2022 Y L R 1992
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
MUHAMMAD HUSSAIN and another ---Appellants
Versus
MUHAMMAD BASHIR and another ---Respondents
Criminal Acquittal Appeal No.210 of 2018, decided on 8th March, 2021.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 109 & 34---Qatl -i-amd, abetment, common intention---Appreciation of
evidence--- Appeal against acquittal ---Benefit of doubt ---Accused were charged for
committing murder of the brother of the complainant by firing--- Motive of the incident was
the fight between deceased and accused, which took place about a year back ---Parties were in
inimical terms and cases were pending between them ---Record showed that no specific role
was attributed to the accused/respondent ---Convict/co -accused was attributed the role of
firing upon the deceased and the crime weapon was recovered from the said co -accused,
which was matched with the bullet empties, which were recovered from the place of
occurrence---Eye -witness of the occurrence was not produced before the court to the extent
of accused ---None of the reasons cited by the trial judge had been found as artificial or
unrealistic ---Even otherwise, on independent analysis, the genesis of the prosecution case did
not appear to be free from doubt ---Circumstances established that the Trial Court had
considered all the material present on record properly and arrived at the conclusion which was based on proper appreciation of the facts and law, thus did not need interference ---
Appeal against acquittal was dismissed accordingly.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 109 & 34---Qatl -i-amd, abetment, common intention---Appreciation of
evidence--- Appeal against acquittal ---Benefit of doubt ---Motive was not proved--- Scope ---
Accused were charged for committing murder of the brother of the complainant by firing---Motive of the incident was the fight between deceased and accused, which took place about a year back ---Parties were in inimical terms and cases were pending between them ---Record
showed that the complainant alleged the motive against the convict/accused and did not allege any motive towards the accused/ respondent ---Neither the witnesses attributed the role
of the firing to the accused/respondent nor stated a single word that either the accused/ respondent was armed with any deadly weapon ---No motive, consultation and conspiracies
of the accused had been attributed by the complainant as well as other prosecution witnesses -
--Circumstances established that the Trial Court had considered all the material present on record properly and arrived at the conc lusion which was based on proper appreciation of the
facts and law, thus did not need interference---Appeal against acquittal was dismissed
accordingly.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 109 & 34---Qatl -i-amd, abetment, common intention---Appreciation of
evidence---Appeal against acquittal ---Benefit of doubt ---Recovery of weapon of offence ---
Scope ---Accused were charged for committing murder of the brother of the complainant by
firing ---Record showed that recovery of crime empties and matching of the same with the
crime weapon which was recovered on the pointation of the accused/convict ---
Accused/respondent was not responsible for the murder of deceased ---Neither
accused/respondent had made firing upon the deceased nor any recovery whatsoever had been effected from his possession--- Prosecution had failed to establish through incriminatory
evidence with regard to common intention or common object of the accused/respondent to commit the murder of the deceased ---Circumstances established that the Trial Court had
considered all the material present on record properly and arrived at the conclusion which was based on proper appreciation of the facts and law, thus did not need interference ---
Appeal against acquittal was dismissed accordingly.
Muhammad Ameer v. Muhammad Imran 2017 MLD 1263; Manthar and 3 others v. The
State 2012 PCr.LJ 1263 and Hakmin Zafar and another v. The State 2017 YLR 232 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 109 & 34---Qatl -i-amd, abetment, common intention---Appreciation of
evidence---Appeal against acquittal ---Benefit of doubt ---Ocular account ---Scope ---Accused
were charged for committing murder of the brother of the complainant by firing---Ocular account of the alleged incident which was furnished by witness, was the only eye -witness,
while the convict/co -accused was arrested, and his statement was recorded by the Trial
Court ---Convict/co -accused was convicted by the Trial Court, which was up held by High
Court as well as Supreme Court ---Accused/ respondent was arrested on 15.08.2017---
Supplementary challan was submitted before the Trial Court ---Trial Court called the
witnesses and during trial a witness appeared before the court and recorded his statement and produced the death certificate of eye -witness who died unnatural deaths ---Said witness who
appeared in the trial to the extent of convict/co -accused was the person who was the only
eye-witness ---In whose statement the conviction was awarde d to the convict/co- accused, but
during the fresh trial to the extent of accused/ respondent he was reported to have died unnatural death and was no more in the mortal world---Trial Court, on receiving the death report from witness, did not consider the statement of eye -witness to the extent of
accused/respondent, which was recorded on the previous round of case ---Statement of eye -
witness was recorded once under S.512, Cr.P.C., and again when the convict/co- accused was
arrested ---In the present case, the pr ime evidence had not been produced before the court in
the shape of eye -witness and no opportunity of cross -examination was awarded to the
accused/respondent when the eye -witness had appeared to the extent of convict/co- accused ---
In such circumstances, the previously recorded statement of the eye -witness under S.512,
Cr.P.C., and to the extent of convict/co- accused, was in the absence of the
accused/respondent and the said witness was not cross -examined by the accused/ respondent
and the same could not be issued against the accused/respondent ---Circumstances established
that the Trial Court had considered all the material present on record properly and arrived at
the conclusion which was based on proper appreciation of the facts and law, thus did not need interference---Appeal against acquittal was dismissed accordingly.
Muhammad Saddique v. The State 2018 SCMR 71 rel.
(e) Appeal against acquittal ---
----Double presumption of innocence ---Interference---Scope ---Acquittal carried with its
double presumption of innocence ---Acquittal order could be reversed only when found
blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of
justice ---Acquittal order could not be set aside merely on the possibility of a contra view.
Kamran Murtaza and Adjan Ejaz for Appellants.
Naseebullah Kasi for Respondent No.1.
Muhammad Younus Mengal, Assistant Prosecutor General ("APG") for the State.
Date of hearing: 22nd February, 2021.
JUDGMENT
ROZI KHAN BARRECH, J .--- This Criminal Acquittal Appeal was filed to
question the validity of the judgment dated 30.06.2018 (hereinafter "the impugned
Judgment") passed by the learned Additional Sessions Judge, Harnai, (hereinafter "the trial court") whereby the private respondent Bashir Ahmed son of Khudai Raheem was acquitted of the charge by the trial court in Sessions Case No.04 of 2017, FIR No.08 of 1995 lodged with Police Station Saddar, Harnai, under sections 302, 109/34, P.P.C.
2. Relevant facts for the disposal of the instant appeal are that on 29.05.1995, the
complainant Muhammad Hussain son of Muhammad Khan, lodged the aforesaid FIR with the allegation that on 29.05.1995, he was on his way from his Killi to Harnai City. At about 5:00 p.m., when he reached near Sur Pull (Bridge) he heard a fire shot made from a distance of 1/2 furlong towards the North of the Sur Pull (Bridge), he saw Meer Hamza, who fired the second shot on his brother namely Muhammad Ayub. Meer Hamza was accompanied by Bashir Ahmed, whereas the complainant's brother received the shot fell down on the ground. According to the complainant, the accused on being challenged by him escaped towards East when he reached near his brother he was already dead. The complainant stated that nearby Char Gul was standing who had witnessed the occurrence. According to the complainant, the motive of the incident was the fight between Muhammad Ayub (deceased) and Meer Hamza, which took place about a year back; the parties were on inimical terms and cases were pending between them. Hence the crime report.
3. After completion of the usual investigation, an incomplete challan was submitted
before the trial court. The convict/accused Meer Hamza and accused/respondent Bashir
Ahmed were shown absconders in the challan. The proceedings under section 512, Cr.P.C., were initiated, and the statement of the witnesses were recorded under section 512, Cr.P.C., in their absence. Later on, the convict/accused Meer Hamza, son of Lal Gul, was arrested and
after completion of the trial he was convicted by the trial court on 14.06.2004, and awarded a
death sentence. The accused/convict Meer Hamza filed an appeal under section 410, Cr.P.C.
before this court and the same was dismissed on 17.09.2005. The convict/appellant filed Criminal Appeal No.401 of 2005 before the Hon'ble Supreme Court of Pakistan, and the same was dismissed on 24.06.2009. The death sentence of the convict/accused Meer Hamza was executed in the year 2017. The learned trial court kept the case file on dormant to the extent of the accused/respondent.
4. On 15.08.2017 the accused/ respondent Bashir Ahmed was arrested. After completion
of the usual investigation, a supplementary challan was submitted before the learned trial court to his extent. After full dressed trial, the accused/respondent was acquitted of the charge by the learned trial court on 30.06.2018, whereafter the instant appeal has been filed.
5. We have heard learned counsel for the parties and also perused the entires record with
their able assistance.
6. A variety of reasons weighed with the learned trial Judge to acquit the
accused/respondent of the charge, which includes; that no specific role of the accused/respondent was attributed. The convict/accused was attributed the role of firing upon the deceased, and the crime weapon was recovered from the convict/ accused, which was matched with the bullet empties, which were recovered from the place of occurrence. The
most important witness, i.e. Char Gul, was not produced before the court to the extent of accused/respondent. None of the reasons cited by the learned trial Judge has been found by us as artificial or unrealistic. Even otherwise, on independent analysis, the genesis of the prosecution case does not appear to be free from doubt. The record transpires that the learned trial court convicted the convict/accused Meer Hamza, who filed an appeal before this court, and the same was dismissed on 17.09.2015. The testimony of PWs Muhammad Hussain (PW -1), brother of the deceased Muhammad Ayub, and PW -2 Naseeb Khan, who also gave
ocular accounts of the incident, had been disbelieved by this court, however, the PW -1
(complainant) has been believed only to the extent of motive parts of the prosecution case in view of the version of the complainant. This court only believed the statement of the then PW-2 Char Gul, who was the only eye -witness of the occurrence. The Hon'ble Supreme
Court upheld the judgment of this court date 17.09.2005 and 24.06.2009.
7. In the above circumstances, now we will only discuss the evidence of Char Gul, the
then PW -2 and the motive alleged by the complainant against the accused person. Statement
of PW -2 Char Gul was placed on record during the trial against the present respondent by
PW-10, i.e. (Ex.P/10- A) who stated in his statement that on the day of occurrence he was
taking a bath at Sur Pull (Bridge) he saw that the accused Meer Hamza (convict/accused) armed with a pistol and the accused Bashir Ahmed (accused/ respondent) caught hold the
deceased and the convict/accused Meer Hamza made a firing upon the deceased and both of
them run away from the spot. During cross -examinatoin, he denied the contention of the
learned counsel that;
PW-9 Rana Muhammad Aslam, IP, who conducted investigation of the case and also
got recorded statement under section 161, Cr.P.C., of the witness Char Gul. During cross -
examination he stated that;
8. The PW- 2 Char Gul had made an improvement in his statement before the court to the
extent of accused/respondent (Bashir Ahmed) that "the accused Bashir Ahmed hold the
deceased", therefore; this piece of evidence cannot be used against the accused/respondent.
9. The motive alleged by the complainant in his report (Ex.P/1- A) as well as his
statement before the court that the motive of the incident was a fight between Muhammad
Ayub (deceased) and Meer Hamza (convict/accused), which took place about one year back.
The complainant alleged the motive against the convict/accused and did not allege any
motive towards the accused/respondent Bashir Ahmed. Neither the PWs attributed the role of the firing to the accused/respondent nor stated a single word that either the accused/respondent was armed with any deadly weapon.
10. Now, the question arises here that as to whether the accused/respondent Bashir
Ahmed can also be held responsible for the firing made by the convict/appellant Meer Hamza
upon the deceased. It may be pointed out that section 34, P.P.C. contemplates an act in
furtherance of common intention and not the common intention simpliciter and that there is a
marked distinction between similar intention and common intention and between knowledge and common intention. It may also be observed that the mere presence of an accused at the
place of the incident with a co- accused who commits offence may not be sufficient to visit
the former with the vicarious liability, but there should be some strong circumstance
manifesting a common intention. Generally, common intention inter alias precedes by some
or all of the following elements, namely, common motive, pre -planned preparation and
concert pursuant to such plan. However, the common intention may develop even at the spur
of the moment or during the commission of the offence as pointed out herein above.
Conversely, common intention may undergo change during the commission of the offence.
11. In the context of the present case, that no motive, consultation and conspiracies of the
accused has been attributed by the complainant as well as other prosecution witnesses. It is
established on the record that recovery of crime empties, matching of the same with the
crime weapon which was recovered on the pointation of the accused/convict Meer Hamza.
We are of the considered opinion view that the accused/respondent Bashir Ahmed is not responsible for the murder of deceased Muhammad Ayub. Neither he was made firing upon
the deceased, no any recovery whatsoever has been effected from his possession. The
prosecution has failed to establish through incriminatory evidence with regard to common intention or common object of the accused/respondent Bashir Ahmed to commit the murder
of the deceased. Reliance is placed on the case of Muhammad Ameer v. Muhammad Imran
2017 MLD 1263 (Lahore), wherein it has been held that: --
"4. After hearing the learned counsel for the appellant and going through the
impugned judgment, it is observed that the acquitted respondent was admittedly, empty handed at the time of the occurrence that took place at 10.30 a.m. on 14.12.2009 near the shop of Tariq Mistri. According to the allegation, both the acquitted respondent and the death convict Waheed Khan walked to the place of occurrence, hence, it could hardly be believed that they facilitated or helped each
other to reach the spot, Being empty handed, respondent Imran could lend no help to
being harmed by the other side, had there been any retaliation or counter attack by them".
Similar view has taken in the case of Manthar and 3 others v. The State reported in
2012 PCr.LJ 1263, wherein it has been held: --
"Throughout evidence there is no statement whatsoever that Manthar in any case participated in murder of deceased Abdul Kareem. No evidence has been brought about that the accused had prior to the incident decided to murder Abdul Kareem and Manthar was part of this conspiracy. Mere fact that Manthar was with those who went to murder Abdul Kareem is not sufficient to come to the conclusion that Manthar had intention to commit and knew that murder was to be committed".
Likewise, in the case of Hakmin Zafar and another v. The State reported in 2017 YLR
232, it has been held, as under: --
"19. We are of the view that to attract the provisions of 34, P.P.C. there must be some proof of overt act on the part of each accused done in furtherance of the common intention. Mere presence of an accused without any overt act at the place of occurrence at the time of occurrence with co -accused, who commits the offence may
not be sufficient to connect former with vicarious liability. Principle of vicarious liability cannot be invoked unless and until common intention and object is proved. For this purpose, strong circumstances must exist manufacturing a common intention which is missing in the present case. The word intention is a state of mind which is not ordinarily ascertainable but is to be gathered or inferred only from external act
and for his purpose it is very necessary to examine the act itself of the accused. There must be material to show some overt act done in furthermore of common intention which is missing in the present case. Reliance is placed on case titled Hassan v. The State 1969 SCMR 454, in which Hon'ble Supreme Court of Pakistan has observed at page 456 as under": --
"This explanation was not considered by the High Court. It appears from the observations of the High Court that the High Court was still thinking of the charge of rioting and that mere presence of being a member of the unlawful assembly was sufficient to warrant a conviction. The Sessions Judge had applied section 34 to the case and in order to support a conviction under that section mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention. Here the evidence is clear that the appellant was empty handed and he did not assault Saleman, as was stated by PW3. Neither of the Courts has considered the case of this appellant separately or the evidence against him. He went to the place empty handed and there is no evidence that he standard applied by both the High Court and the Sessions Judge to the case of the three acquitted persons, the case of the appellant stands on a much more favourable ground and we see no justification for upholding his conviction. The appeal is, therefore, allowed and the conviction and sentence on the appellant are set aside and he is acquitted"
12. The most important aspect of this case is that the ocular account of the alleged
incident which was furnished by Char Gul, is the only eye -witness, while the convict/accused
Meer Hamza was arrested, and his statement was recorded by the trial court as PW- 2 on
20.08.2003. The convict/accused was convicted by the trial court, which was upheld by this
court as well as Hon'ble Supreme Court, and relied on the sole statement of the PW -2 Char
Gul to the extent of accused/convict Meer Hamza. The accused/respondent was arrested on
15.08.2017. Supplementary challan was submitted before the trial court. The learned trial
court called the witnesses, and during trial Shahzad (CW -1) appeared before the court and
recorded his statement, and produced the death certificate of PW Char Gul who died unnatural. The PW Char Gul (who appeared as PW -2 in the trial to the extent of
convict/accused) was the person who was the only eye -witness. In whose statement the
conviction was awarded to the convict/accused, but during the fresh trial to the extent of accused/respondent Bashir Ahmed he was reported to have died unnatural death and was no more in this mortal world. The learned trial court, on receiving the death report from CW -1,
also did not consider the statement of Char Gul to the extent of accused/respondent, which was recorded on the previous round of case. The statement of Char Gul was recorded once under section 512 Cr.P.C., and again when the convict/accused was arrested.
13. As the appellant was fugitive of the law, therefore, the normal trial could not be
conducted, but in view of the provisions contained in section 512, Cr.P.C., only the evidence of prosecution witnesses was possible to preserve. It would not be out of the contest to reproduce provisions of section 512, Cr.P.C.
"512. Record of evidence in absence of accused.---(1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him the Court competent to try or [send for trial to the Court of Session or High Court] such
person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for the offence with which he is charged. If the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreason -able.
(2) Record of evidence when offender unknown. If it appears that an offence punishable with death or imprisonment for life has been committed by some person unknown, the High Court may direct that any magistrate of the first class shall hold an inquiry and examine any witness who can give evidence concerning the offence. Any deposition so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of Pakistan".
14. The bare reading of provisions contained in section 512(1), Cr.P.C., envisages that the
evidence of prosecution witnesses recorded against an accused on account of his absconsion, in absentia, only would be used in evidence against him on his arrest, during the course of the trial for the offence with which he is charged if the deponent was dead, incapable of giving evidence, or his attendance was not possible to be procured without an amount of
delay, expense or inconvenience but, the provisions cited hereinabove contained in section
512, Cr.P.C., has conferred no jurisdiction on a court to convict and sentence an accused in absentia. The paramount consideration and object of section 512, Cr.P.C., is to preserve the evidence and to exclude the possibility of a loss of evidence at the trial when the accused is arrested, and prosecution witnesses were not available.
15. Deposition recorded under section 512, Cr.P.C., are relevant to the truth of the facts,
stated therein under Article 47 of Qanun -e-Shahadat, which is reproduced below as: -
"47. Relevancy of certain evidence for providing, in subsequent proceeding, the truth of facts therein stated. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without in amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable;
Provided that;
the proceeding was between the same parties or their representatives -in-interest;
the adverse party in the first proceeding had the right and opportunity to cross -
examine;
the question in issue were substantially the same in the first as in the second pro-ceeding".
16. When the above Article is examined, it provides a situation wherein the evidence
given by a witness in judicial proceedings (in this case before a Magistrate) shall be relevant for the purpose of proving the stated fact. But one of the provisos to the said Article, which controls the relevancy and admission of the evidence, is that the party against whom the said statement is being made should be provided with an opportunity for cross -examination,
which in the instant case is not available. There are a number of judgments of the superior Courts wherein a similar situation, it has been held that it is the duty of the prosecution to produce its best evidence before the Court and where no right of cross -examination has been
provided to an accused, then it would be deemed that prejudice has been caused to him. In the criminal administration of justice it is the bounden duty of the prosecution to establish its case beyond any shadow of doubt and to put its best evidence forward.
17. In the instant case, the prime evidence has not been produced before the court in the
shape of PW Char Gul, and no opportunity of cross -examination was awarded to the
accused/respondent when the Char Gul has appeared as PW -2 to the extent of
convict/accused.
18. such circumstances, the previously recorded statement of the PW Char Gul under
section 512, Cr.P.C., and to the extent of convict/accused, was in the absence of the accused/respondent Bashir Ahmed and the said witness was not cross -examined by the
accused/ respondent and the same cannot be issued against the accused/respondent. Reliance
is placed on the judgment of the august superior Court titled Muhammad Saddique v. The
State 2018 SCMR 71.
19. The question arises here that whether the statement of accused/ respondent Bashir
Ahmed recorded under section 512, Cr.P.C., can be transposed? In our view, the answer is negative because of the reason that he does not qualify the conditions provided Article 47 of Qanun- e-Shahadat, 1984, that "an adverse party in the first proceeding had the right and
opportunity to cross -examination". Rather the same is in contravention of section 353 of the
Criminal Procedure Code, wherein it
is clearly embedded that evidence is to be recorded in the presence of the accused.
20. The word "shall" has been used in section 353, Cr.P.C., which clearly manifests the
intention of the legislature. Section 353, Cr.P.C., is reproduced as under: -
"353. Evidence to be taken in presence of accused, Except as otherwise expressly provided, all evidence taken under Chapters XX, XXI, XXII and XXII -A shall be
taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader".
21. It is settled law that prosecution is bound to prove its case beyond, and shadow of
reasonable doubt against the accused persons, and it is also settled principle of law that
multiple doubts in the prosecution case are not required to record judgment of acquittal, but a
single reasonable doubt is sufficient to extend the benefit of the same to the accused as a matter of right.
22. It is by now well settled that acquittal caries with its double presumption of
innocence; it is reserved only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice. It cannot be set aside merely on the possibility of a contra view.
23. In our humble view, the trial court has considered all the material present on record
properly and arrived at the conclusion which is based on proper appreciation of the facts and law, thus does not need interference by this court.
The appellant has failed to point out any defect in the impugned judgment passed by
the trial court; therefore, the appeal being devoid of merits is accordingly dismissed.
JK/75/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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