2023 PLP 1344 (MLD)

ROZI KHAN BARRECH, J.

The appellants Gulzar and Deedar, both sons of Tahir, were involved in case FIR No.39/2019 registered under sections 302, 324 and 34, P.P.C. at Police Station Saddar Usta Muhammad District Jaffar Abad and were tried by the learned Sessions Judge Usta Muhammad ("trial court"). The trial court seized with the matter in terms of the judgment dated 21.09.2021 ("impugned judgment") and convicted and sentenced the appellants in the following terms: "8 .and found guilty accused persons Gulzar and Deedar committing the murder of deceased Jabal with their furtherance of common intention in violation of sections 302(b), 34, P.P.C, the offence participated more convicted under sections 302(b), 34, P.P.C and sentenced to Imprisonment for Life each accused separately with compensation of Rs.200,000/- (Rupees Two Lac) each accused separately as envisaged by section 544-A, Cr.P.C payable to the legal heirs of the deceased Jabal. In default of payment of compensation, both the accused persons further undergo Six months' Simple Imprisonment for each accused separately. Further, the both accused persons jointly found in violation of section 324, P.P.C injuring Abdul Jabbar with the intention to commit his Qatl-i-amd and awarded sentences both accused for five (05) years for each accused separately and pay to fine of Rs.100,000/- (Rupees One Lac) for each accused separately. In case of non-payment of fine, further undergo, one (01) year's Simple Imprisonment for each accused separately. The conviction and sentences awarded to accused persons shall run concurrently with benefit of section 382-B, Cr.P.C." Aggrieved from the impugned judgment, the appellants Gulzar and Deedar have assailed their conviction and sentence through the titled appeal.

2. The prosecution story, as disclosed in the FIR (Ex.P/1-A) recorded on the statement of complainant Mir Gul (PW-1), son of Achar Khan, is that on 01.10.2019 at 7:00 p.m. at Goth Abdul Samad near the house of absconding accused Abul Khair, the accused/appellant Deedar and Gulzar armed with shotguns, absconding accused Abdul Khair armed with T.T pistol made firing upon brothers of the complainant Jabal and Abdul Jabbar due to which Jabal and Abdul Jabbar received injuries. Later on, Jabal succumbed to the injuries. Hence, the crime report.

3. After completion of the investigation, the challan was submitted before the trial court. After a full dressed trial, the appellants were convicted and sentenced vide impugned judgment dated 21.09.2021 in the aforesaid terms, whereafter the instant appeal has been filed.

4. We have heard the learned APG and have also perused the available record with his able assistance.

5. In order to prove its case, the prosecution produced eight witnesses. Mir Gul (PW-1) was the complainant and an eye-witness of the case. Abdul Jabbar (PW-2) is an eye-witness/injured witness of the occurrence. Shahzada (PW-3), who produced an affidavit regarding the nomination of the acquitted accused Qabool. Raheem Bakhsh, Head Constable (PW-4) who produced site inspection memo, recovery memo of blood-stained earth of deceased, recovery memo of two empties of a shotgun, T.T pistol and rifle (Ex.P/4-A to Ex.P/4-F). Imran Ali constable (PW-5) produced blood-stained clothes of deceased and injured (Ex.P/5-A and Ex.P/5-B). Qaiser Khan (PW-6) allegedly, in his presence, the crime weapons shotgun and 7mm rifle were recovered from the appellants (Ex.P/6-A to Ex.P/6-F). Dr. Allah Bakhsh (PW-7), who examined the dead body of the deceased and injured. He produced medical certificates (Ex.P/7-A and Ex.P/7-B). Khameesa Khan SI (PW-8), who conducted the investigation of the case.

6. The FIR was lodged by the complainant Mir Gul (PW-1) within thirty minutes of the occurrence, and all the accused, including the appellants, were specifically named with definite roles assigned to each one of them. PW-1 Mir Gul and Abdul Jabbar are claimed to be the eye-witnesses of the occurrence. They stated in their statements that on 01.10.2019, both the PWs along with deceased Jabal went to the house of the accused Abul Khair to patch up the quarrel between their children on which the absconding accused called them to resolve the issues among them. On their reaching to the house of Abul Khair, fighting erupted between the accused Abul Khair, who threatened of dire consequences that they (complainant, PW-2 Abdul Jabbar and deceased Jabal) would not go alive from there and at that moment, the accused Abul Khair holding a T.T pistol, accused Gulzar was having a shotgun and accused Deedar was having a rifle, and one unknown person was holding 'Danda' in their hands. Meanwhile, they started indiscriminate firing. He took shelter from the wall and could not do anything because he was empty-handed. After indiscriminate firing, the accused went towards the north. When he (complainant/PW-1) came out from the shelter of the walls, his brothers Jabal and Abdul Jabbar were lying in a pool of blood. Jabal died on the spot, and he left Abdul Jabbar on the spot in injured condition and went to the police station to lodge the report. The above witnesses attributed the role of firing to the appellants. They gave a consistent and straightforward ocular account of the occurrence. Despite conducting extensive and lengthened cross-examination, nothing was brought on record which may significantly demonstrate that the above eye-witness' account is false or their presence at the scene of the crime was doubtful or distrustful.

7. The presence of the said witnesses on the spot was also proved, and the name of the witnesses is also mentioned in the promptly lodged FIR without any delay. At the same time, the investigation officer recorded the statements of PW-2 Abdul Jabbar (eye-witness/injured witness) soon after the occurrence. The complainant/PW-1 Mir Gul and injured/eye-witness Abdul Jabbar is the real brothers of the deceased Jabal. They are residents of the vicinity. The distance between the place of occurrence and the house of the complainant is 30/35 steps. They have given a plausible explanation for their presence on the spot at the relevant time.

8. PW-2 Abdul Jabbar, the injured witness, also supported the prosecution case since he sustained injuries on his person and was immediately shifted to the hospital where PW-7 Dr. Allah Bakhsh examined him and issued a medical certificate (Ex.P/7-B) according to which the injured received injuries by means of firearms. Thus the presence of this injured PW is also established. Under such circumstances, it cannot be further disbelieved that the present appellants were substituted by the real culprits. In this regard, reliance is placed on the judgment of the august Supreme Court of Pakistan titled Abdul Rauf and others v. Mehdi Hassan and others 2006 SCMR 1106, wherein it was held that"- "Presence of eye-witnesses who had received firearm injuries at the place of occurrence at the relevant time was not open to any doubt. None of the eye-witnesses was shown to have any motive or ill-will to maliciously implicate the accused in the case". This ratio has further been affirmed by the august Supreme Court in the case titled Muhammad Waris v. The State 2008 SCMR 784, wherein it was held that:- "Eye-witness had explained their presence at the place of occurrence at the relevant time and thus, they were natural and independent witnesses of the incident. Medical evidence was not destructive of the ocular testimony".

9. So far as the production of only witnesses who were real brothers of the deceased Jabal and that the case of the prosecution is lacking independent corroboration is concerned, suffice to state here that mere relation of witnesses with the deceased is no ground to discard their testimonies if their evidence is found entirely independent and truthful, therefore, their testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge. The evidence of related witnesses who are not found inimical and are confidence-inspiring would hardly need any corroboration. It is stated earlier that PW-1/complainant and PW-2 are real brothers of deceased Jabal. Being close relatives of the deceased, the above witnesses were subjected to lengthy cross-examination, but nothing advantageous was brought, rendering inconsistent with the case of the appellants, who were implicated by the above PWs. No serious enmity whatsoever was alleged against them, and besides that being the real brothers, the question of substitution of the real culprits with that of appellants does not arise, which otherwise is a rare phenomenon. Reliance in this regard may be placed on the case of Allah Ditta v. The State PLD 2002 SC 52, wherein it was held as under:- " .It is also to be noted that admittedly prosecution, witnesses Muhammad Sadiq and two others have no enmity of whatsoever nature against Allah Ditta and they have also no reason to falsely involve him in the commission of murder of their brother Muhammad Sabir. In addition to it, it is also not possible for them that they would allow real culprit to go scot-free and falsely involve another person for the commission of the offence. Even otherwise it is well settled by now that substitution of real culprit is a rare phenomena in our system of criminal justice".

10. It may be observed that the medical evidence is in complete harmony with the ocular testimony of the complainant and PW-2, and no conflict could be pointed out to create a dent in the prosecution case. The medical evidence of the deceased was produced by PW-7 Dr. Allah Bakhsh. On 01.10.2019, he conducted a postmortem of the deceased Jabal Khan. According to the postmortem report (Ex.P/7-A), the death occurred due to damage of vital organs, i.e. lung, major vessels and excessive blood loss. Testimony of the above witness has also been corroborated by recovery of blood-stained earth, blood-stained garments of the deceased, recovery of crime empties and positive report of FSL. The said recovery has been duly proved through recovery witnesses and nothing adverse could be achieved despite cross-examination. The medical evidence produced by the prosecution also supported and corroborated the testimony of the eye-witnesses and no contradiction at all could be pointed out by the defense.

11. So far as the alleged recovery of shotgun and 7mm rifle at the instance of both the appellants and positive report of firearms expert (Ex.P/8-H) are concerned, the prosecution produced Qaiser Khan Head Constable (PW-6) in this regard. According to his version on 01.10.2019, the accused made disclosure in the presence of the investigation officer about the commission of the offence. On disclosure and pointation of the accused shotgun and 7mm, rifle was recovered on their pointation from the bushes at Noor Pur Shakh near Khosa Qabristan. He stated during cross-examination that the accused Gulzar Ahmed produced shotgun and rifle. On the other hand, Khameesa Khan SI (PW-8) stated in his statement that on 30.08.2020, the accused made a disclosure, and on their pointation 7mm rifle and a shotgun were recovered. There are major contradictions in the statements of both the above witnesses in respect of the recovery of alleged crime weapons. The investigation officer stated during cross-examination that both the accused were taken together for recovery of crime weapons. According to both the above witnesses the said recovery was jointly effected from both the appellants; therefore, such recovery was not admissible. The said shotgun and 7mm rifle were recovered from an open area, and it was not recovered from the residence of the accused/appellants. This aspect of the matter also caused reasonable doubt in respect of the recovery of crime weapons.

12. The occurrence allegedly took place on 01.10.2019. As per the record the crime empties of a 7mm rifle, shotgun, and T.T pistol were recovered from the place of occurrence on the same date. The alleged recovery of crime weapons, i.e. shotgun and 7mm rifle were effected on 03.08.2020. As per the record the recovered shotgun and 7mm rifle and empties were received by the firearms expert together on 29.9.2020 with a delay of one month and twenty-six days.

13. Sending of crime weapon (shotgun and 7mm rifle) and bullet empties recovered from the place of occurrence together with a delay of one month and twenty-six days to Firearms Expert creates reasonable doubt in the prosecution case; therefore, the Firearms Expert report in this regard is inconsequential to the prosecution case.

14. Even if the recovery of crime weapons is excluded from consideration being legally inconsequential, it has been observed by us that direct evidence in the form of ocular account furnished by the complainant/PW-1 Mir Gul and injured/eye-witness PW-2 Abdul Jabbar are confidence-inspiring, which is supported by the medical evidence.

15. So far as the principle of constructive liability is concerned vis- -vis section 34, P.P.C., if several persons would unite with a common purpose to do any criminal offence, all those who assist in the completion of their object would be equally guilty. The foundation for constructive liability was the common intention in meeting the accused to do the criminal act and doing such act in furtherance of the common intention to commit the offence. In order to constitute an offence under section 34, P.P.C., it is not required that a person should necessarily perform any act with his own hand. If several persons had the common intention of doing a particular criminal act, and if, in furtherance of their common intention, all of them joined together and aided or abetted each other in the commission of an act, then one out of them could not actually with his own hand, do the act but if he helps by his presence or by other act in the commission of an act, he would be held to have himself done that act within the meaning of section 34, P.P.C. Paramount consideration is whether the offence has been committed in furtherance of the common object. In the case in hand, both the appellants armed with deadly weapons made firing upon the deceased Jabal and injured Abdul Jabbar (PW-2), and due to the firing made by the appellants, the deceased Jabal and Abdul Jabbar received injuries, and later on, Jabal succumbed to the injuries.

16. Pursuant to the above, we have come to the conclusion that the prosecution has established its case beyond the shadow of doubt and the conviction and sentence recorded by the trial court are based on correct appreciation of evidence, which does not call for interference; therefore the judgment of conviction and sentence is maintained, in result whereof Criminal Jail Appeal No. (S) 24 of 2021 is dismissed accordingly. JK/182/Bal. Appeal dismissed.