P L D 2014 Balochistan 120
Before Muhammad Kamran Khan Mulakhail, J
ABDUL LATEEF and 13 others ---Petitioners/Convicts
Versus
THE STATE---Respondent
Criminal Revision No.46 of 2013, decided on 7th March, 2014.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 537(b) & 225---Failure to mention particular s required to be stated in the charge---Effect--
-Such was an error, curable subject to the condition that accused was not misled, or it had no occasion of failure of justice- --Provisions of S.537(b), Cr.P.C., provided that every conceivable
type of error, and irregularity referable to the ch arge, was curable; and it was not to be regarded
as fatal, unless case of eith er party was prejudiced.
(b) Criminal trial---
----Motive---Scope---Motive was not always necessary to be brought, and in presence of
unimpeachable ocular evidence, absence of motive was not helpful to the defence---Motive once
alleged, if not proved, would lead to the failure of prosecution.
(c) Penal Code (XLV of 1860)---
----Ss. 337-A(i), 337-E(e), 337-F(v), 337-N(2) & 149---Causing Shajjah-i- Khafifah, Hashimah,
awarding Tazir, common object- --Appreciation of evidence---Ben efit of doubt---Motive alleged
by the prosecution, not only was admitted by defence, but same was sufficiently proved by the statement of the witnesses; and the suggestions made by the defence---Motive was not shrouded
in mystery---Complainant reiterated the facts as contained in the F.I.R.---Injured prosecution
witnesses had assigned specific roles to accu sed persons---Injuries on the person of the
prosecution witnesses were further corroborated by the medical evidence---No plausible defence
could be brought by any one of the accused persons, as none entered in his defence, nor produced any defence witness; and the question of mala fide was left unattended---Number of
persons belonging to one family, were nominated in the case---Nomination of as many as elderly
members of the opponent family was motivated by the object of humiliation; except the accused
person, no overt act was assigned to the rest of the persons---Injured witness not always speak
the whole truth---Out of 14 accused persons, cas e of eight accused persons was not free from
doubt; benefit whereof would be extended in their favour, not as a grace, but as a right---Only
five, out of total fourteen accused persons, had b een assigned a specific role---Injuries caused to
the injured prosecution witnesses were corr oborated by means of unimpeachable evidence---
Prosecution, in circumstances, had successfully proved its case against five accused persons,
they were rightly held responsible for commission of offence, while rest of them could not be
held responsible for any criminal wrong; their offence was covered by S.337-N(2), P.P.C., as
nothing was on record to establish that they had any credentials or antecedents of being previous
convict, hardened or habitual, desperate or da ngerous criminals---Occurrence, had taken place
about two and half years ago and accused had been facing the agony and anguish of a trial---
Eight accused persons, were acquitted of the char ge by extending them bene fit of doubt in their
favour, while five accused persons were convicted under S.337-A(i) and S.149, P.P.C. and
sentenced to pay Daman---One of accused persons in addition to said sentence was also
convicted under S.337-F(v), P.P.C. and sentenced to pay Daman.
Samano v. The State 1973 SCMR 162; Riaz Hussain v. The State 2001 SCMR 177 and
Haji Maa Din v. The State 1998 SCMR 1528 ref.
(d) Penal Code (XLV of 1860)---
----S. 149---Common object---Sco pe of S.149, P.P.C.---While awarding the sentence, a
distinction had to be made in respect of a ccused, who were armed with deadly weapons or
otherwise.
Babar Ali and others v. The State PLD 1968 SC 372; Mir Dad alias Amir Dad v. The
Crown 1969 SCMR 419; Amir Hussain and othe rs v. The State PLD 1971 Kar. 68 and Amir
Hussain and 6 others v. The State 1971 PCr.LJ 297 ref.
Muhammad Qahir Shah for Petitioners.
Abdul Karim Malghani for the State. Date of hearing: 13th December, 2013.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J--- This Criminal Revision Petition under
sections 435 and 439, Cr.P.C. is directed ag ainst the judgments da ted 26th December, 2012
passed by the learned Judicial Ma gistrate, Zhob and thereafter , upheld by the learned Sessions
Judge, Zhob vide judgment dated 27th June , 2013, whereby, the petitioners/convicts (the
accused) were convicted and sentenced under section 337-A(i), P.P.C, for one year Rigorous Imprisonment with Daman of Rs.3000/- each, to be paid to the injured viz, Shams-ul-Karim,
Roz-ud-Din, Jalal Din and Nasr- ud-Din. They were also convict ed and sentence d under section
337-E(e) [sic] P.P.C, for one year Rigorous Imprisonment with Daman of Rs.3000/- each to be
paid to the injured Shams-ul-Karim, in default whereof they shall remain in custody to suffer
simple imprisonment till payment of fi ne (Daman) to the injured/victim.
Precisely the relevant facts are that the complainant Nasr-ud-Din (P.W.1) submitted an
application against the petiti oners/convicts, alleging therein that on 27th November, 2011 at
about 12-00 p.m. he was at his home and his pate rnal cousin Shams-ul-K arim was grazing cattle
in front of his house. All of a sudden, he sa w the accused persons carr ying spades and Lathis
were drubbing his cousin, he, his brother Roz-ud-D in and another cousin Jalal-ud-Din were also
trounced when they interceded. Thus, the F.I.R. No. 13 of 2011 was lodged under section 337-
ADF read with sections 147, 148 & 149, P.P.C. with Levies Thana, Zhob.
3. After completion, the challan against the petitioners/convicts was submitted before the
trial court and charge was framed against them on 26-3-2012, to which they did not plead guilty
and claimed trial. Thereafter, the prosecution in order to substantia te the charge and to bring the
guilt at home, produced as many as eight witn esses. After completion of the prosecution
evidence the statements of the petitioners/convicts were reco rded under section 342, Cr.P.C,
wherein once again they professed their innocence, however, none of them opted to enter into his
defence on oath. On conclusion of the trial the learned Judicial Magistrate passed conviction and
sentenced the petitioners/convicts in the aforesaid terms vide judgment dated 26th December,
2012. On appeal, the judgment wa s upheld by the learned Sessions Judge, Zhob vide judgment
dated 27th June, 2013.
4. Mr. Muhammad Qahir Shah, learned counsel fo r the petitioners/ convicts contended that
the parties being relatives were in animus over a land dispute. He referred that the all-male
family members were nominated, whereas majori ty of them are more than 65 years old. He
added that the scuffle might had taken place between the youngers of both sides bu t in order to
settle their personal grudge, elde rs of the family were dragged. He objected that though, the
F.I.R. states about the motive i. e. land dispute but th e witnesses have denied existence of any
such motive before the trial court. He stated th at a motive alleged, if not proved, leads to adverse
inference against the prosecution. He objected that without specifying the details and role played
by each accused the charge was defected. He reit erated that since none was attributed any
specific role and act played by him towards the alleged offence, therefore, benefit of doubt
should have been extended in their favour, the denial whereof was without any cogent reason.
Thus, the impugned judgments being not sust ainable are to be set aside and the
petitioners/convicts be acquitted of the charge.
5. Mr. Abdul Karim Malghani, learned counsel representing the State contested the petition
mainly on the ground that concurrent findings of facts cannot be altered. The petitioners/convicts
could not raise any illegality or irregularity in the impugned j udgments. He stated that the
impugned judgments are according to the scheme of law, therefore, do not require any
interference. He made an effort to cover all read ing material and endeavored for dismissal of the
petition.
6. Before discussing the merits of the case, fi rstly, the objection cum ambiguity with regard
to defect in the charge is to be resolved. Th e backbone of overall contentions of the learned
counsel for the petitioners revolves around this ob jection, therefore, the provision of Section 225
Cr.P.C. being applicable is reproduced hereunder:--
"225. Effect of errors.--No erro r in stating either the offence or the particular s required to
be stated in the charge, and no omission to stat e the offence or those particulars, shall be
regarded at any stage of the case, as material, un less the accused was in fact misled by such error
or omission, and it has occasioned a failure of justice."
From the above provision of law, it is clear that even if the particulars required to be
stated are not mentioned in the charge, but the er rors are curable subject to the condition that the
accused is not misled or it has no occasion of failure of justice. Although no glaring error is noted in the charge, but while cons idering the contention of the lear ned counsel then be that as it
may, the provision of section 537(b), Cr.P.C. w ill come into play, which provides that every
conceivable type of error and irregularity referabl e to the charge is curable and it is not to be
regarded as fatal unless case of ei ther party is prejudiced. Thus, the objection to the extent of
errors in charge is overruled.
7. The next limb of objection pertains to the que stion of motive. No cavil is left in view of
the dictum laid down by the Hon'ble apex Cour t that motive is not always necessary to be
brought and in presence of unimpeachable ocular evidence, an absence of motive is not helpful
to the defence. Needless to observe that motiv e once alleged, if not proved, ultimately leads to
the failure of prosecution. But in the instant case, in the cros s-examination, all the injured
witnesses were specifically sugge sted a dispute over partition of land between the parties. The
suggestion itself corroborates the prosecution vers ion that the complainan t's side was beaten up
on land dispute, therefore, motiv e alleged by the prosecution was admitted by the defence, the
contention to this extent does not carry any we ight. The motive has been sufficiently proved by
the statement of the witnesses and the suggestions made by the defence, therefore, the defence
cannot take benefit on this gr ound because the motive was no mo re shrouded in mysteries.
8. The careful consideration of the record manifests that the rough-and-tumble fight lead to
a nomination of number of persons. The comp lainant Nasr-ud-Din reiterated the facts as
contained in the F.I.R. The injured Jalal-ud-Din (P.W.2) assigned a specific role to the accused
Muhammad Hassan and out of four teen persons, he identified only four of them, viz., Abdul
Latif, Muhammad Hassan, Juma Rahim and Habibul lah, the rest were not known to him. The
injured Shams-ul-Karim (P.W.3) assigned a speci fic role to the accused Abdul Latif, when a
spade's blow on both hands went to fracture his right forearm and index finger of left hand. The
injured Roz-ud-Din (P.W.5) attributed a role to the accused Abdul Latif and Aman for causing
injury on his head and for damaging his one teeth (not specified). The injuries elaborated were
further corroborated by the medical evidence produced by Dr.Shahbaz Khan (P.W.6), who
confirmed the injuries as narrated by the inju red witnesses. On completion of the prosecution
evidence, the statements under Section 342, Cr.P.C, were recorded, wherein they have professed
their innocence and pleaded their false implication. In reply to the last question, each of them
stated that he is innocent and their nomination is mala fide, however, no plausible defence could
be brought by any one of them, as none entered in his defence nor produced any defence witness
and the question of mala fide was left unattended.
9. The record shows that the allegation of unlawful assembly punishable under Section 149,
P.P.C. was levelled and in te rms of common object an assault was alleged. The section 149,
P.P.C. is relevant in this cas e, although, the secti on does not create a new offence but provides
liability for offences committed by others in furtherance of their common object. The provision
is to be applied in view of the la w laid down by the Hon'ble apex Court.
The section 149, P.P.C. is divided in two parts, in the present case; the assembly of more
than five persons was alleged to have been co nstituted, which had used the force. But while
awarding the sentence a distincti on has to be made in respect of the accused, who were armed
with deadly weapons or otherwise. An accused who is found to be a member of an unlawful
assembly can be convicted of lesser offence if under the second part of section 149, P.P.C. it is
clear that he was aware that such a lesser offence is likely to be committed in furtherance of their
common object, although some members of the asse mbly may have travelled beyond that object
and committed a grave offence. Thus a distincti on shall necessarily be kept in mind that an
offender who has travelled beyond the object of unl awful assembly, will be dealt separately as
according to part played by him, therefore, th e conviction and sentences passed by learned trial
Court is required to be scrutinized at the to uch stone of the law laid down on the subject.
Reference can be made to Babar Ali and ot hers v. The State PLD 1968 SC 372, Mir Dad alias
Amir Dad v. The Crown 1969 SCMR 419, Amir Hussa in and others v. The State PLD 1971 Kar.
68 and Amir Hussain and 6 others v. The State 1971 PCr.LJ 297.
The case as portrayed by the prosecution is no t one of a free fight but looks a preplanned
object, when by constituting unlawful assembly in furtherance of common object, the accused
launched an assault upon th e injured witnesses, therefore, each member of the unlawful assembly
can be held responsible for the part played by any one of them, but keeping in view the second
part of Section 149, P.P.C, any member of the assembly, who travelled beyond the common
object, he shall alone be liable for such act.
10. I am mindful of the fact that a number of persons belonging to the one family are
nominated in the case. The petition ers/convicts were admitted to ba il, vide this court order dated
2-7-2013. During the pendency of this petition all of them have remained present before the
court, it was noticed that majority of them (nin e out of fourteen) are a pparently feeble and of
advanced age. Now, this tendency is run-of-the-mill in our society, when due to complexities of tribal scenario, as many as memb ers of opponent's family are being nominated, just to harass and
to malign them, particularly, the male members of an advanced age for settling the score of
grudge with sinister object of revenge, just to bring one's opponent to the lowest degree of
humiliation and defamation. The object is obvious in this case, therefore, it looks that nomination
of as many as elderly memb ers of the opponent's family was motivated by the object of
humiliation. It is further observed that except th e accused mentioned herein above, no povert act
was assigned to the rest of the petitioners/convicts.
11. The upshots of the above discussion and afte r reappraisal of evid ence by applying the
golden principle of sifting grai ns from chaff, it is concluded that the complainant (P.W.1)
reiterated his allegation as stated in the F.I. R. The injured witness Ja lal-ud-Din (P.W.2) named
and identified only the petitioners/convicts (accu sed) No.1 Abdul Latif, N o.2 Juma Rahim, No.5
Muhammad Hassan and No.6 Habibullah. The in jured witness Shams-ul-Karim (P.W.3)
attributed a specific role of spades' blow to Abdul Latif an d the injured witness Roz-ud-Din
(P.W.5) assigned a role to the petitioner/conv ict No.1, Abdul Latif and No.4, Aman. Only the
complainant (P.W.1) named all of them by repeati ng the contents of the F.I.R. without assigning
any specific role to anyone of them. The inju red witness Jalal-ud-Din could not identify them
even was unable to name them, while the inju red witness Shams-ul-Karim (P.W.3) and Roz-ud-
Din have attributed specific role to the petitioners/convict s viz, Abdul Latif and Aman
(petitioners Nos.1 and 4).
12. The proposition with regard to the principle of "falsus in uno falsus in omnibus" (false in
one thing, false in all) is not approved by the criminal justice system of our country; therefore, it
is not necessary that the injured witness is alwa ys telling the whole truth. Reference is made to
the cases of Samano v. The State 1973 SCMR 162 and Riaz Hussain v. The State 2001 SCMR
177. Thus, I am of the considered view that the case of the petitioners/convicts Nos.3 Jamal Din,
No.7 Baitullah, No.8. Zahir, No.9. Rehman a lias Zahro, No.10. Khan, No.11. Muhammad Tahir
alias Wasay, No.12. Bakhtullah, No.13. Syedullah and No.14. Din Muhammad, is not free from
doubt, the benefit whereof shall ne cessarily be extended in their favour, not as a grace but as a
right. Only five, out of total four teen petitioners/convicts, have b een assigned a specific role. The
injuries caused to the inju red prosecution witnesses were corroborated by means of
unimpeachable evidence, therefore, the prosecution has successfully proved its case against the
petitioners/ convicts namely Abdul Latif, Juma Rahim, Aman, Muhammad Hassan and
Habibullah and they were rightly held responsible for commission of the offence, while rest of
the petitioners/convicts mentioned herein above cannot be held responsible for any criminal
wrong, therefore, the ocular account up to their extent is disbelieved.
13. Before adverting to the question of sentence awarded to the petitioners/convicts. This is
to be determined that injuries sustained by the injured/witnesses attract which provision of Qisas
and Diyat, to make it punishable under the specific prov ision of the Pakistan Penal Code (P.P.C).
However, subject to provision of section 149, P.P. C. as discussed herein above, the offender who
traveled beyond the object of common intenti on and committed a grave offence will be dealt
separately. The injuries caused to the injured witnesses Nasr-ud-Din (P .W.1), Jalal-ud-Din (PW-
2), Shams-ul-Karim (PW-3) and Roz-ud-Din (P.W.5) , altogether fall within the definition of
'Shajjah-i-khafifah' under section 337(2) (a) of P.P.C. and explai ned under 337(3) (i) P.P.C. The
offence is made punishable under section 337-A(I), P.P.C. Thus, the injuries caused to injured
are 'Shajjah-i-khafifah' while in addition to said injuries, the injured Sham s-ul-Karim (P.W.3) has
sustained certain other injuries, whereby the in ner and the longer of the two bones of his right
forearm (Ulna) and index finger of his left hand, were fractured, these injuries are defined under
section 337-E(e), P.P.C, as 'Ghayr-Jaifah Hashimah ' and classified under subsection (3)(v) of
337-E, P.P.C. as 'Hashimah' which is punishable under secti on 337-F(v) P.P.C.
14. When adverting to the question of senten ce awarded to the petitioners/convicts, the
dictum laid down by the Hon'ble apex Court in the case of Haji Maa Din v The State 1998
SCMR 1528 is helpful, wherein the Hon'ble Apex Court has laid down the guidelines and factors
to be considered for awarding Ta'zir in hurt case s, it leads me to the conclusion that the case of
petitioners/convicts, who are res ponsible for commission of offen ce is covered by subsection (2)
of section 337-N, P.P.C. Thus, keeping in view the principles enunciated in judgment supra I am,
of the considered view that there is nothing availa ble on the record of this case to establish that
the petitioners/convicts had any credentials or ant ecedents of being "a previous convict, hardened
or habitual, desperate or dangerous criminals", thus, their case fa lls within the ambit of section
337-N(2), P.P.C.
The occurrence in this case had taken pl ace about two and half years ago and the
petitioners/convicts have been faci ng the agony and anguish of a trial. They ha ve repeatedly been
in and out of the prison during all this while.
Resultantly, the petition to the extent of the petitioners/convicts namely, Jamal Din,
Baitullah Jan, Zahir, Rehman alias Zahro, Kh an, Muhammad Tahir alias Wasay, Bakhtullah,
Syedullah and Din Muhammad is accepted and they are acquitted of the charge by extending
benefit of doubt in their favour. While, the petition is partly accep ted to the extent of setting
aside the punishment of imprisonment awarded under Ta'zir to the peti tioners/convicts Abdul
Latif, Juma Rahim, Aman, Muhammad IIassan a nd Habibullah, however, they are convicted
under section 337-A (i) read with section 149, P.P.C, and sentenced to pay Daman of Rs.5000/- each (Total Rs.25,000/-) which shall be divided equally among the injured witnesses i.e.
Rs.6250/- each, for causing injuries of 'Shajjahi Khaf ifah'. In default, they shall undergo Simple
Imprisonment for a period of three months.
The petitioner/convict Abdul Latif in additi on to aforesaid sentence is also convicted
under section 337-F(v), P.P.C. and sentenced to pay a Daman amounting to Rs.30,000/- to the
injured Shams-ul-Karim for fracturing the bones of his forearm (Ulna) and index finger of his
hand. In default he shall undergo Simple Im prisonment for a period of six months.
The petitioners/convicts are di rected to pay the amount of Daman to the injured witness
or to deposit the same in the trial court within a period of one month, till the payment of Daman
their bail bonds shall remain intact, which shall be released after fulfilling the directions made
herein above.
Copy of this judgment be sent to the learne d Judicial Magistrate Zhob for compliance,
who upon deposit of the amount of Daman by the pe titioners/convicts shall pay the same to the
injured witnesses.
This revision petition, thus, needs no further action and the same is, therefore, disposed of
in the terms observed ab ove. Order accordingly.
HBT/17/Bal. Order accordingly.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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