2022 Y L R 885
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
NASEEBULLAH
and others ---Appellants
Versus
The STATE through Prosecutor General Balochistan and others ---Respondents
Criminal Appeal No. 281 and Criminal Revision Petition No. 30 of 2019, decided on 23rd
December, 2019*.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 324 & 34 ---Qatl -i-amd, attempt to commit qatl- i-amd, common intention---
Appreciation of evidence ---Delay of one hour and fifteen minutes in lodg ing the FIR ---
Scope ---Accused were charged that they made firing upon the father and brother of the
complainant, due to which both were injured but brother of complainant succumbed to
injuries ---Record showed that the alleged occurrence had taken place at 5:15 p.m. and the
FIR was lodged at 6:30 p.m.---Complainant and a witness shifted the dead body of deceased and injured to the hospital and thereafter the complainant lodged the report ---Circumstances
established that FIR was lodged promptly without any de lay.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34 ---Qatl -i-amd, attempt to commit qatl- i-amd, common intention---
Appreciation of evidence ---Ocular account supported by medical evidence ---Effect ---
Accused persons were charged that they made firing upon the father and brother of the
complainant, due to which both were injured but brother of complainant succumbed to injuries ---Ocular account of the incident had been furnished by complainant, injured and a
witness ---Injured being eye witness narrated t he whole story with regard to the occurrence ---
Said witness had correctly stated the date, time, the place of occurrence and the manner in which the alleged occurrence had taken place--- Likewise, another eyewitness, relative of the
deceased, fully corrobor ated the contents of the FIR as well as statement of injured witness ---
All the said witnesses gave consistent, natural and straightforward ocular account of the occurrence---Defence subjected them to a lengthy searching cross -examination but their
testimon y remained unshaken and un- shattered ---Nothing was in their cross -examination to
show that the accused were falsely implicated in the case--- First Information Report was
lodged promptly without any delay while the Investigating Officer had recorded the statements of both the witnesses soon after the occurrence ---Presence of father of deceased
was further established at the place of occurrence as he had also received injuries on his
person--- Presence of said witnesses at the place of occurrence was establish ed---Complainant
was brother and injured was father of the deceased and other witness was his relative--- Said
fact suggested that it was hard to believe that all the said witnesses would substitute the real
culprits with the accused who had committed murde r of the deceased ---Substitution was a
rarer phenomenon ---Medical evidence produced by the prosecution also supported and
corroborated the testimony of eye -witnesses and no contradiction at all could be pointed out
by the defence ---Circumstances established that the prosecution had succeeded in proving the
charge to the extent of main accused through consistent, confidence inspiring and cogent evidence--- All the witnesses remained firm in their deposition to the extent of the said
accused ---Record showed that neither the co -accused made firing nor recovery was effected
from him ---Prosecution had failed to establish through incriminatory evidence with regard to
common intention or common object of the co- accused to commit the murder of deceased
and causing injuries to his father ---Prosecution had only established presence of co- accused
along with the main accused at the relevant time, which was not sufficient to hold him responsible for the charge ---Appeal against conviction was allowed to the extent of co-
accused and he was acquitted of the charge ---Appeal against conviction to the extent of main
accused was dismissed, in circumstances.
Haroon Rasheed v. The State 2005 SCMR 1568; Sh. Muhammad Abid v. The State
2011 SCMR 1148; Nasir Iqbal v. The State 2016 SCM R 2152; 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.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34 ---Qatl -i-amd, attempt to commit qa tl-i-amd, common intention---
Appreciation of evidence ---Interested and related witnesses ---Scope ---Accused were charged
that they made firing upon the father and brother of the complainant, due to which both were injured but brother of complainant succumbe d to injuries ---Defence had objected that only
interested witnesses were produced by the prosecution and the case of the prosecution was lacking independent corroboration---Mere relation of witnesses with the deceased was no ground to discard their tes timonies, if their evidence was found independent and truthful,
therefore, their testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge ---Appeal against conviction was dismissed to the extent
of accused, in circumstances.
(d) Criminal trial ---
----Witness --- Related witnesses ---Statements of related witnesses ---Reliance--- Scope ---
Evidence of related witnesses, who are not inimical and are confidence inspiring, hardly needs any corroboration.
Muhammad Akram v. The State 2015 YLR 116 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34 ---Qatl -i-amd, attempt to commit qatl- i-amd, common intention---
Appreciation of evidence ---Crime weapon was recovered from the possession of accused ---
Relian ce--- Scope ---Accused were charged that they made firing upon the father and brother
of the complainant, due to which both were injured but brother of complainant succumbed to
injuries ---Record showed that crime weapon i.e. 9- mm pistol was recovered from po ssession
of the accused ---Since the Investigating Officer had taken into possession the empties of 9-
mm pistol from the place of occurrence, thus, the recovered 9 -mm pistol along with empties
were sent to the Forensic Science Laboratory for analysis ---Fore nsic Science Laboratory
after examination, through examination report, confirmed that the empties were fired from the recovered pistol ---Recovery was reliable in circumstances.
(f) Penal Code (XLV of 1860)---
----S. 34---Applicability of S.34, P.P.C.---Sco pe---Section 34, P.P.C., contemplated an act in
furtherance of common intention and not the common intention simpliciter and that there was a marked distinction between similar intention and common intention and between knowledge and common intention--- Mere presence of accused at the place of incident with
co-accused who committed offence might not be sufficient to visit the former with the
vicarious liability, but there should be some strong circumstance manifesting a common intention--- Generally, common i ntention inter alia preceded by some or all of the elements,
namely, common motive, pre -planned preparation and concert pursuant to such plan---
Common intention might have developed even at the spur of the moment or during the commission of offence ---Conve rsely, common intention might have undergone change
during the commission of offence.
Gulzar Khan Kakar and Kaleemullah Kakar for Appellants (in Criminal Appeal
No.281 of 2019).
Bangul Khan Mari for the Complainant (in Criminal Appeal No.281 of 2019).
Habibullah Gul, Additional Prosecutor General ("APG") for the State (in Criminal
Appeal No.281 of 2019).
Bangul Khan Mari for Petitioner (in Criminal Revision Petition No.30 of 2019).
Gulzar Khan Kakar and Kaleemullah Kakar for Respondents (in Criminal Revision
Petition No.30 of 2019).
Habibullah Gul, Additional Prosecutor General ("APG) for the State (in Criminal
Revision Petition No.30 of 2019).
Date of hearing: 19th November, 2019.
JUDGMENT
ROZI KHAN BARRECH, J .---The appellants namely Naseebullah and Muhammad
Yousuf both sons of Akram Khan alias Khan were involved in case FIR No.203 of 2018
registered under sections 302, 324, 34, P.P.C. at Police Station Saddar Loralai and were tried
by the learned Additional S essions Judge, Loralai, (hereinafter "the trial Court"). The trial
Court seized with the matter in terms of judgment dated 31.07.2019 (hereinafter "the impugned Judgment"), convicted and sentenced the appellants in the following terms:-
"The accused/appel lants namely Naseebullah and Muhammad Yousuf sons of Akram
Khan alias Khan are convicted and sentenced under section 302(b), P.P.C. to suffer imprisonment for lift as Tazir with fine of Rs.1,00,000/ - (Rupees One Lac Only) each
as compensation to legal heir s of deceased within the purview of section 544- A
Cr.P.C., or in default to suffer SI for three (03) months.
The accused / appellants are further convicted and sentenced under section 324, P.P.C. to suffer imprisonment for seven (07) years RI and to pay f ine of Rs.15,000/ -
(Rupees Fifteen Thousand Only) each to injured person. Benefit of section 382(B), Cr.P.C., is extended in favour of accused/ appellants."
2. Aggrieved from the impugned judgment, the appellants Naseebullah and Muhammad
Yousuf sons of Akr am Khan alias Khan have assailed their conviction and sentence through
Criminal Appeal No.281 of 2019, while the complainant Haider Khan son of Paind Khan
filed Criminal Revision Petition No.30 of 2019 for enhancement of conviction awarded to the appellant s by the trial Court, as the appeal and criminal revision petition are arising out
one and the same judgment of the trial Court, therefore, the same are being disposed of through this common judgment.
3. The prosecution story as disclosed in the FIR (Ex.P/ 8-A) recorded on the statement of
complainant/PW -1 Haider Khan son of Paind Khan is that on 22.11.2018 the complainant
along with Lal Jan on one motorcycle, while his father and his brother Gul Muhammad ridded on other motorcycle after closing his shop at Saddar Bazar at Loralai, started towards
his house situated at Katwi Camp, at about 5:15 p.m., when reached at Katwi Nadi near BC complex, accused persons Naseebullah and Muhammad Yousuf were found standing, who started firing upon his father and brother w ith their pistols, due to which his father received
injury upon his mouth and his brother sustained a bullet injuries upon his head, who succumbed to his injuries at the spot, while the accused made their escape good on their motorcycle. Hence the criminal report.
4. After completion of investigation, the challan was submitted before the trial Court.
Charge was framed against the accused/appellants to which the accused/ appellants pleaded not guilty and claimed trial.
5. At the trial, the prosecution produc ed eight (08) witnesses. The accused/appellants
were examined under section 342, Cr.P.C. However, the accused/ appellants neither recorded their statements on oath under section 340(2), Cr.P.C., nor produced any witness in their defence.
6. On conclusion of the trial and after hearing arguments, the learned trial Court
convicted and sentenced the accused/appellants as mentioned above in para- 1 whereof the
instant Criminal Appeal and Criminal Revision Petition have been filed.
7. We have heard the learned co unsel and perused the available record with their able
assistance. In order to establish the charge, the prosecution has produced seven (08)
witnesses, out of whom PW -1/complainant Haider Khan, PW -2, Lal Jan and PW -4, Paind
Khan are claiming to be the eye -witnesses of the alleged occurrence, while PW- 3, Dr. Nadir
Khan, Medical Officer has examined the deceased and injured Paind Khan. PW- 5,
Muhammad Sharif. PW -6, Abdul Wahid, ASI and PW -7, Qamar Zaman, constable are the
recovery witnesses. However, PW- 8, Muhammad Anwar, SI, is the Investigation Officer of
the case. Before dilating upon the ocular testimony, it would be appropriate to first discuss the medical evidence to establish the unnatural death of deceased.
8. According to PW -3 Dr. Nadir Khan, Medical O fficer at District Headquarter Hospital
Loralai on the day of occurrence the deceased Gul Muhammad son of Haji Paind Khan was brought to hospital at 5:15 p.m. He examined the deceased and issued Medico Legal Certificate (MLC) (Ex.P/3 -B). The bare perusal of MLC of the deceased Gul Muhammad
reflects that the deceased had received bullet injuries on his lower portion of occipital region and left ear and exits from left frontal bone and other two from occipital region. PW -4 has
opined that the deceased receive d injuries by means of firearm. The bare perusal of MLC of
the deceased would establish the fact that death of the deceased was unnatural as the deceased received firearm injuries on his persons. Even otherwise, the defence has also not disputed unnatural death of the deceased but pleaded false implication.
9. Now diverting to the ocular evidence produced by the prosecution in the shape of
circumstantial and direct evidence. The case was registered on the complaint of PW-1/complainant Haider Khan on the basis of Fard -e-Bayan (Ex.P/1- A), wherein he specifically
nominated the accused/appellants for making firing upon his brother and father which resulted into bullet injuries upon the persons of deceased Gul Muhammad while the bullet hit
on the mouth of injured PW -4 Paind Khan. The alleged occurrence has taken place on
22.11.2018 5:15 p.m., and the FIR of the incident was lodged at 6:30 p.m. The PW/l complainant and PW -2 Lai Jan shifted the dead body of deceased and injured to the hospital
and thereafter the complainant lodged the report in the above circumstances the FIR was
lodged promptly without any delay. PW -4 Paind Khan who is eye -witness as well as injured
witness narrated the whole story with regard to the occurrence, he and deceased were riding on a m otorcycle at 5:15 p.m., when they reached at Katwi Nadi the accused persons made a
firing upon them, he and his son Gul Muhammad received injuries and later on his son Gul Muhammad succumbed to the injuries. This witness has correctly stated the date, time , the
place of occurrence and the manner in which the alleged occurrence has taken place. Likewise, PW- 2 Lal Jan is also witness of the occurrence being relative of the deceased Gul
Muhammad. This witness fully corroborated the contents of the FIR as well as statement of PW-4 Paind Khan. All the above witnesses gave consistent, natural and straightforward
ocular account of the occurrence. The defence subjected them to a lengthy searching cross -
examination but their testimony remained unshaken and un- shatter ed. There was absolutely
nothing in their cross -examination to show that the accused/ appellants were falsely
implicated in the case.
10. So far as the objection of the learned counsel that both the alleged eye -witnesses
could not justify their presence at the relevant time. It is worthwhile to mention here that the
FIR was lodged promptly without any delay while the IO has recorded the statements of both
the witnesses soon after the occurrence. The presence of PW- 4 Paind Khan is further
established at the place of occurrence as he had also received injuries on his persons, thus,
the presence of above witnesses established at the place of occurrence.
11. The plea of the learned counsel for the appellants/accused that only interested
witnesses were produced b y the prosecution and the case of prosecution is lacking
independent corroboration, suffice to state here that mere relation of witnesses with the
deceased is no ground to discard their testimonies, if their evidence is found entirely independent and truth ful, therefore, their testimony without looking for any other
corroborative evidence, would alone be sufficient to establish the charge. The evidence of related witnesses who are not found inimical and are confidence inspiring would hardly need any corroboration. Reliance in this regard is placed on the case of Muhammad Akram v. The State reported in 2015 YLR 116.
12. It is also necessary to mention here that PW -1 Haider Khan is brother of the deceased
while PW -4 Paind Khan is father of the deceased and PW- 2 is relative of the deceased. It is
hard to believe that all the above witnesses would substitute the real culprits with the appellant Naseebullah who had committed murder of the deceased. Needless to observe that substitution is a rarer phenomenon.
13. The case of the prosecution has further strengthened by the recovery of crime
weapons i.e. 9 mm pistol from possession of the accused/appellant Naseebullah. Since the I.O. had taken into possession the empties of 9 mm pistol from the place of occurrence, thus, the recovered 9 mm pistol along with empties were sent to the Forensic Science Laboratory (FSL) for analysis and after examination the FSL through examination report (Ex.P/8- J)
confirmed that the empties were fired from the recovered pistol.
14. The testimony of the eye -witnesses has duly been corroborated by the recovery of
blood of the deceased from the place of occurrence, his bloodstained garments and recovery of crime empties of 9 mm pistol from the appellant and positive report of FSL and firearm expert. The said recoveries have been duly proved during trial through recovery witnesses and nothing adverse could be achieved despite cross -examination. The medical evidence
produced by the prosecution also supported and corroborated the testimony of eye -witnesses
and no contradiction at all could be pointed out by the defence. Reliance is placed on case titled Haroon Rasheed v. The State 2005 SCMR 1568, Sh. Muhammad Abid v. The State 2011 SCMR 1148 and Nasir Iqbal v. The State 2016 SCMR 2152.
15. The app raisal of direct and circumstantial coupled with medical evidence after minute
consideration of all the circumstances in the light of dictum laid down by the august Superior Court as well as the recoveries of crime empties, matching of the same with the cr ime
weapon as well as the medical evidence, we are of the considered view that the appellant Naseebullah is responsible for the murder of deceased Gul Muhammad and causing injuries to the PW -4 Paind Khan and has rightly been convicted by the learned trial Court, but we are
unable to find ourselves in agreement with the impugned judgment of the trial Court to the extent of accused Muhammad Yousuf. The complainant of the case coupled with the statements of PW -2 and 'PW -4 that the accused/appellants made firing upon them. On the
other hand, the IO taken bullet empties of 9 mm pistol from the place of occurrence in
presence of PW- 5 Muhammad Sharif, SI who is marginal witness of recovery of three bullet
empties of 9 mm pistol and the same was taken into possessio n through recovery memo
(Ex.P/5 -B) in his presence. The crime weapon i.e. 9 mm pistol was also recovered on the
pointation of the accused/appellant Naseebullah while he made disclosure before police when
he was in custody on 04.12.2018 in presence of PW -6 Abdul Wahid, ASI, who produced
disclosure memo (Ex.P/6 -B) and during trial the accused/appellant disclosed that he made
firing upon deceased and injured persons. After disclosure the pistol was recovered on the
pointation of accused / accused Naseebullah .
16. Now the question arises here that as whether the accused/appellant Muhammad
Yousuf can also be held responsible for the firing made by the convict/appellant Naseebullah upon deceased and injured. It may be pointed out that section 34, P.P.C. contemplat es 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 mere presence of an accused at the place of 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, common intention may develop even at the spur of
moment or during the commission of offence as pointed out herein above. Conversely
common intention may undergo change during the commission of offence.
17. 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/appellant Naseebullah, we are of the considered opinion view that the accused/appellant Naseebullah is responsible for the murder of Gul Muhammad and causing injuries to the PW -4 and has rightly been
convicted by the learned trial Court, but we are unable to find ourselves in the agreement of the impugned judgment of the learned trial Court to the extent of accused/ appellant Muhammad Yousuf, neither he was made firing nor recovery was effected from him. The prosecution has failed to establish through incriminatory evidence with regard to common intention or common object of the accused/ appellant Muhammad Yousuf to commit the murder of deceased Gul Muhammad and causing injuries to PW -4 Paind Khan. Reliance is
placed on the case of Muhammad Ameer v. Muhammad Imran 2017 MLD 1263 (Lahore), wherein it has been held that: --
"4. Aft er 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 wok place at 10.30 a.m. on 14.12.2009 near the shop of Ta riq 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 he ld:--
"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 this 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 an d 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 furthermore 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 PW -3.
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 the standard appli ed 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 t he conviction and sentence on the appellant are set
aside and he is acquitted".
18. The reappraisal of entire prosecution evidence would establish the fact that the
prosecution has successfully established the charge to the extent of main accused
Naseebull ah son of Akram Khan through consistent, confidence inspiring and cogent
evidence. All the witnesses remained firm in their deposition to the extent of the said accused
Naseebullah but the prosecution has miserably been failed to establish the common inten tion
and common object of the appellant/accused Muhammad Yousuf for commission of crime rather the prosecution has only established his presence along with the main accused at the
relevant time, which in our view is not sufficient to hold him responsible f or the charge.
For the above reasons, the appeal is partly allowed to the extent of accused/ appellant
Muhammad Yousuf son of Akram Khan alias Khan, who is acquitted of the charge in FIR
No.203 of 2018 registered under sections 302, 324, 34, P.P.C. at Pol ice Station Saddar
Loralai, while the conviction and sentence awarded to the appellant/accused Naseebullah son of Akram Khan alias Khan by the trial Court is maintained.
Since the motive for the offence has not been established, therefore, the award of
capital punishment of death is not warranted in the circumstances of the case, hence, the criminal revision for enhancement preferred by the complainant/ petitioner is also dismissed
being devoid of any merit.
The appeal is dismissed to the extent of appellant Naseebullah.
JK/100/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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