2023 Y L R 1066
[Balochistan (Turbat Bench)]
Before Naeem Akhtar Afghan, C.J. and Sardar Ahmed Haleemi, J
ABDUL BASIT and others ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. (T) 42, (T) 54 and Murder Reference No. (T) 3 of 2021, decided on
12th October, 2022.
(a) Penal Code (XLV of 1860) ---
----Ss.302(b), 397, 457, 109, 212 & 34---Qatl -i-amd, robbery, lurking house - trespass or
house -breaking by night in order to commit offence punishable with imprisonment,
abetment, harbouring of fender, common intention---Appreciation of evidence ---Accused
were charged for entering into the house of complainant, committing murder of cousin sister
of complainant and causing injuries to her four years old baby and also taken away one
laptop, mobile phone and Mema watch from the house of complainant ---Ocular account of
the incident had been furnished by complainant and an eye -witness ---Both the witnesses
though related to each other were natural witnesses and had no enmity for false implication of accused persons in the present case--- Statements of said witnesses further corroborated in
material aspects with other witness/neighbor of complainant, who deposed that he and his
relatives were sleeping in the house at about 3:00 am (night) ---Complainant cam e to their
house and told them that thieves had entered into his house ---Said witness along with other
relatives were going towards the place of occurrence---Said witnesses heard fire shots inside
the house, when they reached near the house and had seen a man, who after jumping over the wall was running towards his motorbike parked with the wall ---Said witness caught hold the
accused with pistol in his hands with the help of complainant and other people ---Said
witnesses entered in the house of complainant a nd had seen the deceased and baby girl in a
pool of blood ---Statements of witness/neighbor of the complainant had also not been shaken
in the cross -examination ---Careful perusal of record revealed that the prosecution witnesses
remained consistent throughout and there was no material contradiction and dishonest improvement to discard their testimony--- No enmity, ill -will or malice had been shown to
believe that the accused persons had falsely been implicated --- Ocular evidence corroborated
in all material a spects was trustworthy and reliable and the prosecution had successfully
proved its case against the accused persons ---Appeal against conviction was dismissed, in
circumstances.
(b) Penal Code (XLV of 1860)---
----Ss.302(b), 397, 457, 109, 212 & 34---Qatl -i-amd, robbery, lurking house -trespass or
house -breaking by night in order to commit offence punishable with imprisonment,
abetment, harbouring offender, common intention---Appreciation of evidence--- Recovery of
weapon of offence on the disclosure of accused ---Reliance--- Scope --- Accused were charged
for entering into the house of complainant, committing murder of cousin sister of
complainant and causing injuries to her four years old baby and also taken away one laptop,
mobile phone and a watch from the house of complainant ---In pursuance of disclosure of
accused, the Investigating Officer conducted raid on the house of acquitted co- accused,
wherefrom he recovered the crime weapon i.e. Kalashnikov from the possession of accused and sealed the crime weapon Kalashnikov which was supported with the positive report of
the firearm expert wherein it had been clearly mentioned that the five empties of bullets had been fired from the Kalashnikov--- Circumstances established that the prosecution had
succeeded in pro ving its case against the accused persons ---Appeal against conviction was
dismissed accordingly.
(c) Penal Code (XLV of 1860)---
----Ss.302(b), 397, 457, 109, 212 & 34---Qatl -i-amd, robbery, lurking house -trespass or
house -breaking by night in order to co mmit offence punishable with imprisonment, abetment,
harbouring offender, common intention---Appreciation of evidence--- Vicarious liability ---
Scope ---Accused were charged for entering into the house of complainant, committing
murder of cousin sister of com plainant and causing injuries to her four years old baby and
also taken away one laptop, mobile phone and Mema watch from the house of complainant ---
Accused had shared the common intention with other accused ---Though the accused had not
taken part in firin g upon deceased or injuring baby girl, but the killing had been made during
the course of robbery in furtherance of the common intention of the other accused, hence the
accused had rightly been held vicariously liable for the murder of deceased by the tria l Court
and his conviction under S. 302(b), P.P.C., was not open to any exception--- Circumstances
established that the prosecution had succeeded in proving its case against the accused persons ---Appeal against conviction was dismissed accordingly.
Muhamm ad Arshad v. State PLD 1996 SC 122 rel.
Mohi -ud-Din Sasoli, Mehrullah Gichki, Khanif Ahmed, Munawar Iqbal and Asad
Baloch for Appellant (in Criminal Appeal No. (T) 42 of 2021).
Jadain Dashti for the Complainant. (in Criminal Appeal No.(T) 42 of 2021).
Sudheer Ahmed, Deputy Prosecutor General ("DPG") for the State (in Criminal
Appeal No. (T) 42 of 2021).
Sudheer Ahmed, Deputy Prosecutor General ("APG") for the State (in Murder
Reference No. (T) 03 of 2021).
Mohi -ud-Din Sasoli, Mehrullah Gichki, Khanif Ahmed, Munawar Iqbal and Asad
Baloch for Respondent (in Murder Reference No. (T) 03 of 2021).
Mehrullah and Liaqat for Appellant (in Criminal Appeal No. (T) 54 of
2021).
Sudheer Ahmed, Deputy Prosecutor General ("D.P.G.") for the State (in Crimina l Appeal
No. (T) 54 of 2021).
Date of hearing: 9th September, 2022.
JUDGMENT
SARDAR AHMAD HALEEMI, J. ---This common judgment, disposes of Criminal
Appeal No. (T) 42/2021, Murder Reference No. (T) 03/2021 and Criminal Appeal No. (T)
54/2021.
The Crimina l Appeal No. (T) 42/ 2021 and Criminal Appeal No. (T) 54 of 2021 has
been filed on behalf of Abdul Basit son of Faizullah and Altaf Raja son of Mazar
respectively (the appellants) against the judgment dated 08.04.2021 (hereinafter "the impugned Judgment") passed by the learned Sessions Judge Mekran at Turbat (hereinafter "the trial Court"), whereby co- accused Saifullah son of Munir Ahmed and Sameer son of
Sabzal were acquitted and the appellants were convicted and sentenced in the following manners: -
"The appellant Abdul Basit son of Faizullah is convicted under Sections 302(b), 34,
P.P.C. as Ta'zir for committing murder of deceased Malik Naz wife of Hamid and sentenced to death with fine of Rs. 5,00,000/ - (Rupees Five Lacs Only) to the legal
heirs of deceased as envisaged under Section 544 -A, Cr.P.C., in default whereof to
further undergo for six (06) months SI.
The accused Altaf Raja son of Mazar is convicted under Sections 302(b), 34, P.P.C. as Ta'zir for committing murder of deceased Malik Naz wife of H amid with common
intention and sentenced to imprisonment for life. The convict is directed to pay compensation of Rs. 5,00,000/ - (Rupees Five Lacs Only) to the legal heirs of
deceased as envisaged under Section 544 -A, Cr.P.C, in default whereof to further
undergo for six (06) months SI.
Both the accused Abdul Basit son of Faizullah and Altaf Raja son of Mazar are further convicted under Sections 397, 34, P.P.C. and sentenced to ten (10) years RI each with fine of Rs.30,000/ - (Rupees Thirty Thousand Only) each or in default of
payment of fine, each of them shall further suffer SI for thirty (30) days.
Both the accused Abdul Basit son of Faizullah and Altaf Raja son of Mazar are
further convicted under Sections 457, 34, P.P.C. and sentenced to ten (10) years RI each with fine of Rs.30,000/ - (Rupees Thirty Thousand Only) each or in default of
payment of fine, each of them shall further suffer SI for thirty (30) days.
All the sentences of imprisonment shall run concurrently and the benefit of section 382-B, Cr.P.C., is extended in favour of both the accused persons.
While Murder Reference No.03/ 2021 has been transmitted by the trial Court for
confirmation of the death sentence of appellant Abdul Basit or otherwise as envisaged under Sections 374, Cr.P.C.
2. The prosecution story, in brief, is that on 26th May 2020 at 10:30 a.m., the
complainant Jasim son of Ameer registered an FIR No.107/2020 at Police Station City Turbat under sections 302, 397, 457, 34, P.P.C. to the effect that he is resident of Dannuk
Turbat and a shopkeeper by profession; in the preceding night, he and his family members
were sleeping in the courtyard of his house; on noise he woke up at about 3:15 a.m, and saw some people have entered into the house one of them was equipped wi th Kalashnikov and the
other was having Pistol, who introduced themselves as personnel of some agency having come there for searching the house; they took all of them in one room; started searching the
house; in the meanwhile, complainant managed to get out of the house by scaling over the
boundary wall and informed the neighbours; when he along with neighbors were coming
back; they heard fire shots inside his house; when they reached near the house, they saw a person who after jumping over the wall was running towards his motorbike parked with the wall, who was caught by them with TT pistol in his hand; the accused was overpowered by the complainant with the help of neighbours namely Balach, Waris Ali and others; on query the person told his name as Altaf s on of Mazar and the name of his companion who was
armed with Kalashnikov as Abdul Basit son of Faizullah; he further told that they belong to secret agency. According to the complainant, after committing murder of his cousin sister Malik Naz and causing in juries to her four (04) years old baby Barmish, the accused Abdul
Basit had escaped from the scene; the said incident was witnessed by eye -witnesses Abid son
of Ghulam and Mahdem daughter of Gamani; on checking of rooms, one laptop, one Samsung mobile phone and one Mema watch were found missing which were taken by the escaped co -accused Abdul Basit with him. After receiving information, the police reached at
the spot where the accused Altaf along with his motorcycle 125cc and TT pistol were handed over to t he police; the complainant further stated that if the companion of accused Altaf
namely Abdul Basit was brought before him, he would identify him. Hence, this report.
3. After registration of FIR No. 107/ 2020 on the basis of Fard- e-Bayan (Ex.P/1- A), the
investigation of the case was entrusted to PW -23 Noor Bakhsh IP of concerned Police
Station who carried out formal investigation, who after receiving information as duty officer with other police officials of concerned police station reached at the place of incident, where
people handed over the appellant Altaf Raja along with TT pistol (Ex.P/8- A) and Honda
Motorbike 125 cc (Ex.P/8- B) to him; on personal search of appellant two mobile phones
OPPO with Sim No.0323- 2518766 (Ex.P/14- B) were recovered; after ins pection of site of
occurrence, a women namely Malik Naz wife of Hamid (deceased) and a baby girl namely Barmish (injured) were found lying in a pool of blood on eastern side of courtyard in injured conditions; four empties of Kalashnikov were recovered; bl oodstained earth was secured;
sitemap (Ex.P/23 -B) was prepared. The relatives of the deceased took the death body of
deceased and injured baby girl to the hospital; after shifting of appellant along with recovered things to the police station, the Investig ation Officer proceeded to hospital;
prepared the inquest report of deceased Malik Naz (Ex.P/23- C). Death certificate (Ex.P/3 - A)
was issued by Dr. Nadia Mahi (PW -3) and she also examined the injured baby girl Barmish
and issued Medical Legal Certificate ( Ex.P/3 -B); bloodstained cloths were secured; statement
of witnesses were recorded during the investigation.
4. During investigation appellant Altaf Raja made disclosure on 25.07.2020 (Ex.P/11-
A). On spy information raid was conducted at the house of acquit ted co -accused Saifullah
(Ex. P / 23- D), wherefrom appellant Abdul Basit and Saifulah were arrested; one
Kalashnikov No.1978 GL 07217 with magazine, three live bullets and one bandolier containing two magazines each, containing 30 live bullets (Ex.P/12- A) with snatched laptop,
watch, and Samsung mobile (Ex.P/12- A) were recovered from the said room. On personal
search of appellant Abdul Basit one wallet having its identity card, two passport size photos,
two visiting cards, two ATMs card, rupees eleven hundr ed (Ex.P/12- C) and three mobiles
Huwavi, mobile Nokia No.SP500 with Sim No.0312- 1663188, mobile Nokia with Sim
No.0320- 8896282 (Ex.P/15 -B) were recovered. On personal search of co -acquitted accused
Saifullah one wallet having Irani Currency Note (Ex.P/12 -C) one mobile phone OALE wit
Sim No.0321- 18290283 (Ex.P/14- A) and corolla car bearing registration No.LSC -864
(Ex.P/12- D) was used by Saifullah was also recovered from the said house. On 29.05.2020
identification parade of appellant Abdul Basit (Ex.P/4- B) w as conducted by PW -4 Waseem
Ahmed JM Turbat, who produced identification form with his certificate (Ex.P/4- C).
5. During investigation on 03.06.2020 Abdul Basit and acquitted co- accused made
separate disclosures (Ex.P/8 -D) and (Ex.P/6- A) respectively. In pursuance of disclosure of
Abdul Basit and Saifullah the IO arrested acquitted co -accused Sameer on 04.06.2020 and on
his personal search mobile Huwavi with Sim No.0323- 2233237 (Ex.P/13- A) and pistol were
recovered; on 06.06.2020 the recovered mobiles of Al taf Raja, Basit, Saifullah and Sameer
were sent to FSL for analysis; incomplete challan was submitted (Ex.P/23 -E); after obtaining
the FSL reports of bloodstained mud (Ex.P/23- G), crime weapon (Ex.P/23- F) and report of
CDVR from Punjab Forensic Science Agency (PFSA), complete challan was submitted against the appellants and acquitted co -accused before the trial Court.
6. The trial Court read -over charge to the appellants and acquitted co- accused to which
they did not plead guilty and claimed trial.
7. The p rosecution produced 24 witnesses. After completion of prosecution evidence, the
appellants including acquitted co- accused were examined under section 342, Cr. P.C,
wherein they denied the allegations; the appellant did not record their statements on oath a s
envisaged under section 340(2) Cr.P.C, nor produced any witnesses in their defence.
8. After hearing the arguments of the parties, the trial Court convicted and sentenced the
appellants, whereas co -accused Saifullah and Sameer were acquitted vide impugned
judgment. Hence, these appeals and murder reference.
9. Learned counsel for the appellants in Criminal Appeals Nos. (T) 42 and 54 of 2021
contended that the death sentence awarded to the appellant Abdul Basit is unwarranted, as the evidence produced by the prosecution is based on misreading and misappreciation of
evidence, which has not been considered by the trial Court while passing the impugned judgment; that there are contradictions in the statements of the prosecution witnesses, which were ignored by the trial Court.
10. On the other hand, the learned Deputy Prosecutor General assisted by the learned
counsel for the complainant supported the impugned judgment and contended that the appellants are involved in a murder of lady and causing
injuries of a baby girl; that the trial Court while passing the impugned judgment has
appreciated all material aspects of the matter convicted and sentenced them, which findings
are based on proper appreciation of evidence and cannot be disturbed; that the crime weapon
and empties recovered on the disclosure of the appellants coupled with its matching report
leave no room for doubt that the appellants were not involved in the instant case, as such they are not entitled for any leniency; that all the prosecu tion witnesses are trustworthy,
reliable and confidence inspiring, which corroborated each other on material points, as such
the impugned judgment is liable to be maintained.
11. We have heard the learned counsel for the parties and minutely perused the re cord
with their able assistance.
12. Perusal of statement of PW -1 complainant reveals that he with his relatives including
PW-2 Abid, PW -3 Ghulam, Mst. Mahdem, deceased Malik Naz, injured baby girl Barmish
were sleeping at the place of occurrence (Ex.P/23 -B); in the mid night at 3:15, the appellants
entered in his house equipped with pistol and Kalashnikov for committing robbery,
introduced themselves as personnel of some agency and came for search of house. The appellants took all the people in one room and started searching of the house, in the meanwhile, PW -1 complainant managed to get himself out of the house by scaling over the
boundary wall and informed his neighbours i.e. PW -5 Waris and others. PW -1 complainant
along with PW -5 and other neighbours com ing to the place of occurrence, heard firing shots
inside of the house, when they reached near the house, they saw a man, who after jumping on the wall was running towards the motorbike parked with the wall, who was caught hold along with pistol in his han d by the complainant with the help of neighbours; on inquiry, the man
told his name as Altaf son of Mazar (appellant) and disclosed the name of his companion as Abdul Basit (appellant), who was equipped with Kalashnikov. PW -1 complainant has seen
the appel lants equipped with firearm weapons entered in his house.
13. PW-2 Abid is the star eye -witness of the occurrence, who saw both the appellants
equipped with firearm weapons, who attributed specific role of firing to the appellant Abdul Basit upon Mst. Mali k Naz and injured baby Barmish. PW -2 in his statement before the
Court deposed that he along with other family members were sleeping in his house; in the preceding night at about 3:15 a.m, he saw the appellants equipped with pistol and Kalashnikov were pre sent in the courtyard of the house for committing robbery, introduced
themselves as personnel of some agency took all the members of the house in one room and started searching of the house; in the meanwhile, PW -1 succeeded to escape from the house
for the purpose of informing the neighbours. The women and children started shouting upon
the appellants, who extended threats. On resistance by Mst. Malik Naz and Mst. Mahdem, the appellant Abdul Basit started firing, due to which bullets hit Mst. Malik Naz and her
daughter Barmish; Mst. Malik Naz fell down; the appellants fled away from the place of occurrence. On hearing shouts from outside the house, PW -2 came out and saw that the
appellant Altaf Raja armed with pistol was empowered by PW -1, PW -5 and other people of
the area. He stated that Mst. Malik Naz succumbed to injuries at the spot and baby girl sustained serious injuries. Both PW1 and PW -2 have identified the appellant Abdul Basit
during identification parade conducted by PW -4 Waseem Ahmed Judicial Magi strate, Turbat.
14. PW-1 and PW -2 though related to each other are natural witnesses and have no
enmity for false implication of appellants in the instant case. The statements of PW -1 and
PW-2 further corroborates in material aspect with PW- 5, who deposed that he and his
relatives were sleeping in the house; at about 3:00 a.m. (night). PW -1 came to their house
and told them that thieves have entered into his house; he along with other relatives were
going towards the place of occurrence, they heard fire sho ts inside the house, when they
reached near the house, they saw a man, who after jumping over the wall was running
towards his motorbike parked with the wall; they caught hold the appellant Altaf Raja with
pistol in his hands with the help of PW -1 and othe r people; they entered in the house of PW -
1 complainant and saw the deceased and baby girl in a pool of blood. The statements of PW -
5 has also not been shaken in the cross -examination.
15. Careful perusal of record reveals that the prosecution witnesses re mained consistent
throughout and there is no material contradiction and dishonest improvement to discard their
testimony. No enmity, ill -will or malice has been shown to believe that the appellants have
falsely been implicated.
16. In pursuance of disclosure of appellant Altaf Raja, the PW- 23 I.O. conducted raid on
the house of acquitted co -accused Saifullah, wherefrom he recovered the crime weapon i.e.
Kalashnikov from the possession of appellant Abdul Basit and sealed the crime weapon Kalashnikov which wa s supported with the positive report of the firearm expert (Ex.P/22- B)
wherein it has been clearly mentioned that the five empties of bullets have been fired from the Kalashnikov (Ex.P/12- A).
17. The appellant Altaf Raja has shared the common intention wit h appellant Abdul Basit.
Though the appellant Altaf Raja has not taken part in firing upon deceased or injured baby girl, but the killing has been made during the course of robbery in furtherance of the common
intention of the appellant Altaf Raja, hence t he appellant Altaf Raja has rightly been held
vicariously liable for the murder of deceased by the trial Court and his conviction under section 302(b), P.P.C. is not open to any exception. In this regard, reliance is placed in the case of Muhammad Arshad v . State PLD 1996 SC 122.
"Section 34, P.P.C. which embodies the rule of vicarious liability contemplates an act done in furtherance of common intention of all. The essence of liability envisaged under this section lies in the existence of a common intention and to attract the application of this provision, it has. to be shown that the criminal act complained of was done by one of the accused in furtherance of common, intention of all. Now the intention is a state of mind which is not susceptible of direct proof and can only be
inferred from the attendant circumstances of the crime. A prior the existence of common intention which usually consists of motive, pre -content and pre -arrangement
cannot always be proved by direct evidence. In some cases, direct evidence such as confessions or testimony of approver may be available to prove the common intention but in most of the. cases, it has to be gathered from the facts disclosed in evidence and surrounding circumstances of the case".
18. The ocular evidence corro borated in all material aspects is trustworthy and reliable
and the prosecution has successfully proved its case against the appellants, who with common intention entered into the house of complainant, committed robbery and effectively fired at the deceased by causing fatal injury resulting into the death of Mst. Malik Naz and
firearm injury to the baby girl Barmish. There are no extenuating circumstances to award
lesser sentence to the appellant Abdul Basit. We find no misreading or misappreciation of evidence of the trial Court.
For the above reasons, Criminal Appeals Nos. (T) 42 and 54 of 2021 are dismissed.
Consequently, the Murder Reference No.03 of 2021 is answered in AFFIRMATIVE.
JK/176/Bal. Appeals 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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