PLJ 2021 Cr.C. 1486 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Absconsion--Eye-witnesses have not assigned role of firing to appellant--They only stated that appellant alongwith two accused came in 2-D Car, told main accused to fire upon deceased--Story narrated by ocular witnesses is not appealable--Parties are known to each other--Why appellant alongwith and accompanied with absconding accused--Appellant was charged for sharing common intention with absconding accused in commission of offence--Witnesses have not assigned any overt act--No evidence with regard to participation of appellant in crime is available on record--Section 34, PPC neither punitive section nor enact a rule of evidence, but relate to joint liability--Mere presence on spot ipso facto is not sufficient to hold a person vicarious liable--As far as medical evidence is concerned--Medical evidence can confirm unnatural death of deceased--However, medical evidence is only used for confirmation of ocular evidence, in regard of seat of injuries, weapon of offence used--Medical evidence itself does not constitute any corroboration qua identity of accused--No recovery was effected from appellant--Prosecution has alleged that motorcycle used in commission of crime by accused has taken into possession, but there is no evidence how prosecution presumed that motorcycle is same which is used in commission of offence, No evidence either documentary or oral available to prove that motorcycle belonged to appellant--Blood-stained cloths and blood-stained earth received to FSL with delay of more than 60 days without any plausible explanation that where material was kept and in whose custody--Positive report in such circumstances cannot benefit prosecution--No evidence is available whether blood group of blood-stained cloths of deceased/injured were same or not--Appeal was allowed.
[Pp. 1490, 1491, 1492] A, C, D & E
2020 SCMR 857, PLD 2001 SC 378, 1997 SCMR 866 and
2017 SCMR 486 ref.
Absconsion--
----Principle--So far as absconsion is concerned--It is admitted principle in absconsion of accused cannot establish guilt of an accused--Where prosecution failed to bring home guilt of an accused through cannot take benefit of absconsion. [P. 1491] B
2007 SCMR 162.
Conviction--
----It is well settled law conviction must be based on unimpeachable and reliable evidence--Any doubt thereof arises in prosecution case must be resolved in favour of accused--In criminal cases burden of proof is always on shoulder of prosecution to prove its case beyond reasonable doubt--It is not necessary that there should be many circumstances creating doubt. [P. 1492] F
2019 SCMR 1412.
Mr. Abdul Basit Shah Advocate for Appellant.
Mr. Jamil Akhtar Gajani, Additional Prosecutor for State.
Date of hearing: 29.10.2020.
PLJ 2021 Cr.C. 1486 (DB)
[Balochistan High Court, (Sibi Bench)]
Present: Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ.
ABDUL MAJEED--Appellant
versus
STATE and another--Respondents
Crl. A. No. (S)61 of 2020, decided on 26.11.2020.
Judgment
Abdul Hameed Baloch, J.--This judgment is directed against the judgment dated 07th September, 2020 (impugned judgment), passed by learned Additional Sessions Judge, Naseerabad at Dera Murad Jamali (trial Court), whereby the appellant was convicted under Section 302(b) Pakistan Penal Code (PPC) and sentenced to suffer rigorous imprisonment for life as Tazir and to pay compensation of Rs. 200,000/- (Rupees two hundred thousand) to the legal heirs of deceased Ali Haider as envisaged under Section 544-A, Cr.P.C. and in default thereof to further undergo six months simple imprisonment. The appellant was also convicted under Section 324, PPC and sentenced to suffer five years rigorous imprisonment and to pay fine of Rs. 20,000/- and in default thereof to further undergo six months simple imprisonment. The appellant was further convicted under Section 337-A (ii), PPC and sentenced him to suffer two years rigorous imprisonment and to pay Daman of Rs. 20,000/- to injured Muhammad Ishaq in default thereof appellant was directed to be dealt with under Section 337-Y, PPC. All the sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C.
2. The prosecution case as gleaned from the Fard-e-Biyan dated 21st August, 2019 (Ex: P/1-A) submitted by PW-1 Ali Baig son of Shah Baig that on the said date at about 2:00 p.m. the complainant alongwith his brother Ali Haider and nephew Muhammad Yaqoob were present at the shop of his cousin Muhammad Ishaq when accused Muhammad Yousaf and Abdul Salam came there on motorcycle while accused Abdul Ghani, Khalil Ahmed and Abdul Majeed alias Jawa came in car and as soon as they alighted from the car told accused Muhammad Yousaf and Abdul Salam that Ali Haider is Siakar, kill him. On this Abdul Salam and Muhammad Yousaf took out TT pistols and made firing on Ali Haider, due to which he fell on the ground. It was alleged that Muhammad Ishaq and Muhammad Yaqoob resisted, due to which Muhammad Yaqoob received bullet injury while Muhammad Ishaq was injured with butt of the TT pistol and thereafter escaped from the scene of occurrence. With these averments FIR No. 83 of 2019, under Sections 302, 324, 337-A (ii), 34, PPC was registered with Police Station Saddar, Dera Murad Jamali on the same date at 3:10 p.m.
3. After registration of FIR accused/appellant was arrested and subjected to investigation and on completion of investigation challan was submitted before the trial Court.
4. After codal formalities and full dress trial, the learned trial Court vide impugned judgment dated 7th September, 2020 convicted the accused/appellant in the manner as mentioned in para-1 above, hence appellant is before this Court.
5. Heard and perused the record. The prosecution case stands on the statements of ocular witnesses PW-1 Ali Baig (complainant), PW-2 Muhammad Yaqoob (injured) and PW-3 Muhammad Ishaq (injured). In pursuance of written application Ex:P/1-A of complainant FIR Ex: P/6-A was registered. The investigation of the case was entrusted to PW-6, who inspected the site, prepared site-plan Ex:P/5-A, memo. of blood-stained earth Ex: P/5-B, memo of six empties Ex: P/5-C, memo. of motorcycle Ex: P/5-D. On 26th August, 2019 the complainant produced blood-stained cloths of deceased Ali Haider to Investigating Officer who took the same into possession through memo. Ex: P/5-E, blood-stained cloths of injured persons as Ex: P/5-F and Ex: P/5-G.
6. The complainant in Ex:P/1-A dated 21st August, 2019 stated that he along with his brother Ali Haider and nephew Muhammad Yaqoob were present in the shop of his cousin Muhammad Ishaq. At 2:00 p.m. Muhammad Yousaf and Abdul Salam came on motorcycle while accused Abdul Ghani, Khalil Ahmed and Abdul Majeed alias Jawa came in car and as soon as they alighted from the car told accused Muhammad Yousaf and Abdul Salam that Ali Haider is Siakar, kill him. On this Abdul Salam and Muhammad Yousaf took out TT pistols and made firing on Ali Haider, due to which he fell on the ground. It was alleged that Muhammad Ishaq and Muhammad Yaqoob resisted, due to which Muhammad Yaqoob received bullet injury while Muhammad Ishaq was injured with butt of the TT pistol. The witness further stated that he shifted the dead body and injured to hospital in a private vehicle. The Witness in cross-examination stated that the occurrence continued for 3/4. Many people gathered at the place of occurrence. He took the dead body of Ali Haider from hospital to home. The injured also came with him.
7. PW-2 the ocular witness narrated the story in the same manner as stated by the complainant. In cross-examination the witness stated that they stayed at hospital for one hour. He proceeded from hospital to his house on motorcycle. After the occurrence neither he went to police station or police called him. PW-3 Muhammad Ishaq another injured witness deposed that the accused is his near relatives. A hotel adjacent to his shop was opened at the time of occurrence. He went to his home from hospital on motorcycle. PW-4 Dr. Naseer Muhammad Medical Officer DHQ Dera Murad Jamali examined the deceased and injured and issued MLCs vide Ex: P/4-A to Ex: P/4-C. The witness stated that the deceased and injured were brought by Saddam Hussain Constable. PW-5 Saddam Hussain Constable deposed that after Registration of FIR No. 83 of 2019 they proceeded towards the place of occurrence. The Investigating Officer prepared recovery memos. He saw the complainant first time in hospital at 3:10 p.m. They proceeded towards place of occurrence from hospital. The complainant was with them. The Investigating Officer (PW-6) deposed that FIR was lodged by the complainant, whereafter, investigating was entrusted to him and he proceeded to hospital where he recorded statements of witnesses and then went to the place of occurrence. The complainant was also with him and on pointation of complainant he prepared visual site-plan. He produced FSL report as Ex: P/6-E. The witness further stated that on the place of occurrence so many people were present. He did not record statement of independent person from the locality.
8. The statements of the witnesses are contradictory. The eye-witnesses narrated that they went to hospital from the place of occurrence in a private vehicle. While PW-5 and Investigating Officer stated that they met the complainant first time at the spot, whereas PW-4 stated that the deceased and injured were brought by Saddam Hussain Constable. PW-1 stated that he took the dead body from hospital to his house. While PW-5 and PW-6 stated that the complainant was accompanied with them from hospital to the spot, prepared visual site-plan on his pointation. Such contradictions and discrepancies created doubt in the prosecution case. When the statement of witness was found doubtful no conviction can be based on such statement unless there is independent corroboration of the same. Reliance is placed on the case of Muhammad Imran v The State, 2020 SCMR 857.
“We have also dilated upon the provisions as contained in Section 34, P.P.C. In so far as Section 34, P.P.C. is concerned it deals with the acts done by several persons in furtherance of common intention. It is neither a punitive section nor does enact a rule of evidence but mainly relates to the concept of joint liability, it simply means that if two or more persons intentionally commit an offence jointly which amounts to as if each of them had committed it individually and they will have to share the consequences jointly subject to the condition that at the time of commission of offence each of them remained present (a mere presence at the spot would not be ipso facto sufficient to hold a person vicariously liable and sufficient evidence should be available to prove the factum of intention) and the offence was committed with common intention which presupposes prior concert. It must be proved that the offence was committed in concert pursuant to the prearranged plan. It was held a few decades earlier by this Court which still holds, the fields that “it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to thai inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis”. (1955) SCR 1083, (1955) Cr.L I572).”
“----Appellants Shafqat Abbas and Mujahid Abbas were respectively arrested on 26-1-1997 and 28-4-1997 and were declared as P.Os. in respect whereof although; no explanation has been given by the said convicts, yet, independently mere absconsion in absence of any other incriminating piece of evidence could not entail penal consequences against them or to expose them to the criminal liability on which they had been charged.----”
“18. Before parting with this judgment, we deem it essential to point out that, mere sending the crime weapons, blood-stained to the chemical examiner and serologist would not serve the purpose of the prosecution nor it will provide any evidence to inter link different articles.
19. We have noticed that the Punjab Police invariably indulge in such a practice which is highly improper because unless the blood-stained earth or cotton and blood-stained clothes of the victim are not sent with the same for opinion of serologist to the effect that it was human blood on the crime weapons and was of the same group which was available on the clothes of the victim and the blood-stained earth/cotton, such inconclusive opinion cannot be used as apiece of corroboratory evidence. Therefore, copy of this judgment be sent to the Prosecutor General, Punjab, and Chief Incharge of Investigation, Punjab Provincial Police to issue instructions to the investigating agencies in this regard.”
the case of Safdar Baloch alias Ali v. The State, 2019 SCMR 1412, wherein it was held:
“----Criminal liability is to be essentially settled on evidentiary certainty and not on moral satisfaction or factualities incompatible with evidence based upon truth. Prosecution’s case against the appellants cannot be viewed as beyond reasonable doubt and thus conviction cannot be maintained without potential risk of error.----”
In view of the above discussion, the instant appeal is allowed. The judgment dated 07th September, 2020 passed by learned Additional Sessions Judge, Naseerabad at Dera Murad Jamali is
set aside. The appellant Abdul Majeed alias Jawa son of Abdul
Nabi is acquitted of the charge in case FIR No. 83 of 2019, under Sections 302, 324, 337-A(ii), 114, 34, PPC, Police Station Saddar Dera Murad Jamali. He is in custody be released forthwith if not required in any other case.
(A.A.K.) Appeal allowed
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