PLJ 2020 Cr.C. (Note) 1
Ss. 302(b)/34--Conviction and sentence--Challenge to--Re-appraisal of evidence--Acquittal--Qatl-e-Amd--Appraisal of direct and circumstantial coupled with medical evidence after minute consideration of all circumstances, in light of dictum laid down by August Supreme Court as well as recoveries of crime empties, matching of same with crime weapon as well as medical evidence, we are of considered view that appellant is responsible for murder of deceased and has rightly been convicted by trial Court, but unable to find in agreement with impugned judgment of trial Court to extent of accused--Complainant of case coupled with statements of are suggestive of fact that appellant has not at all taken participation in alleged crime--Prosecution has failed to establish mens rea of appellant to commit such crime, because appellant arrived at place of occurrence duly armed with Kalashnikov, but to contrary appellant was empty handed and being so, appellant could no help to main accused rather he might have put himself in danger of being harmed by other side, had there been any retaliation or counter-attack by them--Even otherwise, if we take into consideration motive behind occurrence, it would be established that dispute arose in between complainant party with appellant--Entire prosecution evidence would establish fact that though appellant was present at relevant time alongwith main accused but no overt act has been attributed to him by prosecution rather appellant has played role of idle or audience at relevant time--Prosecution has failed to establish through incriminatory evidence with regard to common intention or common object of appellant to commit murder of deceased--Reappraisal of entire prosecution evidence would establish fact that prosecution has successfully established charge to extent of main accused through consistent, confidence inspiring and cogent evidence--All witnesses remained firm in their deposition to extent of said accused, but prosecution has miserably been failed to establish common intention and common object of appellant for commission of crime rather prosecution has only established his presence alongwith main accused at relevant time, which is not sufficient to hold him responsible for charge--Appeal was partly allowed.
[Para 15 & 16] A, B & C
2017 MLD 1263 (
Mr. Zahoor Ahmed Baloch, Advocate for Appellant.
Mr. Sudheer Ahmed and Muhammad Yahya Baloch, D.P.G. for State.
Date of hearing: 14.3.2018.
PLJ 2020 Cr.C. (Note) 1
[Balochistan High Court at Turbat Bench]
Present: Muhammad Noor Meskanzai, C.J. and Abdullah Baloch, J.
versus
STATE--Respondent
Criminal Appeal No. (T) 43 of 2017, decided on 25.4.2018.
Judgment
Abdullah Baloch, J.--This judgment disposes of Criminal Appeal No.(T)43 of 2017 filed by the appellant Haleem son of Ustad Zareef and Ikram son of Nadeem, against the judgment dated 26th April 2017 (hereinafter referred as “the impugned judgment”) passed by learned incharge Sessions Judge/Additional Sessions Judge Panjgoor (hereinafter referred as “the trial Court”), whereby the appellants were convicted under Section 302(b)/34, P.P.C. and sentenced to suffer imprisonment for life as Tazir and to pay Rs.2.00.000/- (Rupees Two lacs) each as compensation as envisaged under Section 544-A, Cr.P.C., which in case of recovery was directed to be paid to the legal heirs of deceased Muhammad Hayat, whereas in default thereof, they shall further suffer S.I. for six months, with the benefit of Section 382-B, Cr.P.C.
2. Facts of the case are that on 20th April 2016, the complainant Hafiz Hassan son of Saleh Muhammad, lodged FIR. No. 64 of 2016 at Police Station Panjgoor under Sections 302, 34, P.P.C., stating therein that he is actual resident of Koda District Khuzdar, while he alongwith his paternal cousin Hayat Khan son of Noor Bakhsh are residing at Khudabadan Panjgoor. On the night of occurrence at about 9.30 p.m., the main door of his house was knocked, hence his cousin Hayat Khan went to open the door, while he (complainant) followed him. On opening the door the accused Abdul Haleem son of Ustad Zareef, Abdul Ghaffar alias Abdost and Ikram son of Nadeem entered through the door and accused Haleem made firing upon them with Kalashnikov, resultantly Hayat Khan sustained bullet injuries and fell down, while the complainant also received a bullet on the left side of his wearing Kameez and after commission of crime, the accused fled away from the place of occurrence, whereas the injured was taken to hospital, but in the way succumbed to the injuries.
3. After registration of FIR, the investigation of the case was entrusted to PW-6 Malik Ahmed, SI/IO, who during investigation reached at hospital, carried out proceedings under Section 174, Cr.P.C. and prepared inquest report; obtained MLC; handed over the dead body to the legal heirs of deceased; on the said night of occurrence he recorded the statements of eye-witnesses Nasir (PW-1) and Muhammad Younas (PW-5); visited the place of occurrence: prepared site sketch; collected 10-empties of SMG, three live rounds of S.M.G. 7.62, two live rounds and one empty of snipper rifle; took into possession the blood stained earth and sent the same to FSL for analysis and received the FSL report in affirmative; arrested the appellant Ikram on 14th September, 2016 and after completion submitted the challan in the trial Court to his extent. PW-7 Javed Ahmed, SI/IO, who during investigation on 18th September, 2016 arrested the appellant Haleem and effected the recovery of Kalashnikov from his possession; sent the recovered empties of SMG alongwith Kalashnikov to FSL for expert opinion and obtained the report in affirmative. On completion of investigation, submitted the challan in the trial Court.
4. On receipt of Challans to the extent of appellants, the learned trial Court after initiating proceedings under Sections 87 and 88, Cr.P.C. declared the accused Abdul Ghaffar as proclaimed offender.
5. At the trial, the prosecution has produced seven (07) witnesses. The appellants were examined under Section 342, Cr.P.C. However, the appellants neither recorded their statements on oath under Section 340(2), Cr.P.C. nor produced any witness in their defence. On conclusion of trial and after hearing arguments, the learned trial Court convicted and sentenced the appellants as mentioned above in para No. 1. Whereafter instant appeal has been filed.
6. Learned counsel for appellants contended that the impugned judgment is result of mis-reading and mis-appreciation of material available on record; that the prosecution has failed to establish the presence of both the eye-witnesses of the occurrence at the time and place of occurrence; that the case of prosecution is lacking independent corroboration as only interested witnesses have been produced; that the prosecution has failed to produce any iota of evidence connecting the appellants with the commission of alleged crime; that the prosecution has miserably failed to substantiate the charge against the appellant; that the prosecution has failed to establish the recovery of crime weapon upon the possession of the appellant Haleem; that the prosecution has also failed to establish the common intention and common object of accused Ikram for commission of crime; that the prosecution has miserably failed to establish the charge through concrete or solid evidence, thus the impugned judgment is liable to be set aside.
7. Learned Deputy Prosecutor General appearing for the State has strongly opposed the arguments so advanced by the learned counsel for appellants and while supporting the impugned judgment has contended that sufficient incriminating evidence are available on record connecting the appellants with the commission of offence; that the case of prosecution is supported by medical evidence coupled with recovery of crime weapon as well as the matching of crime empties with the recovered crime weapon; that the appellants have failed to rebut their false implication by the prosecution witnesses; that the impugned judgment of the Court below is based upon proper appraisal of material available on record.
8. Heard the learned counsel and perused the available record. In order to establish the charge, the prosecution has produced the evidence of seven witnesses, out of whom PW-1 Nasir son of Kareem Bakhsh and PW-5 Muhammad Younas are claiming to be the eye-witnesses of the alleged occurrence, while PW-2 Javid Ahmed, SI and PW-3 Shahzad Ali, SI are the recovery witnesses, whereas PW-4 Dr. Mazhar Ali. Medical Officer has examined the deceased, however, PW-6 and PW-7 are the Investigating Officers of the case. Before dilating upon the ocular testimony, it would be appropriate to first discuss the medical evidence to establish the unnatural death of deceased.
9. According to PW-4 Dr. Mazhar Ali, Medical Officer, (M.S.) DHQ Hospital Panjgoor, on the day of occurrence the deceased Hayat Khan son of Noor Bakhsh was brought to hospital at about 10.00 p.m. hence he examined the deceased and issued MLC Ex.P/4-A. The bare perusal of MLC of deceased Hayat Khan son of Noor Bakhsh reflects that the deceased had received a bullet injury from Rt Epigastric region and an exit from Lt. Side Chest causing damage to liver lungs and part of heart, fracture of left rolius and ulna. PW-4 has opined the probable cause of death as Hemorrhage/vital organs injuries. The bare perusal of MLC of deceased would establish the fact that his death was unnatural as the deceased received fire arm injuries on his person. Even otherwise, the defence has also not disputed the unnatural death of deceased, but pleaded false implication.
10. Now diverting to the ocular evidence produced by the prosecution in shape of circumstantial and direct evidence. The case was registered on the complaint of one Hafiz Hassan son of Saleh Muhammad on the basis of fard-e-bayan Ex.P/1-A. wherein he has specifically nominated the accused Haleem for making firing upon them, which resulted into bullet injuries upon the person of deceased Hayat Khan, while a bullet hit on the wearing Kameez of the complainant. The fard-e-bayan Ex.P/l-A is silent with regard to playing any role either of the co-convict Ikram rather the absolute role of firing was attributed to the accused Haleem son of Ustad Zareef. However, the fact remains that during trial of the case the complainant died, hence his statement could not be recorded by the trial Court. However, the son of the complainant namely Muhammad Younas appeared as PW-5 in the trial Court. This witness narrated the whole story with regard to knocking the main door of their house, proceeding of the deceased Hayat Khan towards the main door for its opening and making firing upon them by the accused Haleem with Kalashnikov. This witness has correctly stated the date, time, the place of occurrence and the manner in which the alleged occurrence had taken place. The PW-5 has correctly identified the accused in the trial Court. Likewise, PW-1 Nasir is also the eye-witness of the occurrence being the nephew of deceased Hayat Khan. This witness fully corroborated the contents of fard-e-bayan, FIR as well as the statement of PW-5. This witness attributed the role of firing to the appellant Haleem, while he has mentioned the presence of co-accused Ikram and absconding accused Ghaffar. PW-1 further brought on record that during firing of accused Haleem, a bullet also hit upon the Kameez of complainant Hafiz Hassan. This witness has also correctly narrated the date, time, the place of occurrence and the manner of occurrence, while despite lengthy cross-examination he remained firm in his deposition.
11. So far as the objection of the learned counsel that both the alleged eye-witnesses could not justify their presence at the relevant time as their names were not mentioned by the complainant in his fard-e-bayan, suffice to observe here that it is not necessary to mention the name of each and every witness in the fard-e-bayan, even otherwise both the witnesses being the dwellers of the said house, their presence in the house was natural. Furthermore, the FIR was lodged promptly without any delay, while the Investigating Officer has recorded the statements of both the witnesses soon after the occurrence. The Investigating Officer has confirmed such fact in his cross-examination in the following terms:
12. The above admission of the Investigating Officer with regard to recording the statements of both the eye-witnesses within the time of two hours has not only ruled out the concept of planting the said witnesses, but also establishes their presence at the relevant time of occurrence, thus their testimonies cannot be discarded from consideration solely on the ground that their names did not appear in the fard-e-bayan. Thus the objection so taken by the learned counsel for the appellant is without any substance.
13. The case of prosecution has further been strengthened by the recovery of crime weapon i.e. Kalashnikov from the possession of the appellant. Since, the I.O. had taken into possession the empties of S.M.G. from the place of occurrence, thus the recovered Kalashnikov alongwith empties were sent to FSL for analysis and after examination the FSL through examination report Ex.P/7-C confirmed that the empties were fired from the recovered Kalashnikov. Thus, the prosecution has successfully established the recovery of Kalashnikov from the possession of the appellant Haleem.
14. The plea of the learned counsel for the appellant that only interested witnesses were produced by the prosecution and the case of prosecution is lacking independent corroboration, suffice to state here that mere relation of witnesses with the deceased is no ground to discard their testimonies, if their evidence is found entirely independent and truthful, therefore, their testimony without looking 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. Reliance in this regard is placed on the case of Muhammad Akram v. The State reported in 2015 YLR 116. It is also necessary to mention here that PW-1 is the nephew of deceased, while PW-5 is also the nephew of deceased as well as the son of complainant Hafiz Hassan. The parties were known to each other previously and the question of mistaken identity of the real culprits does not arise. It is hard to believe that both the witnesses and even the complainant late Hafiz Hassan would substitute the real culprits with the appellant Haleem, who had committed murder of his deceased blood relations. Needless to observe that substitution is a rare phenomenon. Reliance in this regard may be placed on the case of Haji Ali Shan v. The State reported in 2001 PCr.LJ 1320 and Allah Ditta v. The State reported in PLD 2002 SC 52. In the case of Allah Ditta it was held as under:
“......It is also to be noted that admittedly prosecution, witnesses Muhammad Sadie 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.” (BOLD ADDED)
15. The appraisal of direct and circumstantial coupled with medical evidence after minute consideration of all the circumstances, in the light of dictum laid down by the august Supreme Court as well as the recoveries of crime empties, matching of the same with the crime weapon as well as the medical evidence, we are of the considered view that the appellant Haleem is responsible for the murder of the deceased and has rightly been convicted by the trial Court, but we are unable to find ourselves in agreement with the impugned judgment of the trial Court to the extent of accused Ikram. The complainant of the case coupled with the statements of PW-1 as well as the statement of PW-5, are suggestive of the fact that the appellant Ikram has not at all taken participation in the alleged crime. The prosecution has failed to establish the mens rea of the appellant Ikram to commit such crime, because the appellant Haleem arrived at the place of occurrence duly armed with Kalashnikov, but to the contrary the appellant Ikram was empty handed and being so, the appellant Ikram could no help to main accused rather he might have put himself in danger of being harmed by the other side, had there been any retaliation or counter-attack by them. Even otherwise, if we take into consideration the motive behind the occurrence, it would be established that the dispute arose in between the complainant party with the appellant Haleem. The entire prosecution evidence would establish the fact that though the appellant Ikram was present at the relevant time alongwith main accused Haleem, but no overt act has been attributed to him by the prosecution rather the appellant Ikram has played the role of idle or audience at the relevant time. The prosecution has failed to establish through incriminatory evidence with regard to common intention or common object of the appellant Ikram to commit the murder of deceased Hayat Khan. Reliance is placed on the case of Muhammad Ameer v. Muhammad Imran 2017 MLD 1263 (
“4. After hearing the learned counsel for the appellant and going through the impugned judgment, it is observed that the acquitted respondent was admittedly, empty handed at the time of the occurrence that took place at 10.30 a.m. on 14.12.2009 near the shop of Tariq Mistri. According to the allegation, both the acquitted respondent and the death-convict Waheed Khan walked to the place of occurrence, hence, it could hardly be believed that they facilitated or helped each other to reach the spot. Being empty handed, respondent Imran could lend no help to his co-accused, rather he might have put himself in danger of being harmed by the other side, had there been any retaliation or counter-attack by them.” [BOLD ADDED].
Similar view has taken in the case of Manthar and 3 others v. The State reported in 2012 PCr.LJ 1263, wherein it has been held:
“Throughout evidence there is no statement whatsoever that Manthar in any case participated in murder of deceased Abdul Kareem. No evidence has been brought about that the accused had prior to the incident decided to murder Abdul Kareem and Manthar was part of this conspiracy. Mere fact that Manthar was with those who went to murder Abdul Kareem is not sufficient to come to the conclusion that Manthar had intention to commit murder and knew that murder was to be committed.”
Likewise, in the case of Hakmin Zafar and another v. The State, reported in 2017 YLR 232, it has been held, as under:
“19. We are of the view that to attract the provisions of 34, P.P.C. there must be some proof of overt act on the part of each accused done in furtherance of the common intention. Mere presence of an accused without any overt act at the place of occurrence at the time of occurrence with co-accused, who commits the offence may not be sufficient to connect former with vicarious liability. Principle of vicarious liability cannot be invoked unless and until common intention and object is proved. For this purpose, strong circumstances must exist manufacturing a common intention which is missing in the present case. The word intention is a state of mind which is not ordinarily ascertainable but is to be gathered or inferred only from external act and for this purpose it is very necessary to examine the act itself of the accused. There must be material to show some overt act done in furthermore of common intention which is missing in the present case. Reliance is placed on case titled “Hassan v. The State” (1969 SCMR 454) in which Hon'ble Supreme Court of Pakistan has observed at page 456 as under:--
“This explanation was not considered by the High Court. It appears from the observations of the High Court that the High Court was still thinking of the charge of rioting and that mere presence or being a member of the unlawful assembly was sufficient to warrant a conviction. The Sessions Judge had applied Section 34 to the case and in order to support a conviction under that section mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furthermore of the common intention. Here the evidence is clear that the appellant was empty handed and he did not assault Suleman, as was stated by P.W.3. Neither of the Courts has considered the case of this appellant separately or the evidence against him. He went to the place empty handed and there is no evidence that he assaulted anybody or that in the circumstances he could have intended to cause a grievous hurt to anybody. Judged by the standard applied by both the High Court and the Sessions Judge to the case of the three acquitted persons, the case of the appellant stands on a much more favourable ground and we see no justification for upholding his conviction. The appeal is, therefore, allowed and the conviction and sentence on the appellant are set aside and he is acquitted”.
16. The reappraisal of entire prosecution evidence would establish the fact that the prosecution has successfully established the charge to the extent of main accused Haleem son of Ustad Zareef through consistent, confidence inspiring and cogent evidence. All the witnesses remained firm in their deposition to the extent of the said accused Haleem, but the prosecution has miserably been failed to establish the common intention and common object of the appellant Ikram for commission of crime rather the prosecution has only established his presence alongwith the main accused at the relevant time, which in our view is not sufficient to hold him responsible for the charge.
For the above reasons, the appeal is partly allowed to the extent of accused-appellant Ikram son of Nadeem, who is acquitted of the charge, under Section 302(b)/34, P.P.C. in FIR No. 64 of 2016, Police Station Panjgoor, while the conviction and sentence awarded to the appellant Haleem son of Ustad Zareef by the trial Court is maintained.
(A.A.K.) Appeal partially allowed
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