2015 M L D 176
[Balochistan]
Before Jamal Khan Mandokhail and Muhammad Ejaz Swati, JJ
IMDAD ALI ---Appellant
Versus
The STATE---Respondent
Criminal Jail Appeal No.13 of 2013, decided on 27th October, 2014.
Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qanun- e-Shahadat (10 of 1984), Art.40---Qatl -i-amd, common intention---
Appreciation of evidence ---Discovery of new facts ---Benefit of doubt ---All those facts
mentioned in the F.I.R. were reproduced in the alleged disclosure of accused---Whatever facts
were mentioned in the allegedly recorded disclosure of accused, the Police had previously learnt,
when the F.I.R., was registered---Such disclosure, could not be considered discovery of new fact
within the meaning of Art.40 of the Qanun- e-Shahadat, 1984---Sole testimony of ocular account
furnished by prosecution witness, having already been discarded qua the involvement of accused
in the crime, abscondence of accused, which was a corroborative piece of evidence, could not be
taken into consideration in isolation ---Misreading of evidence, in the case, had occasioned failure
in the correct appraisal of evidence on record ---Prosecution, having failed to prove case against
accused beyond any reasonable doubt, benefit of doubt was extended in fa vour of accused---
Accused was acquitted of the charge and was released, in circumstances.
Hassan v. State 1969 SCMR 455; Hassan Din v. Muhammad Mushtaq 1978 SCMR 49;
Ghulam Haider v. Muhammad Nadeem Sajid 2006 SCMR 1251; Mst. Askar Jan v. Muhammad
Daud 2010 SCMR 1604 and Rohtas Khan v. The State 2010 SCMR 566 ref.
Abdul Karim Yousafzai for Appellant.
Miss Sarwat Hina, Additional Prosecutor General for the State.
Date of hearing: 16th September, 2014.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---Through this Criminal Jail Appeal, the appellant
Imdad Ali son of Qurban Ali has challenged the validity of the judgment dated 28th March, 2013
(hereinafter the "impugned Judgment") passed by the learned Sessions Judge, Quetta (hereinafter
the "trial Court "), whereby the appellant was convicted under section 302 (b) Qisas and Diyat
Ordinance (PPC) read with section 34, P.P.C. and sentenced to suffer R.I. for life as Ta'zir and
compensation of Rs.300,000 (Three hundred thousand), to be paid to the legal heir s of deceased
Faqir Muhammad or in default whereof to further suffer imprisonment for two years. Benefit of
section 382- B, Cr.P.C. was also extended in favour of the appellant.
2. The facts of the case are that on the Fard -e-Bayan of complainant Asadulla h an F.I.R. No.
122 of 2010 dated 24th July, 2010 under sections 302, 324, 34 P.P.C. was registered with Police
Station Sariab, Quetta, wherein it was alleged that at about 9:00 a.m. he along with his father
Faqir Muhammad were proceeding to City via Sariab Road, Quetta, when at about 9:10 a.m. they
reached at the gate of T&T Colony, all of a sudden, from their behind firing started at them. He
saw absconding accused Bahadur Khan son of Abdul Rehman alias Rais was making firing with
pistol while his nephew Imdad (appellant) was standing along with start motorcycle CD -70
without number plate, as a result of firing shot, his father sustained injuries and fell down and
succumbed to the injuries. The absconding accused along with the appellant escaped from the
place of incident on the motorcycle towards Railway line.
3. After registration of the F.I.R., P.W.6 Ghulam Fareed, DSP prepared inspection memo
Exh.P/2- A., secured bloodstained earth vide memo Exh.P/2- B and empty of .30 bore pistol was
taken into possess ion from the place of incident vide recovery memo Exh.P/2- C, prepared site
plan Exh.P/6- B, inquest report Exh.P/6- C and thereafter went to the hospital, where bloodstained
shirt and banyan of deceased were taken into possession vide memo Exh.P/2 -D.
4. On 24th April 2012, charge under sections 302, 324/34, P.P.C. was framed, to which the
appellant pleaded not guilty.
5. Prosecution examined P.W.1 Asadullah (complainant), produced Fard -e-bayan Exh.P/1-
A, P.W.2 Gul Azam (recovery witness), P.W.3 Dr. Abdul Rasheed produced medical certificate
of deceased Exh.P/3 -A, P.W.4 Gul Muhammad, P.W.5 Abdul Rauf, SI produced disclosure
memo of appellant Exh.P/5- A and P.W.6 Ghulam Fareed, DSP Investigating Officer.
6. When examined under section 342, Cr.P.C., the appe llant denied all the allegations of the
prosecution. The appellant neither recorded his statement under section 340(2), Cr.P.C., nor
produced any witness in defence.
7. The trial Court vide impugned judgment convicted and sentenced the appellant as
mentioned hereinabove.
8. The learned counsel for the pauper appellant contended that the case of prosecution
hinges upon the evidence of P.W.1 only as there is no other evidence against the appellant; that
no overt act has been attributed to the appellant; t hat mere presence of the appellant at the place
of occurrence neither constitutes any offence nor shows his participation in furtherance of
common intention; that no motive has been alleged against the appellant; that the findings
rendered by the trial Cou rt reflect misreading and non -reading of evidence, therefore, same is
liable to be set aside.
As against this, the learned Additional Prosecutor General stated that the prosecution
through reliable, trustworthy and ocular evidence corroborated by medica l has proved the case
against the appellant beyond any reasonable doubt; that the appellant had brought the absconding
accused on motorcycle at the place of incident and after commission of offence, he facilitated
him to escape on the said motorcycle; that the motive coupled with aforesaid circumstances
proved the participation of appellant in the crime in furtherance of common intention, therefore,
the impugned judgment does not warrant interference.
9. We have given our due consideration to the argument s of the learned counsel for the
pauper appellant, Additional Prosecutor General and perused the evidence. The prosecution has
relied upon ocular testimony of P.W.1 Asadullah (complainant), P.W.4 Gul Muhammad is
brother of deceased Faqir Muhammad to whom t he complainant informed about the happening
of the incident. P.W.1 Asadullah stated that the absconding accused Bahadur Khan fired shot
from his pistol which hit the deceased Faqir Muhammad and as a result his death occurred. He
further stated that at the place of incident, the appellant was standing near the motorcycle, which
was start and after the commission of the offence, the absconding accused while riding on the
motorcycle along with the appellant fled away from the place of occurrence. In the cross -
examination, he replied that at the time of firing, the absconding accused Bahadur Khan was at a
distance of 5/6 feet from deceased while the appellant was standing some more distance.
From the evidence of P.W.1, it has only been proved that the appella nt Imdad Ali was
present at the scene of incident and after the occurrence, he was found being fled away along
with the absconding accused on motorcycle. Now, it is to be seen whether mere presence of the
appellant at the scene of incident attracts the pro visions of section 34 P.P.C., the Hon'ble
Supreme Court of Pakistan examined the same point in the case of Hassan v. State, 1969 SCMR
455. It has been held that "mere presence of the accused would not be sufficient to attract the
provisions of section 34 P .P.C. but there must be proof of the common intention". In the case of
Hassan Din v. Muhammad Mushtaq, 1978 SCMR 49, it has been held that "the mere presence of
a person on the spot does not necessarily attract section 34 P.P.C. This section is not to be
applied lightly vicarious liability cannot be visited unless there is some strong circumstances to
show common intention". In the case of Ghulam Haider v. Muhammad Nadeem Sajid, 2006
SCMR 1251, wherein the allegation against the accused persons was that the y emerged on a
motorcycle driven by Danish, confronted deceased Umerdraz and P.Ws., who were on their way
to District Court. Effective firing from .30 bore pistol was attributed to accused Muhammad
Sajid while acused Danish was only allegedly driving the m otorcycle. The Hon'ble Supreme
Court observed as under: --
"As regards respondent Danish, the High Court has dealt with this case elaborately and
noticed that he did not play any active role in the commission of the crime except being an
innocent driver of the motorcycle. Indeed he had neither any motive for taking the life of the
deceased nor had he any intention or reasonable knowledge of Qatl -i-amd of the deceased on the
part of the principal accused. Undisputedly he was not carrying any weapon therefo re, High
Court appears to be right in taking the view that he might not have shared a common intention
with his co -accused to cause the death of the deceased. On examination of the record, we are
inclined to endorse the same view and do not find any strong ground for reappraisal of evidence
against the said respondent. Even otherwise, finding of the High Court acquitting a person on the
basis of well -reasoned, correct and consistent approach is entitled to much weight which always
double the initial presumption of innocence of an accused. No ground for leave is thus, made out
against this respondent."
10. In the present case, the disclosure of appellant Exh.P /5-A has been relied upon by the
trial Court. The alleged disclosure of the appellant was recorded on 20th March, 2012, wherein
all those facts mentioned in the F.I.R. Exh.P/6- A registered on 24th July, 2010 were reproduced,
therefore, whatever facts are m entioned in the disclosure of the appellant, the police had
previously learnt when the F.I.R. was registered, thus Exh.P/5- A cannot be considered discovery
of new fact within the meaning of Article 40 of the Qanun- e-Shahadat Oder, 1984 (hereinafter
the "Or der, 1984"). In the case of Mst. Askar Jan v. Muhammad Daud, 2010 SCMR 1604, the
Hon'ble Supreme Court in respect of application of Article 40 of the Order, 1984 held as under: --
"Thus, in order to apply Article 40 of the Order, the prosecution must est ablish that
information given by the accused led to the discovery of some fact deposed by him and the
discovery must be of some fact which the police had not previously learnt from any other source
and that the knowledge of the fact was first derived from the information given by the accused.
Reference is also invited to Jaffer Husain v. State of Maharashtra (AIR 1970 Supreme Court
1934). It is also important to note that the recovery of articles cannot be described as a discovery
under Article 40 of the Or der when they are not recovered from any hidden place and if in the
normal course of investigation the investigation agency is bound to see them and take in
possession without the accused making any statement of pointing them out."
11. The other circumst ance relied upon by the trial Court against the appellant, was his
abscondence, since the sole testimony of ocular account furnished by P.W.1 Asadullah has
already been discarded qua the involvement of the appellant in the crime. The abscondence
which is a corroborative piece of evidence cannot be taken into consideration in isolation. In the
case of Rohtas Khan v. The State, 2010 SCMR 566, the Hon'ble Apex Court held as under: --
"The learned High Court gave importance to the abscondence of the appellant . No doubt
it is a relevant fact but it can be used as a corroborative piece of evidence, which cannot be read
in isolation but it has to be read along with substantive piece of evidence. This Court in the case
of Asadullah v. Muhammad Ali PLD 1971 SC 541 observed that both corroborative and ocular
evidence are to be read together and not in isolation. As regards abscondence this Court in the
case of Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 observed that abscondence is
only a suspicion circumstance. In the case of Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632
this Court observed that abscondence itself has no value in the absence of any other evidence. It
was also held in the case of Muhammad Khan v. State 1999 SCMR 1220 that abscondence of the
accused can never remedy the defects in the prosecution case. In the case of Gul Khan v. State
1999 304(sic) it was observed that abscondence per se is not sufficient to prove the guilt but can
be taken as a corroborative piece of evidence. In the cases of Muhamm ad Arshad v. Qasim Ali
1992 SCMR 814, Pir Badshah v. State 1985 SCMR 2070 and Amir Gul v. State 1981 SCMR
182 it was observed that conviction on abscondence alone cannot be sustained."
12. In the present case, it is clear that there has been misreading and it has indeed occasioned
failure in the correct appraisal of evidence on record. The prosecution has failed to prove case
against the appellant beyond any reasonable doubt, therefore, benefit of doubt is extended in
favour of the appellant.
These are the reasons of our short order dated 16th September 2014, which reads as
under: --
"For the reasons to be recorded later on, the appeal filed by the appellant Imdad Ali son
of Qurban Ali is accepted, the judgment dated 28th March, 2013 passed by the Ses sions Judge,
Quetta in Sessions Case No. 09/2012 is set aside. The appellant is acquitted of the charge in case
F.I.R. No. 122/2010, he be released forthwith if not required in any other case."
HBT/81/Bal Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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