2011 P Cr. L J 1584
[Quetta]
Before Naeem Akhtar Afghan and Muhammad Noor Meskanzai, JJ
IKRAMULLAH ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No. 302 of 2005, decided on 30th June, 2011.
(a) Penal Code ( XLV of 1860) ---
----Ss. 302(b), 365 & 34 ---Offences Against Property (Enforcement of Hudood) Ordinance
(VI of 1979), S.17(3) ---Qatl-e-amd, kidnapping and Harabah ---Appreciation of evidence ---
Delay of 10 days in lodging of F.I.R. had satisfactorily been e xplained ---Such delay was
not fatal as there was no motive for false implication of accused ---After registration of
F.I.R., the vehicle of the deceased was recovered from a street adjacent to the orchard of
accused and absconding accused ---Accused, immedia tely after his arrest made a
"disclosure and in pursuance of disclosure of accused on his pointation, dead body of the
deceased was recovered ---Recovery of vehicle and the place of the recovery of dead body
had not been disputed/denied by the defence durin g cross -examination of the witness ---
Evidentiary value of the recovery of dead body at the pointation of accused, could not be
undermined on any valid ground ---Case was based on strong circumstantial evidence and
all the circumstances constituted a chain a nd no link was missing; and combined effect of
the same had established the guilt of accused who had shared common intention with co -
accused in committing murder of deceased ---Accused' could not have taken any part in
firing upon the deceased, but the kill ing had been made in furtherance of the common
intention of all including the accused ---Accused, in circumstances, was held vicariously
liable for the murder of the deceased and his conviction under S.302(b), P.P.C. was not
open to any exception.
Zakir Khan and others v. The State 1995 SCMR 1793; 1997 SCMR 340; PLD 1991 SC 923 and
PLD 1996 SC 122 rel.
(b) Evidence ---
----Circumstantial evidence ---Circumstantial evidence should be so interlinked that it
formed a continuous chain, one end of which wou ld touch the dead body and the other neck
of accused excluding all the hypothesis of his innocence.
(c) Penal Code (XLV of 1860) ---
----S. 34-Common intention ---Existence of common intention which usually consisted of
motive, pre -concert and pre -arrangement could not always be proved by direct evidence;
and could only be inferred from the attendant circumstances of the crime ---When criminal
act was done by several persons in furtherance of common intention of all, each of such
person was liable for th e act in the same manner as if it was done by him alone.
Abdul Karim Khan Yousafzai for Appellant.
Liaquat Ali for the State.
Date of hearing: 30th May, 2011.
JUDGMENT
NAEEM AKHTAR AFGHAN, J. ---This appeal is directed against the judgment da ted 21 -9-
2005 passed by learned Sessions Judge Pishin, whereby the appellant has been awarded
conviction under section 302(b), P.P.C. and sentenced for life imprisonment with fine of
Rs.500,000. In default of payment of fine to further undergo 3 years' S.I . and on recovery of the
fine amount Rs.400,000 have been ordered to be paid to the legal heirs of deceased as
compensation.
Brief facts of filing of this appeal are that in pursuance of application submitted by P.W.6 Taj
Muhammad son of Khawaj Muhammad F.I.R. No.75 of 2004 was lodged on 8 -9-2004 with
Police Station Killah Abdullah under section 365/34, P.P.C. R/W 17(3) Harabah against the
appellant Ikramullah and absconding accused Qurban Ali son of Sardar, Rozi Muhammad and
Najibuddin alias Najo sons of Salah -ud-Din mentioning therein that the brother of the
complainant had purchased a new Pickup from Quetta and his conductor Ikramullah son of
Sardar Muhammad (appellant) was with him and his brother left Quetta for Maizai Adda to the
house of conductor I kramullah, wherefrom he disappeared. The complainant kept waiting for 10
days and thereafter the complainant went to the house of the appellant with tribal notables
comprising of Syed Rehmat (P.W.1) and Haji Sharaf (P.W.2). In the presence of above notable s
enquiry was made from the brother of the appellant namely Qurban Ali (absconding accused),
who asserted that the brother of the complainant has been made to disappear by his brother Ikram
(appellant) along with his Pickup and further stated that he is no t aware whether the abductee has
been killed or has been abducted and concealed. The complainant prayed for arrest of Qurban Ali
(absconding accused) and to investigate the matter and to recover the brother of the complainant
along with his Pick -up.
In pursuance of above F.I.R. investigation was conducted. During investigation on 9 -9-2004 the
Levies Authorities recovered the Pick -up bearing Registration No.C -5386 from an abandoned
street near orchard of the appellant and his brother absconding accused Qur ban. On 11 -9-2004,
raid was conducted and appellant was arrested from his house. During interrogation the appellant
disclosed that Saat Muhammad was killed by firing by absconding accused Rozi Muhammad and
his dead body was buried by digging a ditch betwee n the area of Pindo Badezai and Jungle
Piralizai Camp and he can get the same recovered. After preparation of disclosure memo the
appellant was taken to the area of Pindo Badezai and Jungle Piralizai Camp and on the pointation
of the appellant a place was dug and dead body of the deceased was recovered. The dead body
was handed over to the legal heirs for burial without postmortem. After completion of
investigation incomplete challan was submitted under sections 365, 302, 34 R/W 17(3) Harabah.
The co -accuse d Qurban Ali, Rozi Muhammad and Najibullah alias Najo were shown as
absconders and have also been declared absconders by the trial Court. On receiving of death
certificate of Saat Muhammad second incomplete challan was submitted.
The charge was denied by the appellant whereafter the prosecution produced P.W. Rehmat
Ullah, P.W.2 Sharaf -ud-Din, P.W.3 Ali Muhammad, Risaldar Levies, P.W.4 Muhammad Ilyas,
P.W.5 Dr. Syed Zia -ud-Din, P.W.6 Taj Muhammad (complainant), P.W.7 Ghulam Muhammad
Tehsildar/I.O. After co nclusion of prosecution evidence the appellant was examined under
section 342, Cr.P.C. Though the appellant opted to record his statement on oath, but record
reveals that subsequently the same was declined, as such, no statement under section 340(2),
Cr.P. C. of the appellant was recorded nor the appellant produced any evidence in his defence.
After hearing the arguments of the learned counsel, vide judgment impugned dated 21 -9-2005,
the trial Court has awarded conviction to the appellant as mentioned above.
Mr. Abdul Karim Yousafzai, learned Counsel appearing on behalf of the appellant argued that
there is a delay of 10 days in lodging of F.I.R. and stressed that the prosecution has miserably
failed to prove the guilt of the appellant. He further argued th at at the most if the prosecution
evidence is believed, no case for conviction under section 302(b) is made out against the
appellant and in the circumstances of the case the appellant can only be punished under section
201, P.P.C. He further argued that t he case of prosecution is silent about the motive of the
occurrence. On the other` hand the learned State Counsel Mr. Liaquat Ali supported the
impugned judgment on the ground that the prosecution has proved the case against the appellant
beyond any shadow of doubt and the recovery of the dead body on the pointation of appellant
proves the involvement of the appellant in the commission of the murder of the deceased.
We have heard the arguments of the learned counsel for the parties and have also gone thro ugh
the record of .the case minutely.
Record reveals that the complainant P.W.6 Taj Muhammad in his application Exh.P/6 -A for
lodging of F.I.R. has duly explained the delay occasioned in lodging of F.I.R. by stating therein
that his brother went to Maiza i Adda along with the appellant wherefrom he disappeared and due
to his plying the vehicle as Taxi he waited for his return for (10) days, whereafter on making
probe he went to the house of the appellant with tribal notables, hence the delay in lodging F.I .R.
has satisfactorily been explained. Moresoover, the delay is not fatal in the facts and
circumstances of the case as there is no motive for false implication of the appellant.
Record further reflects that after registration of F.I.R. on 8 -9-2004, th e pick-up of the deceased
was recovered from a street adjacent to the orchard of the appellant and absconding accused
Qurban Ali and this fact has not been denied/disputed by the appellant during trial. Further the
appellant was arrested on 11 -9-2004 and i mmediately on the day of his arrest he made a
disclosure and further in pursuance of the disclosure of the appellant, on his pointation, the dead
body of the deceased was recovered. In this regard the statements of P.Ws. 3 and 4 are very
relevant. P.W.3 st ated as under: --
Similarly P.W.4 in his statement stated as follows: --
The recovery of the Pick -up and the place of the recovery of dead body has not been
disputed/denied by the defence during cross -examination of the above witness.
Since the disclos ure memo Exh.P/3 -A of the appellant led to discovery of new facts as well as
recovery of dead body, (which was not known to anybody previously), hence the disclosure of
the appellant is admissible in the circumstances of the case under Article 40 of the Qa nun-e-
Shahadat Order 1984 and in this regard reliance is placed the case of Zakir Khan and others v.
The State, 1995 SCMR 1793 wherein it was held, as under: --
"Article 40 of Qanun -e-Shahadat which next follows the said Articles provides that, when
any f act is deposed to as discovered in consequence of information received from a
person accused of any offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as relates distinctly to the fact
there by discovered, may be proved. It means that a confessional statement made to a
police officer or in presence of a police officer would be inadmissible in evidence unless
it leads to discovery of a fact. In fact Article 40 operates as a proviso to the prece ding
Articles. However, in order to make any such information admissible, what is required to
be established by the prosecution is that any article or such other evidence discovered
during the investigation of a case in consequence of information supplied by the accused
connects him with the crime. The information supplied by one accused in the present case
led to another accused which in consequence of the information supplied by the later, led
to the discovery of incriminating evidence against him, connec ting each one of them with
the crime. There being no doubt about the admissibility of such evidence under Article 40
of Qanun -e-Shahadat, the Court was only left to consider sufficiency of such evidence
against each of the accused persons to connect him wi th the crime. Such evidence, was,
therefore, admissible under Article 40 of Qanun e-Shahadat."
The disclosure is further strengthened by the factum of recovery of dead body on the pointation
of appellant, which was not in previous knowledge of anybody. E videntiary value of the
recovery of dead body at the pointation of accused cannot be undermined on any valid ground.
Though the appellant in his defence raised plea that he has falsely been involved in the case.
After incident he was tied by Rozi Muhamma d, who took him to Quetta and then to Qillah
Saifullah, so that he may not disclose the incidence to anyone, but this plea is found fanciful and
same has not been proved by the appellant at the trial, so much so the appellant has not entered
into witness b ox for recording his statement on oath.
In the instant case the factum of deceased accompanying the appellant to Maizai Adda in new
Pickup, subsequent disappearance of the pickup and the deceased, recovery of the Pickup from a
street adjacent to the gard en of the appellant and his brother absconding accused Qurban,
disclosure of the appellant after his arrest and subsequent recovery of the dead body on the
pointation of the appellant and medical evidence are the strong circumstantial evidence and all
the circumstances are constituting a chain and no' link is missing and combine effect of the same
establishes the guilt of the appellant, who has shared common intention with co -accused in
committing murder of deceased. With regard to award conviction on the b asis of circumstantial
evidence in absence of direct' evidence it is well -settled that circumstantial evidence should be so
interlinked that it forms a continuous chain, one end of which touches the dead body and the
other neck of the accused excluding all the hypothesis of his innocence.
Existence of common intention which usually consists of motive, pre -concert and pre -
arrangement cannot always be proved by direct evidence and can only be inferred from the
attendant circumstances of the crime. Even if i t is believed that firing was made by absconding
accused Rozi Muhammad, even then the appellant cannot be absolved of the vicarious liability as
the appellant has fully shared the common intention with co -accused. The appellant remained
present throughout till the burial of the deceased and there is nothing on record that the appellant
at any stage of the crime disassociated himself from the absconding accused or that he was not
sharing common intention. It is settled principle of law that when a criminal a ct is done by
several persons in furtherance of common intention of all, each of such person is liable for that
act in the same manner as if it were done by him alone. The appellant may not have taken any
part in firing upon the deceased, but the killing h as been made in furtherance of the common
intention of all including the appellant, hence the appellant is held vicariously liable for the
murder of the deceased and his conviction under section 302(b), P.P.C. is not open to any
exception. Reliance in this regard is placed on the judgment reported in 1977 SCMR 340, PLD
1991 SC 923 and PLD 1996 SC 122.
The facts and circumstances of the case prove that the appellant has shared common intention
with the absconding accused persons in committing murder of de ceased and is vicariously liable
for the same.
The mere fact that the trial Court has not referred to section 34, P.P.C. in the concluding portion
of the judgment is of no consequence as the case otherwise fall within the ambit of section 34,
P.P.C.
For the above reasons the appeal being devoid of merits is dismissed and the conviction awarded
to the appellant is upheld.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.