2023 P Cr. L J 233
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
MIRA BUKHSH ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 223 of 2020, decided on 12th July, 2021.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337- D, 337- F(iii) & 34 ---Qatl-i-amd, attempt to commit qatl- i-amd,
jaifah, ghayr -jaifah -mutalahimah, common intention ---Appreciation of evidence ---Ocular
account ---Scope ---Accused were charged for committing murder of the assistant of brother
of complainant and causing injuries to his brother ---Motive behind the occurrence was stated
to be an old enmity---Ocular account had been furnished by complainant, his minor brother
and injured--- Complainant appeared and reiterated the contents of FIR ---Said witness though
did not witness the crime directly, however, the fact remained that he brought the criminal machinery into motion and he fully corroborated the testimonies of other witnesses ---
Statement of child witness had fully been corroborated by the direct evidence of injured
witness and complainant, thus, nothing adverse had come on record to disbelieve the evidence of minor witness ---Case of prosecution had further got strength from the statement
of injured witness ---Said witness had correctly stated the date, time and the place of
occurrence as well as the manner in which the occurrence had taken place---Said witness had fully corroborated the statement of complainant and minor witness ---Said witness had
confirmed that the accused made firing upon him with pistol, while absconding accused inflicted dagger blows upon him and upon the person of deceased, whereafter he was taken to hospital for medical treatment ---Injured witness had correctly identified the accused in the
trial to be the culprit, who made firing upon him with pistol--- Said witness was cross
examined at sufficient length, but it appeared that the witness remained firm in his deposition and the defence had failed to shake his testimony---Since said witness was not only the victim/injured, but also the direct eye witness of the occurrence ---Evidence of injured
witness appeared to be trust worthy, reliable, confidence inspiring and free from any prejudice or mala fides ---No reason existed to disbelieve or discard the statement of injured
witness ---Statement of said witness being injured witness was enough to establish the charge
against the accused ---Circumstances established that the prosecution had successfully proved
its case against the accused beyond any shadow of reasonable doubt ---Appeal against
conviction was dismissed accordingly.
Muzammil Shah v. State 1991 MLD 1944 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 337- D, 337- F(iii) & 34 ---Qatl-i-amd, attempt to commit qatl- i-amd,
jaifah, ghayr -jaifah -mutalahimah, common intention ---Appreciation of evidence ---Statement
of minor witness ---Scope ---Accused were charged for committing murder of the assistant of
brother of complainant and causing injuries to his brother ---Admittedly, minor brother of the
complainant was a witness, but at the time of his examination -in-chief the court enquired
several questions from him and found him mentally mature and fit to answer the questions
correctly and even during cross -examination he replied the questions correctly, which
established the soundness of his mind and his statement could not be thrown aside merely on the ground of his being minor age of 12/13 years rather alone his statement was enough to establish the charge against the culprits ---Even otherwise, there was nothing on record
showing that said witness was tutored by his elders ---Circumstances established that the
prosecution had successfully proved its case against the accused beyond any shadow of reasonable doubt ---Appeal against conviction was dismissed accordingly.
(c) Criminal trial ---
----Witness ---Statement of minor witness ---Reliance--- Scope ---Rule of prudence required
that the testimony of child witness should not be relied upon unless it was corroborated by some cogent evidence on the record.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 337- D, 337- F(iii) & 34 ---Qatl-i-amd, attempt to commit qatl- i-amd,
jaifah, ghayr -jaifah -mutalahimah, common intention ---Appreciation of evidence ---Minor
discrepancies ---Scope ---Accused were charged for committing murder of the assistant of
brother of complainant and causing injuries to his brother ---Although, the defence attempted
to discredit the case of prosecution on the basis of some minor discrepancies in the evidence of prosecution witnesses, however, those discrepancies were not substantive enough to justify or create reasonable doubt in the case of prosecution about the involvement and guilt of the accused with common intention--- Statements of complainant, injured and minor eye -
witness were similar with each other on all counts ---Circumstances established that the
prosecution had successfully proved its case against the accused beyond any shadow of reasonable doubt ---Appeal against conviction was dismissed accordingly.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 337- D, 337- F(iii) & 34 ---Qatl-i-amd, attempt to commit qatl- i-amd,
jaifah, ghayr -jaifah -mutalahimah, common intention ---Appreciation of evidence ---Statement
of injured witness supported by medical evidence ---Scope ---Accused were charged for
committing murder of the assistant of brother of complainant and causing injuries to his brother ---One of the witnessess was injured in the incident, thus according to settled norms
of justice, the solitary statement of injured witness being confidence inspiring was sufficient to convict the culprit, because legally the statement of an injured witness could not be challenged ---Defence had also not doubted or challenged the injuries sustained by the injured
in cross -examination ---Injuries sustained by injured had been duly supported by medical
evidence furnished by Police Surgeon--- Circumstances established that the prosecution had
successfully proved its case against the accused beyond any shadow of reasonable doubt ---
Appeal against conviction was dismissed accordingly.
Saleem Zada and others v. The State 2019 SCMR 1309 and Farooq Khan v. State
2008 SCMR 917 rel.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 337 -D, 337- F(iii) & 34 ---Qanun- e-Shahadat (10 of 1984), Art. 40---Qatl -
i-amd, attempt to commit qatl- i-amd, jaifah, ghayr -jaifah -mutalahimah, common intention---
Appreciation of evidence ---Weapon of offence was recovered on the disclosure of accused ---
Reliance--- Scope ---Accused were charged for committing murder of the assistant of brother
of complainant and causing injuries to his brother ---Case of prosecution had further been
strengthened from the disclosure of accused, which was followed by the recovery of crime
weapon on his pointation from his own home ---Investigating Officer brought on record that
during investigation the accused confessed his guilt by recording his disclosure and stated that they had enmity with injured witness, who had committed the murder of his brother ---
Accused along with his younger brother and relatives planned to commit the crime, thus, they all launched attack upon them ---Accused also volunteered to recover the crime weapon
from his house, thus the disclosure was prepared and the accused was taken in an official vehicle to his house, from where he got recovered the pistol used in the crime ---Record
showed that soon after the occurrence the police had also collected five empties from the place of occurrence and the recovered pistol along with the empties were sent to Forensic
Science Laboratory for examination--- After examination, Forensic Science Laboratory issued
its report ---Perusal of which established the fact that not only the pistol was in running
condition, but also the recovered empties were fired from the said pistol ---Disclosure of the
accused was followed by the recovery of crime weapon and the empties were matched from the said pistol, thus legally the disclosure was admissible under the law, when more particularly, it got strength from the recovery of crime weapon as well as matching of empties ---Disclosure of accused coupled with discovery of new facts and the recovery of
crime weapon was admissible under Art. 40 of the Qanun- e-Shahadat, 1984--- Circumstances
established that the prosecution had successfully proved its case against the accused beyond any shadow of reasonable doubt ---Appeal against conviction was dismissed accordingly.
(g) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337- D, 337- F(iii) & 34 ---Criminal Procedure Code (V of 1898), S. 342---
Qatl-i-amd, attempt to commit qatl- i-amd, jaifah, ghayr -jaifah -mutalahimah, common
intention--- Appreciation of evidence ---Defence plea--- Scope ---Accused were charged for
committing murder of the assistant of brother of complainant and causing injuries to his brother ---Accused throughout the proceedings had taken the plea of his false implication due
to previous enmity, but had failed to produce any solid or concrete evidence to rebut the confidence inspiring evidence produced by the prosecution--- Mere denial of the accused was
not enough to brush- aside the entire prosecution evidence---Defence plea so taken had
established the motive behind the occurrence, which was stated to be an old enmity and the
injured was nominated in the murder of brother of accused--- Circumstances established that
the prosecution had successfully proved its case against the accused beyond any shadow of reasonable doubt ---Appeal against conviction was dismissed accordingly.
(h) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 337- D, 337- F(iii) & 34 ---Qatl-i-amd, attempt to commit qatl- i-amd,
jaifah, ghayr -jaifah -mutalahimah, common intention ---Appreciation of evidence ---Vicarious
liability ---Scope ---Accused were charged for committing murder of the assistant of brother
of complainant and causing injuries to his brother ---Accused and his co -accomplices, duly
armed with pistol and dagger, made surveillance surrounding the shop of victims, chased them on motorcycle and on getting a chance made firing and inflicted dagger blows upon the person of deceased and the injured ---Deceased did not sustain injury at the hands of accused,
the act of firing at the injured itself was strong evidence of sharing the common intention to commit the crime ---Common intention generally involved the element of common motive,
pre-planned preparation and action pursuant to such plan---Circumstances established that
the prosecution had successfully proved its case against the accused beyond any shadow of reasonable doubt --- Appeal against conviction was dismissed accordingly.
(i) Penal Code (XLV of 1860) ---
----S. 34 ---Common intention ---Scope ---Once it is proved that the accused persons had
common intention to commit the crime, it is immaterial as to what part was played by whom, as the law as to vicarious liability is that those who stand together must fall together.
Sh. Muhammad Abid v. State 2011 SCMR 1148 rel.
Abdul Razzaq Shar for Appellant.
Yahya Baloch, Additional P.G. for the State.
Date of hearing: 1st July, 2021.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.223 of
2020 filed by the appellant (convict) Mira Bakhsh son of Muhammad Yousaf, against the judgment dated 9th October 2020, ("the impugned judgment") passed by learned Additional Sessions Judge -II, Sariab Quetta ("the trial Court"), whereby the appellant was convicted and
sentenced as under:
i) For committing the murder of deceased Abdul Fatah accused is convicted under sections 302(b), 34, P.P.C. and sentenced to suffer rigorous life imprisonment as Tazir and to pay compensation in terms of 544(A), Cr.P.C. in the sum of Rs.500000/ -
to the legal heirs of deceased or to suffer six months' S.I.;
ii) For attempting at the life of PW Abdullah an offence under sections 324, 34, P.P.C. is
made out against accused and he is convicted and sentenced to suffer ten years' R.I and to pay fine in the sum of Rs.100,000/ - or to suffer six months' S.I.
iii) While keeping in view the second part of section 324, P.P.C., in view of the fact that injured Abdullah had received five injuries, falling within the ambit of 337- D and
337- F(iii), P.P.C. The accused is also convicted under sections 337 -D and 337 -
F(iii)/34, P.P.C. and to pay one tenth of diyat (277,735) under section 337- D, P.P.C.
and to pay daman in the sum of Rs.30,000/ - under sections 337- F(iii), 34, P.P.C. (till
the payment of the daman the accused shall not be released).
iv) Benefit of section 382- B, Cr.P.C. is extended to the accused."
2. Facts of the case are that on 11th June 2018, the complainant Mehwa Khan son of
Abdul Ghani, lodged FIR No.124 of 2018 at Police Station Sariab Quetta, under sections 302, 324, 34, P.P.C., with the averments that on the day of occurrence at about 07.35 p.m. he was present in his house, when his younger brother Muhammad Ashraf arrived and informed that he along with brother Abdullah and his assistant Abdul Fatah after closing their tailoring shop situated at Sariab Road Quetta proceeded to their home for Iftari on CD -70 motorcycle
and when they reached in the street of Degree College, they noticed accused persons Mira Bakhsh, Khadim Hussain, both sons of Muhammad Yousaf, Qasim son of unknown along with their unknown accomplice. It is further averred that Muhammad Ashraf further disclosed that accused Mira Bakhsh was armed with pistol, Qasim was equipped with dagger and absconding accused persons Khadim and their unknown companion had caught hold of Abdullah and Abdul Fatah and gave beatings to them. In the meantime, firing was made upon Abdullah and dagger blows were also given to Abdullah and Abdul Fatah. On receiving such information the complainant along with his relatives rushed to the place of occurrence
and found his brother Abdullah in injured condition, while Abdul Fatah had died due to injuries. The complainant noticed a stab wound in the chest of Abdul Fatah, while injuries were noted in the abdomen, chest and right hand of his brother Abdullah. The complainant removed his brother with the help of his relatives in a private vehicle to hospital. The motive behind the occurrence is stated to be an old enmity.
After registration of FIR, the complainant through supplementary statement dated
13th June 2018, disclosed the father's name of nominated accused Ghulam Sarwar as Allah Dina, while the name of unknown accomplice of accused persons as Ghulam Sarwar son of Allah Dina.
3. Pursuant to above FIR, the appellant was arrested, investigated and challaned in the
trial court. On receipt of challan the trial Court after initiating proceedings under sections 87 and 88, Cr.P.C. declared the absconding accused as proclaimed offenders.
4. At the trial, the prosecution produced seven (07) witnesses, whereafter the appellant
was examined under section 342, Cr.P.C. The appellant also recorded his statement on oath under section 340(2), Cr.P.C., but however, did not produce any witness in his defence. On conclusion of trial and after hearing arguments, the trial Court convicted and sentenced the appellant as mentioned in para- 1 above, whereafter the instant appeal has been filed.
5. Learned counsel for appellant contended that the prosecution has failed to substantiate
the charge against the appellant beyond the shadow of reasonable doubt; that the statements
of interested and related witnesses are lacking independent corroboration, who otherwise made contradictory statements with each other; that the witnesses could not justify their presence at the site and the appellant has been dragged in this false case due to previous
enmity; that the alleged disclosure followed by the alleged recovery of crime weapon has
been foisted upon the appellant just to strengthen the case of prosecution; that the role of
appellant does not fall within the definition of common intention; that the defence so taken and established has not been taken into consideration by the learned trial Court; that the case of prosecution is replete with legal defects, discrepancies and infirmities, which has made the case of prosecution as doubtful, but while delivering the impugned judgment the benefits of such doubts have not been extended to the appellant and he was convicted and sentenced through the impugned judgment, which requires interference of this Court.
6. Learned Additional Prosecutor General assisted while supporting the impugned
judgment contended that the prosecution through consistent and confidence inspiring evidence has proved the charge against the appellant beyond the shadow of reasonable doubt; that the FIR has been lodged promptly, wherein the appellant was specifically nominated
with the role of firing, besides after his arrest, he confessed his guilt by recording his extra -
judicial confession, followed by the recovery of crime weapon and the empties recovered
from the place of occurrence were matched with the recovered pistol; that the prosecution has produced direct evidence of injured witness, which was corroborated by the testimony of an independent child witness; that the defence has failed to point out any contradiction, infirmity or dishonest improvement in the prosecution evidence; that the deceased and injured along with PW -2 were proceeding towards their home in a motorcycle, while the
appellant along with absconding accused persons were well prepared and duly armed with
pistol and dagger intercepted their way and made firing upon the them, which fact itself is enough to prove the element of pre -meditation and mens rea of the appellant for committing
the crime, thus rightly he was convicted and sentenced through impugned judgment, which otherwise is not open for interference by this Court.
7. Heard the learned counsel for parties and perused the available record. So far as the
unnatural death of deceased Abdul Fatah and receiving multiple injuries by the injured Abdullah (PW -4), are concerned the same are not disputed. Admittedly, soon after the
occurrence both the deceased Abdul Fatah and injured Abdullah were shifted to Sandeman Provincial, Hospital Quetta, where PW -3 Dr. Ali Mardan Mengal, Police Surgeon examined
the deceased Abdul Fatah and after examination he issued MLC as Ex.P/3 -B, per usal
whereof transpires that the deceased had received a stab wound on left side of chest below left nipple 4 cm deep with bleeding. PW- 3 further opined the cause of death of deceased due
to severe bleeding caused by sharp edged weapon and homicidal in nature. Likewise, PW -3
also examined the injured Abdullah and issued MLC as Ex.P/3- A. Perusal of same reflects
that the injured received bullet injury on his chest, while multiple stab wounds on right lumber region, left shoulder joint top, front chest at ste rnal notch and on right arm. PW -3 has
opined the nature of injuries as grievous, caused by fire arm and sharp edge weapon, while the duration of injuries opined as fresh. The defence has also not disputed the unnatural death of deceased Abdul Fatah and receipt of multiple injuries by injured Abdullah, but however,
pleaded innocence and taken the plea of his false implication due to previous enmity.
8. Now adverting to the ocular account of testimony, the complainant appeared as PW -1,
who reiterated the contents of FIR and brought on record that on the day of occurrence he
was present in his home, when receipt information about the occurrence from his younger brother PW -2 Muhammad Ashraf, who at the relevant time was accompanying his brother
PW-4 Abdullah. Thus, he along with his other relatives rushed to the place of occurrence and
found the dead body of Abdul Fatah, while his brother Abdullah was in serious condition, who were shifted to hospital. This witness has also brought on record the motive behind the occurrence, which is stated to be a previous enmity as well as family dispute. Though this witness did not witness the crime directly, but however, the fact remains that he brought the criminal machinery into motion and he fully corroborated the testimonies of other witnesses.
9. The star witnesses of the prosecution are PW- 2 Muhammad Ashraf and PW -4
Abdullah. PW -2 at the relevant time was accompanying his elder brother PW- 4 Abdullah.
This witness brought on record that on the day of occurrence, after shuttering off the shop, he along with his brother PW -4 Abdullah and his assistant deceased Abdul Fatah proceeded
towards their home for Iftari and when reached near Degree College Colony, the culprits namely Mira Bakhsh, Qasim, Khadim and their unknown accomplice arrived over there in a motorcycle and by foot, who launched attacked upon the injured and deceased by means of fire arm and dagger. According to PW -2 the appellant was armed with pistol, while accused
Qasim was armed with dagger, whereas accused Khadim caught hold of his brother Abdullah and the unknown culprit caught hold of deceased Abdul Fatah the appellant Miran made firing upon his brother, while accused Qasim inflicted dagger blow upon his brother and deceased Abdul Fatah. Whereafter he rushed towards his house and informed his elder
brother Mehwa Khan (complainant), who arrived at site and took the victims to hospital.
10. Admittedly, PW -2 is a minor, but at the time of his examination in chief the Court
enquired several questions from him and found him mentally mature and fit to answer the questions correctly and even during cross -examination he replied the questions correctly,
which establishes the soundness of his mind and his statement cannot be thrown aside merely on the ground of his being minor age of 12/13 years rather alone his statement is enough to establish the charge against the culprits. Even otherwise, there is nothing on record showing that this witness was tutored by his elders. We are conscious of the fact that the rule of prudence requires that the testimony of child witness should not be relied upon unless it is corroborated by some cogent evidence on the record. However, in the case in hand the statement of child witness has fully been corroborated by the direct evidence of injured PW -4
Abdullah and PW -1 Mehwa Khan (complainant). Thus, nothing adverse has come on record
to disbelieve the evidence of PW -2. Reliance in this regard is placed on the case of
Muzammil Shah v. State 1991 MLD 1944, wherein it has been held as under:
"10. We have gone through the evidence of Mst. Irshad (P.W.5) with care. Before recording her statement, the learned trial Judge had recorded a note after putting her certain questions that he was satisfied that the witness was intelligent and was capable of making rational answers to questions put to her. Besides, she has been subjected to fairly lengthy cross -examination which she had withstood to an astonishing degree. A
perusal of her statement shows that she made the statement in a frank and
straightforward manner. Curiously there was no suggestion to her in her cross -
examination that she did not know the appellant. Then there are no circumstances to
indicate that she might have been tutored. She had seen the appellant in the course of committing sodomy over the victim with his trousers loosened. She was intelligent enough to understand as to what had been done to her brother and neither she nor her
father had any motive to falsely implicate him. We see no reason whatsoever why the
statement of such a child witness should not be believed though a suggestion was
made to Naeem Gul (P.W.4) that there was enmity of her relatives with the appellant. Nonetheless, the appellant when examined under section 342, Cr.P.C. did not take up this plea. We have- not been able to discover any valid reason to reject the testimony
of Mst. Irshad (PW.5).
11. The case of prosecution has further got strength from the statement of injured witness
PW-4 Abdullah. This witness has correctly stated the date, time and the place of occurrence
as well as the manner in which the occurrence has taken place. This witness has fully corroborated the statement of PW -1 and PW -2. According to PW -4 on the day of occurrence
after shuttering off his tailoring shop, he along with PW -2 and deceased Abdullah Fatah
proceeded towards their home for Iftari on a motorcycle, when they were intercepted by the
culprits in the Degree College Colony and it was found that the appellant was armed with
pistol and co -accused Qasim was equipped with dagger. This witness has confirmed that the
appellant made firing upon him with pistol, while absconding accused inflicted dagger blows upon him and upon the person of deceased Abdul Fatah, whereafter he was taken to hospital for medical treatment. This witness has correctly identified the appellant in the trial to be the culprit, who made firing upon him with pistol. The said witness was cross -examined at
sufficient length, but it appears that the witness remained firm in his deposition and the defence has failed to shake his testimony. Since the PW -4 is not only the victim/injured, but
also the direct eye- witness of the occurrence. The perusal of MLC reflects that the appellant
made all his efforts to take the life of PW -4 by making firing upon his vital part of body,
whereafter the appellant remained under treatment in hospital and faced severe pain, agony
and hardship due to such incident, thus it does not appeal to the logic that the injured may let free the real culprits, who had brought him in the death bed and instead falsely implicate the appellant. The evidence of PW -4 appears to be trust worthy, reliable, confidence inspiring
and free from any prejudice or mala fides. There is no reason to disbelieve or discard the statement of injured witness and in our view the statement of PW -4 being injured witness is
enough to establish the charge against the appellant. Although, the learned counsel for the
appellant attempted to discredit the case of prosecution on the basis of some minor
discrepancies in the evidence of prosecution witnesses but in our opinion, those are not
substantive enough to justify or create reasonable doubt in the case of prosecution about the
involvement and guilt of the appellant with common intention. The statements of PWs -1, 2
and 4 are similar with each other on all counts. As discussed above, since PW- 4 himself was
injured in the incident, thus according to settled norms of justice, the solitary statement of injured witness being confidence inspiring is sufficient to convict the culprit, because legally the statement of an injured witness cannot be challenged. The defence has also not doubted or challenged the injuries sustained by the injured PW -4 in cross -examination. The injuries
sustained by PW -4 have been duly supported by medical evidence furnished by PW -3 Dr. Ali
Mardan Mengal, Police Surgeon. Reliance in this regard is placed on the case of Saleem
Zada and others v. The State 2019 SCMR 1309, wherein identical facts are involved. For
facilitation, the relevant portion is reproduced herein below:
"2. In the backdrop of previous enmity, on eventful day i.e. 26.11.2010 at 4.30 p.m., the petitioners and the respondent intercepted Pir Zada deceased and Bahri Zaman, PW while on board a public vehicle; forcibly de -boarded, they were dealt with hatchet
blows as well as fire shots, in consequence whereof, Pir Zada succumbed to the injuries at the crime scene while the complainant with multiple injuries survived the assault. Incident was reported at the hospital and a formal case was registered 6.30 p.m. at Police Station Gagra, situated, 9/10 kilometers from the venue. The accused claimed trial, pursuant whereto, prosecution produced Bahri Zaman, PW -1 alongside
Taj Habib Gul, PW -2 to bring home the charge; the latter is driver of the vehicle. Fate
of the prosecution case is primarily hinged upon the statement of Bahri Zaman, PW -1.
Taj Habib Gul, PW -2, driver of the vehicle though confirmed the episode, however,
had not identified the assailants so as to establish their culpability. Investigative conclusions and medical evidence are in line with the statement of Bahri Zaman, PW -
1; durations given in the crime report as well as by the doctor coincide with the time of occurrence; the case was registered with a remarkable promptitude; previous bad blood has not seriously been contested; it is on the basis of these pieces of evidence that the accused have been found guilty of the crime. We have gone through the statement of Bahri Zaman, the sole eye -witness and found him most confidence
inspiring; he alone can sustain the charge; being injured, his presence cannot be doubted. Driver of the vehicle, though reticent in his deposition, nonetheless, has unambiguously confirmed circumstances whereunder the occurrence took place. Cross -examination on both the witnesses remained inconsequential and as such
convictions and sentences consequent thereupon do not call for interference."
Similar view has also been taken from the case of Farooq Khan v. State 2008 SCMR
917, wherein it has been held that,
"7... The presence of the injured P.Ws. at the place of occurrence is intrinsic and could not be doubted because it was unchallenged. Statement of P.W.8 is consistent, straightforward and trustworthy with no cogent reason in evidence to disbelieve the same.
8. The defence has also not doubted or challenged the injuries sustained by the injured P.W. in cross -examination. The injuries sustained by P.W.8 have been duly supported
by medical evidence furnished by P.W.10 Dr. Humayun Khan who ruled out that the injuries on person of Namoos Khan P.W.8 were self -inflicting injuries.
9. As to the argument of learned counsel for the appellant that the solitary statement of injured P.W.8 was the basis of conviction, suffice it to observe that the injured prosecution witness had given the number of injuries caused to the deceased in the incident by attributing the responsibility to the appellant. Evidence of this witness has been supported by medical evidence furnished by Dr. Muhammad Maqsood P.W.6 who conducted post -mortem examination on the dead body of the deceased Zahir
Khan. The evide nce of injured witness is worthy of credence, independent and natural
and there was no lawful justifiable cause to discard his evidence. The credence of
statement of solitary witness has already been examined by this Court in a number of
cases. In this context reference can be made to Mali v. The State 1969 SCMR 76; Muhammad Ashraf v. The State 1971 SCMR 530, Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659 and Muhammad Mansha v. The State 2001 SCMR 199".
12. The case of prosecution has further been strengthened from the disclosure of
appellant, which was followed by the recovery of crime weapon on his pointation from his own home. PW -6 Sanaullah, SI, brought on record that during investigation the appellant
confessed his guilt by recording his disclosure and stated that they had enmity with injured
Abdullah, who had committed the murder of his brother. Hence, he along with his younger
brother Khadim and relative Ghulam Sarwar and Qasim planned to commit the crime, thus
on the day of occurrence they all were waiting for a chance around to the tailoring shop of Abdullah and in the evening he closed his shop and departed on a motorcycle along with his brother and assistant deceased Abdul Fatah, who were chased and in the street nearby the Degree College intercepted their motorcycle and launched attack upon them. The appellant also volunteered to recover the crime weapon from his house, thus the disclosure Ex.P/6- A
was prepared and the appellant was taken in an official vehicle to his house situated in
Qambarani Road Quetta, from where he got recovered the pistol used in the crime. It has also
come on record that soon after the occurrence the police had also collected five empties from the place of occurrence and the recovered pistol along with the empties were sent to FSL for examination. After examination, the FSL issued its report as Ex.P/7 -A. Perusal of which
establishes the fact that not only the pistol was in running condition, but also the recovered empties were fired from the said pistol. Since, the disclosure of the appellant was followed by the recovery of crime weapon and the empties were matched from the said pistol, thus legally the disclosure is admissible under the law, when more particularly it got strength
from the recovery of crime weapon as well as matching of empties. The disclosure of appellant coupled with discovery of new facts and the recovery of crime weapon is admissible under Article 40 of the Qanun- e-Shahadat Order, 1984.
13. Adverting to the defence plea of the appellants, suffice to observe here that the
appellant throughout the case has taken the plea of his false implication due to previous enmity, but has failed to produce any solid or concrete evidence to rebut the confidence inspiring evidence produced by the prosecution. Mere denial of the appellants is not enough to brushaside the entire prosecution evidence. Even otherwise, the defence plea so taken by the defence has established the motive behind the occurrence, which is stated to be an old enmity and the injured Abdullah was nominated in the murder of brother of appellant.
14. It was argued on behalf of appellant that the main role ascribed to appellant is that he
made firing upon the injured/PW -4 Abdullah, while he did not harm the deceased Abdul
Fatah, thus the provisions of section 302, P.P.C. are not attracted to his extent rather at the most, if the prosecution succeeds in establishing the charge, the appellant can only be punished for assaulting the injured PW -4 Abdullah and the provisions of section 324, P.P.C.
are attracted. Be that as it may, besides other main offen ces, the appellant has also been
charged under section 34, P.P.C. for sharing common intention. 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. In the present case, the appellant and his co -accomplices duly armed with pistol and dagger, made
surveillance surrounding the shop of victims, chased them on motorcycle and on getting a chance made firing and inflicted dagger blows upon the person of deceased and the injured.
Thus, even if the deceased did not sustain injury at the hands of appellant, the act of firing at
the injured/PW -4 itself was strong evidence of sharing the common intention to commit the
crime. The common intention generally involves the element of common motive, preplan
preparation and action pursuant to such plan but sometimes. It is by now a well settled principle of law that once it is proved that the accused persons had common intention to commit the crime, it is immaterial as to what part was played by whom as law as to vicarious liability is that those who stand together, must fall together. 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 criminal 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."
The bare reading of section 34, P.P.C., which introduces the concept of vicarious or
joint Criminal liability under the Penal System of our country, reveals that when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Reliance in this regard is placed on the case of Sh. Muhammad Abid v. State 2011 SCMR 1148. The relevant portion is reproduced hereunder:
"Once it is found that the accused persons had common intention to commit the crime, it is immaterial as to what part was played by whom as law as to vicarious liability is that those who stand together, must fall together. The question what injuries were inflicted by a particular accused in cases to which section 34, P.P.C. applies is immaterial, the principle underlying the section being that where two or more persons acted with a common intention each is liable for the act committed as if it had been done by him alone."
15. On reappraisal of the evidence available on record it is concluded that the prosecution
has successfully proved the charge against the appellant beyond any shadow of reasonable doubt; that all the witnesses remained firm in their deposition; that they fully supported the prosecution version and the defence has failed to cause any dent in the same; that the trial Court after proper appraisal of evidence available on record has rightly awarded conviction and sentence to the appellant; that the reasons so furnished by the appellant for his false implication has further strengthen the motive behind the occurrence i.e. the murder of his brother by injured Abdullah as well as existence family dispute; that the appellant has failed to point out any material contradiction and discrepancy which could benefit the defence version; that there is no error of law, misreading or non- reading of evidence in judgment
passed by the trial Court calling for interference by this Court.
For the above reasons, the appeal being devoid of merits, is dismissed.
JK/123/Bal. Appeal 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,
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