2018 P Cr. L J 999
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
SADULLAH ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 392 and Criminal Revision No. 43 of 2016, decided on 25th August,
2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence ---Ocular
account corroborated by medical evidence ---Prosecution case was that accused and co -
accused persons armed with pistols fired at brother of complainant who succumbed to the
injuries ---Ocular account was furnished by the witnesses including complainant ---
Prosecution witnesses had corroborated the statement of complainant on all counts ---Eye -
witnesses had shown their presence at the time and place of occurrence and also implicated and attributed specific role to the accused, who was equipped with pistol and fired---Statements of eye -witnesses were supported by the medical evidence and recovery of blood-
stained clothes, blood- stained earth and recovery of crime empties from the scene of
occurrence and also supported by the positive Report of Forensic Science Laboratory ---
Circumstances established that accused had failed to point out any illegality or irregularity in the impugned judgment passed by the Trial Court, whic h did not warrant interference ---
Appeal against convictions and sentences was dismissed in circumstances.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence ---Medical
evidence ---Scope---Medical Of ficer, who examined the dead body of the deceased mentioned
cause of death due to injury on major organ (brain) by means of firearm ---Unnatural death of
the deceased was not disputed in circumstances.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34 ---Qatl-i-amd, common intention---Appreciation of evidence ---Common
intention ---Scope ---Eye -witness had proved that the accused in furtherance of common
intention, equipped with arms were present at the place of occurrence, waiting for the arrival
of deceased who was to come there for the hearing of his case ---All the accused persons were
gathered at the place of occurrence and on the arrival of the deceased, fired at him and made aerial firing to disperse the people present over there ---Such conduct of the ac cused persons
showed their common intention and pre -planning to kill the deceased.
Ali Imran v. State PLD 2006 SC 87; Muhammad Akram v. The State 2007 SCMR
1539; Shaukat Ali v. The State PLD 2007 SC 93 and Afzal v. State 2007 SCMR 315 rel.
(d) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl- i-amd, common intention---Appreciation of evidence ---Interested
witnesses ---Scope---Defence contended that only the interested witnesses were produced and
the case of prosecution lacked independent corroboration---Testimony of witness could not
be disbelieved solely on the ground of being related to the complainant ---Court had to see the
truthfulness and credibility of such witness ---Eye -witnesses were brother and cousins of the
deceased; it did not appeal to the logic, in circumstances that the real blood relations would
let free the culprits, who had committed the murder of the deceased and involve innocent persons due to some previous dispute ---No question for mistaken identity was possible ---
Mere relationship of witness with any of the parties would not dub him as an interested
witness.
Ijaz Ahmed v. The State 2009 SCMR 99 and Latif v. State 2008 SCMR 1106 rel.
(e) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Petition for e nhancement of sentence --
-Appreciation of evidence ---Sentence, quantum of ---Mitigating circumstances ---Scope ---
Complainant had contended that Trial Court had taken lenient view while recording sentence
of life imprisonment to the accused instead of death pe nalty ---Validity ---Admittedly,
deceased was killed by the accused persons with common intention but the prosecution by itself had attributed the main role of killing the deceased by firing of absconding accused---Said circumstances constituted mitigating c ircumstance and the Trial Court had rightly
convicted the accused for life imprisonment ---Revision petition for enhancement of sentence
of accused was dismissed in circumstances.
Khalil Ahmed Panezai for Appellant.
Habibullah Gul, Additional P.- G. for t he State.
Muhammad Akram Shah for the Complainant.
Date of hearing: 15th August, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal Appeal
No.392 of 2016 filed by the appellant Saadullah Son of Musa Jan, against the judgment dated 15th December, 2016 (hereinafter referred as, "the impugned judgment") passed by learned Sessions Judge Pishin (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 302(b), P.P.C. and sentenced to suffer life imprisonment as Tazeer,
with compensation of Rs.17,00,000/ - (Rupees Seventeen Hundred Thousand) as
contemplated under section 544- A, Cr.P.C., which in case of recovery was directed to be paid
to the legal heirs of deceased and in default thereof to furthe r suffer two (02) years' S.I., with
the benefit of section 382- B, Cr.P.C. The Criminal Revision Petition No.43 of 2016 has been
filed by the complainant/ petitioner Aminullah son of Haji Musa Jan, for enhancement of the sentence awarded to the convict/appe llant.
2. Facts of the case are that on 14th May 2014, the complainant Aminullah son of Haji
Musa Jan, lodged FIR No.37 of 2014 at Police Station City Chaman, under section 302, 34,
P.P.C. by nominating the appellant -convict Saadullah and others, with the averments that on
14th May, 2014 at about 9.00 a.m. the complainant along with his brother Khalil, cousin Fareedullah and Abdul Rehman were sitting in their Car and parked the same outside the Kacheri/Court, the complainant along with his cousins remained seated in the Car, while his brother Khalil was going inside the Court for making inquiry about hearing of a case, when the accused Saadullah, Habibullah and Bismillah armed with pistols present near main gate ambushed his brother by making firing upon him , who fell down, whereafter the accused flee
away from the place of occurrence, hence the complainant along with others rushed there and found that two bullets hit on head of his brother, hence he was shifted to Civil Hospital, but his brother succumbed to the injuries.
3. Pursuant to above FIR, the investigation was entrusted to PW -7 Iftikhar Abbas,
S.I./IO, who during investigation reached to Civil Hospital Chaman; took into possession the
blood- stained clothes of deceased; recorded the statements of witn esses; inspected the site
and secured blood stained earth; recovered four empties from the place of occurrence;
prepared inspection memo and site map. The appellant was arrested on 25th May, 2014 and was subjected to investigation, who during investigation recorded his disclosure and pursuant
to which recovery of crime weapon i.e. T.T. pistol .30 bore along with four live cartridges were recovered on his pointation, receipt the report of Chemical Examiner and on completion of investigation submitted the cha llan in the trial Court.
4. At the trial, the accused Habibullah and Bismillah were declared as proclaimed
offenders by initiating proceedings against them under sections 87 and 88, Cr.P.C. The prosecution produced seven witnesses, whereafter the convict/appellant was examined under
section 342, Cr.P.C. The appellant recorded his statement on oath under section 340(2), Cr.P.C. and produced two witnesses in his defence. On conclusion of trial and after hearing the arguments, the trial Court convicte d and sentenced the appellant as mentioned above.
Whereafter the appellant filed Criminal Appeal No.392/2016, while the complainant/petitioner filed Criminal Revision No.42/2016 for enhancement of sentence awarded to the appellant.
5. Learned counsel for appellant contended that the impugned judgment passed by the
learned trial Court suffers from misreading, non -reading and mis -appreciation of evidence;
that there are glaring contradictions in the statements of witnesses; that only interested witnesses have been produced, thus the case of prosecution is lacking independent
corroboration; that only role of aerial firing was allegedly attributed to the appellant and it was admitted by the eye -witnesses that the deceased was murdered by firing of absconding
accused Habibullah; that the entire case of prosecution is relied upon disclosure and the alleged recovery of pistol on the pointation of the appellant; that the learned trial Court while recording the impugned judgment has brushed out the defence version and believing the
prosecution version in toto merely to bring the case of appellant within the mischief of section 302, P.P.C. and 34, P.P.C. of common intention, there is no iota of evidence available in the entire case to connect the appellant with the comm ission of offence as provided under
section 34, P.P.C. (common intention). Even otherwise the prosecution has failed to bring any sort of evidence against the appellant under section 34, P.P.C. of common intention; that the impugned judgment is not sustainable and liable to be set aside.
6. On the other hand, the learned Additional P.- G. assisted by the learned counsel for the
complainant petitioner strongly opposed the contention so advanced by the learned counsel
for the appellant and contended that the prosecution has proved its case through confidence
inspiring evidence and the eye -witnesses of the case specifically nominated the appellant with
the commission of crime and also attributed specific role to him for firing and associating with the co -accused Habibullah and others; that all the three eye witnesses have shown the
presence of appellant at the place of occurrence armed with T.T. pistol; that the appellant is also made his disclosure before the Investigating Officer and discovery/recovery of crime
weapon i.e. .30 bore T.T. pistol along with rounds were also effected on his pointation; that sufficient material available against the appellant for commission of offence with common intention of co- accused, as such, the learned trial Court after proper appreciation of evidence
had rightly convicted the appellant for commission of offence, however, the learned trial Court has taken lenient view while recording the judgment and awarded lesser punishment of life imprisonment instead of major penalty of death. They have also prayed for enhancement of sentence of appellant from life imprisonment to that of death penalty.
7. Heard the learned counsel for parties and perused the record with their valuable
assistance. The entire case of prosecution is relied upon the statements of three eye witnesses,
which includes the complainant/PW 1 Amin Ullah, who is the brother of deceased Khail Ahmed and deposed that on the fatal day i.e. 14th May, 2014 at about 9.00 a.m. morning he
along with PW -2 Farid Khan, PW -3 Abdul Re hman and deceased Khalil Ahmed reached in
front of Kacheri for hearing of the case of Khalil Ahmed in their vehicle and stopped the
vehicle in front of Kacheri while Khalil Ahmed entered inside Kacheri to get information with regard to hearing of his case. Meanwhile, they have heard certain firing shots, hence
while giving attention towards the firing they saw Habibullah, Saadullah and Bismillah, all of them were made firing, whereas by the firing of Habibullah the deceased was killed and appellant Saadullah made aerial firing. The appellant and absconding accused Bismillah were
armed with pistol and flee away from the scene, whereafter the complainant/PW -1 along with
his cousins PW -2 Farid Khan and PW -3 Abdul Rehman taken his brother in injured condition
to the hospital, who succumbed to the injuries. PW -2 Farid Khan is another eye witness, who
has corroborated the statement of PW -1 on all counts as well as PW -3 Abdul Rehman
corroborated the statement of PW -1 and PW -2 on all counts and all of the eye -witness es
shown their presence at the time and place of occurrence and also implicated and attributed specific role to the appellant. He was equipped with pistol and made aerial firing. PW -4 is
Abdul Malik, who is witness of recovery memos of blood stained clothe s, blood stained earth
and empties of crime weapon from the scene of occurrence. PW -5 is Dr. Asmatullah, who on
the same day at about 9.20 a.m. examined the dead- body of deceased and found the injuries
as mentioned in the MLC Ex.P/5- A and mentioned the cau se of death due to injury on major
organ (brain) by means of fire arm weapon. PW -6 is Muhammad Iqbal, S.I., in whose
presence the appellant Saadullah recorded his disclosure before the Investigating Officer and also on his pointation .30 bore pistol along with four live rounds was recovered, which were
taken into possession through recovery memos and thereafter sent to the FSL. PW -7 Iftikhar
Abbas, S.I. is the I.O. of the case, who counted the steps taken by him during investigation.
8. The scrutiny of stat ement of PW -5 Dr. Asmatullah has confirmed the unnatural death
of the deceased, which was caused by means of fire arm and the cause of death was mentioned as damage of vital organ i.e. brain, as such, the unnatural death of deceased was not disputed by the defence.
9. Now adverting to the statements of eye -witnesses i.e. PW -1/ complainant Aminullah,
who is also the brother of deceased Khalil Ahmed, who was associated with the deceased along with PW -2 Farid Khan and PW -3 Abdul Rehman while proceeding to Kach eri for
hearing the case of deceased Khalil Ahmed at the relevant time the appellant along with co -
accused Habibullah and Bismillah (absconders) were present over there and started firing and
he has specifically deposed that by the firing of accused Habibu llah his brother was killed,
while the appellant Saadullah made aerial firing and thereafter he has taken his brother to hospital alongwith eye witnesses and others. He has promptly lodged the FIR with the police station on the same day without any delay. In his fard -e-bayan and FIR he has mentioned the
presence of PW -2 Farid Khan and PW -3 Abdul Rehman. Accordingly, PW -2 Farid Khan and
PW-3 Abdul Rehman entirely corroborated the statement of PW -1 on all material counts and
shown presence of appellant with pistol along with absconding accused Habibullah at the place of occurrence and also attributed the role of aerial firing to the appellant. The statements of eye -witnesses are further supported by the medical evidence and recovery of
blood stained clothes, blood stained earth and recovery of crime empties from the scene of occurrence and further supported the positive report of FSL.
10. As far as the statements of eye- witnesses, medical certificate and recovery of crime
empties from the scene of occurrence an d the disclosure and further recovery of a pistol .30
bore along with four live rounds on the pointation of appellant is concerned, the prosecution case is supported by all these aforesaid evidences, however, the learned counsel for the
appellant has raised objection on the conviction of the appellant under section 302, P.P.C.
read with section 34, P.P.C. within the meaning of common intention.
11. The learned counsel for the appellant has taken an objection that the prosecution
witnesses have at all attrib uted the role of aerial firing to the appellant and also admitted in
their deposition that the deceased was killed by the firing of absconding accused Habibullah,
as such, the appellant could not be held responsible and convicted for the offence, which he
has admittedly not committed the murder of the deceased at the most the appellant could have been prosecuted for the charge of aerial firing. Be that as it may, but we are supposed to sift chaff from the grain by perusing the statements of all the witnesse s. All the eye -witnesses i.e.
PW-1, PW -2 and PW -3 have categorically shown the presence of appellant along with .30
bore T.T. pistol and with the absconding accused Habibullah at the relevant time at the place of occurrence, thus under these circumstances question arises whether the appellant was
armed with the pistol and accompanying the absconding accused Habibullah and Bismillah at the relevant time and place of occurrence and was making aerial firing, while the absconding accused Habibullah made direct firing on the deceased Khalil Ahmed and after commission of crime the appellant along with absconding accused made their escape good from the place of occurrence. Prima facie in view of the statements of eye -witnesses, it appears that the
appellant with fu rtherance of common intention and pre plan equipped with arms present at
the place of occurrence, waiting for arrival of deceased knowingly that the deceased would arrive for hearing of his case in Kacheri and further all accused persons were gathered at t he
place of occurrence and on arrival of deceased Khalil Ahmed made firing on his person as well as made aerial firing to disburse the people present over there and thereafter escaped good together from the scene of occurrence, as such, all the aforesaid conduct of the accused persons shows their common intention and pre -plan just to gather at the place of occurrence
and to kill the deceased Khalil Ahmed, as such, the objection so taken by the learned counsel for the appellant is without any substance. Reli ance in this regard is placed to the case of Ali
Imran v. State, PLD 2006 SC 87. The relevant portion is reproduced hereinbelow:
"7. The detail scrutiny of evidence with the help of learned counsel for the parties, would not suggest any misreading or non- riding of evidence or any other legal or
factual infirmity in the conclusion of the two Courts regarding guilt of the appellant.
The learned counsel laid much stress on the question that in absence of specific
evidence of sharing common intention to commit the murder, the conviction on the murder charge, on the basis of general allegation, was not justified. It may be pointed out that the intention to commit the crime can be gathered from the circumstances which may prevail at the spur of moment in re -action to the happening of some
incident and except in a premeditated occurrence, it is difficult to procure direct evidence to prove intention of a person for committing crime rather the intention is to be inferred from his act and conduct. The common intention within the meaning of
section 34, P.P.C. can be proved through direct or circumstantial evidence or may also depend upon the nature of an act done or motive possessed and a joint action of more than one person itself, is an evidence of common intention. I n the present case, the
appellant and his co- accused armed with pistols, fired at the police constable and even
if the deceased did not sustain injury at the hands of appellant, the act of firing at the police officials itself was strong evidence of sharin g the intention to commit the
crime. The common intention generally involves the element of common motive, pre -
plan preparation and action pursuant to such plan but sometimes, the commons intention may also develop at the spur of the moment or during commi ssion of
offence. In the present case appellant and his co- accused may not have the motive to
kill the police constable but while making their escape in a rickshaw when realized that they were being chased by the police constables on a motorcycle, they sta rted
firing at the police officials in consequence to which, one police constable lost his life. The act of accused of direct firing at the police constable would definitely provide sufficient proof of common intention and joint liability of the murder."
12. To further understanding and to elaborate the common intention, for convenience the
provisions of section 34, P.P.C. (common intention) are hereby reproduced as under:
"34. Acts done by several persons in furtherance of common intention .---When a
crimin al act is done by several persons, in furtherance of the 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."
13. On bare reading of aforesaid provisions of section 34, P.P.C., the role of appellant has
specifically fallen within the domain of section 34, P.P.C. In this regard reliance is placed on the case titled Muhammad Akram v. The State 2007 SCMR 1539. The relevant portion reads as follows:
"4. ... It is a settled law that the ingredie nts of section 34, P.P.C. embodies his
participation in some action with the common intention of committing a crime, once such participation is established, section 34 is at once attracted. See Shahadat Khan's case PLD 1969 SC 158, J.M. Desai's case AIR 1960 SC 889, Banwarilal's case AIR 1956 All. 341, Majeed's case 1971 SCMR 693, Imam Bakhsh's case PLD 1983 SC 35. It is an admitted fact that accused party had come at the spot along with their respective weapons. The respondent No.2 and principal accused Muhammad Asghar had inflicted injuries to the deceased with their respective weapons, therefore, section 34 is attracted in the case in hand in all respects. See Amir's case 1987 SCMR 270 and Mahbub Shah's case AIR 1945 PC 118. The learned High Court erred i n law to
decide the case on wrong premises without adverting to the ingredients of section 34, P.P.C. and the facts of the case in hand and the law laid down by this Court in various pronouncements. See Hayat's case PLD 1957 SC (Pak). 207. It is a settled law that in
order to determine the intention of a person qua the commission of offence, it is very
rare phenomenon that one can expect to find positive affirmative evidence, generally speaking, the intention is to be gathered from the conduct of the person and the
attending circumstances. See Bahar's case PLD 1954 FC 77. The evidence on record in the case in hand clearly depicts that all the accused came fully prepared and that common intention to take the revenge from the deceased. Therefore, they were hel d
vicariously liable for the murder of Mukhtar deceased. See Seraj Mia's case 1969 SCMR 490, Muhammad Arshad's case PLD 1996 SC 122, Muhammad Siddiqui's case 1993 SCMR 2114 and Khushi Muhammad's case 1969 SCMR 599."
Similarly, the Hon'ble apex Court in th e case titled Shaukat Ali v. The State PLD
2007 SC 93, has discussed the pre -requisites of section 34, P.P.C. and has held as under:
"8. After having gone through almost entire law qua the provisions as contained in section 34, in our considered view the f ollowing are the prerequisites of the section 34
before it could be made applicable: --
"(a) It must be proved that criminal act was done by various persons.
(b) The completion of criminal act must be in furtherance of common intention as they all intended to do so.
(c) There must be a pre -arranged plan and criminal act should have been done in
concert pursuant whereof.
(d) Existence of strong circumstances (for which no yardstick can be fixed and each
case will have to be discussed on its own merits) to show common intention. (e) The real and substantial distinction in between 'common intention' and 'similar
intention' be kept in view:
Hidayatullah v. State 1976 PCr.LJ 1067; Athar Khan v. State PLD 1972 Lah. 19; Hasan Din v. Muhammad Mushtaq 1978 SCMR 49; C hatta v. State 1995 PCr.LJ 755;
Shahadat Khan v. Home Secretary PLD 1969 SC 158 and Muhammad Nawaz v. State PLD 1967 Lah. 952."
14. We are also fortified by the dictum laid down by the Hon'ble Supreme Court of
Pakistan in the case of Afzal v. State, report ed in 2017 SCMR 315, wherein it was held that
was a case of vicarious liability and the individual role was not ascertainable. The relevant portion of the same is reproduced below:
"4. ... The petitioners and their co- accused having formed unlawful assembl y armed
with lethal weapons attacked at the complainant party and caused fire -arm injuries to
the deceased and witnesses, therefore, notwithstanding the fact that who was individually responsible for causing specific injuries to the deceased and witnesses, the petitioners by virtue, of vicarious liability, would be equally responsible for the murder of deceased and causing injuries to the witnesses. However, the High Court having come to the conclusion that it was a case of vicarious liability and the individual role was not ascertainable, converted the sentence of death awarded to the petitioners into life imprisonment and we would not take any exception to the view of the matter taken by the High Court. It was a broad- daylight occurrence and eye -
witnesses, including a minor girl, have consistently stated about the active
participation of all the petitioners in the occurrence and nothing was brought on
record to suggest even a slight doubt qua their guilt. Learned counsel for the petitioners has not been abl e to convince us that either the testimony of injured eye
witnesses was not reliable or the participation of the petitioners in the occurrence was doubtful and, we have not been able to find out any misreading or non- reading of the
evidence either by the t rial Court or High Court in coming to the conclusion regarding
guilt of the petitioners or any other legal or factual infirmity in the judgment of the High Court calling for interference of this Court."
14(sic.) So far as the contention of the learned defe nce counsel that only interested witnesses
were produced and the case of prosecution is lacking independent corroboration, suffice to observe here that the testimony of any witness cannot be disbelieved solely on the ground that he is in relation with the complainant rather the Court has to see the truthfulness and
credibility of such witness. PW -1 was the brother and PW 2 and 3 were the cousins of
deceased, thus under these circumstances it does not appeal to the logic that the real blood
relations would l et free the real culprits, who had committed the murder of deceased in brutal
manner and instead they involve innocence persons due to some previous dispute. Even
otherwise, both the parties knew each other prior to registration of FIR and were remained
under litigation being the inhabitants of same vicinity, thus no question for mistaken identity does arise at all. Reliance in this regard is placed on the case of Ijaz Ahmed v. The State, 2009 SCMR 99, relevant portion reads as under:
"9. As regards the contention that both the eye -witnesses were related and thus,
interested, therefore, their testimony could not have been believed, it may be pointed
out here that mere relationship of a witness with the deceased is no ground for discarding his evidence if he, otherwise appears to be truthful and his presence at the place of occurrence is probable. Mere relationship of a witness with any of the parties would not dub him as an interested witness because interested witness is one who has, of his own, a motive to falsely implicate the accused, is swayed away by a cause against the accused, is biased, partisan, or inimical towards the accused, hence any witness who has deposed against the accused on account of the occurrence, by no stretch of imagination can be r egarded as an "interested witness". In the wake
therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him. This view receives support from the following reported judgments:
(i) Sheraz Tufail v. The State 2007 SCMR 518, (ii) Khair Muhammad and another v. State 2007 SCMR 158, (iii) Amal Sherin and another v. State through A.- G. N. -
W.F.P. PLD 2004 SC 371, (iv) Dosa and others v. The State 2002 SCMR 1578, (v)
Mulla Riaz Ahmad v. The State 2002 SCMR 626, (vi) Feroze Khan v. The State 2002 SCMR 99, (vii) Farmanullah v. Qadeem Khan and another 2001 SCMR 1473, (viii) Muhammad Amin v. The State 2000 SCMR 1784, (ix) Saeed Akhtar and others v. The State 2000 SCMR 383, (x) Mir Hassan and others v. State and others 1999 SCMR 1418, (xi) Sharafat Ali v. The State 1999 SCMR 329, (xii) Sardar Khan and others v. State 1998 SCMR 1823, (xiii) Wahid Bukhsh and others v. The State 1997 SCMR 1424, (xiv) Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639,
(xv) State of Rajaathan v. Hanaman AIR 2001 SC, 282 and (xvi) State of Punjab v.
Wassail Singh and others AIR 1981 SC 697.
What to speak of related witnesses, evidence of an interested witness even, cannot be
out rightly dis carded unless it is proved that the witness had involved the accused for some
ulterior motive and in case of interested witness, only as a rule of prudence and not as a rule of law, the Courts have emphasized that testimony of the witness may be evaluated with more than ordinary care and corroboration may be sought from the evidence. In this view, we are fortified by the following reported judgments: ---
[(i) Abdul Majeed v. The State 2001 SCMR 90, (ii) Suraj Pal v. State of UP AIR 1994 SC 748, (iii) State o f Karnataka v. Bheemappa 1993 Cr.LJ 2609 (SC) and (iv) State of
U.P. v. Ballabh Das and others AIR 1985 SC 1384.
In the instant case both P. Ws. 1 and 2 being father and mother were natural witnesses
and therefore, their presence in the house, at the relev ant time, was rightly believed by
both the Courts below. The contention, therefore, has no force."
Similar view has also been taken by the Hon'ble Supreme Court of Pakistan in the case of Latif v. State, 2008 SCMR 1106, whereby it has been held as under:
"Testimony of both the aforementioned witnesses cannot be doubted because they
being close relatives of the deceased would not like to let go the real offender or
substitute him with the appellant just to take revenge. Their presence at the place of occurr ence was also natural. The evidence of both the eye -witnesses is corroborated
by the medical evidence in all material particulars."
15. In view of the aforesaid judgments of Hon'ble Supreme Court we are of the firm view
that the prosecution has proved its case against the appellant beyond any shadow of doubt and the case of appellant fully covered under the provisions of section 302(b), 34, P.P.C. and the learned trial Court after proper appreciation of evidence has rightly convicted the appellant for commi ssion of offence on the point of common intention.
16. The learned counsel for complainant while agitating the Criminal Revision Petition
No.42/2016 contended that the learned trial Court had taken lenient view while recording sentence of life to the appel lant instead of death penalty, we have gone through the case of
prosecution as well as the contention of learned counsel for complainant. Admittedly, it appears that though the deceased was killed by the accused persons with their common intention, but the prosecution by itself has attributed the main role of killing of deceased by
firing of absconding Habibullah, as such, under the mitigating circumstances the trial Court has rightly convicted the appellant for life imprisonment and we have seen no substance in the arguments of learned counsel for complainant.
17. For the foregoing reasons as discussed above, the learned counsel for appellant has
failed to point out any illegality or irregularity in the impugned judgment passed by the
learned trial Court, a s such, the same do not warrant interference by this Court, therefore, the
same is maintained. Resultantly, the Criminal Appeal No.392/2016 filed by the appellant against his conviction and sentence and the Criminal Revision Petition No.42/2016 filed by the complainant for enhancement of sentence of the appellant, being devoid of merits, are
hereby dismissed.
JK/133/Bal. Appeal and revision dismissed.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.