2024 M L D 1837
[Balochistan]
Before Zaheer- ud-Din Kakar and Gul Hassan Tareen, JJ
SIRAJ and 3 others ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. 515 of 2022, decided on 24th July, 2023.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 34, 147, 148 & 149---Qatl -i-amd, attempt to commit qatl- i-amd, common
intention, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of
evidence--- Vicarious liability ---Accused were charged for making firing upon the sons of
complainant, due to which one son of complainant died whereas two sustained fire arm injuries ---Complainant stated that on the day of incident, hot words were exchanged between
his son and the principal accused as, his brother was reluctant to pay the price due in respect of a common land sold by him; that said altercation prompted the accused, who armed with weapon, lathis daggers and caused fatal injuries to his sons ---If the statement of the
complainant was judged with reference to the proposition of common object, then it would
mean that the said altercation that occurred between the principal accused and son of the complainant, instigated the accused party, which assembled and made murderous assault upon the complainant's party ---Complainant in his report and Court's statement mentioned
that because of such altercation and exchange of hot words, the accused party assaulted upon his house ---In his report, the complainant had mentioned that the altercation took place on
the day of incident ---Thus, the Court inferred that the accused party had no pre -arranged plan
and shared common intention for commission of the assigned criminal act on the day of incident ---Therefore, provisions of S.34, P.P.C, did not apply in the instant case ---
Circumstances established that the prosecution had failed to substantiate accusation against the accused persons without shadow of reasonable doubt ---Appeal against conviction was
accordingly allowed.
Tajamal Hussain Shah v. The State 2022 SCMR 1567; Muhammad Ilyas v. Ishfaq
Alias Munshi 2022 YLR 1620; Ghungar Khan v. State 2022 PCr.LJ Note 32; Allah Bakhsh v. State 2021 MLD 972; Zahid Pervaiz v. State 2012 SCMR 56; Dr. Israr -ul-Haq v.
Muhammad Fayyaz 2007 SCMR 1427; Nadeem alias Manga v. State 2023 MLD 562; Muhammad Ayaz v. The State 2023 YLR 629; Mira Bukhsh v. The State 2023 PCr.LJ 233; Rabba and another v. The State 2023 MLD 831 and Fateh Khan and others v. The State 2021 PCr.LJ 969 ref.
Muhammad Altaf and others v. The State 2002 SCMR 189 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 34, 147, 148 & 149---Qatl -i-amd, attempt to commit qatl- i-amd, common
intention, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence--- Motive not proved---Accused were charged for making firing upon the sons of
complainant, due to which one son of complainant died whereas two sustained fire arm injuries ---Complainant mentioned the backdrop of incident as a money dispute as his
brother/accused was reluctant to pay his share of money in the land sold by him ---Remaining
three accused, though were nominated in the FIR, however, no motive was attributed to them for committing the assigned criminal act of assault ---Owing to lack of motive, there was no
occasion for said accused persons to share common intention or common object with the other accused and his sons for committing the alleged offence ---Circumstances established
that the prosecution had failed to substantiate accusation against the accused persons without shadow of reasonable doubt ---Appeal against conviction was accordingly allowed.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 34, 147, 148 & 149---Qatl -i-amd, attempt to commit qatl- i-amd, common
intention, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of
evidence--- Contradictions in the statements of witnesses ---Accused were charged for making
firing upon the sons of complainant, due to which one son of complainant died whereas two sustained fire arm injuries ---Complainant was not eye -witness of the alleged incident ---
Complainant during his cross -examination in reply to a question denying that he was not the
eye-witness of the incident, voluntarily stated that accused also beat him with lathis ---Injured
witness negated complaint's presence at the time and place of the incident ---Injured witness
at conclusion of his examination in chief stated that, after making firing and causing injuries to them, the accused boarded on two vehicles and bolted away from the venue ---Thereafter,
complainant and other neighbours came at the venue ---Such portion of examination in chief
of injured witness excluded the presence of the complainant at the venue ---Complainant,
therefore, falsely deposed that he was present at the venue and was subjected to physical violence by the accused ---Hence, the deposition of the complainant was not trust worthy to
be relied upon for burdening the accused persons with liability of alleged accusation on account of common intention or common object ---Circumstances established that the
prosecution had failed to substantiate accusation against the accused persons without shadow of reasonable doubt ---Appeal against conviction was accordingly allowed.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 34, 147, 148 & 149---Qatl -i-amd, attempt to commit qatl- i-amd, common
intention, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of
evidence--- Delay of two days in recording the statements of witnesses ---Consequential ---
Accused were charged for making firing upon the sons of complainant, due to which one son of complainant died whereas two sustained fire arm injuries ---Incident occurred on 28
October, 2020, whereas, the statements of the injured witnesses were recorded by the
Investigating Officer on 30 October, 2020, that was with an unexplained delay of two days ---
Prosecution failed to explain the delay caused in recording the statements of injured
witnesses, and their statements were recorded in the police station in presence of their father/complainant ---Said unexplained delay caused a reasonable doubt and it could be
inferred that their statements were result of deliberation and afterthought, especially when the complainant was not the eye -witness of the said incident ---Late recording of S.161,
Cr.P.C statements of prosecution witnesses reduces its value to nil unless there is plausible explanation for such delay---Circumstances established that the prosecution had failed to substantiate accusation against the accused persons without shadow of reasonable doubt ---
Appeal against conviction was accordingly allowed.
Abdul Khaliq v. The State 1999 SCMR 1553 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 34, 147, 148 & 149---Qatl -i-amd, attempt to commit qatl- i-amd, common
intention, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence--- Sealed parcels sent for forensics with a delay of 11 months ---Serologist report ---
Accused were charged for making firing upon the sons of complainant, due to which one son of complainant died whereas two sustained fire arm injuries ---Investigating Officer secured
the blood of the deceased from the venue and made a sealed parcel ---Blood stained brick, last
worn garments of the deceased and the injured were also made into sealed parcels ---Said
parcels were received at Forensic Science Laboratory with an un -explained delay of about
eleven months ---Therefore, the Serologist's Report was of no use for the prosecution and
could not be used as a corroborative piece of evidence ---Parcel whereby four crime empty
shells were secured was also received at Forensic Science Laboratory with an un -explained
delay of about eleven months ---Report of Forensic Science Laboratory had no corroborative
evidentiary value especially, when crime weapon was not recovered---Circumstances
established that the prosecution had failed to substantiate accusation against the accused
persons without shadow of reasonable doubt ---Appeal against conviction was accordingly
allowed.
Sana Suleman and Abdul Hameed for Appellants.
Muhammad Naeem Kakar, Additional Prosecutor General for the State.
Atif Faizan for the Complainant.
Date of hearing: 18th July, 2023.
JUDGMENT
GUL HASSAN TAREEN, J .--- This Criminal Appeal, filed under section 410 , the
Criminal Procedure Code, 1898 ('Cr.P.C') assails judgment dated 15 October, 2022
('impugned judgment') passed by learned Additional Sessions Judge -I, Sariab Division ('Trial
Court'), in case FIR No. 145 dated 28 October, 2020, registered under sections 302, 324, 147, 148, 149, the Pakistan Penal Code, 1860 ('P.P.C') at P.S. Sariab Quetta, whereby appellants were convicted for committing Qatl -i-amd of deceased Asadullah and attempt to commit
Qatl-i-amd of injured Safiullah and Saifullah and sentenced as under:
i) imprisonment for life as Ta'zir under section 302 (b) read with section 149 P.P.C and to pay compensation of Rs. 500,000/ - each under section 544- A Cr.P.C to the
legal heirs of deceased or in default to pay, to further undergo six months (S.I.)
ii) imprisonment for seven years (R.I.) as Ta'zir under section 324 P.P.C for attempt to commit Qatl -i-amd of Safiullah (injured) and to pay compensation of Rs. 200,000/ -
each under section 544 -A Cr.P.C to the injured or in default to pay, to further undergo
six months (S.I.)
iii) imprisonment for seven years (R.I.) as Ta'zir under section 324 P.P.C for attempt to commit Qatl -i-amd of Saifullah (injured) and to pay compensation of Rs. 200,000/ -
each under section 544 -A Cr.P.C to the injured or in default to pay, to further undergo
six months (S.I.), and
iv) imprisonment for three years under section 148 P.P.C
All sentences were ordered to run concurrently and benefit of section 382- B Cr.P.C.
was extended to the appellants.
2. The prosecution case as contained in the report (Ex: P/1- A) recorded on the complaint
of Boland Khan is that, on the fateful date i.e. 28 October, 2020, his nephew Muhammad Amin involved in an altercation with his son and holding such grudge, at 4:10 p.m., his brother Muhammad Rahim along with his sons namely Muhammad Amin, Saddam, Abdul Raheem, Abdul Rehman and his other relatives Dur Khan, Siraj, Lawang, Bahadur and Dilawar armed with lathis and weapons came upon his house. When his sons went out, they assaulted and started beating them, whereas Muhammad Amin made firing with his pistol. As a result, his sons Saifullah, Safiullah and Asadullah got critically injured and the accused made good their escape. He took his sons to the B.M.C Hospital with the assistance of his relatives. His son Asadullah did not survive and succumbed to the injuries. On such report, a formal F.I.R (Ex: P/6- A) was recorded at 5:10 p.m. Investigation of the case was entrusted to
Asif Rasheed (I.P).
3. On spot inspection, the I.O prepared site map without scale vide (Ex: P/4- A), seized
blood of the deceased Asadullah, blood stained piece of brick and four crime empty shells secured vide recovery memo (Ex: P/4 -B), and made into sealed parcel Nos.1, 2 and 3
respectively, seized blood stained clothes of the deceased secured vide recovery memo (Ex: P/4-C), and made into sealed parcel No.4, seized blood stained clothes of injured Safiullah
and Saifullah secured vide recovery memo (Ex: P/5 -A), and made into sealed parcel Nos.5
and 6 respectively, recorded statements of both injured and witnesses of recovery memos under section 161, Cr.P.C.
4. On 3 May, 2021, the investigation of the case was entrusted to Abdul Ghaffar I.P. The
second I.O arrested appellant Nos.1 and 2 and prepared an incomplete challan and sent it to the Trial Court. Later, the investigation of the case was transferred to the Crimes Branch Quetta and Abid Hussain S.I. was appointed as I.O. He procured medico legal certificates of the deceased and injured, arrested appellant No.3, sent the parcels to the F.S.L Crimes Branch Quetta, received F.S.L reports, prepared incomplete challan and sent it to the Trial Court.
5. Upon submission of crime report under section 173, Cr.P.C, the appellants were sent
to face trial, where they were indicted on 06 October, 2021; they pleaded not guilty and
claimed trial.
6. Prosecution in order to bring home charge against the appellants produced as many as
nine witnesses besides relying upon forensic reports. After completion of prosecution evidence, appellants were examined under section 342 Cr.P.C, wherein they did not opt to make statements on oath and to lead evidence in their defence. After completion of trial, the Trial Court found the appellants guilty and therefore, convicted and sentenced in the aforementioned terms.
7. Messrs Sana Suleman and Abdul Hameed, learned counsel for the appellants contend
that incriminating role towards commission of offence of Qatl -i-amd of deceased and attempt
to commit Qatl- i-amd of injured was attributed to the absconding accused Muhammad Amin
('principal accused') whereas no specific role towards commission of the alleged offence was assigned to the appellants; contend that complainant (PW -1) is not an eye -witness of the
incident as, his presence at the time and place of incident was doubtful in view of statement of the injured witness (PW -2); contend that the complainant alleged the backdrop of the
incident, a dispute on the money of a piece of land but prosecution failed to prove motive; contend that no recovery was effected from the possession of the appellants while the blood stained clothes and crime empty shells were belatedly sent to the F.S.L; contend that the oral evidence was contradictory and, not supported by the medical evidence and the statement of injured witnesses (PW -2 and PW -3) were recorded with an unexplained delay of two days.
Concluding her contentions, Ms. Sana Suleman Advocate placed reliance on the following case laws:
Tajamal Hussain Shah v. The State
2022 SCMR 1567
Muhammad Ilyas v. Ishfaq Alias Munshi
2022 YLR 1620
Ghungar Khan v. State
2022 PCr.LJ Note 32
Allah Bakhsh v. State
2021 MLD 972
Mr. Abdul Hameed, learned counsel for one of the appellant, placed reliance on the
following case laws:
Zahid Pervaiz v. State
2012 SCMR 56
Dr. Israr- ul-Haq v. Muhammad Fayyaz
2007 SCMR 1427
Nadeem alias Manga v. State
2023 MLD 562
8. Mr. Muhammad Naeem Kakar, learned Additional Prosecutor General assisted by Mr.
Atif Faizan learned counsel for the complainant contends that the prosecution has proved its
case beyond shadow of reasonable doubt through evidence of an eye -witness and injured
witnesses; contends that the oral evidence was corroborated by the medical evidence whereas substitution of real culprits for the appellants is a real phenomena. Finally contends that the Trial Court has rightly burdened the appellants for the act of the principal accused under section 149, the P.P.C and placed reliance on following case laws:
Muhammad Ayaz v. The State
2023 YLR 629
Mira Bukhsh v. The State
2023 PCr.LJ 233
Rabba and another v. The State
2023 MLD 831
Fateh Khan and others v. The State
2021 PCr.LJ 969
9. We have heard learned counsels for the parties; have gone through the citations cited
at bar and record of the case with their assistance.
10. The Trial Court, while sentencing the appellants placed reliance on the doctrine of
vicarious liability and referred to, section 149, the P.P.C and burdened the appellants with
the responsibility of causing fire arm injuries to the deceased and the injured on the said
doctrine. It was the case of prosecution that the absconding accused Muhammad Amin made
firing with his pistol at, the deceased and the injured. The deceased and the injured were examined by the Police Surgeon, B.M.C Hospital, Quetta who appeared as PW -7 and brought
on record the M.L.C. of the deceased as Ex: P/7 -A. Perusal of this exhibit would reveal a fire
arm wound (entrance and exit) on the body (trunk) of the deceased. The deceased died due to
severe bleeding by fire arm. The PW -7 brought on record the M.L.C. of injured Saifullah
(PW -2) as Ex: P/7 -B which describes, the nature of injury as lacerated wound on top of skull
2 cm. deep caused by fire arm. He also brought on record the M.L.C. of injured Safiullah
(PW -3) as Ex: P/7 -C which describes the nature of injury as fire arm wound on right side
thigh. The injuries of the deceased and both injured were caused by the fire shots of the absconding accused Muhammad Amin. The complainant (PW -1) and both injured (PW -2 and
PW-3) specifically assigned the role of firing, alone to the said Muhammad Amin. Therefore,
the appellants had not caused any injury to the deceased and the injured.
11. However, the question would be, whether the appellants could have been made liable
for the alleged act of firing made by the principal accused Muhammad Amin? The answer
would be in affirmative where the prosecution would have proved that appellants along with principal accused caused fire arm injuries to the deceased and injured, in furtherance of their common intention, (section 34, P.P.C); they being abettors in the commission of said offence (section 109, P.P.C); being members of a conspiracy to commit such an offence (section 120-B P.P.C) or being members of an unlawful assembly and knew that the said offence was likely to be committed (section 149, P.P.C). It is a settled proposition of criminal jurisprudence, that one person cannot be held liable for the act of another accused, however, the afore referred provisions provide exceptions to the said proposition and an accused can be held guilty for the act of another if he, either, shared intention or abetted, conspired or shared common object with him in respect of an offence. The question of common intention and or common object is a question of fact. The complainant stated that on the day of incident, hot words were exchanged between his son and the principal accused as, his brother Muhammad Rahim was reluctant to pay the price due in respect of a common land sold by him. The said altercation prompted accused, they came upon his house armed with weapon, lathis and daggers and caused fatal injuries to his sons. If the statement of the complainant is judged with reference to the proposition of common object, then it would mean that the said altercation, occurred between the principal accused and son of the complainant, instigated the accused party who, therefore, assembled and made murderous assault upon the complainant's party. The complainant in his report (Ex: P/1- A) and court's statement mentioned that
because of such altercation and exchange of hot words, the accused party assaulted upon his house. Where it is true, then a prudent mind may accept the fact that the accused party in pursuance of pre -arranged plan committed the said criminal act, therefore, the provisions of
section 149, P.P.C were not attracted. The complainant during his cross -examination stated
as under:
"The altercation between my son Asadullah and Muhammad Amin occurred one month before the incident."
Whereas in his report, the complainant had mentioned that the altercation took place
on the day of incident. This infers that the accused party had no pre -arranged plan and shared
common intention for commission of the assigned criminal act on the day of incident.
Therefore, provisions of section 34, P.P.C do not apply in the instant case.
12. For application of section 34, P.P.C, the prosecution is likewise bound to substantiate
the overt act on the part of each accused done in furtherance of common intention. According to prosecution, the accused party armed with lathis, daggers and weapons assaulted and had beaten the, deceased and injured, however they do not sustain any injury caused by a blunt or sharp edged weapon which means that appellants had not participated in the offence and not caused any injury with lathis and daggers to the deceased and injured. This negates the application of doctrine common intention in the instant case.
13. The complainant mentioned the backdrop of incident a money dispute as his brother
Muhammad Rahim (appellant No.3) was reluctant to pay his share of money in the land sold by him. The appellant Nos.1, 2 and 4, though were nominated in the FIR, however, no motive was attributed to them for doing the assigned criminal act of assault. Owing to lack of motive, there was no occasion for these appellants to share common intention or common object with the appellant No.3 and his sons for committing the alleged offence. The prosecution failed to prove that appellants either shared common intention, abetted, fetched conspiracy or were members of an unlawful assembly within the meaning of section 34, 109, 120- B or 149, P.P.C. In the circumstances, there was no firm basis or justification in law for
the learned judge of the Trial Court to burden the appellants with responsibility of causing fatal injuries to the deceased and especially when it was held that prosecution failed to assign any specific injury to the accused persons. Since role of firing was assigned to the principal accused and common intention or common object of other accused was not proved, hence
there is a reasonable doubt regarding existence of common intention or common object. The mere presence of an accused in the unlawful assembly or at the place of incident is not sufficient to show that he also shared the common intention or common object to attract provisions of either section 34 or 149, the P.P.C, unless there is proof of some overt act on behalf of each accused done in furtherance of the common intention or in prosecution of the common object of unlawful assembly. The prosecution failed to prove that the common intention or object of the appellants was to commit Qatl -i-amd of deceased and attempt to
commit Qatl- i-amd of the injured or said offence which being members of unlawful
assembly, knew to be likely to be committed in prosecution of the said common object. The perusal of record does not suggest that the appellants knew before hand that the offences actually committed was likely to be committed in prosecution of common object. The appellants had not caused any injury to the deceased or the injured [per M.L.C(s)], as such they had not used any weapon. They could not be held vicariously for the act of firing assigned to the principal accused, under section 149, the P.P.C. The prosecution has not assigned any lalkara or exhortation word to the appellants nor there is any recovery of lathis and daggers from the appellants, thus, the conviction of appellants under section 302 (b) read with section 149, P.P.C was not justified. Reliance is placed on the case reported as Muhammad Altaf and others v. The State, (2002 SCMR 189), wherein the Supreme Court of Pakistan held as under:
".....The word "knew" occurring in the second part of section 149, P.P.C. requires that this must be proved by tangible and sufficient evidence and not from conjectures and speculations that the offence was committed in prosecution of the common object of the assembly. It would, therefore, not be sufficient to show that the accused ought to have known or might have known and that they had reason to believe that the common object of the unlawful assembly was to commit murder. In this background it is not just and proper to hold that to avenge a trivial and insignificant incident over pigeon, the grand- father, their son and their grand- son would form an unlawful
assembly with the only object to commit murder. Therefore, in these circumstances section 149, P.P.C. cannot be made applicable and so every accused would be liable to punishment for the act committed by him during the attack......"
14. The complainant is not eye -witness of the alleged incident. He during his cross -
examination in reply to question No.1 denied that, 'he was not the eye -witness of the
incident, voluntarily stated that accused also beaten with lathis.' The PW- 2 negated his
presence at the time and place of the incident. The PW- 2, at conclusion of his examination in
chief stated that, after making firing and causing injuries to them, the accused boarded on
two vehicles and bolted away from the venue. Thereafter, his father and other neighbours
came at the venue. Such portion of examination in chief of PW -2 excluded the presence of
the complainant at the venue. The PW -1, therefore, falsely deposed that he was present at the
venue and was subjected to physical violence by the accused. Hence, the deposition of the complainant was not trust worthy to be relied upon for burdening the appellants with liability
of alleged accusation on account of common intention or common object.
15. Besides, the incident occurred on 28 October, 2020, whereas, the statements of the
PW-2 and the PW -3 were recorded by the I.O. on 30 October, 2020, that is, with an
unexplained delay of two days. The PW -3 in his cross -examination stated, that he gained
consciousness at 10:00 p.m. The prosecution has not explained the delay caused in recording
the statements of both injured witnesses. The PW -2 in his cross -examination stated that, he
along with Safiullah were discharged on 29 October, 2020 from the Civil Hospital. The prosecution failed to explain the delay caused in recording the statements of PW- 2 and PW -3
and their statements were recorded in the police station and in presence of their father (PW -
1). The said unexplained delay caused a reasonable doubt and it could be inferred that their statements were result of deliberation and afterthought, especially when the PW -1 is not the
eye-witness of the said incident. Later recording of 161, Cr.P.C statements of prosecution
witnesses reduces its value to nil unless there is plausible explanation for such delay. Reliance is placed on the case reported as Abdul Khaliq v. The State, (1999 SCMR 1553).
16. So far as Serologist's report (Ex: P/9 -B) is concerned, the I.O. secured the blood of
the deceased from the venue and made into sealed parcel No.1. The blood stained piece of brick, last worn garments of the deceased and the injured made into sealed parcel Nos. 2, 4, 5 and 6 respectively. The said parcels were received at F.S.L on 09 September, 2021, that is,
with an un- explained delay of about eleven months. Therefore, the Serologist's report is of no
use for the prosecution and cannot be used as a corroborative piece of evidence. The parcel No. 3 whereby four crime empty shells were secured was received at F.S.L on 10 September, 2021, that is, too, with an unexplained delay of about eleven months. The report of F.S.L (Ex: P/9 -C) has no corroborative evidentiary value especially, when crime weapon was not
recovered.
17. For what has been discussed, the prosecution has failed to substantiate accusation
against the appellants without shadow of reasonable doubt, as such; the fact of, sharing common intention or unlawful assembly by the accused to commit the alleged offence wasn't proved. There is previous enmity between the complainant and appellant No.3, whereas complainant roped all the sons of the appellants Nos.2 and 3. Therefore, false implication of appellants could not be ruled out. The case laws relied by the complainant's counsel in this regard are not relevant to the afore discussed facts and circumstances of the instant case.
For afore discussion, the instant Criminal Appeal is allowed; the conviction and
sentences passed upon the appellants vide impugned judgment dated 15 October, 2022 passed by the learned Additional Sessions Judge -I, Sariab Division are set aside and
appellants, Siraj son of Dur Khan, Dur Khan son of Khuda Bakhsh, Muhammad Rahim son of Muhammad Umar and Behadur Khan son of Dur Khan are acquitted of the charge in case F.I.R No. 145 dated 28 October, 2020, registered under sections 302, 324, 147, 148 and 149 P.P.C at P.S. Sariab, District Quetta. They are directed to be set at liberty forthwith, if not wanted to be detained in any other case.
JK/52/Bal. Appeal allowed.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,
let us know.