2015 Y L R 2262
[Balochistan]
Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ
Haji ABDUL QADIR and another ---Appellants
versus
The STATE---Respondent
Criminal Appeal No.311 of 2009 and Criminal Revision No. 11 of 2012, decided on 29th June,
2015.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 337 -F(i)(ii)--- Qatl-i-amd, causing damiyah, and badi'ah--- Appreciation of
evidence ---Prosecution witnesses had alleged firing by accused persons, but no empties were
recovered from the s pot---Ocular account of prosecution witnesses had not been established---
Prosecution witnesses had failed to establish the common object and vicarious liability on the
part of accused persons to commit offence ---Motive had not been established---Witnesses of the
prosecution, failed to establish that accused persons being members of unlawful assembly,
shared the common object of assembly and some accused in furtherance of common object of
unlawful assembly, committed offence ---No premeditation or preparation or planning was
established ---Mere fact that both accused persons were holding knives, could not be sufficient to
attribute common object, when the appearance of the complainant party at the scene of
occurrence, was by chance--- In absence of common object , every accused would be responsible
individually for his own act ---Accused persons were liable to be convicted under S.337- F(ii),
P.P.C.---Conviction of accused persons, under S.302(b), P.P.C., was unwarranted, and contrary
to the evidence on record--- Impugned judgment to that extent, was not sustainable, in
circumstances ---Contention of the complainant that prosecution beyond any reasonable doubt
had proved the case against accused persons, and in absence of any mitigating circumstances,
their sentence, w as liable to be enhanced was repelled, as no such evidence had come on record
to hold responsibility upon accused persons under S.302(b), P.P.C.---Appeal was partly allowed -
--Convictions and sentences of accused persons under Ss.302(b), P.P.C. and S.337- F(i), P.P.C.,
were set aside, and they were acquitted of the charges respectively ---Conviction and sentence of
accused persons under S.337- F(ii), P.P.C., were maintained with benefit of S.382- B, Cr.P.C.
Muhammad Altaf and 5 others v. The State 2002 SCMR 189 ref.
(b) Penal Code (XLV of 1860) ---
----S. 149---Common object ---Doctrine of vicarious liability ---For construction of unlawful
assembly, it must be established that unlawful assembly had common object ---Doctrine of
vicarious liability as envisage d under S.149, P.P.C., required that one should be member of
unlawful assembly; that in prosecution of common object of that assembly offence should have
been committed by the member of unlawful assembly and that offence be of such a nature that
the member of that assembly, knew the offence likely to be committed in pursuance of common
object.
Amanullah Kanrani for Appellants (in Criminal Appeal No. 311 of
2009).
Muhammad Qahir Shah and Najam -ud-Din Mengal for the Complainant (in Criminal
Appeal No. 311 of 2009).
Miss. Sarwat Hina, Additional Prosecution General for the State (in Criminal Appeal No.
311 of 2009).
Muhammad Qahir Shah and Najam -ud-Din Mengal for Petitioner (in Criminal Revision
Petition No. 11 of 2012).
Amanullah Kanrani for Respondents Nos.1 and 2 (in Criminal Revision Petition No. 11
of 2012).
Miss. Sarwat Hina, Additional Prosecutor General for State/Respondent No.3 (in
Criminal Revision Petition No. 11 of 2012).
Date of hearing: 27th May, 2015.
JUDGMENT
MUH AMMAD EJAZ SWATI, J. ---Through Criminal Appeal No. 311 of 2009, the
appellants have challenged the validity of the judgment dated 4th September, 2009 (hereinafter
the "impugned judgment") passed by the learned Additional Sessions Judge, Killa Abdullah at
Chaman (hereinafter the "trial Court") whereby appellants have been convicted under section
302(b), P.P.C. and sentenced to suffer imprisonment for life with fine of Rs.50,000 each as
compensation to be paid to the legal heirs of deceased Noor Muhammad and in default whereof
to further suffer R.I for six months. The appellants were further convicted under section 337- F(i)
(ii), P.P.C. and sentenced to pay Daman of Rs.10,000 each to each injured namely Haji Bahadur,
Haji Lal Muhammad, Muhammad Ayub and Abdul Jabbar son of Haji Lalai.
Whereas, the complainant Abdul Samad has filed the Criminal Revision Petition No. 11
of 2012 for enhancement of the sentence awarded to the appellants.
Since both the matters arising out of the same judgment, therefore, are being disposed of
by means of this common judgment.
2. The facts of the case arising out of the instant appeal are that on the report of Abdul
Samad (complainant) an FIR No. 180 of 2008 dated 3rd September 2008 registered with Police
Station Sadder, Cham an District Killa Abdullah under sections 302, 337- H(2), 337- AD, 147, 148
and 109, P.P.C., wherein the complainant alleged that on the said date he along with his brother
namely Noor Muhammad and Noor Ali were going home from Bazar and when at about 7:50
p.m. reached near the houses situated at Killi Jelani, the appellants stopped their way by parking
a Datsun. When they asked the reason, they attacked upon them by starting firing with weapons.
It is further alleged that in the meanwhile Haji Lalai, Bahadur , Ayub and Abdul Jabbar son of
Lalai reached there. The accused persons also assaulted them. It was pointed out that the
absconding accused Muhammad Hanif inflicted dagger blow upon Noor Muhammad, whereas
the appellant Abdul Qadir caused injuries to Bahadur and Haji Lalai, whilst Abdul Jabbar son of
Abdullah caused injuries to Abdul Jabbar son of Haji Lalai. The appellant Abdul Hadi caused
injuries to Muhammad Noor and Muhammad Ayub, whereas, the other four persons were
making firing. The victim Noor Muhammad succumbed to the injuries at the hospital.
3. At the trial, the prosecution examined P.W.1 Abdul Samad complainant, P -2 Abdul
Pukkar, P.W.3 Muhammad Ayub, P.W.4 Noor Ali, P.W.5 Abdul Jabbar (injured), P.W.6 Shafqat
Ullah, P.W.7 Haji Lal Muhammad, P.W.8 Bahadur (injured), P.W.9 Dr. Zia -ud-Din, P.W.10
Muhammad Ramzan ASI, P.W.11 Gul Muhammad ASI and P.W.12 Muhammad Abdullah.
4. When examined under section 342, Cr.P.C. the appellants denied the allegations of the
prosecution. Both of them got recorded t heir statements under section 340 (2) Cr.P.C. and
produced a copy of FIR No. 181 of 2008, site plan and charge as Ex.D/1- A, Ex.D/1 -B and
Exh.D/1- C.
5 The trial Court vide impugned judgment convicted and sentenced the appellants as
mentioned hereinabove.
6. The learned counsel for the appellants contended that the complainant party were
aggressors, as they came to the house of the appellants and made an attack, whereby the
appellants had also received injuries; that no specific injury has been attributed to the appellants
upon deceased Noor Muhammad and in absence of any common object, conviction and sentence
of the appellants under section 302(b), P.P.C. is unwarranted; that the prosecution witnesses only
alleged causing injuries by the appellant Abdul Q adir to the injured Bahadur and in this respect
too, the statements of the prosecution witnesses suffer from inter se contradictions and
improvements; that no specific role has been attributed to the appellants; that no motive has been
established, therefo re, the question of common object and vicarious liability in the case was not
existed, but the trial Court without adhering to the above aspect of the case passed the impugned
judgment; that the prosecution through evidence has failed to establish the comm on object or
vicarious liability, therefore, the findings of the trial Court suffer from misreading and non-
reading of evidence.
The learned Additional Prosecutor General assisted by the learned counsel for the
complainant in rebuttal contended that the complainant along with his brother Noor Muhammad
and Noor Ali were going towards their home, when the appellants along with the absconding co-
accused blocked their way by parking a Datsun and thereafter they committed the offence, which
not only shows the ir common object, but they by virtue of vicarious liability were also held
responsible, which had been established through evidence; that all the accused persons including
the appellants knew about the common object and consequence thereof they committed t he
offence, therefore, each member of the unlawful assembly is responsible for the offence
irrespective of their roles; that the prosecution through evidence has established the charge
against the appellants beyond any reasonable doubt; that there were no mitigating circumstances,
therefore, besides affirming the impugned judgment, the sentence of the appellants is liable to be
enhanced and the Criminal Revision Petition No. 11 of 2012 may be accepted.
7. We have heard the learned counsel for the parties and have gone through the record of the
case. The case of the prosecution hinges upon the statements of complainant, injured witnesses
namely Bahadur, Abdul Jabbar son of Haji Lalai, Muhammad Noor and Muhammad Ayub.
Though the prosecution witnesses alleged firing on the part of the accused persons, but no
empties were recovered from the spot. P.W.1 Abdul Samad in his testimony deposed about the
incident and narrated the facts mentioned in his Fard- e-Bayan, on the basis whereof the FIR was
registered. He add ed that the appellant Abdul Qadir planned the incident, which resulted in death
of deceased Noor Muhammad, but this fact has not been substantiated. He further deposed that
the absconding accused Muhammad Hanif caused injuries to Noor Muhammad by means of
dagger, whereas the appellant Abdul Qadir inflicted knife blow to the injured Bahadur and the
appellant Abdul Hadi inflicted knife below to Muhammad Noor and Muhammad Ayub. PW -2
Abdul Pukkar narrated the same facts and stated that the appellants Abdul Qadi r and Abdul Hadi
caused injuries to Bahadur and Muhammad Ayub respectively. According to him, he and Abdul
Khaliq relieved the injured and complainant from the appellants. P.W.3 Muhammad Ayub
(injured) besides narrating the facts of the incident also attri buted causing of injuries by the
appellants to the injured Bahadur and Muhammad Ayub respectively. P.W.4 Noor Ali also
reiterated the same facts and specifically attributed causing of injuries to the injured Bahadur by
the appellant Abdul Qadir and Muhamma d Ayub by the appellant Abdul Hadi. P.W.5 Abdul
Jabbar (injured) in the same line stated that the appellant Abdul Qadir caused injuries to Bahadur
while the absconding co -accused caused injuries to Muhammad Noor and the appellant Abdul
Hadi caused injuries to Muhammad Ayub. P.W.6 Shafqat Ullah produced a dagger and stated
that it was snatched from the absconding accused Muhammad Hanif, which was taken into
possession vide recovery memo Ex.P/6- A. P.W.7 Haji Lal Muhammad stated that he also went
to the place of incident. P.W.8 Bahadur (injured) has also received injuries and stated that the
appellant Abdul Qadir caused injuries to him on his left thigh by means of knife. P.W.9 Dr. Zia -
ur-Rehman produced death certificate of deceased Noor Muhammad Ex.P/9- A an d MLCs of the
injured Haji Bahadur, Haji Lal Muhammad, Muhammad Ayub and Abdul Jabbar son of Haji
Lalai. P.W.10 Muhammad Ramzan ASI produced the bloodstained clothes of deceased Noor
Muhammad through the recovery memo Ex.P/10- A and the blood- stained clothe s of injured
Muhammad Ayub and Lalai Ex.P/10 -B, P.W.11 Gul Muhammad and P.W.12 Muhammad
Abdullah stated about the investigation of the case.
8. The aforesaid evidence of the prosecution indicates that on 3rd September, 2008, the
complainant Abdul Samad a long with his brother Noor Muhammad and Noor Ali reached near
the houses at Killi Jelani, where according to them, the appellants along with the absconding
accused had blocked their way by means of a Datsun. Had it been so, then the appellants along
with the absconding accused would have beaten these three persons including the complainant.
Admittedly, the complainant Abdul Samad (P.W.1) had not received any injury during this
episode. It also appears that P.Ws. Bahadur, Abdul Jabbar son of Haji Lalai and H aji Lalai,
Muhammad Ayub and Muhammad Noor jointly came to the place of the incident. All the
prosecution witnesses including the injured admitted that the incident had taken place at Killi
Jelani and the appellants are also residents of the said Killi. P. W.7 Haji Lal Muhammad during
the course of cross -examination admitted that they came to the place of incident in vehicles. The
site plan Exh.P/12- A also indicates that at point "C" the houses of the appellants are situated in
Killi Jelani. The prosecution through the aforesaid witnesses has failed to establish the common
object and vicarious liability on the part of the appellants to commit the offence. Though, P.W.1
Abdul Samad in his Fard- e-Bayan set up a motive that the incident had taken place due to
previous enmity but during evidence no such motive has been established, therefore, in absence
of any motive, the circumstances of the case clearly shows that the complainant party went to the
place of the incident. The prosecution story that the complainant along with injured and his
brother were going to their home and they were held at a bridge near Killi Jelani, after some
altercation with the appellants, meanwhile Haji Lalai, Bahadur, Abdul Jabbar son of Haji Lalai
and Muhammad Ayub also reached at the s pot. The altercation lasted for some time and in the
incident sharp edge injuries had been received by the prosecution witnesses and as per FIR
Ex.D/l registered on the report of appellant Abdul Qadir in respect of same incident, further
shows that the com plainant party came to the house of the appellants, where the incident had
taken place. In these circumstances of the case, there being no element to constitute common
object and vicarious liability on the part of the appellants. For construction of unlawf ul assembly,
it must be established that the unlawful assembly is common object. The doctrine of vicarious
liability as envisaged under section 149, P.P.C. requires that one should be member of unlawful
assembly, that in prosecution of common object of tha t assembly offence should have been
committed by the member of unlawful Assembly and that be of such nature that the member of
that assembly, knew the Offence likely to be committed in prosecution of common object. The
witnesses of the prosecution failed t o establish that the appellants being members of unlawful
assembly shared the common object of assembly and some accused in furtherance of common
object of unlawful assembly committed the offence. In the instant case, it shows that there was
no premeditati on, no preparation and there was no planning. The fact that the appellant Abdul
Qadir inflicted wound on the left thigh and the appellant Abdul Hadi caused injuries to
Muhammad Ayub on his left hand near wrist joint, which according to MLC Ex.P/9- B and
Ex.P/9-D, were simple in nature and the mere fact that both the appellants were holding knives,
could not be sufficient to attribute common object when the appearance of the complainant party
at the scene of occurrence, according to the prosecution, was by chance, therefore, in absence of
common object, the every accused will be responsible individually for his own act. In the case of
Muhammad Altaf and 5 others v. The State 2002 SCMR 189, the Hon'ble Supreme Court of
Pakistan while interpreting section 149, P .P.C. in a similar circumstance held as under: --
"The word "knew" occurring in the second part of section 149, P.P.C. requires that this
must be proved by tangible and sufficient evidence and not from conjectures and speculations
that the offence was co mmitted in prosecution of the common object of the assembly. It would,
therefore, not be sufficient to show that the accused ought to have known or might have known
and that they had reason to believe that the common object of the unlawful assembly was to
commit murder. In this background it is not just and proper to hold that to avenge a trivial and
insignificant incident over pigeon, the grand- father, their son and their grandson would form an
unlawful assembly with the only object to commit murder. There fore, in these circumstances
section 149, P.P.C. cannot be made applicable and so every accused would be liable to
punishment for the act committed by him during the attack."
9. In view of the above and considering the evidence on record, section 149, P.P.C. cannot
be made applicable, therefore, the appellants would be liable to be convicted for the act
committed by them during the incident. The appellant Abdul Qadir was attributed of causing
injuries to Bahadur, whereas the appellant Abdul Hadi was attri buted of causing injuries to
Muhammad Ayub, therefore, they are liable to be convicted under section 337- F (ii), P.P.C. and
in the circumstances of the case, the conviction of the appellants under section 302(b), P.P.C. is
unwarranted and contrary to the e vidence on record, therefore, the impugned judgment to that
extent is not sustainable.
10. The counsel for the complainant contended that the prosecution beyond any reasonable
doubt has proved the case against the appellants and in absence of any mitigat ing circumstance,
their sentence is liable to be enhanced, is not tenable, as no such evidence came on record either
to hold responsibility upon the appellants for the offence under section 302(b), P.P.C. Even no
case of section 302(b), P.P.C. is made out against the appellants due to the reason as discussed
hereinabove.
In view of the above, the Criminal Appeal No. 311 of 2009, is partly allowed and the
conviction and sentence of the appellants under section 302(b), P.P.C. and conviction and
sentence o f the appellants in respect of section 337- F(i), P.P.C. to the extent of causing injuries
to Haji Lal Muhammad and Abdul Jabbar are set aside and they are acquitted of the charge
respectively. They be released forthwith if not required in any other case, however, the
conviction and sentence of the appellants under section 337- F(ii), P.P.C. to the extent of causing
injuries to Bahadur and Muhammad Ayub are maintained with benefit of section 382- B, Cr.P.C.
With the result, the Criminal Revision Petition No. 1 1 of 2012, is dismissed.
HBT/79/Bal Appeal allowed.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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