2011 Y L R 2146
[Quetta]
Before Abdul Qadir Mengal and Jamal Khan Mandokhail, JJ
SI1AH NAWAZ and others ---Appellants
Versus
THE STATE and others -Respondents
Criminal Appeal No. 5 and Criminal Revision Petition No.2 of 2010, decided on 23rd June,
2011.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34 ---Qatl-e-amd, common intention ---Appreciation of evidence ---
Witnesses did not mention the injuries caused to accused persons, but they assigned the role
of raising "Lalkara" to accused ---Said statements of the prosecution witnesses did not match
the facts of the incident and had suppressed s ome of the facts ---If accused had a Kalashnikov
to kill the deceased, there was no need for the accused to wait till arrival of the eye -witnesses -
--Statements of the witnesses of with regard to "Lalkara" were unbelievable; for the reason
that the F.I.R. wa s registered prior to the F.I.R. of the present case ---Despite the narrated
facts of the complainant side, there was no pre plan or pre -concert of mind for commission of
the murder ---Section 34, P.P.C., in circumstances, hardly could be applied in the matt er---
Facts had further shown that accused, despite having kalashnikov, same was not used by
them nor at a sudden or in spur of the moment, the deceased took out the knife and started
inflicting the injuries to accused ---No common intention having been foun d on the part of
accused, he could not be held responsible for the act of co -accused ---Accused, in
circumstances, was not liable to be convicted for the murder of deceased ---Conviction and
sentence awarded to accused in the case was absolutely improper and illegal ---Accused was
acquitted of the charge; whereas it was proved that during the fight, the circumstances
compelled co -accused to kill the deceased.
(b) Penal Code (XLV of 1860) ---
----S. 302 (b)/34 ---Qatl-e-amd---Common intention ---Appreciation of evidence ---Act of co -
accused had shown that he fired at the deceased, who received several injuries on his vital
parts ---Co-accused, in his self defence, could have made fires at the legs of the deceased and
not on his vital parts -- Co-accused, in circ umstances, had committed the murder of deceased
and Trial Court had rightly held it a result of mitigating circumstances ---Finding of the Trial
Court to the extent of co -accused could not be interfered with ---Appeal against order of the
Trial Court to the extent of co -accused was dismissed and his conviction was maintained by
High Court.
Mst. Khatoon v. Sabir Ahmed and others PLD 1995 Kar. 593 and 1997 (4) CRI (563) ref.
Muhammad Aslam Chisthi for Appellants.
Ateeq Ahmed D.P.G. for Respondent.
Mun eer Ahmed Langove for the Complainant.
Muneer Ahmed Langove for Petitioners.
Muhammad Aslam Chishti for Respondents.
Ateeq Ahmed D.P. -G. .for the State.
Date of hearing: 6th June, 2011.
JUDGMENT
ABDUL QADIR MENGAL, J .---This criminal appeal under section 410, Cr.P.C. has been
directed against the judgment dated 8 -12-2009, passed by the Additional Sessions Judge -II,
Quetta, in murder F.I.R. No.19 of 2008, whereby the appellants were convicted and
sentenced under section 302(b), 34, P.P.C., for life imprisonment, so as were directed to pay
a sum of Rs.50,000 (Rupees fifty thousand only) each, as compensation to the legal heirs of
the deceased Muhammad Naeem, in default, to undergo for further term of six (6) months'
S.I., each, with benefit of s ection 382 --B, Cr.P.C.,
2. Being aggrieved of the said order, the present appeal has been preferred with the prayer:
"That Hon'ble Court may set aside impugned judgment dated 8 -12-2009 and to acquit
the appellants."
3. Similarly, the complainant file d a Criminal Revision No.2 of 2010 for enhancement of the
sentence. We intend to dispose of the both through a common judgment.
4. Brief facts as unfolded in the judgment of the learned Additional Sessions Judge -II, Quetta,
were that, the complainant, Mu hammad Kareem son of Faiz Muhammad, lodged an F.I.R.
through a Fard -e-Bayan, Exh.P/l, stating therein that, he is residing along with his brother at
Pashtoonabad, Quetta, and running a business of vegetables at Hazar Ganji Vegetable
Market. It was 1 -4-2008 , when he and his brother, Muhammad Naeem, were present at home.
It was about 8 -00 p.m., his brother left for the house of Khuda -e-Nazar, saying he was invited
there, so his brother went to their house, situated near Abdul Wali Chowk. Soon after that he
came to know that appellants Shah Nawaz and Nadir Ali have killed his brother Muhammad
Naeem by firing of Kalashnikov, due to unknown reasons. The complainant rushed to the
spot and found his brother smearing in blood. Thereafter, he shifted his brother to t he
hospital, where the S.H.O. along with the Police party was already present in connection with
the incident of a quarrel and was busy for completing formalities and treatment of the injured
accused. There, he informed the Police about the murder of his b rother at the hands of
the accused Shah Nawaz and Nadir Ali, who reduced the infor mation into writing and
then send it for the registration of an F.I.R. under sections 302, 34, P.P.C.
5. After lodging the F.I.R. No. 19 of 2008, the Investigation of the matter was entrusted
to P.W.8 Manzoor Ahmed S. -I., who arrested the appellants. He recorded the statements
of the P.Ws. and took into possession the blood -stained clothes of the deceased, blood -
stained knife from the place of occurrence and prepared the s ketch of wardat and also
secured the blood -stained earth. He recovered two leads of bullet through a recovery
memo in presence of the witnesses. The blood -stained articles were sent for analysis
and certificates of the same were received. He prepared the f inal challan of the matter
on 26 -6-2008.
6. On receiving the challan, the District and Sessions Judge, Quetta, transferred the
matter to the Court of the Additional Sessions Judge -II, Quetta, for trial.
7. On 14 -6-2008, charge was framed and was read o ver to the appellants, to which, they
pleaded not guilty and claimed trial. To prove the case; the prosecution produced the
following eight (8) witnesses:
P.W.1 Muhammad Kareem, the complainant of the case.
P.W.2 Saadullah son of Nida Muhammad, an eye -witness of the incident.
P.W.3 Habibullah son of Raheemuddiu, an eye -witness.
P.W.4 Talib Hussain A.S. -I., a formal witness for production of Counter F.I.R.
No. 18 of 2008, under section 324 and so as memos of recoveries of the incident.
P.W.5 Abdul Sadiq, an eye -witness of the incident.
P.W.6 Riasat Ali S. -I. a recovery witness of the articles, such as, Blood -stained
Clothes, Blood -stained Earth including Blood -stained Knife.
P.W.7 Dr. Muhammad Ibrahim MLO, Civil Hospital, Quetta.
P.W.8 Manzo or Ahmed is - the Investigating Officer of the accused, who on
completion of the investigation has submitted the challan before the court.
8. On conclusion of the case, the trial Court convicted and sentenced the appellant as
mentioned hereinabove, hence these appeal and revision.
9. Learned counsel for the appellants mainly contended that the trial Court has not
properly appreciated the evidence and has overlooked the impact of the counter F.I.R.
No. 18 of 2008, whereas it was the deceased, Muhammad Nae em, who attacked upon
the appellants/accused and gave them serious injuries. He argued that the appellants
immediately approached the police station and registered their F.I.Rs. and thereafter, the
present F.I.R. was registered against the appellants. He s tated that at the time of the
present incident, the appellants were not present at the spot, rather, after registration of
their F.I.Rs., they were in hospital for their treatment. According to the learned counsel,
the appellants have wrongly been involved in the case.
10. The learned counsel stated that the appellants are innocent and the so -called eye -
witnesses actually are not the witnesses of the scene and are the arranged ones. He
further argued that there is no recovery from the accused, which could connect the
accused in the commission of the offence, therefore in the circumstances, the accused
are innocent and are liable to be acquitted of the charge, but the trial Court did not
dilate upon the relevant fact properly and overlooked the important an d material aspect
of the case, as such, committed an illegality.
11. The counsel for the State, Mr. Ateeq Ahmed Khan, and so as the counsel for the
complainant, Mr. Muneer Ahmed Langov, while repudiating the Sessions Judge has
failed to pass a normal pen alty of death to the appellants by overlooking the real facts
and evidence of the eye -witnesses of the incident, and has wrongly concluded that the
incident was a result of a mitigating circumstance and awarding the life imprisonment. It
is a rule of law t hat, once a murder has been proved, then, the normal sentence of death
should be awarded, but the trial Court did not consider contention of learned counsel for
the appellant stated that, the accused, intentionally, committed the murder of the
deceased, by calling him to their house. They, with their common Intention and pre -
arranged plan, attacked upon the deceased and killed him by means of firing of the
Kalashnikov, as such, the appellants/ accused have committed the murder of the
deceased. The additiona l this legal and factual aspect.
12. We have heard both the sides and perused the record of the case. Admittedly, the
deceased had come to the house of the appellants for lodging a protest of their attitude
for annoying on a petty matter. Record reflects that the deceased had changed his
behaviour by extending abuses to the appellants in their house in front of their mother,
so the appellants took him out of their house and tried to pacify the deceased. According
to the appellants, the deceased became fur ious, took out a knife and, then, attacked upon
the both brothers by inflecting them knife blows, which resulted into serious injuries.
They were shifted to a hospital and registered an F.I.R. No.18 of 2008 against the
deceased, but the same was not procee ded being abated due to the death of Muhammad
Naeem. It may be necessary to point out that on this aspect. The trial Court expressed
himself as follows:
"As discussed hereinabove, at the strength of record, it is patently clear that the
deceased Muhammad Naeem had gone to the house of accused person in order to make
protest, whereupon an altercation picked up between them. They indulged in quarrel and
after receiving stab wounds the accused persons retaliated with such a degree of venom
that Shah Nawaz at the instance of Nadir Shah opened fire with a Kalashnikov and
killed Muhammad Naeem instantaneously on the spot. The nature of offence is, no
doubt, an act of ruthless murder with an automatic weapon, the attending circumstances
in which the offence was c ommitted are that the accused persons made onslaught using
maximum force to retaliate the assault of deceased having a knife, and the degree of
deliberation shown by the accused persons is of very short span of time as they reacted
spontaneously. Amidst su ch state of affairs, it is evident that the accused persons did not act
in preplanned or premeditated manner to take the life of the deceased in order to encumber
them with culpability of murder. The proof as envisaged under section 304, P.P.C. in either
form is not available, therefore, as it appears that the deceased went to the house of accused
persons and the accused persons in a sudden flare up and in the heat of passion acted in such
a manner which cannot be justified in totality yet the case squarely fell within the ambit of
section 302(b), P.P.C. as Ta'zir."
13. The view expressed by the trial Court seems to be based upon the evidence and material
available before it. The finding of facts arrived at by the trial Court has weight in it for the
reaso n that the Judge had the advantage of seeing the witnesses appeared before him. Hence,
credibility is attached to such observation of the trial Court and, as such, we see no reason to
disturb it. Reliance has been placed on a case of Mst. Khatoon v. Sabir Ahmed and others,
reported in PLD 1995 Karachi (593).
Thus, it is proved that the deceased went to the house of the appellants/accused, where an
altercation took place, in result whereof, the present incident had taken place.
14. Now, adverting to, th e evidence, the present case almost depends upon the evidence of
three (3) eye -witnesses, including admission of the appellants about the arrival of the
deceased to their house and altercation, which culminated into the quarrel and use of the knife
by the deceased. Admittedly, the complainant is not an eye -witness of the case, whereas
P.W.2 Saadullah, P.W.4 Abdul Saddiq and P.W.3 Habibullah claimed to be the eye -witnesses
of the incident. According to them, they all went to the shop of ice cream, in the mea nwhile,
they received an information from a cyclist that some people were beating Muhammad
Naeem Achakzai, on that, they went there and saw Nadir telling his brother Shah Nawaz,
who had a Kalashnikov in his hand, to fire burst, who fired at Muhammad Naeem,
whereafter, accused fled away from the place of the incident. The witnesses said that they
took Muhammad Naeem to the hospital, where Muhammad Kareem also reached. The
witnesses fully corroborate each other on this point. This is the whole and material ev idence
of record on basis of which, the trial Court has based his finding. In the light of the
background of the case, the statements of the witnesses require minute examination and
assessment. Role of both the accused and their common intention of killing the deceased,
Muhammad Naeem, are required to be dealt with on the basis of the record and findings of
the trial Court.
15. At the very outset, we may mention that the arrival of the deceased at the house of the
appellants and the altercation and quarre l with the appellants gets support from the
admissions of the appellants, secondly from the statements of the eye -witnesses, who confirm
the place of the occurrence, being adjacent to the house of the appellants. This fact gets
further support from the com plaint, wherein, it is said that the deceased had informed the
complainant that he had left to the house of the appellants. This fact has further been
supported by the site plan, where the dead body was found and the blood -stained earth was
obtained theref rom. The F.I.R. registered by the appellants also confirms the place of the
occurrence, as near to the house of the appellants. Admittedly, the witnesses did not mention
the injuries caused to the appellants, rather they assigned the, role of raising "Lalk ara" to the
appellant, Nadir. In our view, these portions of the statements of the P.Ws. do not match the
facts of the incident and suppressed some of the facts. It is unbelievable that if the appellant
had a Kalashnikov to kill the deceased, Muhammad Naee m, before the arriving of the eye -
witnesses, then, there was no need for them to wait till arrival of the eye -witnesses. The
statements of the witnesses of given role of " lalkara" to the appellant Nadir is unbelievable
for the reason that his F.I.R. was re gistered prior to the F.I.R. of the present case. Secondly,
Nadir was taken to the hospital immediately after the occurrence, and his medical"' certificate
shows the nature of the injuries caused to him on his vital parts do not reflect self inflicted
injuries.
16. Thus, in the light of the above, while assessing the evidence, we are of the view that
despite the narrated facts by the complainant side, we see no any pre -plan or pre -concerts of
minds for commission of the murder, therefore, section 34, P.P. C. hardly can be applied in
the present matter. Facts further show that, the appellants/ accused having had Kalashnikov at
their house, but same was not used by them nor there was such intention to murder the
deceased, but at a sudden or in spur of the mom ent, the deceased took out the knife and
started inflecting the injuries to appellants. So, it was that stage when Shah Nawaz during the
fighting rushed to his house and brought the Kalashnikov and fired upon the deceased and
killed him. Since, there was n o common intention on the part of the appellant Nadir,
therefore, he could not be held responsible for the act of Shah Nawaz, as such, was not liable
to he convicted for the murder of Muhammad Naeem. In this respect, we have fortified our
view from 1997 (4 ) CRI (63), which reads as follows: --
"The mere act by the accused A shouting at other accused for assault cannot mean that
all the accused persons had common B intention to cause grievous hurt, specially
when the weapon of offence itself had not been ca rried by accused prior to
occurrence, but was suddenly picked up by him near the spot."
17. Hence, in our view, the conviction and sentence awarded to the appellant Nadir in the
present case is absolutely improper and illegal, as such, he is acquitted of the charge.
Whereas, it is proved that during the fighting, the circumstances compelled Shah Nawaz to
kill the deceased.
18. The act of the appellant Shah Nawaz shows that he fired at the deceased, who received
several injuries on his vital parts, as is evident from the M.L.C., knowingly that, it would
cause death of the deceased. He could have make fires in his self defence at the leg of the
deceased, but not on his vital parts. The appellant Shah Nawaz committed the murder of
Muhammad Naeem and the tri al Court has rightly held it a result of the mitigating
circumstances, therefore, we are reluctant to interfere in the finding of the Additional
Sessions Judge -II, Quetta, to the extent of Shah Nawaz.
19. Thus, in view of what has been stated and discuss ed above, the appeal is partly allowed.
The impugned judgment dated 8 -12-2009 passed by the Additional Sessions Judge -II Quetta,
to the extent of the appellant Nadir Ali son of Khuda -e-Nazar is set -aside. He is acquitted of
the charge. The appeal to the ex tent of appellant, Shah Nawaz, is dismissed and his
conviction is maintained.
20. In view of the above findings on the appeal, we see no any reason or weight in Criminal
Revision No.2 of 2010 for enhancement of the sentence, therefore, same is dismissed.
H.B.T./57/Q 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,
let us know.