the life imprisonment. However, the remaining sentences passed against Muhammad Ashfaq alias Shaqi appellant with regard to payment of compensation amounting to Rs. 200,000/- (Rupees two hundred thousand only) to the heirs of deceased or in default of payment thereof to further undergo simple imprisonment for six months, by the learned trial Court is hereby upheld and maintained. So far as the convictions and sentences of Muhammad Abbas appellant are concerned, although he has been declared innocent by the investigating officer yet the fact remains that opinion of police is not binding upon the Courts of law especially when eye-witnesses, including injured victim, attributed specific role of causing firearm injuries to injured PW. We also considered his case from all corners and in the light of available evidence adduced by the prosecution witnesses against him. All the attending circumstances persuaded us to reduce his sentences recorded under sections 324/337-F(ii), P.P.C. from rigorous imprisonment for seven years and rigorous a imprisonment for one year respectively to that effect which he had already undergone. However, his convictions under section 324, P.P.C. to pay an amount of Rs. 50,000/- as fine and an amount of Rs. 50,000/- as Daman to the injured victim namely Muhammad Ali` as awarded by the learned trial court is upheld and sustained.

19. An irresistible conclusion is that Criminal Appeal No. 86 of 2012 filed by Muhammad Ashfaq alias Shaqi and Muhammad Abbas appellants is dismissed with the modification made in their sentences. Consequently Murder Reference No. 28 of 2012 is answered in negative and the sentence of death passed against Muhammad Ashfaq alias Shaqi appellant is not confirmed. The sentence of Muhammad Abbas appellant No. 1 has been suspended by this Court vide order dated 17.04.2012, his bail bonds are released and sureties shall stand discharged from their liabilities subject to payment of fine and Daman otherwise he shall be taken into custody till realization of amount of Daman or kept in imprisonment for six months' S.I. for non-payment of fine.

20. Now adverting to Criminal Appeal No. 2187 of 2015 filed by Mst. Fayyaz Batool, complainant (PW.10) against clean acquittal of Sana Ullah and against acquittal of Muhammad Abbas from the charge under section 302(b), P.P.C. We have observed that the appeal to the extent of Sana Ullah respondent had already been dismissed vide order dated 27.10.2015. So far as the case of Muhammad Abbas respondent No. 1 is concerned, we have already observed that the occurrence has taken place all of a sudden without any element of premeditation, thus, an offence under section 34, P.P.C. is not attracted in this case and consequentially he could not be declared guilty of charge under section 302(b), P.P.C. because according to the deposition of Muhammad Ali, injured victim (PW11) he has not caused any firearm injury to the deceased. Even according to the deposition made by Mst. Fayyaz Batool, complainant (PW.10) a joint role of firing at the deceased has been attributed to Muhammad Abbas appellant with Muhammad Ashfaq alias Shaqi appellant. A fair assessment of evidence available as well as all the surrounding circumstances of this case persuaded us to bold that the element of sharing common intention of respondent No. 1 with his co-convict Muhammad Ashfaq alias Shaqi for commission of murder of Muhammad Anwar deceased is missing in this case and the same could not be proved by the prosecution. So in the backdrop of such an eventuality when sharing of common intention is not proved, then Muhammad Abbas appellant No. 1 cannot be convicted under section 302(b), P.P.C. especially when he had not caused any injury to the deceased, as discussed by us in preceding paragraphs. Reliance in this regard can be placed on the cases of Zahied Imran and others v. The State and others (PLD 2006 SC 109) and Shakeel and 5 others v. The State (PLD 2010 SC 47) wherein it has been held by the Hon'ble Supreme Court of Pakistan:- "It is worth mentioning that "To have some intention independently of each other is not to have common intention. Common intention requires a pre-arranged plan. There must be a prior meeting of minds. (Emphasis provided). Several persons can simultaneously attack a man and may have the same intention, namely the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention as there was no prior meeting of mind to form a pre-arranged plan. In a case like the each would be Individually liable for whatever injury be caused but none could be convicted for the act of the other vicariously. It must be shown that the criminal act was done by one of the accused persons in furtherance of the common intention of all. "Common intention" within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan.(ILR(1945) 26 (Lah.) 267 (PC). "There is no cavil to the proposition that inference of common, intention should not be reached unless it is necessary inference deducible from the circumstances of the case." Therefore, Criminal Appeal No. 2187 of 2015 filed by Mst. Fayyas Bibi, complainant (PW10) against acquittal of Muhammad Abbas respondent No. 1 is also dismissed.

21. In view of our discussion made above, there is no ground to enhance the amount of compensation Rs. 200,000/- as awarded by the learned trial court. Thus, Criminal Revision No.187 of 2012 filed by Mst. Fayyaz Batool, complainant (PW.10) is also dismissed. JK/M-59/L Order accordingl