PLJ 2022 Cr.C. 1212
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) / 337-A(iii)/337-A(vi) / 337-F(ii) / 452 / 148 / 149--Criminal Procedure Code, (V of 1898), S. 367--Ingredients of the judgment--Defects in judgment regarding acquittal and conviction of the appellants in detail--Case remanded to the trial court--Charge was framed u/Ss. 302(b)/337 A(iii)/ 337 A(vi)/ 337 F(ii)/452/148/149 of PPC--Trial Court though observed that all the accused persons while forming an unlawful assembly in furtherance of their common object had committed the occurrence--Appellant was convicted u/S. 302(b) PPC, of the murder of deceased, no findings with regard to applicability of provisions of offence under section 337-A(vi)/ 149 PPC, were given--Similarly, three other appellants were neither convicted u/S. 302(b) PPC nor any findings qua their acquittal were rendered--This aspect can be taken care of by High Court while deciding the lis but at the same time it is impression of the Court that while giving any findings, the appellants may be deprived of an opportunity of hierarchy of adjudicator, which in other words can prejudice their right of adjudication--The impugned judgment passed by the trial court being against the judicial acumen, hence is not sustainable in the eyes of law--Judgment passed by Additional Sessions Judge, is set aside--Matter is remanded to the trial court to the extent of appellants/ respondents with the direction to re-write the judgment--Trial of the case in hand shall be deemed pending before trial court--Case remand. [Pp. 1216, 1217 & 1218] A, B, C & D
M/s. Tariq Mehmood Dogar, Ch. Muhammad Ashraf Sindhu and Malik Muhammad Rafique, Advocate for Appellants.
Mr. Ansar Yaseen, Deputy Prosecutor General for State.
Khawaja Qaiser Butt, Advocate for Complainant and for Petitioner in Crl. Revision No. 296/2014, PSLA No. 69/2014 & PSLA No. 70/2014).
Date of hearing: 8.12.2021.
PLJ 2022 Cr.C. 1212
[Lahore High Court, Multan Bench]
Present: Ali Zia Bajwa, J.
MUHAMMAD SIDDIQUE and others--Appellants
versus
STATE & another--Respondents
Crl. A. No. 379, Crl. Rev. No. 296, PSLA No. 69 & 70 of 2014, heard on 8.12.2021.
Judgment
Through this consolidated judgment, I intend to decide Crl. Appeal No. 379/2014 filed by Muhammad Siddique, Abdul Shakoor, Muhammad Qaswar and Muhammad Aslam appellants against their convictions and sentences, Crl. Revision No. 296/2014 filed by the complainant seeking enhancement in sentence awarded to Muhammad Siddique/respondent, PSLA No. 69/2014 filed by complainant against acquittal of Abdul Shakoor, Qaswar and Muhammad Aslam, respondents under Section 302(b), PPC and PSLA No. 70/2014 filed for awarding normal sentence to Muhammad Ramzan, Aslam Ali and Muhammad Rafique, respondents for offences under Sections 302(b), 337-A(iii), 337-A(vi), 337-F(ii), 452, 148, 149, PPC.
2. Succinctly facts of the case as floating on the record are that complainant lodged FIR No. 331/12, dated 22.12.2012, under Sections 302, 452, 148, 149, PPC, with police station Abdul Hakim against the accused for the murder of Ghulam Murtaza and inflicting injuries on the person of Mst. Sakina Bibi and Mst. Javeria. Subsequently being dissatisfied with the result of investigation, the complainant preferred to file a private complaint titled:-
"Allah Ditta
Vs.
Muhammad Saddique & 8 others"
under Sections 302, 452, 337-A(iii), 337-A(vi), 337-F(ii), 148, 149, PPC. The learned trial Court after recording preliminary/cursory statements of witnesses issued process against the accused. After recording evidence and taking into consideration the material available on record, learned trial Court vide its judgment dated 28.08.2014 convicted and sentenced the appellants as under:
Sr. # | Name of Appellant | Conviction and sentence |
1 | Muhammad Siddique | Ø Under Section 302(b), PPC, sentenced to undergo imprisonment for life with direction to pay Rs. 1,00,000/- as compensation to legal heirs of deceased and in case of default in payment thereof, to further undergo S.I. for six months. Ø Ø > Under Section 452, 148, 149, PPC, sentenced to undergo R.I. for three years. |
2 | Abdul Shakoor | Ø Under Section 337-A(vi), PPC, sentenced to undergo R.I. for seven years. Ø > Under Section 452, 148, 149, PPC, sentenced to undergo R.I. for three years. |
3 | Muhammad Qaswar | Ø Under Section 337-A(vi);, PPC, sentenced to undergo R.I. for seven years. Ø Under Section 452, 148, 149, PPC, sentenced to undergo R.I. for three years. |
4 | Muhammad Aslam | Ø Under Section 337-A(vi), PPC, sentenced to undergo R.I. for seven years. Ø > Under Section 452, 148, 149, PPC, sentenced to undergo R.I. for three years. |
All the sentences awarded to the appellants were directed to run concurrently and they were also extended benefit of Section 382-B, Cr.P.C.
3. Brief but essential facts of the case are that on 22.12.2012 at about 8:45 a.m. the complainant along with his mother Mst. Sakina Bibi, sister Javeria and brother Ghulam Murtaza were present at home, when all of a sudden, Saddique armed with hatchet, Latif armed with repeater .12-bore, Muhammad Aslam, Muhammad Islam, Abdul Shakoor, Qaswar armed with hatchets and Muhammad Rafique, Muhammad Ramzan and Rustam Ali armed with kassi forcibly entered into his house and raised lalkara to teach a lesson to Murtaza for committing murder of Ikram; and in his view, Muhammad Siddique gave a hatchet blow on the head of Ghulam Murtaza while Latif made a fire shot at his chest, due to which Ghulam Murtaza fell down. Qaswar, Islam, Muhammad Aslam and Shakoor inflicted a hatchet blow on the person of Ghulam Murtaza. As soon as mother and sister of the complainant stepped forward to rescue Ghulam Murtaza, accused Abdul Shakoor inflicted a hatchet blow on the head of his mother whereas Siddique gave a hatchet blow on the head of his sister while accused Islam dealt a hatchet blow on the palm of his sister. During the occurrence, mother and sister of complainant sustained injuries whereas Ghulam Murtaza succumbed to the injuries at the spot.
Motive behind the occurrence was that Muhammad Aslam abducted Mst. Waziran Bibi due to that grudge, Ghulam Murtaza (deceased) committed murder of Muhammad Ikram, brother of Muhammad Aslam.
Complainant alleged that investigating officer conducted partial and faulty investigation, thus, being aggrieved, the private complaint was preferred by him.
4. After registration of the case investigation was entrusted to Nazir Ahmad, SI (CW-1) who along with other police officials reached the spot, prepared inquest report of deceased (Exh.PL) along with injury statements of injured (Exh.PM & Exh.PN). Investigating Officer took into possession blood stained earth vide recovery memo Exh.PC. He also took into possession two empty cartridges through recovery memo Exh.PD and shifted the dead body to Rural Health Center Abdul Hakim for post-mortem of deceased. Investigating Officer recorded the statements of witnesses under Section 161, Cr.P.C. After post-mortem examination, last worn clothes of the deceased i.e. shirt (P-l), shalwar (P-2), vest (P-3) and Jarsi (P-4) along with a sealed phial were produced before the Investigating Officer, which he took into possession vide recovery memo Exh.PH.
On 24.12.2012, on the direction of the Investigating Officer and pointing out of the PWs, Ghulam Farid (PW-8) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PG) which was made part of the file. During the investigation, investigating officer took the blood stained chadhar (P-l) of injured Sakina Bibi into possession through recovery memo Exh.PC.
On 23.02.2013, Investigating Officer arrested the appellants and obtained their physical remand. During the course of interrogation in pursuance of disclosure on 03.03.2013, Muhammad Aslam led to the recovery of carbine along with one live cartridge (Exh.P2/l), which was secured vide recovery memo Exh.PD. On the same day Muhammad Islam appellant led to the recovery of hatchet (P-2), which Investigating Officer took into possession vide recovery memo Exh.PF. Thereafter Qaswar Ali, appellant got recovered repeater .12-bore along with live cartridges, which was taken into possession vide recovery memo Exh.PE.
5. Learned trial Court formally indicted the appellants, to which they pleaded not guilty and claimed trial. Prosecution in order to prove its case produced as many as eleven (11) prosecution witnesses, whereas the learned trial Court also examined Nazir Ahmad, SI/Investigating Officer as a Court Witness.
After recording prosecution evidence, the appellants were examined under Section 342, Cr.P.C., wherein they refuted the allegations levelled against them in the prosecution evidence.
6. Learned trial Court after evaluating the evidence available on record, found version of the prosecution proved beyond shadow of reasonable doubt against the appellants, which resulted into their conviction and sentence in the afore-stated terms.
7. Arguments heard, record perused.
8. Perusal of record available on file reveals that the prosecution is consistent from day one that appellants along with other co-accused, by forming an unlawful assembly in furtherance of their common object, had committed murder of Ghulam Murtaza and inflicted injuries to Mst. Sakina Bibi and Mst. Javeria Bibi. Moreover, the learned trial Court vide order dated 14.09.2013 framed the following charge:
"FIRSTLY:
That on 22.12.2012 at about 08:45 a.m., you the above named accused while armed with deadly weapons came in prosecution of common object at the house of complainant, situated within the area of Mouza Kot Mlana, falling within the jurisdiction of P.S. Abdul Hakeem. The accused Muhammad Saddique armed with hatchet, Muhammad Lateef armed with repeater 12-bore, Muhammad Aslam, Muhammad Islam, Abdul Shakoor and Muhammad Qaswar armed with hatchet, Muhammad Rafique, Muhammad Ramzan and Rustam Ali armed with iron kassi and raised lalkara to teach lesson for committing murder of Ikram and started aerial firing. Muhammad Sadique gave hatchet blow which hit on the head of Ghulam Murtaza, Muhammad Lateef fired with repeater 12-bore which hit Ghulam Murtaza at his chest and Ghulam Murtaza fell down on the ground. Accused Muhammad Islam, Muhammad Aslam, Abdul Shakoor, Muhammad Qaswar along with other accused gave different blows with their respective weapons which hit him at different parts of body, Ghulam Murtaza brother of complainant succumbed to injuries. Thus, being member of that unlawful assembly committed an offence, punishable u/S. 148/149/302, PPC which is within the cognizance of this Court.
SECONDLY;
On the same date time and place you the aforementioned accused persons armed with your respective weapons in furtherance of common object entered into the house of complainant for causing hurt. Thus you accused persons have committed an offence punishable under Section 452 read with Section 149, PPC which is within the cognizance of this Court.
THIRDLY:
That on the above mentioned date, time and place the accused persons caused injuries on head of Sakina Bibi mother of complainant and Jawairia Bibi sister of complainant which hit them on their head and arm which resulted an injury defined as Shaggah munaqqilah punishable u/S. 337-A(vi), A(iii), and F(ii) read with Section 149, PPC which is within cognizance of this Court."
However, while handing down judgment the learned trial Court though observed that all the accused persons while forming an unlawful assembly in furtherance of their common object had committed the occurrence in which Ghulam Murtaza was done to death while Mst. Sakina Bibi and Mst. Jaweria Bibi received injuries but though Muhammad Siddique, appellant was convicted under Section 302(b), PPC, for the murder of Ghulam Murtaza (deceased), no findings with regard to applicability of provisions of offence under Section 337-A(vi)/149, PPC, were given. Similarly, Abdul Shakoor, Muhammad Qaswar and Muhammad Aslam, appellants were neither convicted under Section 302(b), PPC, nor any findings qua their acquittal were rendered. This Court is conscious of the fact that this aspect can be taken care of by this Court while deciding the lis but at the same time it is impression of the Court that while giving any findings, the appellants may be deprived of an opportunity of hierarchy of adjudicator, which in other words can prejudice their right of adjudication. Therefore, the impugned judgment passed by the learned trial Court being against the judicial acumen, hence is not sustainable in the eyes of law. Accordingly, judgment dated 28.08.2014, passed by learned Additional Sessions Judge, Kabirwala, is set aside. Resultantly, Crl. Appeal No. 379/2014, Crl. Revision No. 296/2014, PSLA No. 69/2014 and PSLA No. 70/2014 are disposed of and the matter is remanded to the learned trial Court to the extent of appellants/respondents with the direction to re-write the judgment after affording opportunity of hearing to learned counsel for both sides and while taking into consideration all the aspects of the case pertaining to charge framed, strictly in accordance with law and while giving convincing and elaborative reasoning, which satisfy the judicial conscious in the interest of safe administration of criminal justice. It is, however, made clear that till re-writing the judgment, the trial of the case in hand shall be deemed pending before the learned trial Court. Perusal of record available on file reflects that sentence of Muhammad Siddique appellant was suspended vide order dated 05.10.2017 while sentence of Abdul Stakoor, Muhammad Qaswar and Muhammad Aslam was suspended vide order dated 21.09.2015, thus, during this period, they shall be treated on bail.
9. Before parting with the judgment it is felt persuaded to direct the learned trial Court to re-write the judgment within a period of one month from the receipt of this judgment and if needed learned trial Court shall proceed on day-to-day basis.
10. Case remanded.
(M.A.B.) Appeal disposed of
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